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Evidence Outline: Harris Spring 2008

I. Introduction
A. 103 Rulings on Evidence
An error may not be predicated upon a ruling which admits/excludes evidence unless a substantial
right was affected AN there was a(n)
o timely objection/motion to strike stating specific grounds (unless apparent from context) OR
o offer of proof that makes substance of evidence known to ct. (unless apparent from context of
questions)
t. can always take notice of plain error affecting substantial rights even when not brought to its attn
!ry to decide outside of jury"s hearing# so they aren"t influenced before the ruling

!. 10". #reli$inar% &uestions o' Ad$issi(ilit%
(a) $udge decides admissibility of evidence# qualifications of wits# and existence of privilege
o (b) %ut# when relevance is conditioned on fact# court shall admit upon and subject to introduction
of evidence to support fulfillment of the condition see conditional relevance pg. 2
&ven if admitted on certain grounds# other side can still offer evidence to contradict
o &x. $udge admits confession because he thinks it"s voluntary
'ther side can still intro evidence and argue to the jury that it"s not
(earings on preliminary questions out of hearing of jury when justice requires
). *0*+(, I$peac-ing t-e .erdict and /uror 0esti$on%
)o juror testimony about what juror thinking/feeling during deliberations
!o determine validity of verdict can ask about external influences on jury# but not about anything
concerning or influencing jurors" internal mental processes during deliberations
!ry to find other evidence to prove the same thing# this is hard to get in
Tanner: juror testimony about juror intoxication inadmissible to impeach verdict because concerned
jurors" internal mental processes.
Rule: anything characteri*able as internal is barred.
#olic%: freedom of deliberation# finality of verdicts# protection against juror harassment
II. Relevance
A. #ro(ativeness and 1aterialit%2Relevant
1. Rule "01. Relevant Evidence: evidence having any tendency to make existence of fact of
consequence (material) to determination of action more/less probable (probative)
small showing is required+ rational fact,finder could be influenced in deciding existence of a fact
relevant evidence excluded under -./ if undue prejudice substantially outweighs probative value
o court can sometimes fix w/0.1 limiting instruction
James: 2 claims self,defense and wants to admit police records showing 3"s violent tendency to prove
that she was in reasonable fear. Admit because corroborates 2"s claim that 3 bragged about these acts#
thus making it more likely that 2 did have a reasonable fear of victim.
!. )onditional Relevance 10"+(,
offered evidence isn"t relevant by itself# but other evidence will make it relevant
0
o could be relevant if4(conditional fact)
Cox+ court may admit this evidence only after preliminary determination that there is sufficient evidence
to support a finding that conditional fact exists (ox"s knowledge). Admit if a reasonable juror could
find that this fact exists by preponderance. 5easonable jury could find that ox had knowledge because
he spent time at the house and the mom had info.
'nce you give it to the jury# it is up to them to determine whether/not they believe the connecting
evidence has been established.
&asy for jury to disregard if conditional fact not established bec. other evidence is irrelevant w/o it
). #ro(ativeness v. Ris3 o' 4n'air #re5udice
"03. 5elevant evidence may be excluded if pro(ative value substantially out6eig-ed (% danger o'
unfair pre5udice7 con'usion o' issues7 $isleading 5ur%7 undue dela%7 6aste ti$e7 or needless
presentation cu$ulative evidence.
reviewable for abuse of discretion
unfair prejudice + undue tendency to move tribunal to decide on improper basis# commonly emotional
1. #-otos and ot-er In'la$$ator% Evidence
Bocharsi+ gruesome photos went to largely uncontested issues. 2 didn"t challenge fact of victim"s
death# extent of injuries# or manner of demise. Abuse of discretion6 no testimony about them so error to
admit. (owever# not prejudicial because didn"t affect jury"s verdict.
8act o' conse9uence+ dead victim
#ro(ative value: low# 2 doesn"t contest dead victim
2. Evidence o' 8lig-t
!yers+ flight is admission by conduct. 7robative value depends on these inferences+ +1, 2"s
behaviorflight7 +2, flightconsciousness of guilt# +3, 88 concerning this crime# and +", 8
concerning this crimeactual guilt.
Notes:
if 2 committed another crime# can"t infer 8 concerning this crime (/). 9f lots of time passes b/w
crime and flight# can"t infer 8 from flight (:).
&vidence that 2 didn"t flee usually inadmissible+ low probative value6 lots of other reasons to stay
3. E''ect o' Stipulations
"ld Chief+ ;elon possessing gun. 2 admitted he was felon# but ct admitted detailed evidence about 2"s
earlier crime.
Anal%sis: 5elevant# but very low probative value and high risk unfair prejudice. 7 entitled to prove case
free from 2"s option to stipulate evidence away# but 7 can still tell full chronological story w/o this.
Held: abuse of discretion
Note: shows how slight probative value has to be to overturn trial court"s decision of admissibility.
". Statistical Evidence
Collins+ testimony as to mathematical probability of guilt.
Notes: careful admitting this type of evidence6 may be too confusing to jury to pass -./.
. Speciali:ed rules o' Evidence
1. "0; Su(se9uent Re$edial 1easures: inadmissible to prove negligence# culpable conduct# defect
in product/design# or need for warning/instruction. Admissible when offered for another purpose# like
:
proving ownership# control# or feasibility of precautionary measures# if controverted (applies to
ownership# control and feasibility) or impeachment.
<hen use to impeach# must cast doubt on wit"s credibility# not as pretext for establishing culpability.
&ven if not excluded here# may still be excluded under -./
#olic%+ encourage people to take steps in furtherance of added safety.
Tuer+ 2oc said unsafe to restart medicine. 2 conceded feasible# just saying not advisable.
2. "08. Settle$ent Negotiations and Acco$plis-ed Settle$ents in Civil )ases
#f a claim is disputed as to validity or amt.# can$t intro this type of evidence to prove liability#
validity%invalidity# or amt of claim. Also can"t use to impeach by prior inconsistent statement or
contradiction+
o 'ffering or accepting consideration in attempting to compromise a disputed claim
No evidence about offered settlements or accomplished settlements
o =tatements or conduct made during compromise negotiations for this claim
&xcept in criminal case if a party to negotiations was govt. unit.
!urns on whether these are compromise negotiations
;ormal or informal>
?awyers involved>
(as litigation been mentioned>
an use this type of evidence if offered for other purposes like proving witness bias# negating
contention of undue delay# or proving effort to obstruct criminal investigation or prosecution
#olic%: encourage settlements6 people must be able to speak freely w/o fear that concession made to
advance negotiations will be used at trial
Bancard+ Allowing 2 to explain that 2 thought settlement had been reached allowing 2 to convert
accts (w/o details about settlement talks or use of word @settlement") didn"t violate -.A policy of
encouraging settlements. =ettlements won@t happen if 0 party during negotiation seduces other into
violating B then# when settlement not reached# accuses them of violating B. )ot intro"d to prove
liability# intro"d to show 2"s state of mind.
