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Evidence Class Notes




Schauer, Fall 2008 

    1. The Nature of Evidence Law (FRE 103, 104) 1
    2. Relevance
    1. Relevance and Irrelevance (FRE 401, 402) 4
    1. Probative Value and Prejudice (FRE 403, Old Chief) 5
    2. Conditional Relevance (FRE 104(b)) 7
    3. Probabilistic Evidence (Collins, Blue Bus Problem) 7
    4. Subsequent Remedial Measures (FRE 407) 8
    5. Settlement Efforts and Insurance (FRE 408, 409, 410, 411) 9
    1. Character and Habit
    1. Basic Rule (FRE 404(a) 11
    1. Methods of Introducing Character Evidence (FRE 405) 13
    2. Permissible Uses of Specific Past Conduct (FRE 404(b)) 14
    3. Habit (FRE 406) 17
    4. Sexual History of Alleged Sexual Assault Victim (��Rape Shield Laws��) (FRE 412) 17
    5. Prior Sexual Offenses of Sexual Assault ∆ (FRE 413, 414, 415) 19
    1. Hearsay
    1. Basic Rule (FRE 801, 802) 20
    1. Exceptions to the Hearsay Rule 23
      1. Non-Hearsay Exceptions (FRE 801(d)) 23
      2. Hearsay Exceptions Where Availability of Declarant Is Immaterial (FRE 803) 30
      3. Hearsay Exception Where Declarant Is Unavailable (FRE 804) 40
      4. Other Hearsay Exceptions (FRE 805, 807) 44
    2. Hearsay and the Right to Confrontation (Crawford) 45
    1. Impeachment (FRE 607, 611)
    1. Character for Untruthfulness (FRE 404(a), 608) 49
    1. Prior Criminal Conviction (FRE 609) 51
    2. Rehabilitation (FRE 608(a)(2)) 53
    3. Use of Extrinsic Evidence (FRE 608(b)) 54
    1. Expert Testimony
    1. Lay Testimony (FRE 701) 55
    1. Expert Testimony (FRE 602) 56
      1. Who Qualifies as an Expert (FRE 702) 56
      2. Permissible Subjects and Scope (FRE 702, 703, 704, 705, 706) 56
      3. Reliability (Daubert) 59
    1. Scientific Evidence
    1. Traditional Forensic Evidence 62
    1. Lie Detection Tests 62
    2. DNA Testing 63
    1. Privileges
    1. General Rule (FRE 501) 64
    1. Attorney-Client Privilege 66
    2. Spousal Privileges (Trammel) 70
    3. Other Privileges 71
    1. Physical and Documentary Evidence
    1. Authentication (FRE 901, 902) 73
    1. ��Best Evidence�� (Original Document) Rule (FRE 1001, 1002, 1003, 1004) 76
    2. Demonstrative Evidence 78
    1. Presumptions, Burden of Proof, and Judicial Notice
    1. Burdens and Presumptions in Civil Cases (FRE 301) 79
    1. Burdens and Presumptions in Criminal Cases 80
    2. Judicial Notice 80 

I. The Nature of Evidence Law 

  • Rule-Based: Approach adopted by Federal Rules
    • Juror are idiots: We need rules of evidence because we distrust jurors
    • Jurors tend to overvalue certain types of evidence: Reputation, character, third- or fourth-hand—certain kinds of evidence that may have a little probative value but jurors will wildly over estimate the importance of this evidence
  • Federal Rules of Evidence
    • Mechanics
      • Process is dominated by preference for live witnesses swearing under oath what they saw
      • Witnesses lie with enormous frequency at trial, and at least some of the rules are designed to take that into account—also the fact that most liars get away with it, and most are competent enough at it to stand up under cross
      • Testimony (lay) witnesses give must be on the basis of their personal knowledge (FRE 602), i.e., ordinary witnesses should be talking about things about which they have personal knowledge
      • Schauer: In cases where the applicable FRE seems not to make sense, a judge is likely to stretch another FRE to avoid a nonsensical result
    • At trial
      • Evidentiary issues typically raised in objection to a question, where the question is objectionable independent of the answer
      • In general, leading questions impermissible on direct, and permissible on cross
      • Even more common than an objectionable question is an objectionable answer to a non-objectionable questions
        • Objectionable question: ��Objection��
        • Objectionable answer: ��Motion to strike��
    • Motion in limine: Pre-trial motion, often in context of privileges—way to move to exclude evidence even before the trial starts (idea is to discuss potentially prejudicial evidence outside the view of the jury)
      • Almost all appeals based on evidentiary questions are going to lose—not taken seriously by appellate courts
    • Large movement towards free proof (inclusion) over last 40 years
  • The Need for Rules of Evidence
    • Jury ��black box��:
      • FRE 606(b): Upon inquiry into the validity of a verdict, a juror may not testify as to any matter or statement made during deliberations or to anything that may have affected his or another juror��s mind, emotions, or mental processes in relation to the juror��s decision to join or dissent from the verdict
        • Exceptions: A juror may testify concerning:
          • (1) Whether extraneous prejudicial information was brought to the jury��s attention
          • (2) Whether any outside influence was improperly brought to bear on a juror
          • (3) Whether there was a mistake in entering the verdict on the verdict form
    • Because the jury is a ��black box,�� there is little ��quality control�� at the end of the process.  Thus, it perhaps makes sense to have quality control at the front end, i.e., to scrutinize what goes into the black box, since we don��t scrutinize what happens inside the box.
  • General Provisions
    • Intrinsic vs. Extrinsic rules:
      • Intrinsic rules: Designed to increase the reliability of the truth-finding process
        • Rules excluding evidence on grounds that admitting the evidence would impair the truth-seeking process
        • E.g., exclusion of hearsay, character evidence, plea negotiations— things we think jury will overvalue
      • Extrinsic rules: Designed to serve goals other than truth-finding
        • E.g., privilege against self-incrimination (protects notions of personal autonomy and that ∆ should not have to help prosecution in his own trial)
    • FRE 103 (Rulings on Admission of Evidence):
      • (a) Admission decision is error only if affects substantial rights of party and is either objected to or proof is offered.
      • (c) Proceedings should be conducted to prevent jury from hearing inadmissible evidence if possible.
      • (d) Appellate courts can correct plain errors affecting substantial rights even though not brought to attention of court.
    • FRE 104 (Preliminary Questions):
      • (a) Preliminary questions about qualification of person to serve as witness, existence of a privilege, or admissibility of evidence shall be determined by the court—court not bound by rules of evidence in making such determinations , except those with respect to privileges.
        • Standard of proof for admitting evidence regarding preliminary questions under this subsection is preponderance of the evidence (case?)
      • (b) If relevancy of evidence is conditional upon a condition of fact, that evidence shall be admitted if other evidence is introduced sufficient to support a finding that the condition is fulfilled.
        • Standard of proof for admitting evidence regarding conditions under this subsection is sufficient evidence (i.e., enough evidence that a reasonable jury could conclude that the condition has been satisfied)
      • (c) (Preliminary) (evidentiary) hearings should be conducted out of hearing of jury if justice requires, when the accused is a witness and so requests, and always when dealing with the admissibility of confessions.
      • (d) An accused does not become subject to cross-examination on other matters by testifying on a preliminary matter.
      • (e) This rule does not limit ability of party to introduce evidence on weight or credibility.


II. Relevance 

  1. Relevance and Irrelevance
    • FRE 401 (��Relevant evidence��): Relevant evidence is evidence having any tendency to make the existence of any material fact in issue more or less likely than it would be without the evidence 
      • Two components:
        • (1) Materiality: Of consequence to the determination of the action
        • (2) Probativeness: Tending to make the existence of a material fact more or less probable than it would be without the evidence
    • FRE 402 (Admissibility):
      • (1) Only relevant evidence is admissible
      • (2) All relevant evidence is admissible, unless there is a legal reason to the contrary (in Constitution, statute, or other rules)
      • (3) Irrelevant evidence is inadmissible
    • Definitions:
      • Materiality: ��So what?�� idea (whether the fact makes any difference to the determination of the action)
      • Probative Value: The evidence must logically tend to prove the proposition for which it is offered
      • Logical relevance: Tendency to make something more probable than it would be without that evidence
      • Legal relevance: Combination of materiality and logical relevance and probative value
    • General notes on admissibility:
      • ��A brick is not a wall��: A piece of evidence only needs to increase the likelihood a little bit in order to be admissible
      • Admissibility is a threshold determination: Once evidence is admitted, it is up to the jury to determine what weight to give it.
    • Case:
      • U.S. v. James, 9th Cir., 1999 (p.25): ∆ claimed self-defense, said decedent had told her about vicious crimes he��d committed, which made her fearful.  Held, evidence of decedent��s crimes should have been admitted, because decedent was more likely to tell ∆ that he had committed vicious crimes if he had in fact committed those crimes
  1. Probative Value and Prejudice 
    • FRE 403 (Exclusion of relevant evidence): Relevant evidence may be excluded if its probative value is substantially outweighed by its danger of an unfair prejudicial effect 
      • Judge also has discretion to exclude otherwise relevant evidence if it would
        • (1) Confuse the issues,
        • (2) Mislead the jury, or
        • (3) For considerations of wasted time or resources
      • ��Unfair�� prejudice: An undue tendency to move the tribunal to decide on an improper basis (that is, one not supposed to be part of the evaluative process), commonly, that not always, an emotional one (p. 51, McCormick on Evidence)
        • ��Unfair�� is the key word, because all relevant evidence is prejudicial to one side or the other
      • How evidence might be unfairly prejudicial:
        • (1) Might ��inflame�� the jury
        • (2) Jury might overweigh certain evidence��s probative value (give it undue weight)
        • (3) Admission of evidence might bring in other, otherwise inadmissible evidence
    • Evidence that looks like it is at best minimally or marginally probative should not be admitted unless there is other evidence that will make it substantially probative (so as to justify the amount of time and expense to get it in)
    • Two Theories of how jurors evaluate probativeness
      • Bayesian (cumulative): Pieces of evidence come in one by one.  Jurors start with a prior probability, and every time a piece of evidence comes in revise the probability upwards or downwards, depending on whether the proposition becomes more likely or less likely after the piece of evidence comes in
      • Holisitic: Jurors weigh evidence based on how well the evidence fit together with all of the other evidence
    • Cases: 
      • State v.  Bocharski (AZ SC, 2001, p.39): Murder trial, method of death not at issue.  Grisly photos were introduced showing angle of stab wounds to head.  Held, photos more prejudicial than probative, as they had little tendency to establish any disputed issue in the case.
      • Commonwealth v. Serge (PA SC, 2006, p.45): Prosecution made CG animation of murder for trial.  ∆ could not afford to present a CG of his own.  Held, CG animation was properly devoid of drama so as to prevent jury from improperly relying on an emotional basis. 
      • US v. James (9th Cir., 1999, p.50): Dissent argues okay for judge to exclude evidence that decedent committed vicious crimes in the past, because evidence might tend to make the jury view the victim as a ��bad man�� who deserved what he got, thus leading the jury improperly to base its verdict on emotion
      • US v. Myers (5th Cir., 1977, p.54): Evidence of flight too remote from time of crime (in this case three weeks), so evidence��s unfair prejudice substantially outweighed its probative value
        • Chain of inference re: evidence of flight:
          • (1) From ∆��s behavior to flight
          • (2) From flight to consciousness of guilt
          • (3) From consciousness of guilt to consciousness of guilt concerning the crime charged (Schauer thinks this is the most problematic of the inferences)
          • (4) From consciousness of guilt concerning the crime charged to actual guilt of the crime charged
    • Effect of stipulations
      • Old Chief v. US, US SC, 1997 (p.28): ∆ stipulated to prior convictions, which was element of charged crime (felon possession of firearm). Abuse of discretion to admit prior conviction because no probative value in light of stipulation except to prejudice the jury against the ∆��s character
      • Three lessons of Old Chief:
        • (1) Prosecution of �� generally able to introduce evidence, even when ∆ agrees to stipulate to the evidence
        • (2) Both parties have a right to be able to tell a coherent story
        • (3) Parties frequently can bring in immaterial, otherwise inadmissible evidence in order to maintain narrative coherence
  1. Conditional Relevance
    • FRE 104(b) (Relevancy conditioned on fact): If relevancy of evidence depends upon another condition of fact, that evidence shall be admitted if other evidence is introduced sufficient to support a (jury) finding that the condition is fulfilled. 
      • Huddleston v. U.S., US SC: The ��finding�� that the condition is fulfilled must be by ��sufficient evidence�� (that is, enough evidence that a jury could reasonably find the conditional fact by a preponderance of the evidence)
      • IMPORTANT: The ��other�� evidence introduced must itself be admissible (otherwise it can��t be ��introduced��)
        • HLR outline says this means the ��other�� evidence introduced must be enough by itself to establish relevancy of the conditionally relevant evidence, that it is not enough that the ��other�� evidence makes the conditionally relevant evidence more likely to be relevant
        • This differs from the rule under FRE 801(d)(2)(E) allowing evidence of conspiracy to show conspiracy and thus invoke conspiracy exception to the hearsay rule, whether or not that evidence of conspiracy is itself admissible
    • Case:
      • Cox v. State (IN SC, 1998, p.32): State alleged that ∆ killed decedent in retaliation for decedent��s filing of child molestation charges against ∆��s best friend.  Evidence that ∆��s best friend had recently had charges added at bail hearing admissible only if ∆ knew about the new charges.  Held, evidence admissible because ∆ spent almost every day at best friend��s house, so there is sufficient evidence to support the inference that ∆��s best friend��s mother told ∆ about the bail hearing.  
  1. Probabilistic Evidence 
    • Courts tend to prefer direct evidence and distrust statistical evidence, especially in criminal trials 
      • Reasons:
        • Worry that juries will overvalue statistical evidence
        • Worry that heavy reliance on statistical evidence would show that we occasionally convict innocent people (i.e., that the ��emperor has no clothes��)
      • Schauer finds courts�� preoccupation with ��direct�� evidence bizarre
    • Cases:
      • People v. Collins, CA SC, 1968 (p.504): Prosecutor��s use of mathematician to establish guilt through ��product rule�� reversible error.
        • Product rule: Probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur
        • Problems with use of the product rule:
          • (1) No showing that any of the individual probabilities used were independent of each other
          • (2) All the computation could show is the probability of a random couple possessing the characteristics in question, not that the perpetrator couple actually had those characteristics
        • Schauer: A lot of the problem in this case relates to the notion that we should examine ∆��s as individuals (particularistic), rather than using generalizations
      • Blue Bus Problem: �� is forced off the road in the middle of the night by bus, but saw no identifying marks.  �� can offer evidence that RT only bus company authorized to operate on route, and the times matched.  Suit dismissed for lack of direct evidence; �� only had naked statistics and that��s not enough to survive summary judgment.
      • Hertz v. Kaminsky:  Auto accident caused by large yellow and black truck that said Hertz on it. Evidence can show that 90% of trucks with those characteristics are owned by Hertz, 10% by lessees; this is enough to be admissible absent other evidence
  1. Subsequent Remedial Measures 
    • FRE 407 (Subsequent remedial measures): Evidence of subsequent remedial measures (to time of injury) by ∆ is: 
      • Not admissible to prove (1) negligence (2) culpable conduct, (3) product defect, or (4) need for warning, but
      • Admissible when offered for another purpose, e.g., to prove (1) ownership, (2) control, or (3) feasibility of precautionary measures, if controverted, or (4) for impeachment
    • Rationale:
      • Intrinsic: Conduct is not an admission
      • Extrinsic: Want to encourage (or at least not discourage) steps in furtherance of added safety
    • Cases:
      • Mahlandt v. Wild Candid Survival (8th Cir., 1978): Wolf attacks beagle, owners then chains wolf to fence; wolf then attacks child.  Wolf owner��s chaining of wolf to fence admissible in child attack case but inadmissible in beagle attack case.
      • Tuer v. McDonald (MA CA, 1997, p.95): �� dies of heart attack as a result of alteration of heart stabilization drug.  Hospital then changes dosage protocol.  Court refuses to allow evidence in on feasibility or impeachment grounds, defining ��feasible�� as ��a risk worth taking�� (rather than as a mere ��possibility��)
      • Clausen v. Storage Tank Development Corp. (1st Cir. 1994, p. 305): �� slipped and fell on ramp at job site. Judge allowed evidence that ∆ later replaced ramp because arguably went to issue of control and not culpability.
  1. Settlement Efforts and Insurance 
    • FRE 408 (Offers to compromise): Evidence of offers to compromise and evidence of statements made in compromise negoations not admissible to prove:  
      • (1) Liability,
      • (2) Invalidity of the claim or amount (evidence of statements made in compromise negotiations not admissible), or
      • (3) For impeachment thorough prior inconsistent statements
    • NOTE: This rule applies ONLY to cases where there is a dispute AND compromise negotiations (and a usually a claim) as to the validity or to amount of the underlying claim that is the subject of the negotiations
    • NOTE: This rule does NOT bar evidence of offers to compromise otherwise discoverable, e.g., to show (1) control, (2) witness bias (see E&E, p.24), (3) lack of undue delay, or (4) obstruction of criminal investigation
    • Case:
      • Bankcard America, Inc. v. Universal Bancard Systems, Inc. (7th Cir., 2000, p.207): �� wants to introduce evidence that ∆ during settlement negotiations lulled �� into breaching their contract.  Court admits because goes to �С�s state of mind and explanation for its actions and it does not seem likely to have any ��chilling�� effect on future negotiations.
    • FRE 409 (Payment of medical expenses): Evidence of offers or promises to pay medical or similar expenses occasioned by injury not admissible to prove liability for the injury
      • NOTE: The rule protects ONLY the offer itself, and NOT statements surrounding the offer (unlike FRE 408 and offers to compromise)
    • FRE 410 (Plea negotiations—civil and criminal cases): The following are inadmissible:
      • (1) Withdrawn guilty pleas,
      • (2) Nolo contendere pleas
      • (3) Statements made during plea negotiations with a prosecutor which either:
        • (a) Do not result in a guilty plea, or
        • (b) Result in a guilty plea that is later withdrawn
      • Exceptions: The above statements are admissible when:
        • (1) Offered to prove perjury if the statement was made under oath and in the presence of counsel
        • (2) When in fairness the statements should be considered contemporaneously with another statement introduced into evidence, or
        • (3) When used against a ∆ other than the accused who made the statement
      • Case:
        • U.S. v. Biaggi (2d Cir., 1990, p.128): Court admits evidence that ∆ rejected offer of immunity from prosecution in return for testifying about wrongdoing of other ∆��s; courts finds ∆��s rejection to be probative of a state of mind devoid of guilty knowledge
    • FRE 411 (Liability insurance)::Evidence of liability insurance (or lack thereof) is
      • Not admissible as evidence of (1) negligence or (2) wrongful conduct, but
      • Admissible for other purposes, such as proof of (1) agency, (2) ownership, (3) control, or (4) witness bias
      • Rationale: If jurors know ∆ has liability insurance, jurors will treat action as being against insurer rather than against ∆