3. "0<. #a%$ent o' 1edical and Si$ilar E=penses
2oesn"t require disputed claim or negotiations like -.A
)o evidence of paying/offering/promising to pay medical expenses to prove payor liable for injury
o (owever# if you admit you"re liable# that"s admissible (redact statement to omit paying part)
#olic%: encourage offers to assist
". "11. >ia(ilit% Insurance: &vidence that person was/wasnt insured inadmissible upon issue
whether person acted negligently%wrongfully. )o exclusion when offered for another purpose# such as
proof of agency# ownership# or control# or wit bias/prejudice.
#olic%: don"t want jury to convict because they believe it will be cost,free for 2.
&illiams+ t. abused discretion by not permitting 7 to explain why she hired atty before visiting doctor
(2"s insurance adjuster visited her) because not offered to prove 2"s wrongful conduct.
?. "10 Inad$issi(ilit% o' #leas7 #lea iscussions7 and Related State$ents +)ri$inal,
#olic%: facilitate plea bargaining by providing confidentiality for statements made during plea
bargaining# for pleas of nolo contendere# and for guilty pleas later w/drawn
/
Can$t admit this evidence against ' who made the plea or participated in the plea discussion
)o evidence of guilty pleas that were later w/drawn '5 nolo pleas
)o evidence of statements made
o in plea proceedings
o during plea discussions w/prosecutor which don"t result in guilty plea or result in guilty plea
later w/drawn.
an"t even impeach 2 if he testifies differently at trial
7 can demand waiver of these rights as precondition to negotiation# though
9f police officer has authority to negotiate# w/in rule (courts split when apparent authority)
an"t even be admitted to show bias# etc.
(owever) *dmissible+
+i, if another statement from in course of same plea or plea discussions has been admitted and this
statement should be considered along w/it (partial disclosures by 2) '5
+ii, in criminal proceeding for perjury/false statement if 2 made statement under oath# on record and in
presence counsel.
Applies to crime charged or any other crime
%e careful when things offered against prosecutors because# though doesn"t technically violate the
rule# may violate the policy and be excluded anyway
o &x. 2 wants to offer evidence of 7"s plea bargain offer
o Cight exclude anyway because prosecutors won"t want to negotiate if stuff they say can come in
Biaggi+ rejection of immunity much stronger evidence of innocence than rejection of offer to plead
guilty for reduced charges# so should"ve been admitted.
III. )-aracter Evidence
A. In general7 @-atAs Ad$issi(le7 and @-atAs Not
info about a person"s character may not be admitted to suggest person did something because he is
the type of person who would likely have done it
o applies to civil cases w/only one exception in -01
o propensity reasoning permitted in civil and criminal sexual assault/child molestation cases
o applies in criminal w/limited exceptions
1. Benerall%
criminal 2 can intro evidence of his own good character to support an inference that he didn"t
commit the charged crime
o but# if he does# 7 may intro rebuttal evidence about 2"s character to suggest he is guilty
criminal 2 may show that 3 was aggressor by introducing relevant information of 3"s character for
violence.
o 7 may rebut this w/character evidence about 3 or about 2"s aggressive nature
o 7 also may show that a murder victim had peaceful character to rebut claim that 3 was aggressor
an introduce evidence of 2"s sexual propensities in sex offense trials
7ropensity evidence is permitted to impeach
7roof of character allowed when it is an essential element of claim or defense
&vidence that seems like character evidence is allowed if don"t use propensity reasoning
!. Rule "0"
-
#olic%+ danger of jury overvaluing# turns trial into trial of character (making actual guilt irrelevant)# jury
tendency to punish for being a bad person
1. )-aracter Evidence 'or t-e Accused and t-e .icti$: "0"+a,+"0? governs onl% 1 and 2,
+a, Rule against propensit% evidence: #n a criminal case) evidence may generally not be admitted
if its only relevance is to support an inference that because a person has a certain type of character#
the person acted in a way typical of that character at a particular time but
o +1,: c-aracter o' t-e accused
2 can intro evidence of a pertinent trait of his own character (2 doesn"t have to testify)
7ertinent trait+ must be related to the type of offense for which he"s being tried
9f he does this# 7 can intro opposing evidence about 2"s character
o +2,: c-aracter o' t-e victi$ +su(5ect to "12: se=ual o''enses,
2 can offer evidence of a pertinent trait of 3"s character
9f 2 does# 7 can offer evidence that 2 shares same trait even if he hasn"t put his own
character in issue under (0)
(omicide cases# 7 can introduce evidence of 3"s peaceful character to rebut evidence that 3
was aggressor
&x. =elf defense
2 can introduce evidence showing 3 has aggressive character to support inference that 3
was aggressor. ould also be used to support 2"s claim by persuading jury 2 could
reasonably have feared 3 because 2 knew of reputation for violence (non,propensity
reasoning+ not subject to -.1)
2. Evidence o' #ast cri$es7 @rongs7 or Acts "0"+(,
+(, bar against propensity reasoning excludes evidence when the only rationale for admission is to
support inferences about person"s character and their actions in conformity there/w.
o (owever# admissible for other purposes that don"t involve propensity reasoning such as:
proof of motive# opportunity# intent# preparation# plan# knowledge# identity# or absence of
mistake/accident#
not limited by -.1 for this type of evidence because this is not character evidence6 it isn"t
being used to show 2"s action in conformity therew/
o must give other side notice before trial# unless judge allows otherwise
Always consider -./+ does undue prejudice# etc. substantially outweigh the probative value>
o if there is other# less inflammatory evidence# exclude
?imiting instruction+ this evidence is only to be used to show D# you are not to draw any inferences
about 2"s general character
a. evidence to s-o6 3no6ledge7 etc. under "0"+(, is conditional relevance issue under 10"+(,
(uddleston: 9ssue was 2"s knowledge that the tapes were stolen. 8ovt. wants intro evidence of other
sales because proof that 2 engaged in other sales of stolen merchandise from same suspicious source
would tend to show 2 knew tapes were stolen. &vidence of other sales only relevant to 2"s knowledge
that tapes were stolen if !3s in the other sales were stolen (conditional fact).
Anal%sis: t. simply examines all evidence in the case and decides whether jury could reasonably find
the conditional fact (that the !3s were stolen) by preponderance of the evidence. ?ow price# large
quantity# no bill of sale. 8iven this evidence# jury reasonably could have concluded !3s were stolen#
and tr ct therefore properly allowed the evidence to go to the jury.