III. Character and Habit

(see flowchart p.151) 

  1. Basic Rule
    • FRE 404(a) (Character evidence generally): Cannot introduce evidence to prove a person��s character to support an inference that the person acted in conformity with his character on a particular occasion, with three exceptions. 
      • Schauer:
        • It��s rare for character evidence to come in directly; rather, character evidence usually comes in as evidence of particular past actions.
        • FRE 404(a) represents a general belief that, with propensity evidence, in balancing probative value against prejudicial effect it��s better to err on the side of prejudicial effect
        • FRE 404(a) makes a substantial difference in a number or trials, since the probative value of character evidence can tend to be quite high
      • Propensity rule: Prosecution or �� cannot introduce evidence to prove that ∆ has a propensity to commit a certain type of crime
      • Rationale:
        • Danger of unfair prejudice likely to substantially outweigh the probative value of the evidence:
          • (1) Jury might give excess weight to character evidence
          • (2) Jury might decide ∆ is a ��bad person�� and thus deserves to punished (maybe previous sentence was too short), whether or not ∆ is actually guilty of this particular crime
          • (3) Preventive conviction: Jury might decide ∆ is dangerous (��might do it again��) and thus should be taken off streets, whether or not ∆ is actually guilty of this particular crime
        • We want to focus on this particular case, not relitigate previous cases
        • Notion that a person deserves a fresh start—punish for what they��ve done, not who they are
      • Two circumstances where propensity rule does NOT apply:  
        • (1) When propensity evidence not offered to prove action in conformity with the trait
          • E.g., Cleghorn v. New York Central: Employee��s history of intoxication admissible because offered to establish employer��s negligence in continuing to employ the alcoholic employee.  Admissible against the employer, not the employee.
        • (2) When character is at issue
          • E.g., cases where the person��s character is part of the cause of action
    • Exceptions:
      • (1) FRE 404(a)(1): Character of ∆, in criminal trial:
        • ��Mercy rule��: ∆ may offer pertinent evidence of his own character to support the inference that he did not commit a charged crime.
        • (a) If ∆ offers evidence about a pertinent trait of his own character, prosecution can offer evidence rebutting ∆��s evidence
          • E.g., Commonwealth v. Pring-Wilson (MA): ∆ allowed to introduce evidence of his reputation for peacefulness
        • (b) If ∆ introduces evidence of the victim��s character, even if ∆ offers no evidence about his own character, the prosecution can show the ∆ has the same (or similar) character trait
      • (2) FRE 404(a)(2): Character of victim, in criminal trial:
        • (a) If ∆ introduces evidence of pertinent trait of victim��s character, prosecution can introduce evidence to rebut ∆��s evidence of victim��s character
          • E.g., Commonwelath v. Pring-Wilson (MA): ∆ allowed to introduce evidence of victim��s prior violent acts
        • (b) In a homicide case, if ∆ claims self-defense, even if ∆ has not offered any evidence of the victim��s character or aggressiveness (but only that the victim was the first aggressor), prosecution can introduce evidence of victim��s peacefulness
      • (3) FRE 404 (a)(3): Character of witness, in both civil and criminal trial
        • See FRE 607-09
      • NOTE: FRE 413-415 also contain exceptions to 404(a)
    • Cases:  
      • Michelson v. U.S., US SC, 1948 (p.223): ∆ accused of bribing government officials, calls witnesses testifying to his good character.  Prosecution asks ∆��s character witnesses whether they are familiar with ∆��s 30 year-old arrest for receiving stolen goods.  Held, question okay because both crimes proceed from the same ��defects of character�� and thus weakens ∆��s assertion that he was known as a good, law-abiding citizen.
    • General rule: FRE 404(a) says all propensity evidence is out, except when it is in under FRE 404(b) (see below)
      • In actuality, however, the practice seems to be that all evidence is in except when it is out (burden of proof issue)
      • If a lawyer is creative enough, propensity evidence usually can still come in under FRE 404(b)
    • IMPORTANT: FRE 403 balancing still applies to propensity evidence that comes in under either FRE 404(a)��s exceptions or 404(b).
      • U.S. v. Guardia (10th Cir., 1998, p.215): Probative value of propensity evidence depends on considerations such as the:
        • (1) Similarity of the prior acts to the acts charged,
        • (2) Closeness in time of the prior acts to the charged acts,
        • (3) Frequency of the prior acts,
        • (4) Presence or lack of intervening events, and
        • (5) Need for evidence beyond the testimony of the ∆ and alleged victim. 
  1. Methods of Introducing Character Evidence 
    • FRE 405 (Methods of proving character): 
      • (a) In all cases where character evidence is admissible, evidence may be made by testimony as to reputation or in the form of an opinion (but not as to specific instances of conduct)
        • On cross-examination (in these circumstances), inquiry into relevant instances of conduct is permissible
      • (b) When character of person is an essential element of a charge or defense, proof may be made by specific instances of that person��s conduct 
        • This provision applies only when the existence of the character trait, and not any conduct in conformity with that trait, is the thing to be proved
    • Purpose of cross-examination exception allowing inquiry into specific conduct:
      • (1) If character witness has offered reputation evidence, to test witness��s knowledge of ∆��s reputation
      • (2) If character witness has offered opinion evidence, to test witness��s familiarity with ∆
  1. Permissible Uses of Specific Past Conduct 
    • FRE 404(b) (Permissible uses of past acts): Evidence of other crimes, wrongs, or acts may be admissible when it is offered to prove something other than character of person to show action in conformity therewith 
      • NOTE: Evidence of uncharged misconduct is routinely admitted in criminal trials on theory that it is being used to prove something other than character
      • Standard of proof: To be admissible, a past act need be proved only to the extent necessary for a reasonable jury to be able to find that the past act occurred and that ∆ was the actor (��sufficient evidence�� standard)
        • I.e., ��similar act�� evidence relevant only if jury could reasonably conclude (1) that the act occurred and (2) that ∆ was the actor
        • Preliminary finding by court not required (Huddleston v. U.S, p.190)
    • Permissible uses of past acts: To show proof of
      • (1) Motive
        • Evidence that ∆ committed crime in the past might be admissible to show that motive for ∆��s new crime was avoiding arrest
        • In prosecution for injury stemming from driver��s failure to stop streetcar at stop, evidence that streetcar driver failed to stop at previous two stops admissible to show driver likely was behind schedule and thus in a hurry
          • NOT admissible to show that driver who did not stop earlier is more likely not to stop later
      • (2) Opportunity 
        • If ∆ accused of robbery using key ∆ stole during earlier robbery, evidence that committed earlier robbery admissible to show how ∆ got in
      • (3) Intent
        • In prosecution for mailing stolen coins, evidence that ∆ had stolen credit cards in his home admissible to rebut ∆��s argument that he was planning to turn the coins in
          • NOT admissible to show that person who previously stole credit cards is more likely to have stolen coins
      • (4) Preparation
      • (5) Plan
      • (6) Knowledge
        • If person hit by FedEx truck, fact that driver had previously been involved in three accidents admissible in negligence suit against FedEx to show FedEx��s knowledge of driver��s poor driving record, but inadmissible in action against driver
      • (7) Identity
        • Mode of operation (��signature crimes��):
          • INADMISSIBLE to show that the crime was the ��∆��s type of crime��
          • ADMISSIBLE to show that the crime could not be ��anyone else��s crime�� (i.e., that no one else could have committed the crime)
          • I.e., admissibility depends on how unique the act was
      • (8) Absence of mistake or accident (��doctrine of chances��)
        • Doctrine relies on the belief that multiple misfortunes, if similar enough and rare enough, suggest guilt ONLY because of the unlikelihood of innocent coincidence
        • This shows the limits of the propensity rule—if the probability that it wasn��t chance becomes high enough, evidence becomes admissible despite fact that evidence still rests on propensity (viz., assumption that a guilty person would have the propensity to repeat the crime)
      • NOTE: This is not an exception to 404(a); rather, 404(a) is the exception to the general rule that relevant evidence is admissible
    • Cases: 
      • People v. Zackowitz (NY CA, 1930, p.137): ∆ accused of murder.  Prosecution introduces evidence that ∆ owned several pistols and a tear-gas gun in his radio box at home.  Held, prosecution used evidence to show ∆ was man of ��vicious and dangerous propensities�� and so reverses conviction.
        • Evidence of guns would have been admissible had:
          • ∆ bought guns in expectation of encounter with victim, because would have been evidence of preparation and design
          • ∆ dropped the extra guns at scene of crime, because would have been evidence of identity of perpetrartor. 
          • ∆ brought extra guns with him to scene of crime (but not used them), because would have been evidence of preconceived design
      • U.S. v. Trenkler (1st Cir., 1995, p.161): ∆ created bomb in 1986.  Now, ∆ charged with creating bomb in 1991 with many similar characteristics, including method of connecting wires, use of magnets, and use of toggle switch purchased from Radio Shack.  Held, similarities were ��sufficiently idiosyncratic�� to permit an inference that ∆ created both bombs (identity).  Though none of the similarities in and of themselves were highly distinctive, taken together, the similarities were persuasive. 
      • U.S. v. Stevens (3rd Cir., 1991, p.170): Two white air force police officers robbed at gunpoint, and female officer sexually assaulted.  ∆ seeks to use ��reverse 404(b)�� and introduce testimony to show that another, similar and near-in-time crime was not committed by ∆, thus tending to show ∆ was innocent of the robbery and assault of the white officers (identity).  Held, evidence admitted on theory that lower standard applies when seeks to introduce ��other crimes�� evidence than when prosecution does, because unfair prejudice to ∆ is not a factor, but only relevancy (i.e, probativeness vs. waste of time and confusion)
      • U.S. v. DeGeorge (9th Cir. 2004, p.180): Evidence that ∆ had previously lost yachts at sea was admissible because it explained why ∆ changed the yacht��s ownership before scuttling it, which was an essential part of the prosecution��s narrative that ∆ had artificially inflated yacht��s value and then purposefully scuttled it (i.e., evidence of plan).
  1. Habit 
    • FRE 406 (Habit; routine practice): Evidence of (1) habit of a person or (2) routine practice of an organization is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice (but is not admissible to show character (?)) 
      • NOTE: Evidence of habit does not need to be corroborated or attested to by eyewitnesses to the behavior
    • Habit: One��s regular, predictable, almost ��reflexive�� response to a repeated, specific situation
      • The key characteristics of ��habitual�� behavior are regularity, predictability, mechanicalness (non-volitional)
    • Evidence adduced from multiple sources taken together demonstrates a uniform pattern of behavior (Loughan v. Firestone Tire, p.281)
    • Case:
      • Halloran v. Virginia Chemicals, Inc., NY CA, 1977 (p.240): �� was injured by exploding Freon can.  Court allows in evidence that �� used immersion coil on previous occasion to heat Freon, provided ∆ can establish that �� so used an immersion coil enough times to constitute a habit.
  1. Sexual History of Alleged Sexual Assault Victim (��Rape Shield Laws��) 
    • FRE 412 (Sex offense cases; relevance of victim��s past sexual behavior): In any civil or criminal proceeding involving alleged sexual misconduct, evidence of any alleged victim��s other (1) sexual behavior or (2) sexual predisposition is not admissible, except
      • In a criminal case: Admissible if:
        • Otherwise admissible under FRE, AND is evidence of:
        • (b)(1)(A): Specific instances of sexual behavior by the alleged victim offered to prove that someone other than ∆ was the source of semen, injury, or other physical evidence
        • (b)(1)(B): Specific instances of sexual behavior between ∆ and alleged victim:
          • Offered by ∆ to prove consent, or
          • Offered by the prosecution
        • (b)(1)(C) When exclusion would violate ∆��s constitutional rights
      • In a civil case: Admissible if
        • (1) Otherwise admissible under FRE, AND
        • (2) probative value substantially outweighs the danger of harm to ANY victim and of unfair prejudice to ANY other party,
        • Evidence of alleged victim��s reputation admissible ONLY if it has been placed in controversy by the alleged victim
      • NOTE: Exceptions to FRE 412 are contained in FRE 412 itself, and are NOT subject to FRE 403 or any other rules
    • NOTE: Use of evidence of alleged victim��s past sexual behavior generally admissible to show that alleged victim��s testimony is demonstrably false, i.e., for impeachment purposes (to challenge victim��s credibility)
      • BUT, no consensus among courts on how far a ∆��s right to cross-examine an alleged victim to expose the alleged victim��s past false complaints (i.e., no consensus on whether ∆ can cross-examine only to show bias regarding the particular occasion, or also to show alleged victim��s untruthful character generally)
    • Methods of introducing evidence of victim��s past sexual behavior (US v. Saunders, p. 288)
      • Admissible: Evidence of specific prior acts, if directly probative
      • Inadmissible: Reputation and opinion evidence, unless put in controversy by the alleged victim
    • Rationales:
      • (1) Encourage rape victims to report their crimes
      • (2) Worry that jurors will overvalue evidence of victim��s sexual history
      • (3) Ease difficult of proving rape cases, because rape cases generally harder to prove than other types of cases
    • Generally, question of previous sexual activity is probative of consent on this occasion
      • Argument is that a previous consenter is more likely to have consented on this occasion than someone who is not known previously to have consented
    • Cases:
      • State v. Smith (LA SC, 1999, p.320): FRE 412 inapplicable to evidence that alleged victim in the past made false allegations regarding sexual activity.  Such evidence concerns the victim��s credibility, not her prior sexual behavior, history, or reputation for chastity
      • Olden v. Kentucky (US SC, 1988, p.327): ∆ allowed to impeach alleged victim��s testimony by introducing evidence that alleged victim was living with Russell, when alleged victim claimed during testimony to be living with her mother.  ∆ allowed to cross-examine alleged victim ��to show a prototypical form of bias on the part of the witness��
  1. Prior Sexual Offenses of Sexual Assault ∆ 
    • Evidence of (specific instances of (see E&E, p.52)) ∆��s prior sexual assault or child molestation is (1) admissible and (2) may be considered for its bearing on any matter to which it is relevant in: 
      • (1) Prosecutions for sexual assault (FRE 413)
      • (2) Prosecutions for child molestation (FRE 414)
      • (3) Civil cases claiming damages for sexual assault or child molestation (FRE 415)
    • Rules not limited to ∆��s prior sexual assaults against the complaining witness
    • NOTE: most states have not adopted FRE 413
    • Case:
      • U.S. v. Guardia (10th Cir., 1998, p.215): Court holds that FRE 403 balancing still applies to evidence of ∆��s prior sexual assaults sought to be admitted under FRE 413.  Although indisputably probative, propensity evidence has prejudicial potential, and the two must be weighed against each other.  It was not error for trial court to exclude evidence of prior sexual assaults by ∆, as such evidence would tend to confuse the jury and turn the trial into a series of mini-trials of ∆��s alleged prior offenses.
        • Schauer: Filtering evidence ∆��s prior sexual crimes through FRE 403 balancing reduces the impact of FRE 413-15.