1
Notes: protection against unduly prejudicial evidence coming in under -.-(b) comes from its
requirement that evidence be offered for proper purpose# from the relevancy requirement of 0.-(b)# from
-./ assessment (whether probative value of the similar acts evidence is substantially outweighed by its
potential for unfair prejudice) and from 0.1 limiting instruction that similar acts evidence is to be
considered only for proper purpose for which it was admitted
,acowit-+ 7 wants to use evidence of firearms w/no relation to the shooting. 9nadmissible+ basically
saying that someone who owns guns if violent and was more likely to be violent on this occasion.
#olic%: danger that jury will give too much weight# or won"t even consider guilt because 2 is @bad"
(. #roo' o' Cno6ledge
&vidence of prior conviction more likely to be admitted if rare knowledge
o &x. &vidence of prior conviction to show knowledge of drug trade inadmissible because not very
probative6 not hard to have knowledge of drug trade
c. #roo' o' Identit%
&x. &yewitness testimony that robbers fled bank in blue hevy. <ant to intro evidence that 2 had
stolen a blue hevy an hour before the robbery.
o Admissible to show 2"s identity (he was the person who robbed the bank)
o )ot saying 2 steals cars# so he is a bad person who would rob banks
o ould also be admissible to show that 2 had a plan to rob the bank
1odus operandi+ not @this is 2"s type of crime#" but @this couldn"t be anyone else"
o Around box# because distinctive similarities overcome temptation to use for propensity
0est:
1, whether evidence has relevance independent of tendency to show criminal propensity AN
sufficiently idiosyncratic acts+ several identifying features/presence of highly distinctive quality.
2, -./
factors
o govt"s need for evidence
o strength of evidence establishing similarity of : acts
o inflammatory nature of evidence and
minimi*ed w/instruction>
o degree to which promotes inference based solely on 2"s criminal propensity
d. Narrative Integrit%
e. A(sence o' Accident
'. octrine o' )-ances
.ex: evidence of two former wives @drowning" in tubs then he inherits everything.
=heer improbability that ="s / wives could all die in their tubs w/o foul play
). #roving As and .icti$As )-aracter in Criminal )ases
06o step in9uir%
1, "0"+a,+1,D+2,: is in'o related to c-aracter ad$issi(leE
2, "0?: -o6 can t-is in'or$ation (e provenE
$a% introduce evidence o' pertinent trait o' -is o6n c-aracter through reputation/opinion wits
o 2 can"t introduce specific instances of conduct
E
o 'nce 2 does this# 7 can cross examine these wits to test their knowledge of 2 and can call own
reputation/opinion wits about 2"s character
'n cross# 7 can inquire into specific instances of conduct by 2
7 can"t introduce outside evidence# must accept answer wit gives
?imiting instruction for specific instances of conduct+ not to assume incidents actually took place#
only testing wit"s knowledge
onsider propensity reasoning risk under -./
(. Rule "0?. 1et-ods o' #roving )-aracter
+a, 9n cases in which evidence of character/trait is admissible +"0"+a,+1,D+2,,7 proof may be made by
reputation or opinion testimony. 'n cross# inquiry allowable into relevant specific instances of conduct.
+(, when character/trait is essential element of charge# claim# or defense# proof may also be made of
specific instances of that personFs conduct.
o 'nly applies when existence of character trait is the thing to be proven
o &xs.
2 claims govt. induced her to commit crime she wouldn"t have otherwise committed
(entrapment). 7 may rebut by showing 2 predisposed to commit crime in question
5ebutting a defense of truth in libel or slander action
5esolving parental custody dispute+ judge determines which party is better parent
!ichelson: when 2 elects to put his character in issue# his wits are subject to cross. $udge can limit wits
and control cross. Asking wits if they heard about his arrest permissible because tends to weaken
assertion that he was law,abiding. ourt may exclude inquiry about rumors of remote event.
Notes:
court made sure factual basis for question
wits knew 2 for /. yrs# so can question about anything w/in this time period
2oesn"t matter different crimes because when puts own reputation in issue# 2"s reputation for
honesty and law,abiding nature in play
#ro(le$s
3.1*: 2 wants to put in evidence of specific instances of 3"s conduct# to show 3 has violent character.
(owever# non,propensity theory+ 2 is showing jury why she thought 3 was violent and therefore why
she reasonably feared 3. 2 not using evidence to show 3 has violent character and probably acted in
conformity therew/. (ere# 2 not subject to any propensity evidence rules6 can use specific instances.
3.1;: evidence that 3 on coke which would"ve made it more likely that he was aggressor.
Argument to keep out+ victim"s propensity for violence
!o keep in+ general evidence about drugs and their effect
o =ince not character evidence# don"t have to worry about -.1
o =till have to be -./ and might not be probative enough because it is general info
. #ropensit% Evidence in Se=ual Assault )ases +"0? doesnAt appl% to "13F1?,
&vidence of 2"s past sexual offense is admissible to support an inference that his commission of
such act in the past increases likelihood that he committed the charged offense
o /ast acts of sexual assault or child molestation 0under 123 admissible in civil and criminal
includes attempt or conspiracy to engage in sexual assault or child molestation
9ncludes deriving sexual pleasure from inflicting death# bodily injury# or physical pain on
another
G
9f govt intends to use# they must disclose
&vidence of offenses for which 2 has not previously been prosecuted or convicted admissible too.
#olic%:
o 5ecidivism+ sex offenders repeat crimes more often than other criminals
o &ncouraging victims to come forward and testify
-./ still in play+ court should consider whether jury will convict for crimes other than those charged
or that# uncertain of guilt# will convict anyway because bad person deserves punishment.
4uardia+ &xclusion reversed only upon clear evidence of abuse of discretion. ;act that doctor treated -
additional witnesses under similar but distinct circumstances creates substantial risk jury confusion.
&xperts would testify about each incident6 overlapping testimony confusing for jury later to separate
doctor"s behavior against witnesses and 7s. )ot error for court to fail to engineer method of presenting
evidence to minimi*e risk confusion because not realistically susceptible to any less elaborate
presentation.
Held: properly excluded6 risk jury confusion substantially outweighed probative value of testimony
E. )-aracterD#ropensit% in Se=ual Assault )ases: 0-e .icti$
1. Rule "12. 0-e Rape S-ield >a6
#olic%+ protect victimFs privacy# encourage to report# and protect against sexual stereotyping
&vidence that 3 engaged in other sexual behavior (broadly construed) and evidence of 3"s sexual
predisposition inadmissible in civil and criminal proceeding involving sexual misconduct.
o =exual behavior+ physical conduct# fantasies# illegitimate child# =!2s# birth control
3ictim"s past false allegations don"t count as sexual behavior# instead# impeachment (-0:
inapplicable6 use impeachment rules) evidence to prove 3 is a liar
onditional relevance situation+ judge should admit past false allegations if reasonable
jury could find that 3 did make these past allegations (not whether they were actually
false) by a preponderance of evidence
o 7redisposition+ mode of dress# etc.