IV. Hearsay

(see flowchart p.369) 

  1. Basic Rule
    • Basic Rule: Factual disputes in cases should be decided based on live, sworn testimony in court, not on secondhand accounts of what other people said outside of court  
      • FRE 802: Hearsay is not admissible excepts as provided by the FRE, or by other rules prescribed by the US SC pursuant to statutory authority from Congress
    • Rationales (see E&E p.64):
      • (1) Hearsay likely to be less reliable, because of lack of (a) cross-examination, (b) absence of demeanor evidence, and (c) absence of oath
      • (2) Juries are likely to overvalue hearsay statements, i.e., likely not to discount their reliability
        • Schauer finds this rationale unpersuasive, because everyone always discounts third-hand information
    • Definitions (FRE 801):
      • (a) Statement (FRE 801(a)): An
        • (1) Oral or written assertion, or
        • (2) Nonverbal conduct of a person intended as an assertion
          • NOTE: This definition excludes all evidence of conduct not intended as an assertion
          • E.g., ship captain who boards ship with family not thereby asserting ship is safe, unless he intends bringing his family along to be an assertion that the ship is safe
      • (b) Declarant (FRE 801(b)): A person who makes a statement
      • (c) Hearsay (FRE 801(c)): Hearsay is:
        • (1) An assertion (i.e., intended communication)
        • (2) Made or done by someone other than the declarant while testifying at trial
          • ��Out-of-court statement��: Any statement other than the statement made under oath and in front of the factfinder during the proceeding in which the statement is being offered into evidence
          • Thus, even self-quotation can be hearsay
        • (3) Offered into evidence to prove the truth of the matter asserted by the declarant
          • I.e., offered into evidence to establish that the statement��s content is true
          • I.e., relevant only to prove the truth of what it asserts
          • IMPORTANT: The ��matter asserted�� is the matter asserted in the statement offered into evidence, not the matter asserted by the party offering the evidence
    • Implied Assertions:
      • (1) Nonverbal conduct that is assertive in nature or intended as the equivalent of words, or
        • E.g., pointing to a suspect in a police line-up
        • E.g., NRC chairman taking of his family to blast site for bomb test is a statement that he believes the blast site is safe, because NRC chairman clearly intends his action to have that effect
          • NOTE: The fact that nonverbal conduct indicates one��s belief is generally not understood to be a statement unless it was intended to indicate one��s belief.
      • (2) Verbal conduct that intends to communicate non-specified facts by implication
        • E.g., telling a person not to run the stop sign ahead, which communicates by implication that there is a stop sign ahead
      • Because implied assertions are ��inherently communicative,�� they are hearsay if offered to prove the truth of the implied assertion
      • Case:
        • United States v. Zenni (p. 59): Police searching ∆��s house pursuant to warrant answered phone several times, and people on the other end made statements about placing bets.  Held, utterances of telephone betters were nonassertive verbal conduct because they did not intend to communicate any assertion, and so not hearsay.
    • Non-Hearsay (i.e., permissible) Use of Out-of-Court Statements 
      • (1) Thoughts/Perceptions/State of mind:
        • Lyons Partnership (p. 50): Testimony that children mistook dinosaur costume as Barney was not hearsay because not offered into evidence to prove that the Duffy dinosaur was Barney, but rather only that children thought (or perceived) that he was Barney.
      • (2) Knowledge/Notice: Out of court-statements may be used to prove a person��s knowledge of the existence of a fact, rather than to prove the actual existence of the fact.
        • United States v. Parry (p. 51): Mother��s testimony that son referred to caller as narcotics agent was circumstantial evidence that he had knowledge of agent��s identity, not proof that caller was a narcotics agent
        • Surgical malpractice hypo: Surgeon��s statement that ��the sponge count doesn��t seem right�� not hearsay because offered to show that surgeon was on notice that there was a problem, not that the sponge was still in the patient (i.e., the truth of the surgeon��s implied assertion)
        • General rule: If statement offered to show there was a problem, hearsay.  If, however, statement offered to show ∆ knew about the problem, not hearsay.
      • (3) Oral agreements (legally operative words) (Creaghe v. Iowa Home Mutual Casualty, p. 56): Hearsay rule does not exclude relevant testimony as what words contracting parties uttered when making or the terms of an oral agreement
        • Legally operative words are like ��verbal acts�� that operate independently of the speaker��s belief or intended meaning
      • (4) Performative (or imperative) utterances: Instructions and demands fall outside the scope of the hearsay rule, because they do not make any truth claims.
        • United States v. Montana: Only issue of credibility was whether the witness reported the demand to the court correctly
      • (5) Words offered to prove their effect on the listener
        • E.g., words that caused the listener to fear
      • (6) Prior inconsistent statements offered to impeach
      • NOTE: In each of these categories, whether the declarant believed the assertion when she made it is irrelevant; all that matters is whether the declarant actually made the assertion
    • IMPORTANT: Just because a statement is either (a) not hearsay or (b) admissible under a hearsay exception does not automatically make the statement admissible (rather, only makes the statement non-excludable); the statement must still pass the FRE 403 relevance balancing test
  1. Exceptions to the Hearsay Rule 
  1. Non-Hearsay Exceptions (i.e., Statements That Are Not Hearsay) (FRE 801(d)) 

IMPORTANT: Because not hearsay, these statements can all come in substantively

    • NOTE: Impeachment evidence does not come in substantively
    • This is important in cases where the only real evidence that the prosecution has is an earlier statement by a witness that contradicts the witness��s current testimony and implicates the ∆; if the statement can come in only as impeachment, and not substantively, the judge must direct a verdict of for ∆

1. Prior Statement by a Witness (see chart on p.417) 

    • FRE 801(d)(1): A statement is not hearsay if:
      • (1) The declarant testifies at trial,
      • (2) Subject to cross-examination, and
      • (3) The statement is:
        • (A) Inconsistent with the declarant��s testimony, and was given under oath subject to penalty of perjury
          • NOTE: Failure to allege self-defense earlier counts as a prior inconsistent statement when ∆ claims self-defense for first time on stand at trial (Fletcher)
          • NOTE: FRE 613 says that extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless (1) the witness is afforded an opportunity to explain or deny the statement and (2) the opposite part is afforded an opportunity

            to interrogate the witness about the statement, or (3) the interests of justice otherwise require

            • FRE 613 does not apply to party-opponent admissions as defined in FRE 801(d)(2))
        • (B) Consistent with the declarant��s testimony, and is offered to rebut express or implied charge against the declarant of recent fabrication or improper influence or motive
          • IMPORTANT: To be admissible, the consistent statements must have been made before the charged recent fabrication or improper influence of motive (Tome)
            • BUT, may still be relied on for credibility purposes (i.e., to support a witness��s statements), even if not admissible substantively because made after the motive to fabricate arose
          • NOTE: The rules permits statements to rebut an alleged motive, not to bolster the veracity of the story told (Tome)
        • (C) One of identification of a person made after perceiving the person (i.e., lineups)
          • NOTE: Statements of identification always admissible
          • Identifying statement still admissible even when witness who made the statement cannot now, because of memory loss, remember seeing the person (Owens)
    • Cases:
      • Albert v. McKay (p. 65): Witness��s prior statements could only be used to discredit him as a witness and not to prove negligence.
      • U.S. v. Owens (US SC, 1988, p.451): Victim with memory loss testified to previously identifying attacker while in hospital, but could not identify attacker that day in court. Held, victim��s identification admissible, because victim can be cross-examined and his memory loss brought out at trial.
      • U.S. v. Barrett (1st Cir. 1976, p.421): Witness testified that ∆ told him ∆ had committed the robbery.  ∆ seeks to introduce evidence that witness later told another person that the witness did not believe ∆ was guilty.  Held, ∆ can introduce evidence of later conversation to impeach witness.  To be received as prior inconsistent statement, contradiction need not be in ��plain terms��; rather, enough that statement was ��clearly incompatible�� with witness��s testimony.
      • U.S. v Ince (4th Cir., 1994, p.424): During second trial (following mistrial), government again called witness who had previously offered statement that ∆ told her he had pulled trigger, but now denied that ∆ told her that.  Government then called police officer to whom witness had made statement that ∆ had told her he had pulled trigger to ��impeach witness��s credibility.��  Held, allowing officer to testify that witness had earlier told him ∆ had told her he had pulled trigger was prejudicial error.  Court should rarely, if ever, permit government to ��impeach�� its own witness by presenting what would otherwise be inadmissible hearsay if that hearsay contains an alleged confession by ∆.  Further, probative value of officer��s testimony for impeachment purposes (the only effect by which its probative value may be measured, because officer��s testimony was offered solely for purposes of impeachment) was nil, so testimony fails FRE 403 balancing.
      • Fletcher v. Weir (US SC, 1982, p.430): ∆ arrested for stabbing victim, does not allege self-defense until on witness stand at trial.  Held, ∆��s failure to allege self-defense when arrested was admissible for impeachment purposes.
      • Tome v. U.S. (US SC, 1995, p.439): ∆ charged with sexually abusing his child, asserts child is fabricating alleged abuse because she wants to live with her mother.  Prosecution introduces statements child made to others describing the alleged abuse in order to rebut suggestion of improper motive.  Held, these statements inadmissible because made after time at which ∆ alleged child formed motive to live with her mother.
      • Commonwealth v. Weichell (MA SJC, 1984, p.448): ∆ charged with murder.  Prosecution introduces composite sketch witness of shooting helped prepare.  Held, sketch admissible as compilation of statements of witness identifying ∆ after witness perceived ∆.

2. Admissions (Statements) by Party-Opponents

    • Basic Rule:
      • FRE 801(d)(2) (Admission by party-opponent): A statement is not hearsay if it is (1) offered AGAINST a party to the current suit and is:
        • (A) The party��s own statement, in either an individual or a representative capacity (��declaration against interest��),
        • (B) A statement for which the party has manifested an adoption or belief in its truth,
        • (C) A statement by a person authorized by the party to make a statement concerning the subject
        • (D) A statement by the party��s agent or servant concerning matter within the scope of employment or agency, made during the existence of the relationship
        • (E) A statement made by a coconspirator of the party during the course of and in furtherance of the conspiracy
      • ��Bootstrap rule�� (FRE 801(d)(2)): Contents of statement shall be considered but are not alone sufficient to establish:
        • (C) Declarant��s authority,
        • (D) Existence and scope of agency or employment relationship, or
        • (E) Existence of conspiracy and participation therein of declarant and party against whom the statement is offered
      • THUS, admissions doctrine is not limited to statements made directly by the party against whom they are introduced.  Rather, it applies when it seems right to hold the party against whom the evidence is offered at least partially responsible for the out-of-court statement
      • Rationale:
        • ��Admissions�� more reliable than other hearsay evidence because unlikely that a party is lying when it is saying something against its interest.
        • Adversary system: Parties should pay for their mistakes
    • IMPORTANT: An admission is a statement made by a party.  To be an ��admission�� the party��s statement need not necessarily ��admit�� anything.
    • IMPORTANT: A party ��admission�� is not hearsay only when it is introduced against the party that made the statement.
    • Admissions and Completeness
      • FRE 106 (Related writings or recorded statement): When a writing or recorded statement, or a part thereof, is introduced, an adverse party may require the introduction at that time of any other part of that or any other writing or recorded statement which in fairness ought to be considered contemporaneously with it
      • When one party has made such use of a document that misunderstanding or distortion can be prevented only through presentation of another portion of that document, the material required to avoid distortion is ipso facto relevant. 
    1. Direct Admissions 
      • FRE 801(d)(2)(A): The party��s own statement, in either an individual or a representative capacity (��declaration against interest��)
        • Statement does not need to be inculpatory; only needs to have been made by party against whom it is offered. (United States v. McGee, p. 73)
        • Rationale: Admissibility of direct admissions into evidence is a result of the adversary system, rather than a satisfaction of the conditions of the hearsay rule (Advisory Committee)
        • Case:
          • Salvitti v. Throppe (p. 72): ∆ visited �� and admitted fault to the car accident, statement admissible
      • ��Multiple�� (��second-order��) hearsay is admissible: No personal knowledge as to matter admitted by party required for admission against that party
        • Mahlandt v. Wild Candid Survival (8th Cir., 1978, p. 400): Even though not based on personal knowledge, Poo��s note and statements about the wolf biting the child are admissible because the note was his own statement, and manifested an adoption of the belief that the statement was true.
    1. Adoptive Admissions 
      • FRE 801(d)(2)(b): Statement of which the party has manifested an adoption or belief in its truth (including admissions by silence or acquiescence)
        • General idea: Sometimes, by saying or not saying (or doing or not doing) some particular thing in response to another��s statement, one can be taken to have adopted what the other person said (i.e., be taken as having actually said the other person��s statement oneself)
      • Admission by Silence
        • Requirements: Must show that the ��declarant��:
          • (1) Heard the statement,
          • (2) Had the opportunity to respond, and
          • (3) That it would be reasonable to expect someone in the declarant��s situation to say something (i.e., protest) if that person intended not to make the postulated admission
            • E.g., car accident hypo: Driver and angry wife
        • Cases:  
          • United States v. Forts (p. 80): Admission by silence when witness asked two ∆��s about a bank robbery and the first ∆ answered, detailing the other ∆��s role, while the other ∆ remained silent.
          • Mere failure to respond to a letter does not indicate adoption of its contents, unless it was reasonable under the circumstances for the sender to expect the recipient to respond and correct those erroneous assumptions (Southern Stone Co. v. Singer, p. 81)
    1. Authorized Admissions 
      • FRE 801(d)(2)(C): Statement by a person authorized by the party to make a statement concerning the subject
      • Advisory Committee: Communication to a third party or intent to communicate is not required for the contents of the communication to be admissible as an admission
        • E.g., party��s books or records, prepared by bookkeeper, are admissible against that party
      • Case:
        • Statements made by lawyer in a representative capacity are admissible as authorized admissions when directly related to the management of litigation (Hanson v. Waller, p. 83)
    1. Agent and Employee Admissions 
      • FRE 801(d)(2)(D): Statement by the party��s agent or servant (1) concerning a matter within the scope of the agency or employment, (2) made during the existence of the relationship
      • IMPORTANT: The issue is whether the activity the agent��s statement concerned was a matter within the scope of her agency or employment, not whether the statement itself was within the scope of her agency or employment.
      • Cases:
        • Fed Ex Driver Hypo: FedEx driver hits pedestrian, says ��I��m sorry.�� FedEx argues the driver is only authorized to drive and drop off packages, not to make statements on behalf of the employer.  BUT, FedEx is wrong.  The real issue is whether the driver is authorized to be driving.  If the driver was authorized to drive the truck, his jumping out and saying sorry is a statement about his driving, and if it��s a statement about his driving it fits the exception because it concerns a matter with the scope of his employment relationship with FedEx, made during the course of that relationship
        • Mahlandt v. Wild Candid Survival (8th Cir., 1978, p. 400): Poo��s note saying the wolf bit the child is admissible because the statement concerned a matter within the scope of his agency and was made while Poo was acting as an agent.
        • Sea-Land Service v. Lozen International (p. 89): Internal company email admissible as admission by party-opponent, because made by employee within scope and duration of employment.
    1. Co-Conspirator Admissions 
      • FRE 801(d)(2)(E): Statement by a coconspirator of a party made (1) during the course and (2) in furtherance of the conspiracy.
        • IMPORTANT: The (1) existence of a conspiracy and (2) the party��s participation therein must be established by a preponderance of the evidence (FRE 104) in order for statements of coconspirator to come in, but a conspiracy does not actually need to have been charged
        • Bootstrap rule: A co-conspirator��s statement alone is not enough to establish a conspiracy such that the statement can come in under FRE 801(d)(2)(E), but can be considered as evidence of the conspiracy, when corroborated by other independent evidence (see FRE 801(d)(2)(E))
      • Bourjaily v. United States (US SC, 1987, p.406):
        • When preliminary facts relevant to Rule 801(d)(2)(E)) are disputed (e.g., existence of conspiracy), the offering party must prove those facts by a preponderance of the evidence
        • A court may consider the hearsay statements sought to be admitted in making a preliminary factual determination as to those preliminary facts (see FRE 104)
      • Advisory Committee: FRE 801(d)(2) has been amended since Bourjaily to codify Bourjaily��s holding that a court shall consider statements by a coconspirator during the course of and in furtherance of the conspiracy in determining whether the conspiracy exists and the extent of each party��s participation in the conspiracy, but that such statements alone are insufficient to establish the existence of or parties�� participation in the conspiracy.
        • FRE 801(d)(2)(E) also extends Bourjaily��s holding to 801(d)(2)(C) (��authorized admissions��) and 801(d)(2)(D) (��agent and employee admissions��)
  1. Hearsay Exceptions Where Availability of Declarant Immaterial (FRE 803) 

FRE 803

    • IMPORTANT: FRE 803 deals with the nonapplicability of the hearsay rule, not the admissibility of evidence
      • I.e., Hearsay evidence not excluded as hearsay under FRE 803 still must pass the relevance (FRE 403) hurdle
    • Thinking behind FRE 803:
      • Hearsay admitted under FRE 803, in view of FRE drafters, sometimes better than declarant��s live testimony
        • I.e., hearsay under FRE 803 so good it makes live testimony superfluous
      • FRE 403 proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify not calling the declarant to testify, even though the declarant is available

FRE 803: The following are not excluded by the hearsay rule, even though the declarant is unavailable as a witness: 

3. Present Sense Impression

    • FRE 803(1):  Statement describing or explaining an event or condition made while declarant was perceiving that event or condition, or immediately thereafter
      • Rationale: Substantial contemporaneousness of event and statement negate the likelihood of deliberate or conscious misrepresentation
      • Participation by declarant in event not required
      • Statement by 911 caller describing events he is witnessing meets criteria for either contemporaneous or excited utterance (Bemis v. Edwards)
      • Statements MUST be based on personal firsthand knowledge (Bemis v. Edwards)
    • Cases:
      • Bemis v. Edwards (p. 102): There was sufficient evidence that witness was actually relaying what others were telling him and did not actually view the police��s use of excessive force, so inadmissible

4.  Excited Utterance

    • FRE 803(2): Statement relating to a startling event made while the declarant was under the stress or excitement caused by the event
      • Rationale: Circumstances which produce a conditions of excitement may temporarily still the capacity of reflection and produce utterances free of conscious fabrication
        • I.e., people are less likely to lie when they��re in an excited state
        • Schauer disputes this (thinks reaction to startling event frequently is to blame some else to cover your own butt)
        • BUT, what about potential impairment of perception?
      • Central question is whether declarant was excited at the time she uttered the statement
        • Thus, amount of time between startling event and declarant��s statement may be important
      • Participation by declarant in event not required
    • Cases:
      • Fact that witness was a law enforcement agent does not preclude admissibility under the excited utterance exception (US v. Obayagbona, p. 99: law enforcement officer��s ��excited utterance�� caught on his tape recorder was admissible into evidence against ∆)
      • Domestic violence victim��s statements on 911 tape are admissible excited utterances even though she did not testify at trial, as well as statements given at the scene within 5 minutes of call (State v. Lee, p. 100)
      • Defendant��s statements at time of his arrest are not admissible as excited utterances without support that unduly excited so as to alter conscious reflections (US v. Elem, p. 104)

5. State of Mind or Physical Condition

    • FRE 803(3): Statement of the declarant��s then-existing:
      • (1) State of mind (i.e., belief, knowledge),
      • (2) Emotion,
      • (3) Sensation, or
      • (4) Physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)
    • EXCEPTION: Does not include a statement of memory or belief to prove the fact remembered or believed, unless it relates to declarant��s will
      • Purpose of exception is to prevent destruction of hearsay rule by allowing state of mind, provable by hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind
    • Case:
      • Defendant��s parole officer��s testimony that he believed the government was after him and trying to set him up, depending on the phrasing of the testimony, was admissible as circumstantial evidence as to ∆��s state of mind. (US v. Harris, p. 109)
    • The Hillmon Doctrine
      • Extension of the state-of-mind exception to statements of present intent offered to prove that declarant actually did what she said she would
        • IMPORTANT: Statements admissible only to prove declarant��s future conduct, not the future conduct of any other person (is this right?)
      • Mutual Life Insurance Co. v. Hillmon (US SC, 1892, p.495):
        • �� trying to collect life insurance for husband��s death.  ∆ insurance company claims �С�s husband not dead, but that body found was of Walters.  ∆ attempted to introduce evidence that Walters wrote to three people expressing his intention to leave for Wichita with �С�s husband.
        • Held, Walter��s letters did not prove Walter actually left for Wichita with �С�s husband, but are admissible as to his intent to leave for Wichita with �С�s husband (i.e., his state of mind).  Walters��s intent to leave for Wichita with �С�s husband in turn makes it more likely that he did go to Wichita with �С�s husband.  Thus, Walters��s letters are competent evidence of intent, a material fact bearing upon the question in controversy.
      • Sharp distinction between declarations of intention, pointing towards the future, and declarations of memory, pointing towards the past  
        • Shepard v. US (p. 115): Wife��s declaration that husband poisoned her pointed towards past, and was not narrowly admitted as to state of mind, but rather to rebut ∆��s theory of suicide
      • Statements of a declarant��s intent are admissible under FRE 803(3) to prove subsequent conduct of a person other than the declarant without corroborating evidence
        • US v. Houlihan (p. 118): Victim��s statement to his sister that he was going to meet the defendant on the evening of his murder is admissible as evidence of future intent

6. Medical Diagnosis

    • FRE 803(4): Statement made for purposes of medical diagnosis or treatment and describing:
      • (1) Medical history, or
      • (2) Past or present symptoms, pain, or sensations, or
      • (3) The inception or general character of the cause or source thereof insofar as reasonably pertinent to diagnosis or treatment
      • Rule does not adversely affect doctor-patient privileges
      • Rule does not extend to statement from a physician consulted only for the purpose of enabling her to testify (i.e., consulted for litigation purposes only) (E&E, p.123, says this is false, i.e., that FRE 803(4) does not distinguish between treating and testifying physicians, although some jurisdictions do)
    • Rationale:
      • Patient has a strong motive to tell the truth to a diagnosing physician because the diagnosis or treatment will depend in part upon what the patient says
    • Applications:
      • Statement extends to causation, but not fault (e.g., ��car hit me�� admissible; ��car ran red light�� not admissible)
      • Statement need not have been made by the person who needed the medical help
      • Statement need not have been made to a physician, but rather merely to someone connected with obtaining medical services
      • U.S. v. Iron Shell (8th Cir., 1980, p.511): ∆ charged with attempted rape.  Doctor testified that during physical examination, alleged victim told doctor a man had attempted to rape her.  Held, doctor��s testimony about alleged victim��s statements admissible.  Method by which alleged victim sustained her injuries was relevant to diagnosis because eliminated other possible physical causes of her injuries.

7. Recorded Recollection

    • Past Recollection Recorded (FRE 803(5)): When a witness sometime in the past knew something (e.g., a license plate number), saw the thing or remembered it, and at that time wrote it down
      • FRE 803(5): Memorandum or record:
        • (1) Concerning a matter about which a witness once had knowledge but now cannot sufficiently remember to be able to testify fully and accurately, and
        • (2) Shown to have been (a) made or adopted by the witness when the matter was fresh in the witness��s mind and (b) to reflect that knowledge correctly
          • NOTE: If admitted, record may be read into evidence but not introduced as an exhibit, unless offered by an adverse party
        • (1) Witness must be in court and actually be testifying, and therefore be available for cross-examination (FRE 803(5)
        • (2) Witness must be the person who made the record and therefore can testify as to its (a) authenticity and (b) the circumstances of its creation
        • (3) The recorded recollection (writing, etc.) is then entered into evidence
        • (4) When the witness has no present recollection of what is contained in the writing, the record is usually offered as a substitute for memory (US v. Riccardi, p. 130))
      • Case:
        • Johnson v. State (TX CCA, 1998, p.523): Witness swore statement saying that ∆ killed victim, now says he does not remember the killing and does not remember making the statement.  Held, statement not admissible under FRE 803(5) because witness at trial did not acknowledge the accuracy of the statement
    • Present Recollection Refreshed (FRE 612): When a witness has forgotten something, is shown an item, and then says, ��Now I remember��
      • FRE 612: A writing may be used to refresh a witness��s memory, BUT any writing so used must be:
        • (1) Shown to other side at hearing, and
        • (2) The other party may (a) inspect the writing, (b) cross-examine the witness on it, and (c) introduce into evidence any portions of the writing which relate to the testimony of the witness
      • The item used to refresh the witness��s memory is not admitted into evidence and the jury does not see it, but the item must be shown to opposing counsel
      • Schauer: The traditional view is that virtually anything may be used (i.e., is reasonable) to refresh a witness��s present recollection
      • The item used to refresh the witness��s memory does not have to be a writing—it can be anything (smell, sound, etc.)
      • The principal evidence under this exception is the recollection and not the writing (US v. Riccardi, p. 130)

8.  Business Records

    • FRE 803(6) (��Record of regularly conducted activity��): A record, memorandum, report, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses:
      • (1) Made at or near the time by a person with knowledge, or
      • (2) From information transmitted by a person with knowledge,
        • IMPORTANT: The person furnishing the information must be a person in the business or activity, unless her information falls under another hearsay exception
      • (3) If kept in the course of regularly conducted business activity, and
      • (4) If it was the regular practice of that business activity to make the record, memorandum, report, or data compilation
      • (5) As shown by testimony of the custodian or other qualified witness or by satisfactory certification
      • (6) Unless the source of information or circumstances of preparation indicate lack of trustworthiness
      • NOTE: ��Business�� includes institutions, associations, professions, occupations, and callings of every kind, whether or not conducted for profit
    • FRE 803(7) (��Absence of entry in records kept in accordance with FRE 803(6)��): Lack of entry of a matter in records, reports, etc. kept in accordance with FRE 803(6)) may be used to prove nonoccurrence or nonexistence of the matter, if:
      • (1) The matter was of a kind of which a record, report, etc. was regularly made and preserved,
      • (2) Unless other sources of information or circumstances indicate a lack of trustworthiness
    • Rationale for the rules:
      • Businesses rely on records for successful operation, and those who make the records do so as part of their jobs (with possibility of censure if they mess up), so business records likely to be regular, precise, and well-checked
      • Difficult and often impossible to find witnesses who can speak from firsthand knowledge about a business��s routine and often nondescript activities (Palmer v. Hoffman)
    • Qualifying ��Businesses��
      • Keogh v. Commissioner of Internal Revenue (p. 138): Personal financial diary of co-worker admissible as evidence ∆ underreported tips because diary shows every indication of ��being kept in the course of�� his own ��business activity�� ��occupation and calling.��
        • According to this case, an individual��s personal financial record-keeping is admissible under business exception
      • U.S. v. Gibson (p. 140): Ledger containing record of drug transactions admissible because made at or near the time of the events described and in the regular course of ��business��
    • Qualifying Record
      • Fact that company makes a practice out of recording its employees�� versions of their accidents does not put those statements into a class of records made in the ��regular course of business��
        • Palmer v. Hoffman (US SC, 1943, p.532): Held, accident report made by railroad engineer who died before trial inadmissible, because accident reports not made for conduct of company as a ��railroad business,�� but rather for litigation
      • Reports not prepared for litigation, but to fulfill statutory duty, are admissible  
        • Lewis v. Barker (p. 142: Personal injury and inspection report prepared after accident as required by Business Records Act admissible at trial
    • Sources of Information
      • When source of information in the record is an ��outsider�� to the business, the information must fall under another hearsay exception to be admissible (otherwise double-hearsay)
        • Wilson v. Zapata Off-shore Co. (p. 145): Sister��s comments included in a psychiatrist report introduced at trial.  Sister��s comments in report meet exceptions because the report admissible as business record and the sister��s comments admissible under 803(4) as statements made for the purpose of medical treatment
        • Johnson v. Lutz (NY CA, 1930, p.538): Police report incorporating statement by bystander excluded, even though report made by police officer in the regular course of ��business,�� because informant was not part of that business
        • U.S. v. Vigneau (1st Cir., 2000, p.536): Money orders indicating ∆ as sender not admissible because Western Union did not require independent proof of sender��s identity.  Identity of ��sender�� on money orders was indicated by someone not a part of Western Union
      • If both source and recorder are acting in the regular course of ∆��s business, the multiple hearsay is excused and the documents are admissible (Grogg v. Missouri Pacific RR (p. 147))
    • Absence of Entry in Record
      • U.S. v. Gentry (p. 147): Business records showing a pin had never been found in any other M&Ms admissible to show that the pin came from ∆ and not the candy, because finding of a pin in an M&M ordinarily would have recorded in those records

9. Public Records

    • FRE 803(8) (��Public records and reports��): Public records, reports, statements or data compilations, in any form, setting forth:
      • (A) The activities of the office or agency,
      • (B) Matters observed pursuant to duty imposed by law, as to which matters there was a duty to report, or  
        • IMPORTANT: Excluding, in criminal cases, matters observed by police officers and other law enforcement personnel
        • NOTE: Several cases have held that (B) means to allow in records of routine, nonadversarial nature, even in criminal cases (U.S. v. Weiland, U.S. v. Orozco)
      • (C) (Evaluative reports) In civil proceedings and against the government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law,
        • NOTE (Beech Aircraft v. Rainey): Conclusions or opinions from evaluative reports are admissible so long as they are:
          • (a) Based on a factual investigation, and
          • (b) Satisfy the rule��s requirements for trustworthiness
      • Unless the sources of information or other circumstances indicate lack of trustworthiness
    • FRE 803(9) (��Records of vital statistics): Records or data compilations, in any form, of:
      • (1) Births, fetal deaths, deaths, or marriages,
      • (2) IF the report thereof was made to a public office pursuant to requirements of law
    • FRE 803(10) (��Absence of public record or entry��): Certification or testimony that diligent search failed to disclose a public record, report, statement, data compilation, or entry, offered to prove:
      • (1) The absence of the record, report, statement, or data compilation, in any form, or
      • (2) The nonoccurrence or nonexistence of a matter of which a record, statement, etc. was regularly made and preserved by a public office or agency
    • Rationale:
      • Assumption that a public official will perform her duty properly
      • Unlikelihood that a public official will remember details independent of the record
    • Evaluative reports:
      • Advisory Committee: Factors to consider include in determining admissibility:
        • (1) Timeliness of the investigation,
        • (2) Special skill or experience of the official,
        • (3) Whether a hearing was held and at what level, and
        • (4) Possible motivational problems
      • Beech Aircraft v. Rainey (US SC, 1988, p.149): ∆ sought to introduce JAG report concluding that pilot error most likely cause of accident.  Held, not hearsay under FRE 803(8), because rule does not distinguish between facts and opinions contained in reports, so long as report based on factual findings
    • Public records vs. business records (FRE 803(6) as ��back door�� when FRE 803(8) does not apply):
      • U.S. v. Oates (2d Cir. 1977, p.547): Prosecution wanted to introduced report by chemist analyzing drugs seized from ∆.  Held, chemist��s report inadmissible.  Police and evaluative reports which fail to satisfy the public documents exception of FRE 803(8) cannot come in under the business reports exception of FRE 803(6)
      • U.S. v. Hayes (10th Cir. 1988, p.550): Document prepared by officer inadmissible at criminal trial under FRE 803(8); prosecution seeks to introduce as business record under FRE 803(6).  Held, document admissible.  When authoring officer or investigator testifies, FRE 803(8)(c) does not compel exclusion under FRE 803(6), because ∆ has opportunity to confront witnesses against him (i.e., does not lose confrontation rights), which was the underlying rationale for FRE 803(8).
        • Narrows Oates
      • U.S. v. Weiland (9th Cir. 2005, p.551): Prosecution sought to introduce ∆��s fingerprints and booking photo from prior conviction.  Held, admissible under FRE 803(8)(B) as public records of ��routine and nonadversarial matters.��  FRE 803(8)(B) intended to bar public records that stem from more subjective investigations and evaluations of a crime.  Court also emphasizes public records may only be admitted under FRE 803(8), and that government may not attempt to circumvent FRE 803(8) by admitting public records as business records under FRE 803(6) 