(b)&xceptions+
o (0)9n criminal cases# evidence of specific instances of 3"s sexual behavior
!o prove someone other than 2 did it
w/2 offered by 2 to prove 7"s consent or by 7 to prove pattern of conduct A)2
any evidence that# if excluded# would violate 2"s constitutional rights
Chambers: 2s have right under either 1
th
/E
th
to offer evidence critical to their defense
even if violates evidence rules
o 9n Knox# 3"s and 2"s accounts so vastly different that 2"s claim of reasonable
mistake so implausible that evidence supporting it couldn"t be deemed critical
1ust pass "03 (alancing
o (:) 9n civil cases# evidence offered to prove 3"s sexual behavior/predisposition probative value
substantially outweighs danger of harm to 5 and unfair prejudice to any party. &vidence of
3"s reputation admissible only if 3 places it in controversy.
Core stringent than -./6 in -./ unfair prejudice must substantially outweigh probative value
(tilted in favor of admissibility)6 here# tilted in favor of exclusion
o 7arty must file motion before trial (unless court says diff. time) specifically describing evidence
and stating purpose for which offered which must be served on all parties. Cust notify 3. ourt
must conduct admissibility hearing in camera. &verything sealed.
A
onditional relevance issue+ if judge believes on basis of in camera hearing that info 2 wants to
present about 3 would properly be admitted if the info is true. $udge will admit the evidence if a
reasonable jury could find that past act happened by a preponderance of the evidence.
2. NonF#ropensit% uses o' evidence o' past se=ual (e-avior are allo6ed
a. proo' o' (ias
"lden: E
th
confrontation clause includes right to conduct reasonable cross. 3 said living w/mom and 2
wanted to cross because she wasn"t. 3"s story corroborated only by 5"s testimony# whose impartiality
would"ve been impugned by revelation of his relationship w/3. 3iolation of confrontation clause
because prohibited from engaging in otherwise appropriate cross designed to show bias.
(. As state o' $ind
6nox+ 2 wanted to offer evidence of specific incident and reputation evidence of 3"s past sexual
behavior. 2 claims thought she was awake and by her actions was consenting. (er sexual history has
nothing to do w/whether her actions on present occasion indicated consent.
8. Evidence o' Ha(it
haracter is generali*ed6 habit is specific+ describes regular response to repeated specific situationG
9nvariable regularity (actions we do automatically almost w/o volition)
ourt tends to exclude if leads to propensity inferences
o &x. 2runkenness# character for violence# evidence of other assaults
"0*: &vidence of person"s habit/organi*ation"s routine practice# whether corroborated/not and regardless
eyewit# is relevant to prove conduct on particular occasion was in conformity.
(alloran+ person who has demonstrated consistent response under given circumstances is likely to
repeat when circumstances arise again. Core than unpatterned conduct6 predictable.
I.. )o$petenc%7 )redi(ilit%7 and I$peac-$ent
A. )o$petenc%
<its must have personal 3no6ledge of evidence. &vidence of personal knowledge can consist of
wit"s own testimony (subject to G./+ expert testimony)
Interpreters are subject to rules re+ expert qualification and oath to make true translation
$udges can"t testify at own trial as wit
5ebuttable presumption that children are competent (hearing only if compelling reasons6 child"s age
alone not compelling)
!. )-aracter I$peac-$ent o' @itnesses +)ivil and )ri$inal,
"0"+a,+3, c-aracter o' 6itness: character evidence that would otherwise be barred by because of
propensity reasoning is admissible for impeachment purposes under E.G,E.H
o 7ropensity reasoning+ this is type of person who would lie# so they"re probably lying on the stand
o Cethods of proof# E.A
o Cay be relied upon only for assessing truthfulness# not substantively
o Any party can attack witness credibility# including party who called the wit (*0;)
o &vidence of wit"s religious beliefs/opinions not admissible to show that by reason of nature wit
credibility is impaired/enhanced. +*10,
*08. Evidence o' @itnessAs )-aracter 'or 0rut-F0elling
H
+a, Can attac or support witness credibility through opinion%reputation evidence but+
can only refer to character for truthfulness/untruthfulness A)2
&vidence of truthful character admissible only after character for truthfulness is attacked
7rocedure+ witness can testify that the previous witness has an untruthful nature by describing that
wit"s reputation for truth,telling or by giving an opinion about that wit"s typical truthfulness.
o 'nce reputation for truthful character has been attacked with opinion/reputation evidence# it can
be rehabilitated by other witnesses testifying about that witness"s positive character traits for
truthfulness in the form of opinion/reputation testimony.
&xamples of attacks on wit"s character from truthfulness
o 'pinion/reputation testimony of wit"s bad character for truth
o 'n cross# specific acts that are probative of untruth character
o &vidence of past conviction
Evidence t-at speci'icall% contradicts one aspect o' 6itAs testi$on% isnAt attac3 on c-aracter
'or trut-'ulness. ".?: 'n cross# 7 asks true that deli was closed day you said you were there> )ot
attack on character for truth# she"s just wrong. 9nconsistent. &vidence that specifically contradicts
an aspect of wit"s testimony probably doesn"t amount to attack on character for truthfulness#
especially if might have been a mistake (as opposed to intentional lying)
NonFc-aracter i$peac-$ent isnAt su(5ect to *08 +(ut still su(5ect to "03,
o an attack wit"s testimony w/evidence of bias# contradiction by past inconsistent statement#
contradiction by conflicting evidence
%ias can be attack on character for truth if repeated
o haracter for truthfulnessIgenerally# non,characterIdon"t believe him in this case (bias)
#ast !ad Acts t-at did not lead to convictions: *08+(,
+(, specific instances of witness$s past conduct# relevant to character trait of truthfulness# may be
asked about in cross,examination of the witness or in cross of another witness who has testified in
support of original wit"s credibility. 7ast conduct may only be subject of extrinsic proof if it is a crime
for which the witness was convicted (E.H).
4iving testimony) whether by accused%other wit) doesn$t waive privilege against self7incrimination
when examined w%respect to matters that relate only to character for truthfulness.
&thically# lawyer can"t ask about specific instances of conduct w/o good faith basis
$udge must exercise reasonable control to protect witness from harassment/undue embarrassment
-./ balancing+ probative value substantially outweighed by unfair prejudice>
)ot back door to past convictions inadmissible under E.H
4se o' e=trinsic evidence: not allo6ed 6-en onl% to support 6itAs c-aracter 'or trut-'ulness
o )o bar on extrinsic evidence when non,character impeachment
an prove witness was biased by outside evidence
o &xtrinsic evidence+ stuff not involved in answer witness gives
o *08As (ar against e=trinsic evidence applies onl% to evidence o''ered to s-o6 6itAs general
c-aracter 'or trut-'ulness7 no restriction on e=trinsic evidence o''ered to s-o6 6it lied in
t-is case
o ommon scenario -.1(a)+ ask character witness if aware of specific instances of conduct of
initial wit
=tuck w/answer# can"t bring in extrinsic evidence
Rule *0<. I$peac-$ent (% Evidence o' )onviction o' )ri$e
0.