Other Exceptions under FRE 803:

    • (1) Records of religious organizations (FRE 803(11))
    • (2) Marriage, baptismal, and similar certifications (FRE 803(12))
    • (3) Family records (FRE 803(13))
    • (4) Records of documents affecting an interest in property (FRE 803(14))
    • (5) Statements in documents affecting an interest in property (FRE 803(15))
    • (6) Statements in ancient documents (more than twenty years old) (FRE 803(16))
    • (7) Market reports, commercial publications (FRE 803(17))
    • (8) Learned treatises (FRE 803(18))
    • (9) Reputation concerning personal or family history (FRE 803(19))
    • (10) Reputation concerning boundaries or general history (FRE 803(20))
    • (11) Reputation as to character (FRE 803(21))
    • (12) Judgment of previous conviction (FRE 803(22))
    • (13) Judgment as to personal, family, or general history, or boundaries (FRE 803(23))
  1. Hearsay Exceptions Where Declarant Is Unavailable (FRE 804) 

Definition of ��Unavailability�� (as a witness)

    • FRE 804(a): ��Unavailability as a witness�� (concerning the subject matter of the declarant��s statement) includes situations where declarant:
      • (1) Is exempted  from testifying by ruling of court on ground of privilege
      • (2) Refuses to testify despite order from court to do so
      • (3) Claims lack of memory
      • (4) Unable to testify because of death or physical or mental infirmity
      • (5) Is absent from the hearing and party seeking to introduce statement is unable to procure declarant��s attendance (or testimony (by deposition), under hearsay exceptions in subdivisions (b)(2) – (b)(4)) by process or other reasonable means
    • A declarant is NOT ��unavailable as witness�� if her unavailability (as defined above) is due to wrongful efforts of the party seeking to introduce the statement to prevent the declarant from attending or testifying
    • IMPORTANT: Just because a witness is unavailable under FRE 804 does not mean that the witness��s statement is automatically admissible; rather means only that we can continue the inquiry to see if one of the FRE 804(b) exceptions apply

FRE 804(b): The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: 

10. Former Testimony

    • FRE 804(b)(1): Testimony given as a witness in another hearing of the same or different proceeding or in a deposition, if the party against whom the testimony is now offered (or in civil proceeding, a predecessor in interest) had an (1) opportunity and (2) similar motive to develop the testimony by (a) direct, (b) cross, or (c) redirect examination.
      • Not required to be testimony in the same proceeding, but does require identity (similarity?) of issues to ensure the equivalent handling of the witness
      • Prior testimony in a civil case where this rule applies often is a deposition from a witness no longer available
    • Cases:
      • Trial vs. grand jury: U.S. v. DiNapoli (2d Cir., 1993, p.458): At grand jury, two witnesses denied knowledge of RICO conspiracy, but prosecutor did not challenge because did not want thereby to reveal information about wiretaps and cooperating witnesses.  At RICO trial, when the two witnesses refused to answer certain questions on 5th Amendment grounds, ∆ sought to introduce the witness��s grand jury testimony.  Held, grand jury testimony inadmissible because prosecutor did not have ��substantially similar�� motive during grand jury to challenge witness��s denial of knowledge of RICO conspiracy.
      • ∆ who invokes 5th Amendment: United States v. Bollin (4th Cir. 2001, p. 164): ∆ who invokes his 5th Amendment right has made himself unavailable for testimony to any other party, and therefore cannot invoke exception in Rule 804(b)(1)
      • ��Predecessor in interest��: If party in former suit had a like interest and motive to cross-examine about the same matters as the present party does, and was accorded an adequate opportunity for such examination, the testimony may be received against the present party (Clay v. Johns-Manville Sales (p. 166))
        • Lloyd v. American Export Lines, Inc. (3d Cir., 1978, p.463): �� and ∆ get into fight on ship.  CG investigates whether ∆��s license should be revoked, ∆ testifies at the hearing.  Later, when �� sues ∆��s employer, ∆ refuses to show at trial.  Held, ∆��s employer able to introduce ∆��s earlier hearing testimony because CG investigator, who sought to exact penalty for ∆, was ��predecessor in interest�� to ��.  Court defines predecessor in interest as a previous party ��having like motive to develop the testimony about the same material facts��

11. Dying Declaration

    • FRE 804(b)(2): In a prosecution for homicide or in a civil proceeding, statement made when declarant believed that death was imminent, concerning the cause or circumstances of what declarant believed to be her impending death
      • To make out a dying declaration, the declarant must have spoken without hope of recovery and in the shadow of impending death (Shepard v. US, p. 174)
      • Must be some basis to believe statement is based on personal knowledge (Shepard v. US, p. 174)
    • Origin of exception:
      • Historically, evidence law more concerned about sifting out lies than mistakes
      • At time when many of our trial procedures were developed, most people believed in both an afterlife and an omniscient deity (e.g., the oath)

12. Declaration against Interest

    • FRE 804(3): Statement, which was at the time of its making was so far contrary to the declarant��s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or render invalid a claim by the declarant against another, that a reasonable person in the declarant��s position would not have made the statement unless believing it to be true. 
      • IMPORTANT: A statement (1) tending to expose the declarant to criminal liability and (2) offered to exculpate the accused is not admissible, unless corroborating circumstances clearly indicate the trustworthiness of the statement
    • NOTES:
      • If statement by a party is offered against that party, the statement comes in as a party-opponent admission and therefore need not actually have been against the party��s interest
      • Exception limited to declarations against pecuniary or proprietary interests (mere embarrassment not enough)
      • Only those statements by unavailable ∆ which are self-inculpatory admissible.  Non-self-inculpatory statements, especially those that implicate someone else, are not admissible, even if made within a broader narrative that is generally self-inculpatory. (Williamson v. U.S. (US SC, 1994, p.469)
        • Non-self-inculpatory statements are not made more true or reliable because of their proximity to self-inculpatory statements
        • Statements must be viewed in context to determine whether or not they are self-inculpatory; even a facially neutral statement can turn out to be self-inculpatory (e.g., ��I hid the gun in Joe��s apartment��)
    • Rationale:
      • A person is unlikely to make something up that��s not in her own self-interest
      • A person is unlikely to make a mistake (about her observations or perceptions) against her own self-interest
    • Case:
      • Williamson v. U.S. (US SC, 1994, p.469): In confessing crime to police officer, Harris claims he was running drugs for ∆.  Harris later refuses to testify at ∆��s trial.  Held, statements in Harris��s confession implicating ∆ not admissible under FRE 804(3), because only those parts of Harris��s confession that are self-inculpatory may come in.

13. Personal or Family History

    • FRE 804(b)(4):: Statement concerning:
      • (A) Declarant��s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, ancestry, or other similar fact of declarant��s personal or family history, or
        • IMPORTANT: Declarant not required to have personal knowledge of the matter stated
      • (B) The foregoing matters, and death also, of another person, if declarant was related to other person by blood, adoption, or marriage, or was so intimately associated with the other��s family as to be likely to have accurate information concerning the matter declared

14. Forfeiture by Wrongdoing

    • FRE 804(b)(6): Statement offered against a party that has engaged or acquiesced in wrongdoing that was intended, and did, procure the declarant��s unavailability as a witness
      • For this rule to apply, the ��wrongdoing�� need not be a criminal act
      • Rules applies to all parties, including the government
      • Party��s wrongdoing and intent to procure declarant��s unavailability must be proved by a preponderance of the evidence
    • Rationale: 
      • A party who has arranged for the unavailability of a witness has waived its right to cross-examine that witness
    • Case:
      • U.S. v. Gray (4th Cir., 2005, p.484): ∆ charged with attempted assault of declarant, later kills declarant (but not prosecuted).  In later prosecution of ∆ for mail fraud, prosecution seeks to introduce declarant��s earlier criminal complaint against ∆. Held, earlier complaint admissible, because ∆��s wrongdoing in procuring declarant��s unavailability as a witness forfeits ∆��s right to exclude, as hearsay, declarant��s statements at that and any subsequent proceedings.
  1. Other Hearsay Exceptions (FRE 805 & 807)) 

15. Hearsay within Hearsay

    • FRE 805 Hearsay within hearsay not excludable under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules
    • Examples:
      • Hospital record containing an entry of the patient��s age base on information furnished by his wife
        • Hospital record qualifies as a business record entry, except that the person who furnished the information was not acting in the routine of the business.  BUT, Wife��s statement qualifies either as a statement of personal or family history (if she is unavailable), or as a statement made for purposes of diagnosis or treatment
      • Dying declaration incorporating declaration against interest by another declarant

16. Residual Exception

    • FRE 807 (Catchall provision): Statement not specifically covered by FRE 803 or 804 is not excluded by the hearsay rule if the statement:
      • Has equivalent circumstantial guarantees of trustworthiness (to the exceptions in FRE 803 and 804) and
      • (A) Is offered as evidence of a material fact (i.e., necessary to the determination of the matter),
      • (B) Is more probative on the point for which it is offered than any other available evidence, and
      • (C) Serves the general purpose of the FRE and the interests of justice by admission
      • NOTE: Party seeking to introduce statement must give sufficient notice to opposing party
    • Primary issue with rule is what the words ��not specifically covered�� mean:
      • Majority rule: FRE 807 only concerns statements not dealt with in any other exception, not statements that are inadmissible under the other exceptions
      • Minority rule (��Near miss theory��): FRE 807 applies to exceptional cases in which an exception to the hearsay rule does not apply, but the statement contains the equivalent guarantees of trustworthiness (US v. Laster (dissent), p. 187)
    • Schauer: This exception does not come up very often, and usually applies to cases in which the hearsay statement seems as reliable as statements to which other hearsay exceptions apply
    • Classic example: An old newspaper report of a factual event, such as a church fire
  1. Hearsay and the Right to Confrontation 

            (see flowchart p.609) 

    • Confrontation Clause (6th Amendment): ��In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.��
    • Admissibility of testimonial hearsay statements
      • Rule (Crawford): In a criminal suit, an out-of-court testimonial statement is admissible only if:
        • (1) The declarant is unavailable, and
        • (2) The party against whom the statement is offered had a prior opportunity to cross-examine the declarant about the statement
        • EXCEPTION: A party that obtains the absence of a witness by wrongdoing forfeits her constitutional right to confrontation
          • I.e., forfeiture by wrongdoing exception still applies
      • Case: 
        • Crawford v. Washington (US SC, 2004, p.573): ∆ husband charged with attempted murder of wife��s alleged rapist.  ∆ claims self-defense, but wife��s statement to police immediately following the incident suggests ∆ did not act out of self-defense.  Wife unavailable to testify because ∆ invoked spousal privilege, but statement could come in as a statement against interest (because wife admitted involvement in the altercation).  Held, wife��s statement inadmissible because wife unavailable and ∆ had no prior opportunity to cross-examine her about her statement
    • Testimonial statements:
      • Definition (Crawford): Statements made for the purpose of establishing or proving some fact
        • A person who makes a formal statement to government officials bears testimony in a sense that a person who makes a casual remark to an acquaintance does not
        • Examples of testimonial statements (Davis):
          • (1) Prior testimony at a preliminary hearing
          • (2) Prior grand jury testimony
          • (3) Former trial testimony
          • (4) Statements made in police interrogation
      • How to determine whether a statement is ��testimonial�� (Davis, Hammon):
        • Testimonial: A statement is testimonial when circumstances objectively indicate:
          • (1) There is no ongoing emergency, and
            • Fact that declarant��s statement occurs some time after the events she is describing ended suggests statement is testimonial (Davis)
          • (2) The primary purpose of the interrogation was to establish or prove past events potentially relevant to later criminal prosecution
            • I.e., a statement telling a story about the past (Hammon)
        • Nontestimonial: A statement is nontestimonial when circumstances objectively indicate: 
          • (1) There is an ongoing emergency, and
            • Fact that declarant was describing events as they were actually happening suggests statement was nontestimonial (Davis)
          • (2) The primary purpose of the interrogation was to resolve a present emergency (i.e., enable police assistance to meet that emergency), not learn what happened in the past
            • I.e., a statement seeking aid (Davis)
        • NOTE: It is the setting under which a statement is made, NOT the indicia of reliability, that determine whether the statement is testimonial
          • How formal a statement is seems to make a big difference
        • NOTE: A conversation that begins as an interrogation to determine the need for emergency assistance can still evolve into testimonial statements after the earlier purpose has been achieved (Davis)
          • E.g., if a 911 dispatcher stays on the line after dispatching help to inquire about an incident, the caller��s statements made after the time of dispatch might become testimonial
        • Cases:
          • Davis v. Washington (US SC, 2006, p.597): Held, 911 call��s primary purpose was to enable police assistance to meet an ongoing emergency, not to prove some past fact, so call was nontestimonial.  Call can therefore admissible either as a present sense impression or an excited utterance.
          • Hammon v. Indiana (US SC, 2006, p.597): Held, purpose of interrogation of battered wife at couple��s home following domestic violence incident was to determine what had happened, as part of investigating a possible crime, not what was then happening (because incident had by then ended), so wife��s statements to police were testimonial.  Wife��s statement to police therefore inadmissible despite likely being an excited utterance.


V. Impeachment

(see flowchart p.249) 

    • NOTE: The central issue with impeachment is whether ∆ will testify at trial given what her testimony will open her up to on cross-examination
    • FRE 611 (Mode and order or interrogation and presentation)
      • (b) Scope of cross-examination: Cross-examination should be limited to the subject matter of the direct examination and maters affecting the credibility of the witness.
        • The court may in its discretion permit inquiry into additional matters
      • (c) Leading questions:
        • (i) Direct examination: Not allowed except as may be necessary to develop the witness��s testimony
          • EXCEPTION: When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party
        • (ii) Cross examination: Allowed
    • FRE 607 (Who may impeach): The credibility of a witness may be attacked by any party, including the party calling the witness
      • NOTE: This rule does not change the basic nature of how witnesses are examined
        • E.g., leading questions still cannot be asked on direct examination and cannot use impeachment to as a back door to introduce otherwise inadmissible hearsay statements
    • Rationale for impeachment rules:
      • Traditional view: People are by nature either liars or truthtellers, and the way to determine whether someone is telling the truth on the stand is to inquire whether she is generally a liar or a truthteller
      • Alternative view (��best interests��): A person��s propensity to lie depends on the particular situation, so the way to determine whether someone is telling the truth on the stand is to inquire into her motive or occasion to lie about the question(s) asked
        • Schauer seems to subscribe to this view, thinks the traditional view is wrong
    • Assumptions on which impeachment rules rest:
      • (1) Dishonest people are mote likely to lie in a given situation than are honest people
      • (2) The character trait of untruthfulness is detectable by casual observers in the community and the community consensus is accurately transmitted among acquaintances
      • (3) Jurors, if properly instructed, will appreciate the distinction between an inference from dishonest character to untruthful testimony, and an inference from dishonest character to criminal conduct
  1. Character for Untruthfulness 
    • Character evidence; exceptions (FRE 404) 
      • FRE 404(a): Evidence of a person��s character is not admissible to purpose of proving action in conformity therewith on a particular occasion, except:
        • FRE (404)(a)(3): Evidence of the character of a witness, as provided in rules 607-09
    • FRE 608 (Evidence of character and conduct of witness):
      • IMPORTANT: Evidence under this rule is admissible solely for impeachment purposes, and not substantively
      • (a) Opinion and reputation evidence of character: The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, subject to limitations that:
        • (1) The evidence may refer ONLY to character for truth/untruthfulness
        • (2) Evidence of truthful character admissible ONLY after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise
        • NOTE: Witness giving credibility evidence usually required to be a member of the same (relevant) ��community�� as the witness whose credibility she is supporting or calling into question (Whitmore)
          • ��Community�� not necessarily geographic community
          • Schauer: Inquiry into the witness��s membership in the same ��community�� as the first witness usually merely a ritual
      • (b) Specific instance of conduct: Specific instances of the conduct of a witness, for purposes of attacking or supporting the witness��s character for truthfulness, other than for conviction of a crime (FRE 609):
        • (a) May not be proved by extrinsic evidence.
          • IMPORTANT: When a witness is cross-examined with purpose of impeaching credibility by proof of specific acts of past misconduct not the subject of conviction, examiner must accept the witness��s answer (i.e., cannot introduce extrinsic evidence to show falsity of answer) (US v. Ling)
          • Rationale: Avoiding trials-within-trials
        • (b) If probative of truth/untruthfulness, may, in the discretion of the court, be inquired into on cross-examination of the witness, concerning:
          • (1) The witness��s character for truth/untruthfuless
          • (2) The character for truth/untruthfulness of another witness about whose character the witness being cross-examined has testified
          • IMPORTANT: Cross-examining attorney must have a good-faith basis for believing (i.e., possession of some facts supporting fact) that the past acts took place (U.S. v. Whitmore (DC Cir., 2004, p.250))
      • The giving of testimony, whether by the accused or by any other witness, does not operate as a waiver of the accused��s or witness��s privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness
      • NOTES:
        • Develops FRE 404(a)��s exception for the admissibility of character evidence bearing on a witness��s credibility
        • Generally bars evidence of specific instances of conduct of a witness for the purpose of attacking or supporting her credibility, but specific instances of past conduct MAY be inquired of on cross if the witness has opened herself up to character evidence concerning truthfulness
          • The probative value of evidence of specific instances of conduct under this rule assessed ONLY in terms of its effect on witness credibility, and not its substantive value
        • The inquiry into the witness��s character under this rule strictly limited to character for veracity, not character in general, and must conform to FRE 404(a) and 405
    • Other relevant rules:
      • FRE 610 (Religious beliefs or opinions): Evidence of the beliefs or opinions of a witness on matters of religion not admissible for purpose of showing that by reason of their nature the witness��s credibility is impaired or enhanced
      • FRE 806 (Attacking and supporting credibility of declarant): Rules concerning impeachment of witnesses apply with equal force to impeachment of a hearsay declarant
  1. Prior Criminal Conviction 
    • FRE 609 (Impeachment by evidence of conviction or crime) 
      • (a) General rule: For purposes of attacking the character for truthfulness (credibility) of a witness:
        • (1a) Evidence that a witness other than the accused has been convicted of a crime shall be admitted if (subject to FRE 403):
          • The crime was (could have been) punishable by death or imprisonment in excess of one year
        • (1b) Evidence that the accused has been convicted of a crime shall be admitted if (subject to 403):
          • (a) The crime was (could have been) punishable by death or imprisonment in excess of one year, and
          • (b) The court determines that the probative value of admitting the evidence outweighs it prejudicial effect to the accused
            • No presumption of admissibility either way
            • For factors this balancing, see Gordon (below)
        • (2) Evidence that any witness has been convicted of a crime, regardless of the punishment shall be admitted if:
          • Establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness
            • Schauer: What needs to be shown is some element of concealment or of a cover-up
            • E.g., past conviction for embezzlement (or perjury or criminal fraud) probably would come in, but not past conviction for simple theft—the ultimate criminal act must involve deceit
            • IMPORTANT (Conference committee): Admission not within discretion of the court, i.e., FRE 403 balancing does not apply
        • NOTE: Inquiry into the underlying details of the crime generally not permitted, though some judges permit the witness to explain the circumstances of the crime or conviction
      • (b) Time limit: Evidence of a conviction under part (a) not admissible if the conviction or the witness��s release from confinement for that conviction—whichever is later—occurred more than 10 years ago
        • EXCEPTION: Unless the court determines, in the interest of justice, that the probative value of the conviction substantially outweighs its prejudicial effect, and the proponent gives the other party sufficient notice
          • So, presumption against admissibility if conviction more than 10 years old
      • (c) Effect of pardon, annulment, or certification of rehabilitation: Evidence of conviction not admissible if witness has received a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on finding of:
        • (i) Rehabilitation, if the witness has not been convicted of subsequent crime punishable by death or imprisonment in excess of one year, or
        • (ii) Innocence
      • (d) Juvenile adjudications: Generally not admissible
        • EXCEPTION: In a criminal case, if witness is not the accused, conviction would be admissible to attack the credibility of an adult, and admission necessary for fair determination of guilt or innocence
      • (e) Pendency of appeal: Does not render evidence of conviction admissible
        • Evidence of pendency of appeal itself is admissible
    • Preserving claims of error: In order to preserve a claim that the trial court erred in admitting evidence of ∆��s prior conviction(s), ∆:
      • (1) Must have testified at trial, (Luce v. US, US SC, 1984, p.287), and
      • (2) Cannot preemptively have introduced evidence of her conviction on direct examination (Ohler v. US, US SC, 2000, p.288)
    • Cases:
      • U.S. v. Brewer (E.D. Tenn., 1978, p.273): If ∆ reconfined pursuant to a parole violation, ∆��s release date from her second confinement is the one used for computing time under FRE 609(b)
      • Factors to consider in determining whether probative value of ∆��s past conviction outweighs its prejudicial effect under FRE 609(a) (Gordon v. US, D.C. Cir, 1967, p.276):
        • (i) Nature of the crime
          • Violent crimes less likely to bear on honesty or veracity
        • (ii) Time of conviction and witness��s subsequent history
        • (iii) Similarity between the past crime and the charged crime
          • Convictions for similar past crimes usually should not be admitted  (can��t trust jury to distinguish between conviction as evidence of impeachment and conviction as evidence of propensity)
        • (iv) Importance of ∆��s testimony
          • If ∆��s testimony very important to ∆��s case, this factor weighs against admission of past convictions, in order not to deter the ∆ from testifying
        • (v) Centrality of the credibility issue
  1. Rehabilitation 
    • FRE 608(a)(2): Evidence supporting a witness��s character for truthfulness admissible ONLY after the witness��s character for truthfulness has been attacked 
      • IMPORTANT: Evidence supporting the truthfulness of a witness��s testimony in the current proceeding may be corroborated by non-character evidence without regard to FRE 608��s restraints
        • BUT, extrinsic evidence of specific instances of witness��s past conduct for purposes of supporting his credibility not admissible
    • Determining what constitutes an attack on a witness��s character for truthfulness:
      • Attacks on character for truthfulness:
        • (1) Opinion or reputation testimony of the witness��s bad character for truthfulness (FRE 608(a))
        • (2) Eliciting on cross-examination evidence of specific acts of the witness that are probative of untruthful character (FRE 608(b)), or
        • (3) Evidence of a past conviction of the witness (FRE 609)
        • (4) Evidence in the form of contradiction, depending on the circumstances (Advisory Committee) 
          • E.g., prior inconsistent statements suggesting the witness has lied intentionally and pervasively
      • NOT attacks on character for truthfulness:
        • (1) Evidence of bias or interest (Advisory Committee)
          • Evidence of bias subject only to relevancy standard of FRE 402
        • (2) Evidence in the form of contradiction, depending on the circumstances (Advisory Committee)
          • E.g., contradicting evidence that the witness has made a mistake of perception, memory, or narration
  1. Use of Extrinsic Evidence 
    • FRE 608(b) Specific instances of the conduct of a witness, for purposes of attacking or supporting the witness��s character for truthfulness, other than for conviction of a crime (FRE 609), may not be proved by extrinsic evidence
      • EXCEPTION: Extrinsic evidence that tends to prove BOTH the witness��s character for truth/untruthfulness AND that the witness did/did not lie about non-character matters in this case (e.g., bias) may be admissible
        • NOTE: A witness��s bias is not deemed collateral because evidence of bias is not character evidence governed by FRE 608
        • US v. Abel (US SC, 1984, p.301): Extrinsic evidence that earlier witness and ∆ were both members of organization that subscribed to lying admissible because tended to show the earlier witness��s bias toward ∆ (even if it was also evidence of a specific instance of conduct tending to show the earlier witness��s character for untruthfulness under FRE 608(b))
    • Collateral evidence rule: A witness cannot be impeached by collateral evidence
      • Collateral evidence: Evidence which the party seeking to introduce the evidence would not be entitled to prove as part of its case in chief
        • E.g., evidence that witness who testified she was walking home from church when she saw the car accident was actually walking home from a brothel (because irrelevant to the issue of the car accident)
      • EXCEPTION: Evidence that tends to prove BOTH a collateral matter AND something else may well be admissible

VI. Expert Testimony 

  1. Lay Testimony
    • FRE 701 (Opinion testimony by lay witness): If a witness is not testifying as an expert, the witness��s testimony in the form of opinions or inferences is limited to opinions or inferences that are: 
      • (a) Rationally based on the witness��s perception (i.e., limited to witness��s firsthand observations),
      • (b) Helpful to a clear understanding of the witness��s testimony or resolution of a fact in issue (i.e., helpful to the jury��s factfinding), and
      • (c) Not based on scientific, technical, or other specialized (expert) knowledge within the scope of FRE 702
        • E.g., lay witness probably can testify ∆ sounded depressed, probably cannot testify ∆ was suffering from posttraumatic stress disorder
        • NOTE (Advisory Committee): A lay witness may testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established
    • Cases:
      • 911 operator and paramedics allowed to testify that ∆ was feigning grief, because both had ample time to observe and form opinions and both had daily observances and encounters with grief-stricken people (United States v. Meling (p. 441))
      • Lay witness opinion must be rationally based on own firsthand perceptions (Government of the Virgin Islands v. Knight (error to exclude eyewitnesses testimony that gun discharged accidentally))
      • For law officers not certified as experts, opinions are admissible as lay testimony only if officer (1) is participant in the conversation, (2) has personal knowledge of the facts being related in the conversation, or (3) observed the conversations as they occurred (United States v. Peoples (p. 444) (because officer��s testimony not based on firsthand knowledge but on knowledge gained from later investigation, inadmissible))
  1. Expert Testimony 
    • General rule: An expert can testify in whole or part based on information she acquired secondhand (i.e., hearsay information), so long the information is: 
      • (1) Of a type typically relied on by experts in the field, and
      • (2) The witness is drawing on special skill or knowledge
    • IMPORTANT: Expert witnesses need not testify based on personal knowledge (FRE 602)
  1. Who Qualifies as an Expert 
    • FRE 702 (Testimony by experts): A witness [may] qualify[y] as an expert by (1) knowledge, (2) skill, (3) experience, (4) training, or (5) education 
    • Cases:
      • U.S. v. Johnson (5th  Cir, 1979, p.694): Witness allowed to testify that marijuana at issue was Columbian, based on his past experience with buying, selling, and smoking lots of marijuana—FRE 702 provides that expertise can be obtained by experience as well as formal training or education
      • Jinro America, Inc. v. Secure Investments, Inc. (9th Cir., 2001, p.696): Witness who was a PI in Korea not allowed to testify as an expert about general Korean business culture, because offered only ��impressionistic generalizations�� based on his personal PI experiences in Korea and his ��hobby�� of studying Korean business practices and offered no empirical evidence for his conclusions besides a few newspaper articles and (clearly hearsay) anecdotal examples
  1. Permissible Subjects and Scope 
    • When an expert may testify: 
      • FRE 702 (Testimony by experts): If scientific, technical, or otherwise specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue (i.e., is relevant to the task at hand), a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if:
        • (1) The testimony is based upon sufficient facts or data,
          • ��Data�� is intended to encompass the reliable opinions of other experts (Advisory Committee)
        • (2) The testimony is the product of reliable principles and methods, and
        • (3) The witness has applied the principles and methods reliably to the facts of the case
      • NOTE: If party seeks to have expert witness testify about an item the jury is supposed to be competent to assess on its own (e.g., demeanor evidence), probably inadmissible because does not serve to help the trier of fact determine a fact in issue
      • NOTE (Advisory Committee): Proponent has burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence (FRE 104(a))
    • Proper/Improper subjects of expert testimony:
      • FRE 704 (Opinion on ultimate issue)
        • (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
          • BUT, testimony cannot merely tell the jury what result to reach
        • (b) No expert witness testifying with respect to criminal ∆��s mental state or condition may state an opinion or inference as to whether the ∆ had the mental state or condition constituting an element of the crime charged or defense thereto—such ultimate issues are matters for the trier of fact alone.
      • Improper topics of expert testimony:
        • (a) Matters of common knowledge
        • (b) Opinions on law and opinions on criminal ∆��s mental state at time of crime, if an element of the crime or defense
        • (c) Opinions on credibility
        • (d) Opinions on eyewitness identification
    • Basis for expert��s opinion:
      • FRE 703 (Bases of opinion testimony by experts):
        • Underlying facts need not be admissible: If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data upon which an expert witness bases an opinion or inference need not be admissible in evidence in order for the opinion or inference to be admitted
        • Test for determining when otherwise inadmissible underlying facts admitted: Facts or data otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference UNLESS the court determines that their probative value in assisting the jury to evaluate the expert��s opinion substantially outweighs their prejudicial effect (presumption against disclosure by the proponent of the expert)
          • NOTE: If admitted, such evidence can only be used to help the jury assess the reliability of the expert��s opinion—not substantively
        • NOTE: This rule completely disengages the admissibility of the expert��s opinion from the admissibility of the facts supporting the opinion, so long as other experts in the field ��reasonably rely�� upon such facts in forming opinions on the subject
      • FRE 705 (Disclosure of facts or data underlying expert opinion): An expert witness may testify in terms of opinion or inference and  give reasons therefore without first disclosing the underlying facts or data (unless the court requires otherwise), BUT may be required to disclose the underlying facts or data on cross-examination if asked
    • Other:
      • FRE 706: The court may appoint its own expert witness in lieu of experts from the parties
    • Cases: (Im)proper topics of expert testimony:
      • (a) Matters of common knowledge (and matters that require no specified knowledge to analyze): Hatch v. State Farm (p. 448): It doesn��t take an expert to know if someone is ��being a good neighbor��
      • (b) Opinions on law and opinions on ultimate issues: Hygh v. Jacobs (2d Cir., 1992, p. 704): Expert witness��s testimony that police officer��s use of force was ��not warranted under the circumstances�� and ��totally improper�� inadmissible because concerns the ultimate legal conclusion entrusted to the jury.
      • (c) Opinions on credibility: State v. Batangan (HI SC, 1990, p.709): Psychiatrist��s implicit testimony that complainant in child sexual abuse case was telling the truth inadmissible.  Expert witness can explain why sexual abuse victims sometimes act erratically in reporting and recanting allegations, but cannot give opinion on whether complainant��s behavior in this case is consistent with the alleged crime having occurred
      • (d) Opinions on eyewitness identification: U.S. v. Hines (D.Mass, 1999, p.714): Expert testimony by psychologist that people have more difficulty identifying persons of another race admissible because only provides the jury with more information with which to make an informed decision.  Expert in this case did not actually interview witness and did not suggest whether witness had in fact properly identified ∆
  1. Reliability 
    • Current Rule (Daubert): To be admitted, an expert��s testimony must both (a) rest on a reliable foundation, and (b) be relevant to the task at hand (i.e., ��fit��—help the trier of fact understand or determine a fact in issue) 
      • Pertinent evidence based on scientifically valid principles (i.e., ��good science��) satisfies these demands.
      • BASIC IDEA: To avoid exclusion, an expert witness must offer the court more than unsupported assertions; rather, must offer evidence about the basis of their asserted expertise sufficient to convince a judge that their expert testimony will provide dependable information to the factfinder (i.e., not just ��junk science��)
        • The focus of the inquiry is on principles and methodology, not on the conclusions they generate (Daubert)
        • Test (and Daubert factors) applies to all expert testimony based on scientific, technical, or other specialized knowledge (Kumho Tire)
        • Supersedes the ��general acceptance�� test
      • Daubert factors: Guidelines (not exclusive) for determining reliability of expert testimony, based on validity/reliability of the scientific method underlying the testimony:
        • (1) Testability (ability to be falsified) of technique or theory
        • (2) Publication or peer review of technique or theory
        • (3) Known or potential rate of error of technique
        • (4) Existence and maintenance of standards controlling technique��s operation
        • (5) Degree of acceptance of technique or theory within the scientific community
        • (6) Whether research conducted independent of or prior to litigation (Daubert, 9th Cir.)
        • IMPORTANT: These are guidelines—neither exclusive nor dispositive
      • Criticism:
        • Schauer: Agrees with Rehnquist dissent that Daubert test masquerades as a rule but isn��t really one, because doesn��t say how many factors needed or whether any are necessary or sufficient conditions (Schauer likes rules)
        • Schauer: Daubert applies well to science-like fields (such as ��junk science��), but less well to fields bearing little relation to science (arts, crafts, etc.)
          • BUT, maybe this is okay because lower likelihood of juror confusion in fields involving arts or crafts
      • Advisory Committee: A review of caselaw after Daubert show that the rejection of expert testimony is the exception rather than the rule
    • Old rule: ��General acceptance�� test (Frye): For expert scientific testimony to be admitted, testing method must be sufficiently well established to have gained general acceptance in the particular field in which it belongs (Frye)
      • Schauer: This test is both overinclusive (of methods that are generally accepted but objectively wrong, such as phrenology) and underinclusive (of methods that are accurate but not yet generally accepted)
      • Superseded by FRE 702 (Daubert)
    • Cases:
      • Frye v. U.S. (D.C. Cir., 1923, p.726): Systolic blood pressure test not gained sufficient scientific recognition to justify courts in admitting expert testimony based on results of such a test
      • Joiner: Court of appeals reviews trial court��s decision to admit or exclude expert testimony under an abuse-of-discretion standard
      • Daubert v. Merrell Dow Pharmaceuticals, Inc. (US SC, 1993, p.727): Children with birth defects sue drug company, seek to introduce testimony by expert witnesses based on ��reanalyses�� of past studies showing Benedictin causes birth defects, tests in which Benedictin caused birth defects in lab animals, and evidence that Benedictin��s chemical structure similar to other drugs suspected of causing birth defects.  Trial court rules inadmissible because reanlysis not a generally accepted scientific method.  US SC rejects general acceptance test and lays out factors for consideration
      • Daubert v. Merrell Dow Pharmaceuticals, Inc. (9th Cir., 1995, p.741): On remand from US SC, and applying new Daubert factors, court again refuses to allow testimony by expert witnesses that Benedictin causes birth defects, because testimony not based on preexisting or independent research or published or peer-reviewed research.  Also, testimony did not show enough of an increased chance of birth defects or that Benedictin caused �С�s particular injuries to make the testimony helpful to the jury/relevant to the issue at hand
      • U.S. v. Crumby (D. Ariz., 1995, p.753): Polygraph evidence admitted to corroborate ∆��s credibility on claim that he did not commit crime.  Polygraph satisfied Daubert factors and is both highly probative and not prejudicial in this case, as polygraph sought to be introduced to help, not hurt, ∆��s case
      • Kumho Tire Co. v. Carmichael (US SC, 1999, p.774): Trial court did not abuse its discretion in excluding testimony by tire expert asserting that blowout was caused by tire defect, because none of the Daubert factors point in favor of admissibility.  Applies Daubert factors to expert testimony based on non-scientific (i.e., technical or specialized) knowledge.