Applies to 2s too+ deters then from testifying because jury will learn of their criminal record
+a, ;or the purpose of attacking the character for truthfulness of a witness#
+1, evidence that 6it ot-er t-an accused convicted of crime admitted# subject to "03# i' cri$e
punis-a(le (% deat-Di$prison$ent H1 %r# for accused# admitted if more probative than prejudicial6
AN (must be greater probative value) (if J 0. yrs passed# need very high probative value+ (b))
limiting instruction+ use only to determine if wit/2 is liar# not thief
+2, evidence of past conviction automatically admitted regardless of punishment length if that crime
required proof/admission of wit"s dishonesty or false statement
crimen falsi (crimes thought to have connection to truth,telling)
o perjury# embe**lement# criminal fraud
o deception doesnAt -ave to (e an ele$ent7 loo3 to underl%ing 'acts
Braceen+ armed robbery/theft is not crimen falsi
no -./6 only time not automatic admission when 819 yrs since date of conviction or release from
confinement (whichever later)# then balancing under (b)
+(, 0i$e li$it. 9f J0. yrs has elapsed# prior conviction evidence only admissible if substantially more
probative than prejudicial. &ven then# only admissible if proponent gives adverse party sufficient
notice of intent to use this info so that witness is given fair opportunity to contest its use.
+c, &vidence of a conviction not ad$issi(le i'
+1, pardon# annulment# certificate of rehabilitation# or other equivalent procedure based on finding of
rehabilitation# and person hasn"t been convicted of subsequent crime punishable by
death/imprisonmentJ0 yr# or
successful rehab make prior conviction less probative
+2, pardon# annulment# or other equivalent procedure based on finding of innocence.
+d, &vidence of 5uvenile ad5udications generall% not ad$issi(le. court may# however# in criminal case
allow evidence of juvenile adjudication of wit other than the accused to attack credibility of an adult if
court is satisfied that admission is necessary for a fair determination of guilt/innocence.
%y virtue of its informality# frequently diminished quantum of required proof# and other departures
from accepted standards for criminal trials# juvenile adjudication considered to lack precision and
general probative value of the criminal conviction.
+e, #endenc% o' appeal does not render evidence of conviction inadmissible. &vidence of pendency of
appeal is admissible.
a. )alculating 10 %r ti$e li$it
Brewer+ reconfinement imposed for original conviction6 release date from :
nd
confinement is the one
used in computing time under E.H. &nd point is date of present indictment.
(. assessing pro(ativeness
?ook at new crime and old crime determine how similar they are to assess probativeness
8actors 'or deter$ining 6-et-er pro(ative value out6eig-s pre5udicial e''ect to t-e accused
6-en is t-e 6itness
1, nature of the crime
3iolent crime has no bearing on truthfulness# so weighs against admitting
2, time of conviction and the wits subsequent criminal history
ontinued law,breaking weighs in favor of admitting
9f long time has passed# jury more likely to forgive so less prejudice
3, similarity b/w past crime and charged crime
onvictions for same/similar crime should be admitted sparingly because very prejudicial
00
(e was a drug dealer before# so he"s a drug dealer now
9f admit# limiting instruction6 use only to determine veracity# not guilt
", importance of 2"s testimony
Core critical 2"s testimony# more hesitant to admit prior conviction
?, centrality of the credibility issue
c. "03 vs. *0<
-./+ unfair prejudice must substantially outweigh probative value for evidence to be inadmissible
o 9f refuse to admit prior conviction under -./# judge is saying that unfair prejudice is very strong.
o =o# shouldn"t admit under E.H"s standard because there is no way that the probative value can
outweigh this much prejudicial effect
(owever# E.H is about truthfulness# so in theory# judge could let this evidence in.
". Re'res-ing Recollection 6Da 6riting: *12 +civil and cri$inal,
<hen a witness uses a document to refresh memory (while or before testifying)# then testifies from
@present recollection refreshed#" the opposing party is entitled to see the document# cross,examine the
witness about it# and introduce only parts of it that are relevant to the testimony.
9f document not produced in civil# court shall make order that justice requires
o 9n criminal# judge may declare mistrial if justice requires
!rial practice + widely accepted practice to refresh wit"s recollection when memory fails
o <it professes loss of memory# counsel asks if would refresh memory to see writing# show it to
wit# is your recollection refreshed># take writing# now tell us what you remember
?. #rior Inconsistent State$ents used to #mpeach
7rior statements cannot be relied upon for the truth of what they assert6 can only rely on it to
disbelieve what the wit has said in court
o 7rior statements can be used substantively in A.0(d)(0)
Rule *13. #rior State$ents o' @itnesses
+a, 9n examining a witness concerning his prior statement) written/not# statement need not be shown nor
contents disclosed to wit at that time# but on request shall be shown/disclosed to opposing counsel.
Allows questioner to impeach witness by showing something wit said or wrote before trial is
inconsistent w/wit"s testimony w/o being required to produce the document or describe the statement
in advance
+(, Extrinsic evidence of a prior inconsistent statement by a witness not admissible unless wit afforded
opportunity to explain/deny and opposite party afforded opportunity to interrogate wit thereon# or
interests of justice otherwise require. )ot apply to admissions of party,opponent as defined in A.0(d)(:).
&xtrinsic evidence could be a document or testimony by another person
Barret+ A earlier testified % admitted to him he was involved in robbery. 2 wants intro testimony that A
had said he knew % wasn"t involved.
Anal%sis: to be received as prior inconsistent statement# enough if proffered testimony# taken as whole#
either by what it says/omits# affords some indication that fact was different from wit"s testimony.
Held: error to exclude6 not harmless because if A wasn"t credible# may have aroused reasonable doubt.
Rule: even if evidence is hearsay and inadmissible to prove truth of matter asserted) admissible as
prior inconsistent statement to impeach wit$s credibility.
0:
#ro(le$ ;.1*: A said she saw C fire fatal shot. At trial A testifies she didn"t see. 7 calls detective to
testify about her prior statement. <hat happens if 2 motions for judgment of acquittal (no 577 juror
could find guilty beyond reasonable doubt)>
2etective"s testimony is only for impeachment purposes# not to prove who shooter is. 2eny.
#nce: must weigh evidence"s impeachment value against unfair prejudice/jury confusion (-./). <hen 7
intros prior inconsistent statement to impeach own wit# prejudicial impact often substantially outweighs
probative value for impeachment purposes because jury may ignore limiting instructions and consider
impeachment testimony for substantive purposes. 5isk greater when statement contains 2"s alleged
admission of guilt. 9mpeached wit only refused to give testimony they wanted. !his testimony wasn"t
damaging# so no prior inconsistent statement has no probative value for impeachment purposes.
Rule: can"t impeach wit w/prior inconsistent statement if only purpose to circumvent hearsay rule and
expose jury to otherwise inadmissible evidence.
Notes: judge should rarely# if ever permit the 8ovt. to @impeach" its own witness who doesn"t cooperate
by presenting a prior inconsistent statement that would otherwise be inadmissible hearsay especially
when the prior inconsistent statement contains 2"s confession. 9n this instance# the jury will not be able
to following a limiting instruction (only use this to determine uncooperative wit"s credibility)# and will
most likely use this evidence for unpermitted substantive purposes (not+ @don"t believe this witness#" but+
2 confessed# so he"s guilty). !his violates -./ because the impeachment value is substantially
outweighed by unfair prejudice and jury confusion.
:letcher: can impeach w/post,arrest pre,iranda silence. 2oesn"t violate due process to permit cross
as to post,arrest silence when 2 takes stand.
'oyle: if given iranda warnings and you do remain silent# govt. can"t use to impeach.
=ilence can always be used to impeach not in custody
*. I$peac-ing a Hearsa% eclarant
<hen hearsay evidence is admitted# any party is permitted to impeach the credibility of declarant
80*: when a hearsay statement or statement in A.0(d)(:)()# (2)# or (&) has been admitted into
evidence# declarant$s credibility may be attaced) and if attaced may be supported by any evidence
which would be admissible if declarant had testified in person as a witness. &vidence of declarant"s
statement or conduct at any time (even after original statement intro"d into evidence3) inconsistent
w%declarant$s hearsay statement) is not subject to any re;uirement that declarant have been afforded
an opportunity to deny or explain. 9f party against whom a hearsay statement is admitted calls
declarant as a witness# they are entitled to examine declarant as if under cross examination. (E.A(b))
A.0(d) statements which are not hearsayK(:) admission by party,opponent. !he statement is offered
against a party and is a statement made by
o () a person authori*ed by the party to make a statement concerning the subject
o (2) the party"s agent or servant concerning a matter w/in scope of agency or employment# made
during the agency or employment
o (&) a coconspirator of a party during the course and in furtherance of the conspiracy
.. Hearsa%
A. e'inition and Beneral Rules
0/
8eneral rule + hearsay is inadmissible because it is unreliable
o Absent person can"t be put under oath or cross examined
o an"t adequately asses absent person"s testimony
7olicy for exclusion + original speaker"s absence makes is hard for the jury to decide if the original
speaker had accurate perception# memory# honesty# and use of words
o &xceptions apply when out,of,court statement particularly likely to be accurate or truthful
1. 801. e'initions
(earsay + out of court statement offered to prove statement"s contents are true (@truth of what it
asserts")
=tatements can be
o oral or written assertions '5
o conduct if the actor intended it to be an assertion
o silence is not a statement because it doesn"t assert anything
declarant + person who made the out,of,court statement
o you are the declarant when you are quoting yourself# so quoting yourself is hearsay
but there are exceptions in A.0(d)(0)
2. Is it Hearsa%E
!o be hearsay# it must be offered to prove that the contents of the statements are true
o &x. Luoting guards to prove they were in the bldg. isn"t hearsay because introduced to prove
they were there# not to prove that what they said was true
Not -earsa%: t-ese donAt depend on 6-et-er t-e contents o' t-e state$ents are true
o 9ntroducing a statement to prove that the statement was made and heard
&x. 2efamation case+ statement not introduced to prove that the person is a cheat# just
introduced to prove that a defamatory comment was made
o 9ntroducing a statement to prove its impact on the hearer
&x. <arnings# threats
&x. <atch out for $oey# he is looking for you# if offered to prove reasonable fear
o 9ntroducing a statement to show someone had notice
&x. )egligent hiring
Anal%sis
o @-at is t-e out o' court statementE
o @-at7 i' an%t-ing7 does it assertE
Luestions can be construed as assertions
=ilence is not an assertion
9nvoluntary words aren"t assertions
onduct can be an assertion# but actor must have intended it to be one
o 6-at is t-e outFo'Fcourt state$ent (eing o''ered to proveE
Is it (eing introduced to prove t-at its contents are trueE
Or is it (eing introduced 'or so$e ot-er purposeE
#ro(le$ ;.1: affidavits can be hearsay. 'ath etc. has no bearing on whether it is hearsay. !his is an
out,of court statement. 9f it is being offered to prove the truth of what it asserts# hearsay.
(ere# in the affidavit# witness said she watched auto manufacturer"s crash tests and saw that they
weren"t up to par. (er statement was offered to prove that the manufacturer"s own tests showed that
the cars weren"t safe.
0-
#ro(le$ ;.3: witness testifies that she identified 2 by saying @he is M/" at a lineup. !his statement was
offered to prove that 2 was the person who robbed her.
Luoting yourself is hearsay+ here# it is being offered to prove that it"s content is true# i.e. that he is
the man who robbed her. (owever# there is an exception here
801+d,+1,: prior state$ents o' 6itnesses arenAt -earsa% i'
o the declarant testifies at trial/hearing#
o is subject to cross concerning the statement# and
o the statement is+ one of identification of a person made after perceiving the person
#ro(le$ ;.;: 7 is suing 2 for defamation. 7 testifies that 2 said he was a cheat.
)ot hearsay because he isn"t trying to prove the statement is true (he"s a cheat)
!. e'ining Assertions
1. )onduct
onduct isn"t an assertion unless the actor intended it to be one
onduct is usually admissible because it does not assert anything
#ro(le$ ;.8. 9s evidence of conduct of deceased captain on the question of ship"s seaworthiness
hearsay if captain# after examining# embarked in it w/his family> 7 calls dockworker who will testify
about what he saw. <hat if testimony intro"d as evidence captain believed vessel safe>
9f captain"s actions are assertion about ship"s seaworthiness# evidence of his conduct to prove ship
was seaworthy is hearsay
Admissible to prove ship seaworthy because captain was only acting for himself and didn"t intend to
assert anything to someone else
#ro(le$ ;.<. 9ssue as to whether 8ovt. took adequate precautions w/nuclear test. hairman said he was
taking his family there# then he did. an observer testify that he saw them enter> (earsay if offered to
show chairman"s expert opinion that blast site was safe>
!his is an assertion because chairman was asserting to reporters that site was safe.
hearsay because offered to prove truth of what chairman wanted to assert (blast site was safe)
a. 0-e Nature o' Assertions
A.0(c) defines hearsay as an out,of,court statement offered to prove the truth of the matter asserted
A.0(a) statement+ oral/written assertion or as nonverbal conduct if intended as an assertion
o Cust intend to assert6 context important
o lose cases should be resolved in favor of admissibility
)onassertive words+ 9nvoluntary expressions
Assertions don"t have to be declarative statements6 questions# implied assertions# etc. count too
(. Hearsa% &ui:
3. /+ officer testify saw owner running after another man. 'ffered to prove owner believed he robbed
the store.