VII. Scientific Evidence 

Central inquiry: Is the method of analysis better than that which ordinary people could come up with or deploy on their own? 

  1. Traditional Forensic Evidence
    • (1) Handwriting analysis: Does not stand up well under Daubert (US v. Fuji, p.536): 
      • Few validation studies
      • No peer review by unbiased or financially disinterred community of practitioners
      • Potential error rate almost entirely unknown
    • (2) Fingerprint identification: Sufficiently reliable to meet Daubert standards (US v. Llera Plaza, PA SC, 2002, p.541)
      • Satisfies all Daubert factors except ��testing�� and ��established error rate��
        • Potential error rate has never really been established
      • Schauer:
        • Is it a problem that fingerprinting, unlike other sciences, has no independent non-litigation purpose, and tends to be prosecution-aligned?
        • Is it a problem that there is a better identification method (DNA analysis) out there?
  1. Lie Detection 
    • Admissibility: 
      • Lie detection tests almost always inadmissible (except in New Mexico), because:
        • (1) Such tests invade the traditional jury role of finding facts and determining the truthfulness of witnesses (Porter, p.471)
        • (2) Probative value questionable (questions about reliability), whereas potential for unfair prejudice extremely high (Porter, p.471)
      • Per se inadmissibility of polygraph evidence does not infringe ∆��s right to present her defense (Sheffer, p.482) 
        • Schauer: Not everything the law of evidence excludes that a ∆ believes might help her case implicate 5th and 6th Amend. questions
      • Schauer: Polygraph evidence is probably more reliable than current rules about its admissibility would suggest
        • Even if polygraph tests have only 80-90% accuracy, that is probably better than the accuracy of a typical juror trying to distinguish lying from truth-telling
  1. DNA Testing 
  • Trial procedures: 
    • DNA expert witness usually will testify about the chances that the DNA of a person randomly identified from the population will match that of the evidence
    • DNA expert witnesses can testify that the ∆��s DNA ��matches�� the DNA in evidence and that chance of another person being a match is ��highly unlikely�� or ��rare��, but cannot use the word ��unique��
    • DNA match probabilities do not take into account the likelihood of accidents or lab error in the analysis, so DNA expert witnesses frequently asked during their testimony about the possibility that there was an error in their analysis
  • Methods:
    • More accurate methods tend to require a larger sample; less accurate methods generally work with a smaller sample
    • Several methods (incl. the ��ceiling method��) work better if tester can narrow to a specific sub-population (by ethnicity, geographic location, etc.)
  • Random probability match: Theoretical likelihood that a randomly selected personal from a particular population would genetically match the trace evidence as well as the ∆ does
  • Source probability: Probability that the ∆ is the source of the recovered trace evidence
  • Guilt probability: Probability that ∆ is guilty of the crime in question
  • Admissibility:
    • US v. Shea (p.522): Robber��s blood stains collected at the scene of the crime and in the getaway vehicle, analyzed under PCR, satisfies FRE 702��s reliability requirement — any error in the DNA analysis goes to weight of the evidence, not admissibility


VIII. Privileges 

  1. General Rule
    • FRE 501 (General rule): Except as otherwise provided by the Constitution or by statute, the privilege of a witness, other person, or the government shall be governed by the principles of the common law as interpreted by the courts of the United States in the light of reason and experience.  
      • EXCEPTION: However, in civil actions, with respect to an element of a claim or defense for which state law supplies the rule of the decision, the privilege of a witness, other person, or the government shall be determined in accordance with state law
      • General rule of application: Privileges should be interpreted narrowly
    • ��Privilege��: Immunity from an otherwise generally applicable requirement, which attaches to the status or activity of the person claiming the privilege
      • NOTE: Unlike other rules of evidence, privileges exclude evidence that suffers from no suspicion of irrelevance or unreliability; rather, privileges serve entirely different social goals—and implicate more complex political interests
      • NOTE: Whereas most evidence rules are considered ��procedural�� (��intrinsic��) in the sense that they serve mainly to guide the truth-seeking process, privilege rules advance substantive social policies (��extrinsic��).
    • Four elements of professional privileges (e.g. lawyer-client, psychotherapist-patient, clergy-penitent)
      • (1) The privilege is the client��s
        • I.e., only the client (of the professional on her behalf) may assert—or waive—the privilege
        • The professional��s authority to claim the privilege for the client is presumed absent contrary evidence
      • (2) The privilege protects only those confidential communications made to facilitate professional services
      • (3) The privilege protects only confidential communications
        • A communication is ��confidential�� if the client intended that it be confidential and that it stay confidential
        • No privilege attaches if, at the time of communication, the client plans to disclose it to persons outside the privilege or knows her lawyers plans to do so
        • The client waives the privilege if she voluntarily discloses or consents to disclosure of an significant part of the communication to a person outside a privileged relationship
      • (4) The privilege protects only confidential communications
        • The communication, NOT the facts communicated, is privileged
        • Thus, if a client tells her lawyer fact and is later asked about that fact in court, she may not answer ��That��s privileged—I told it to my lawyer.��
        • Additionally, if a lawyer knows something only because her client told it to her, the lawyer may decline to answer a question about that fact
    • Proposed FRE 503-506:
      • Specific privilege rules, proposed by US SC, but rejected by Congress in favor of current FRE 501
      • Schauer: The presence or absence of a privilege from the proposed rules is strongly suggestive of the desirability of that privilege
        • Presence of privilege on the list strong argument in favor of the privilege
        • Absence of privilege a strong argument against the privilege
    • Determining whether a privilege should exist:
      • (1) Is the asserted privilege on the proposed FRE list?
        • Lawyer-client, psychotherapist-patient, husband-wife, clergymen
      • (2) Is the type of communication at issue one that should be encouraged?
      • (3) Will the type of communication at issue be more likely to take place if it is confidential?
      • (4) Will the type of communication at issue be better if it is confidential?
        • Schauer: Doctor-patient interactions would most likely be no different if doctor-patient privilege did not exist, so the privilege probably makes no difference
      • Trammel v. U.S. (US SC, 1980, p.864): Rule 501 evinces an ��affirmative intention not to freeze the law of privilege,�� but rather ��to leave the door open to change.��
  1. Attorney-Client Privilege 
    • Elements: 
      • (1) Communication
        • Substance of communications, not that they occurred, is what is protected. (Kendrick)
        • Lawyer��s observations/perceptions of his client NOT privileged, because not communication
        • Giving a lawyer a document does NOT protect that document from being disclosed in future litigation (E&E p.200)
        • Attorney-client privilege protects only those disclosures necessary to obtain informed legal advice, which might not have been made absent the privilege (Tornay)
        • Sources of fees and client��s identity
          • General rule: NOT privileged
            • Neither the source and manner of payment between a lawyer and client nor the client��s identity is privileged (In re Osterhoudt, 9th Cir., 1983, p.909)
          • Exception: A client��s identity may be privileged if in the circumstances of the case disclosure of the identity of a client is in substance a disclosure of the confidential communication in the professional relationship between the client and the attorney.
      • (2) In confidence
        • Presence of a non-lawyer third-party destroys privilege (Gann)
          • Presence of paralegal or legal intern does not destroy privilege, but presence of random other people (friends, family, etc.) does destroy the privilege
        • Intention or knowledge that communication will be disclosed to a third party destroys privilege, as does actually disclosure by client to a third party
        • Inadvertent disclosure:
          • General rule: Unless an inadvertent disclosure results from such a gross degree of negligence that it is not conceivable that the discloser could not have known she was inadvertently disclosing privileged communication, communication still considered to be confidential
          • ��Totality-of-the-circumstances�� test for determining whether an inadvertent disclosure waived the privilege (Koch Foods v. GE Capital Corp. (M.D. Ala., 2008, p.904):
            • (1) The reasonable of the precautions taken to prevent the disclosure
            • (2) The amount of time taken to remedy the error
            • (3) The scope of the discovery
            • (4) The extent of the disclosure
            • (5) The overriding issue of fairness
          • NOTE: The totality-of-the-circumstances approach, rather than a per se intent-based approach, appears to be the modern trend
      • (3) Between a lawyer and client
        • Corporate context:
          • Modern rule: So long as an employee��s communication to corporate counsel falls within the scope of her employment (i.e., concerns subjects or activities to which the employee��s employment relates), the communication is privileged
            • Makes no difference whether the employee was authorized to admit or say what she did or not
          • In corporate context, attorney-client privilege extends beyond the corporation��s ��control group�� (Upjohn)
      • (4) In the course of provision of legal services
        • If information disclosed during solicitation of legal services, privileged
          • Schauer: BUT, if there is no anticipation that the nonlawyer-lawyer relationship will actually turn into a formal lawyer-client relationship, not privileged
        • Attorney-client privilege does not extend to disclosures made after the attorney refuse to undertake representation (Gionis)
        • If an act doesn��t fall within the scope of professional employment, it is not covered by privilege (Hughes)
        • Future crime/fraud exception: Legal advice sought and given in furtherance of the commission of a crime NOT privileged
    • Rationale: 
      • Knowing that communications will remain confidential even after death encourages a client to communicate fully and frankly with counsel (Swidler & Berlin v. US (p. 549))
    • Cases:
      • Communication:
        • Physical characteristics and objective observations of client��s demeanor and attitude not included in privilege, because observable by anyone who talked to the client (U.S. v. Kendrick (p. 555))
        • Attorney-client privilege protects only those disclosures necessary to obtain informed legal advice, which might not have been made absent the privilege, so privilege does not extend to fee information (Tornay v. US (p. 556))
      • In confidence:
        • Howell v. Joffe (N.D. Ill., 2007, p.895): ∆��s attorney left message on �С�s phone, and, thinking the call had ended, continued a conversation she was having with ∆ about ��.  Held, ∆ and her attorney��s conversation following the intended end of ∆��s attorney��s phone message to �� was privileged, because it originated in confidence and was not intended to be disclosed.  The inadvertent disclosure via phone does not constitute a waiver of the privilege.
        • ∆ knew or should have known that third parties were present, so attorney-client privilege claim fails because presence of a third-party destroy privilege (U.S. v. Gann (p. 558))
        • Attorney-client privilege will not shield from disclosure statements made by a client to his or her attorney in the presence of a third party who is not an agent of either the client or the attorney (U.S. v. Evans (p. 558))
        • When information is transmitted to an attorney with the intent that the information will be transmitted to a third party, such information is not confidential (U.S. v. Lawless (p. 559))
          • So, information for the purpose of preparation of a tax return, though transmitted to an attorney, is not privileged information
        • Documents, described as prepared in order to allow attorneys to assess patentability and to sift information to prepare applications to Patent Office, are immune from discovery under attorney-client privilege (Smithkline Beecham Corp. v. Apotex Corp. (p. 560))
      • Between attorney and client:
        • No privilege if not seeking lawyer��s advice, e.g., if only seeking accounting advice, but if accountant retained by lawyer for purpose of aiding in legal advice, then privileged (US v. Kovel (p. 561))
        • Common-defense rule: Uninhibited communication among joint parties and their counsel about matters of common concern is often important to the protection of their interests, so attorney-client privilege applies for that purpose (US v. McPartlin (p. 564))
        • Attorney-client privilege exists only when client communications with a member of the bar (i.e., a lawyer) or her subordinate, so no privilege exists over communication with insurance claim adjuster (Pasteris v. Robillard (p. 565))
        • Upjohn v. US (US 1981, p. 566):
          • Corporation��s general counsel conducted company-wide, international investigation, refused to answer government summons regarding investigation on grounds of attorney-client privilege
          • ��Control group test��: Attorney-client privilege for corporate counsel limited to employees, who, due to rank or something else, are in a position to control or take a substantial part in a decision about any action the corporation may take upon the advice of an attorney
            • Attorney-client privilege in corporate setting applies only when the employee is, or personifies, the corporation when making his disclosure.
          • BUT control group test rejected because frustrates purpose of privilege, so privilege extends to communications with employees but not to facts about who was interviewed
      • To facilitate legal services:
        • People v. Gionis (Cal. SC, 1995, p.889): ∆, distraught over separation from his wife, sought to retain Lucek as counsel.  After Lucek refused, ∆ proceeded to tell ∆ about altercations he had had with his wife.  Held, these communications not privileged because attorney-client privilege does not extend to disclosures made after the attorney refuse to undertake representation (because attorney has refused to hear the communications in his ��professional capacity��)
        • If an act doesn��t fall within the scope of professional employment, it is not covered by privilege, so no privilege concerning delivery of stolen goods to a police station, because not a legal service (Hughes v. Meade (p. 573))
        • Factfinding which pertains to legal advice counts as professional legal services and is covered by privilege, so internal investigation of firm conducted by two associates at request of partner is privileged (US v. Rowe (1996))
  1. Spousal Privileges 

1.   Privilege against disclosure of confidential spousal communications:

    • (a) Who has: Privilege almost always held by BOTH spouses
      • If there is an actual confidential communication, made during the time of the marriage, then both can assert it—also means the other spouse can say not going to let other spouse testify even if he or she wants to
    • (b) Applicable case type: Applies to both civil AND criminal trials
    • (c) Timeframe: Can be asserted after the marriage is over as long as persons involved were married at the time of the communications
      • I.e., relevant date is the date of communication, NOT the date of trial

2.   Privilege against adverse spousal testimony:

    • (a) Who has: Witness-spouse ALONE has the right to refuse to testify adversely, i.e., a spouse who is a ∆ cannot stop the voluntary adverse testimony of his spouse against him (Trammel v. U.S. (p. 591))
    • (b) Applicable case type: Applies ONLY in criminal trials
    • (c) Timeframe: Relevant date is whether married at time of trial, even if events took place before marriage, and if not married at time of trial, no privilege even if events took place during marriage
  1. Other Privileges 
  1. Psychotherapist-Patient 
    • Recognized by US SC (Jaffee)
      • .NOTE: Privilege extends to licensed social workers in the course of psychotherapy (Jaffee)
    • Rationale:
      • The privilege promotes development of the confidential relationship necessary for successful treatment, thus facilitating provision of appropriate treatment to persons suffering from mental or emotional health problems
    • Case:
      • Jaffee v. Redmond (US SC, 1996, p.846):Confidential communications between a licensed psychotherapist (i.e., psychiatrists and psychologists) and her patients in the course of diagnosis or treatment are protected from compelled disclosure
  1. Clergy-Penitent 
    • Recognized
    • No clear authority for who the privilege belongs to (i.e., who can waive it)
  1. Accountant-Client 
    • Recognized in one-third of states
  1. Reporter-Confidential Source (i.e., reporter privileged from revealing confidential sources) 
    • Not recognized by US SC, but recognized by:
      • (1) Substantial number of lower or federal courts (but not DC Cir.)
      • (2) Most states, either by statute (31) or common law (18)
    • IMPORTANT: The privilege belongs to journalists NOT sources
    • Proposed ��shield�� law: Protects journalists from forced disclosure of confidential sources and newsgathering materials
    • Cases: 
      • Branzburg v. Hayes (US SC, 1972, p.857): US SC rejects argument for a constitutionally required ��reporter��s privilege�� to protect journalists from being forced to disclose sources and  confidential information about conversations with sources
        • Exception: If government asking journalist questions in order to intimidate the journalist, First Amendment implicated
      • In re: Grand Jury Subpoena, Judith Miller (DC Cir., 2005, p.855): There is neither a First Amendment nor a common law privilege protecting journalists from providing evidence to a grand jury
  1. Parent-Child 
    • Not recognized (In re Grand Jury (p.610))


IX. Physical and Documentary Evidence 

  1. Authentication
    • FRE 901 (Requirement of authentication or identification): 
      • (a) General provision: The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims
        • NOTE: This is the same standard of proof as that which applies to conditional relevancy (��sufficient evidence that a jury could reasonably find [that the evidence is what it say it is] by a preponderance of the evidence��)
        • NOTE: Authentication does not ensure admissibility or say anything about the weight the trier of fact should give a particular piece of evidence; rather, merely says evidence authenticated for purposes of consideration
      • (b) Illustrations: Examples of authentication or identification conforming with the requirements of this rule (illustrative, not exclusive):
        • (1) Testimony of witness with knowledge that a matter is what it is claimed to be
        • (2) Nonexpert opinion on handwriting based upon familiarity not acquired for purposes of the litigation
        • (3) Comparison by trier or expert witness with specimens that have been authenticated
        • (4) Distinctive characteristics and the like (appearance, contents, substance, internal patterns, etc.) taken in conjunctions with circumstances
        • (5) Voice identification, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker
        • (6) Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if 
          • (A) In the case of a person, circumstances, including self-identification, show the person answering to be the one called, or
          • (b) In the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone
        • (7) Public records: Evidence that a writing authorized by law to be recorded or filed and in fact record or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
        • (8) Ancient documents or data compilation: Evidence that a document or data compilation, in any form,
          • (A) Is in such condition as to create no suspicion concerning its authenticity,
          • (B) Was in a place where it, if authentic, would likely be, and
          • (C) Has been in existence 20 years or more at the time it is offered
        • (9) Process or system: Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result
        • (10) Methods provided by statute or rule: Any method of authentication or identification provided Congress or by rules prescribed by US SC pursuant to statutory authority
    • FRE 902 (Self-authentication): Extrinsic evidence of authenticity as a condition precedent to admissibility is NOT required with respect to the following:
      • [NOTE: Idea with these types of items is that they are authentic enough on their own that they don��t need further investigation to show authenticity]
      • (1) Domestic public documents under seal
      • (2) Domestic public documents not under seal but containing a signature of an official an accompanied by a document under seal attesting to the official��s signature
      • (3) Foreign public documents
      • (4) Certified copies of public records
      • (5) Official publications by public authority
      • (6) Newspapers and periodicals
      • (7) Trade inscriptions and the like
      • (8) Acknowledged documents
      • (9) Commercial paper and related documents
      • (10) Presumptions under Acts of Congress
      • (11) Certified domestic records of regularly conducted activity
      • (12) Certified foreign records of regularly conducted activity
    • Cases:
      • U.S. v. Stelmokas (3d Cir., 1996, p.810: Documents implicating ∆ in Holocaust sufficiently reliable to be admitted; experts testified as to their authenticity, and were found in places there were likely to be if authentic
      • State v. Small (OH CA, 2007, p.816): Ellos calls phone number friend had called shortly before being murdered.  Persons who answers has Jamaican accent, calls himself ��Dominique,�� and discusses with Ellos repayment of the deceased friend��s debt.  ∆ calls himself Dominique and has a Jamaican accent.  Held, call authenticated because unlikely that an impostor also would have a Jamaican accent and would respond to an unexpected phone call in a manner tending to incriminate ∆.
      • Simms v. Dixon, DC CA, 1972, p. 819): Photographer not necessary to lay a proper foundation for the admissibility of proffered photographs.  Test for authentication of photograph is whether the photographs accurately represent the facts allegedly portrayed in them.  Photographer not necessary to lay a proper foundation for the admissibility of proffered photographs.
      • Wagner v. State (FL CA, 1998, p. 821):  Videotape of drug deal admitted under ��silent witness�� theory, under which photographic evidence may be admitted upon proof of the reliability of the process which produced the photograph or videotape
        • Other method is ��pictorial testimony�� rationale, where witness to event testifies that he perceived what a photograph purports to portray
      • Authentication if there is a rational basis for proponent��s claim that item is what they say it is United States v. Long (p. 621) (not about proving reliability or accuracy of the document, but in this case authenticated as the document the witness said she saw)
      • Gaps in chain of custody go to the weight of the evidence and not its admissibility Bruther v. General Electric Co. (p. 622) (light bulb case)
      • Trial judge is correct in allowing physical evidence to be presented as long as a reasonable jury could decide that the evidence is what the offering party claims it to be United States v. Casto (p. 624)
      • No need to authenticate live testimony. United States v. Grant (p. 624) (doesn��t matter that gaps in chain of custody because didn��t introduce drugs as evidence, introduced chemist��s testimony as evidence)
  1. ��Best Evidence�� (Original Document) Rule 
    • IMPORTANT: There is NO ��best evidence�� rule, in the sense that the evidence presented on or for a particular point be the best evidence available for that point 
    • FRE 1001 (Definitions)
      • (3) ��Original��:
        • (a) Of a writing or recording: The writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it
          • Advisory Committee: A carbon copy also counts as an original
        • (b) Of a photograph: Includes the negative or any print therefrom
        • (c) Of data from a computer: If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately
      • (4) ��Duplicate��: A ��duplicate�� is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photographic, mechanical, electronic, chemical, or other reproduction which accurately reproduces the original
        • NOTE: Copies produced manually (by hand or typewritten) NOT considered duplicates
    • FRE 1002 (Requirement of original): To prove the content of a (1) writing, (2) recording, or (3) photograph, the original is required, except as otherwise provided (see exceptions)
      • NOTE: To ��prove the content�� means to prove that the content of the item offered is accurate, i.e., to prove the truth of the mattered contained in or described by the item
        • Inapplicable to photographs when witness ��adopts picture as his own testimony��
      • Applies only where:
        • (a) The writing, recording, or photo is itself at issue in the case and
        • (b) The writing, recording, or photo has independent probative value
    • Exceptions:
      • FRE 1003 (Admissibility of duplicates): A duplicate is admissible to the same extent as an original, UNLESS:
        • (1) A genuine question is raised as to the authenticity of the original, or
        • (2) In the circumstances it would be unfair to admit the duplicate in lieu of the original
      • FRE 1004 (Admissibility of other evidence of contents): The original is NOT required and other evidence of the writing, recording, or photograph is admissible if:
        • (1) Originals lost or destroyed, UNLESS the proponent lost of destroyed them in bad faith,
        • (2) Original not obtainable by any available judicial process or procedure,
        • (3) Original in possession of opponent and opponent does not produce the original at the hearing, or
        • (4) Collateral matters: The writing, recording, or photograph is not closely related to a controlling issue
      • OTHER Exception: No explanation needs to be given for failure to produce original of a public record, but there is a preference for certified or compared copies
    • Cases:
      • Meyer v. United States (p. 626): Proving what codefendant said, not what��s in the transcript (no issue as to its contents) so best evidence rule doesn��t apply
      • Seiler v. Lucasfilm (9th Cir., 1987, p.833): �� sued Lucas for copyright violation, claiming Imperial Walkers in ��Empire Strikes Back�� copied drawing �� had made several years earlier, but �� could produce only reconstructions, and not the originals.  Held, �� destroyed the originals in bad faith, so original document rule bars admission of the reconstructions (which are offered to prove the contents of the originals)
      • U.S. v. Jackson (D. Neb., 2007, p. 837): ∆ on trial for soliciting a minor through online chatting.  Record of online chat destroyed, but prosecution has document into which investigator posing as 14-year-old girl had cut-and-pasted his online chats with ∆.  Held, the cut-and-paste document is not an accurate original or duplicate because does not accurately represented the entire conversations between ∆ and the investigator (and also includes the investigator��s ��editorial�� comments appended to the conversations)
  1. Demonstrative Evidence 
    • Demonstrative Evidence: Evidence which played no part in the actual crime but is offered for illustrative or other purposes 
    • Rules:
      • (1) Item ONLY required to be of potential help to the trier of fact
      • (2) NOT admitted into evidence.
      • (3) No rules for determining when:
        • (a) Authentication is required for demonstrative evidence
          • Line between authentication is required and when it is not required very fuzzy
        • (b) Demonstrative evidence is so real-looking that it must be excluded because of the risk the jury will give the evidence undue weigh
          • The more an item of demonstrative evidence looks ��real,�� the greater the risk it will deceive the jury or the jury will give the item undue weight, so the more likely the judge will restrict the item��s use
          • Not clear at which point court can no longer expect jurors to realize that they are merely looking at a reconstruction and not the actual item or event
    • Cases:
      • Government allowed to display firearm during trial not connected with the actual crime (but of similar make/model to weapon used in commission of crime) for demonstrative purposes. United States v. Weeks (p. 641)
      • No requirement that demonstrative evidence be completely accurate Roland v. Langlois (p. 643) (∆ allowed to admit portion of life-size fence as illustrative of the fence surrounding the carnival ride)
      • If evidence is pedagogical, should only aid in testimony and not be introduced into evidence or used by jury during deliberations.  United States v. Wood (p. 643)


    X. Presumptions, Burden of Proof, and Judicial Notice 

    1. Burdens and Presumptions in Civil Cases
      • Presumption: Where the finding of one fact leads to the presumption of another; i.e., if one fact is found, another will deemed to have been found 
        • A kind of legal relationship between two facts—the fact giving rise to the presumption and the fact being presumed
        • Conclusive (irrebuttable ) presumptions allowed in civil cases, but not in criminal cases  IS THIS TRUE, BEN?  I WASN��T REALLY PAYING ATTENTION WHEN SCHAUER WAS TALKING ABOUT THIS ISSUE
          • Exception: Out-of-state insurance
        • Examples:
          • One who sells books without covers presumed to have been doing so fraudulently
          • One who drives faster than 65mph presumed to have been driving unsafely
          • One who develops black lung presumed by miners workers comp program to be permanently disabled
          • Receipt and acknowledgment of rent payment presumes receipt of earlier rent payments
      • Burden of persuasion: The burden to satisfy the trier of fact that a particular position has been demonstrated to a particular level of certainty
        • Carries with it a basic burden to produce some evidence
        • Burden of proof in libel cases is ��clear and convincing evidence�� both (a) that a statement was untrue and (b) that the publisher of the statement knew it was untrue
      • Rule for rebutting presumptions
        • Presumption is rebutted by introduction of evidence that would support a finding of the nonexistence of the presumed fact 
          • In re Yoder (p. 650): If item is properly mailed, it is presumed received; however, since neither attorney nor �� received item (can show would have records of receipt, under standard business practices, had letter in fact been received), sufficient evidence to rebut the presumption
        • ��Bursting bubble theory�� (Thayer): Presumption vanishes as soon as it is rebutted (only the production burden shifted)
          • FRE 301: Takes the bursting bubble approach—presumption has no probative effect once it has been rebutted
        • Morgan: Presumption shifts the burden of proving the nonexistence of the presumed fact to the opposing party (persuasion burden shifts as well)
    1. Burdens and Presumptions in Criminal Cases 
      • General rule
        • Prosecution shoulders burden of proving guilt beyond a reasonable doubt
          • Sandstrom v. Montana (p. 668): Jury instructed that law presumes that a person intends the consequences of his voluntary acts. ∆ objects and appeals because essentially shifted to ∆ the burden of disproving an element of the crime.  Held, reasonable juror could have given the presumption either conclusive or persuasion-shifting effect
    1. Judicial Notice 
      • General idea: There are some facts that should not have to be proved because they cannot be reasonably disputed, these facts are dispensed of as unnecessary 
      • FRE 201 (Judicial notice of adjudicative facts)
        • (b) Kinds of facts: A judicially noticed fact must be one not subject to reasonable dispute in that it is either:
          • (1) Generally known within the territorial jurisdiction, or
          • (2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
        • (c)/(d): Judicial notice is discretionary when not requested by a party, mandatory when requested by a party and supplied with the necessary information
        • (g) Instructing jury:
          • In a civil action: Court shall instruct jury to accept as conclusive any fact judicially noticed
          • In a criminal action: Court shall instruct jury that it may, but is not required, to accept as conclusive any finding judicially noticed
      • Adjudicative vs. Legislative facts
        • Adjudicative facts: Facts of the particular case (i.e., those facts to which the law is applied in a particular case)
          • Established through the introduction of evidence
          • Tradition has been one of caution in requiring that the matter be beyond reasonable controversy
        • Legislative facts: Facts having relevance to legal reasoning and the lawmaking process (i.e., facts related to background ideas about reality or law), whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body
          • NOTE: No FRE deals with judicial notice of ��legislative facts��
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