)ot hearsay because owner wasn"t trying to assert anything to anyone by running after the guy
*. 7"s display of a videotape of a reenactment of a robbery in which owner recreates his actions at time
of robbery if offered by 7 to prove owner"s actions at time of robbery.
(earsay+ owner is intending to assert what he did at time of robbery and tape is to show that this is
true
;. owner"s testimony that 2 said @9"ve got a gun and 9"ll use it" if offered to prove 2 threatened violence.
01
)ot hearsay because is words are a threat. %ecause he has made# not asserted a threat# not hearsay.
8. owner"s testimony that he called his wife about a minute after robber fled and told her the store had
been robbed# together w/wife"s testimony that owner called a few minutes after ten if offered by 7 to
prove robber fled about ten o"clock.
)ot hearsay+ what they said doesn"t matter# it just establishes time robber fled.
<. officer"s testimony that owner told her 9 never rang a sale all night if offered by 7 to prove no
customers in store at time of robbery
9ndirect assertion+ this fact is a necessary link in chain of inferences leading to intermediate fact (few
customers all night) which leads to ultimate fact (store probably empty at time of robbery). =o this
statement is being offered to prove what it asserts.
10. testimony of police switchboard operator that he received no other robbery reports that night# if
offered by 7 to prove no other robberies that night.
)ot hearsay+ no reason to think silent citi*ens were intending to assert they hadn"t been robbed
11. arresting officer"s testimony that# when she approached 2 after robbery# he began to stutter# if
offered by 7 to prove officer"s approach made 2 nervous.
2 didn"t mean to assert that he was nervous6 not hearsay
13. arresting officer"s testimony that 2 told her the wrong name when arrested if offered by 7 to prove 2
was conscious of his guilt
A.0(d)(:)(A)+ admissible as statement of party,opponent
1". arresting officer"s testimony that 2 told her the wrong name when arrested if offered by 2 to prove
2 was insane.
hain of inferences+ 2 said he is $$# he thinks he is $$# therefore he is insane
(earsay because being offered to prove that
1?. testimony of 2"s neighbor that# on night before robbery# he overheard 2"s sister say to 2# Cy son
borrowed my car w/o permission. (ow do you thing 9 should discipline him> 9f offered by 7 to prove
2"s sister believed he was sane.
)ot hearsay because sister isn"t asserting that she thinks 2 is sane
1*. testimony of 2"s neighbor that on night before robbery# he overheard 2"s wife tell 2 N9 wrecked our
car today# and insurance won"t cover it" if offered by prosecutor to prove 2 had financial motive to rob
the store.
)ot hearsay# offered to prove effect on 2
1;. testimony of 2"s neighbor that after robbery# he overheard 2 say to friend @here"s 0.#... 9 owe you"
if offered by 7 to prove 2 owed his fried 0.#....
)ot hearsay because 2 didn"t mean to communicate to friend that he owed O.
18. testimony of 2"s neighbor that after robbery# he overheard 2"s friend say to 2# @9"ve got some extra
bullets if you need them" offered by 7 to prove 2 had certain caliber weapon.
)eighbor wasn"t intending to assert that 2 had -1 caliber weapon
1<. testimony of 2"s neighbor that# after robbery# 2 told him @they have 8uinness at the store# b/w sam
adams and beck"s." together w/evidence that beer is shelved this way if offered by 7 to prove 2 had
been in store at some point.
)ot hearsay because statement isn"t being offered to prove the way beer was shelved# offered to
prove that he"d been in the store.
). E=ceptions to t-e Hearsa% Rule
7olicy+ exceptions justified by necessity and trustworthiness/reliability
/ categories
0E
o (earsay exceptions that apply w/o regard to whether declarant is available
o (&s that apply on if declarant is unavailable as a witness and
o &xemptions from the definition of hearsay for certain out,of,court statements offered for the
truth of what they assert
1. Ad$issions (% #art%FOpponent 801+d,+2,
Any statements ever made by a party if introduced against that party
7olicy+ party did say it# party is available to explain
!hese come in for the truth of what they assert# so can prove the statement by extrinsic evidence#
unlike in E0/ situation when you are using prior statements of the witness to impeach
Cust show that a party made the statement and that it is relevant
801+d, State$ent is not hearsay i' +t-ese are -earsa%7 (ut are ad$itted an%6a%,
+2, =tatement is o''ered against a part% and is
+A, part%Is o6n state$ent# in either individual/representative capacity#
o =tatement doesn"t have to be against that party"s interest when he said it
o an"t offer your own statement# have to offer other party"s statement against them
+!, adoptive state$ents: statement of which party has manifested an adoption/belief in its truth#
o 7arty"s reaction to a statement or action by another person when it is reasonable to treat the
party"s reaction as an admission of something stated or implied by the other person
o &x. =tatement+ 'bserver said to % #@you didn"t stop for the red light" and % responds by saying
@9"m sorry 9 didn"t"# %"s answer is an adoptive admission that he didn"t stop for the red light
o =ilence can be an adoptive admission if the party would be expected to react# but didn"t
%ut can"t use post,irandi!ed silence as an adoptive admission (unless person not talking to
the cops6 see G.0/)
+), state$ents (% spo3espersons statement by person authori*ed by the party to make statement
concerning the subject#
o ommunication to /d party not required
+, state$ents (% agents: statement by partyFs agent/servant concerning matter w/in
agency/employment"s scope# made during existence of relationship# '5
+E, coconspiratorAs state$ents: statement by coconspirator of a party during course and in
furtherance of conspiracy.
o 2on"t have to be charged w/conspiracy# but conspiracy must exist
o )eed to be one who knows of venture and intended to associate w/it
o 2oesn"t apply to confessions to police+ not furthering conspiracy and shows it"s over
=tatement"s contents shall be considered but aren"t alone sufficient to establish declarantFs authority
under ()# agency/employment relationship and scope under (2)# or existence of conspiracy and
participation by declarant and party against whom statement offered under (&).
ourt can consider the contents of the hearsay statement to determine whether or not there was a
conspiracy# whether or not there was agency/employment# etc. %ut# if the hearsay statement is the
only evidence of a conspiracy# of the scope of employment# etc.# must exclude the statement.
a. Adoptive Ad$issions: 801+d,+2,+!,
;.12: undercover cop says wants to buy more and seller says his buddy has more. !ry intro that buddy"s
actions adopted her statement. op will testify. 7 will ask what did 2 do or say in response.
Adoptive silence+ four requirements for manifesting an adoption
o 2id " hear and understand statement made by other person>
0G
(e brought out the drugs# so he heard what she said and he"s only few ft. away
o <as 2 at liberty to respond
o #ituation naturally called for a response A)2 (would 577 feel a need to respond)
o " failed to respond or responded w/o rebutting/denying
(e didn"t say he didn"t have it
;.13: wants to put in failure to rebut when daughter says 9"ll testify that you killed someone. 9nstead of
rebutting# he points to a sign that says police are monitoring.
at liberty to respond+ monitored# but why would he care about saying he didn"t do it. iranda
warnings.
situation naturally called for a response+ vague statement about morals# maybe not. %ut maybe# if he
was innocent he should want to tell her.
2 failed to rebut+ responded# but not rebuttal
(. State$ents o' Agents 801+d,+2,+), J +,
!ahlandt: alleged wolf attack. 7 tries to admit (0) note stating =ophie bit the child from employee to
center"s director# (:) statement from employee to center that =ophie bit child# and (/) center"s minutes
discussing incident.
Held: (0) and (:) are admissible against employee because he made these statements and no personal
knowledge is required. 2oesn"t matter for (0),(/) that these are in,house communications. (0) is
admissible against center (A.0(d)(:)(2)) as a statement by agent or under (d)(:)() as an authori*ed
admission. (/) isn"t admissible against employee because not his admission# but is admissible against
center under (d)(:)(A).
c. )oconspiratorAs State$ents 801+d,+2,+E, and 10"+a,
Bourjaily: contested hearsay statement itself can be evidence conspiracy"s existence and other
preliminary facts. (can"t be the only evidence of the conspiracy# though)
Anal%sis: court must have some proof of conspiracy outside of hearsay evidence# but may look at that
evidence in light of independent evidence to determine whether conspiracy shown by preponderance of
evidence. 0.- allows court to consider any evidence w/o regard to admissibility# bound only by rules of
privilege. &vidence must only be relevant. ?ittle doubt that coconspirator"s statements could
themselves be probative of existence to a conspiracy and participation of 2 and declarant.
Rule 10"+a,: judge can look at the hearsay evidence (even though it may not be admissible) to decide
whether conspiracy# etc. occurred. Cust find that it did occur by preponderance of the evidence.
(earsay evidence can"t be the only evidence that shows you are w/in the rule.
&x. 9f the hearsay evidence is the only evidence that proves there is a conspiracy# the speaker had
authority# etc.# then the statement can"t come in.
10"+a, v. +(, +(uddleston,
0.-(a) preponderance of evidence standard is higher than sufficient evidence standard of (b)
o (b)+ judge examines evidence and decides whether jury could reasonably find conditional fact
by preponderance of evidence
o 9n (a)# evidence considered need not be admissible# but for (b) it has to be
o (b) only governs conditional relevance# (a) governs everything else
. #ast State$ents o' @itnesses and #ast 0esti$on%
1. Introduction
0A
Rule *13. #rior state$ents o' 6itnesses +onl% can (e used 'or i$peac-$ent7 not 'or trut-,
+a, when examine wit about prior statement he made# written/not# statement need not be shown nor
contents disclosed to wit at that time# but on request shall be shown/disclosed to opposing counsel
+(, extrinsic evidence of prior inconsistent statement by wit inadmissible unless wit afforded
opportunity to explain/deny and opposite party afforded opportunity to interrogate wit thereon# or
interests of justice otherwise require. 9napplicable to admissions of party,opponent+ A.0(d)(:)
Rule 801+d, +co$e in 'or t-e trut- o' 6-at t-e% assert, statement isn"t hearsay if+
+1, declarant testifies at trial/hearing and is subject to cross concerning statement# and statement is
+A, inconsistent w/2"s testimony# and was given under oath subject to perjury penalty at trial#
hearing# or other proceeding$ or in deposition '5
+!, consistent w/2"s testimony and is offered to rebut express/implied charge against " of recent
fabrication or improper influence/motive '5 (and must meet %ome rule)
o 2 is being accused on the stand# consistent statements can come in to prove truth of what they assert
o !he consistent statement must have been made before the motive to fabricate# before the improper
influence
+), one of identi'ication of person made after perceiving the person
a. Inconsistent State$ents o''ered Su(stantivel% 801+d,+1,+A,
#ro(le$s
;.18: C testifies in grand jury that husband beat her. At trial told different story. 7 now rests w/o
offering further evidence of cause of injury. (ow should court rule if 2 moves for directed verdict of
acquittal> 9s prior testimony admissible.
Admissible A.0(d)(0)(A) for its truth# shouldn"t grant motion because grand jury testimony is
admitted as substantive (to prove truth of what it asserts) testimony
9f C instead says she doesn"t remember# still qualifies as @inconsistent"
)ontrast 6D;.1*: police detective interviewed 5 who said saw 2 shoot. At trial 5 says doesn"t
know who shot. 7 calls detective to testify about her earlier statement.
o 2etective"s testimony doesn"t come in to show whether 2 shot (E0/)6 only to impeach# so no
evidence for 7 that 2 shot and motion for judgment of acquittal should be granted.
(. #ast )onsistent State$ents: 801+d,+1,+!,
Tome Rule: prior consistent statement used to rebut charge of recent fabrication or improper influence
or motive admissible if statement made before the alleged fabrication$ influence$ or motive came into
being. )eed statement to occur before motive to fabricate arose.
c. State$ents o' Identi'ication: 801+d,+1,+),
&eichell: statements of witness that led to creation of composite drawing admissible# so drawing is
admissible. =ketch admissible either because it retains character of statements that led to its creation or
because it is a statement that isn"t hearsay under ().
"wens Rule: () not violated by admission of an identification statement of witness who is unable
currently because of memory loss to testify concerning the basis for identification.
Anal%sis: subject to cross when placed on stand# under oath# and responds willingly to questions. 7olicy
favoring prior statement because closer in time to incident and memory better.
E. eclarant 1ust (e 4navaila(le to use 80"
0H
Anal%sis
1, is t-e 6it unavaila(leE
2, does an exception appl%E
1. #ast testi$on%
Rule 80". Hearsa% E=ceptionsG eclarant 4navaila(le
+a, PQnavailability as a witnessP includes situations in which declarant,,
+1, is exempted by ruling of court on ground of privilege from testifying concerning subject matter of
declarantFs statement6 or
&x. 7rivilege against self,incrimination
+2, 2 refuses to testify about his statement despite court order to do so6 or
+3, 2 testifies that he doesn"t remember his statement6 or
+", 2 can"t be present or testify because he is dead# or has a serious physical or mental ailment or
+?, 'or 80"+(,+1,+'or$er testi$on%,: 2"s presence can"t be obtained6 'or +(,+2,+state$ent under
(elie' o' i$pending deat-,7 +3,+state$ent against penal interest,7 and +",+state$ent o' personal or
'a$il% -istor%,: 2"s presence and testimony can"t be obtained (ex. %y deposition)
o 9f these can"t be obtained by reasonable means# 2 is unavailable
o an also use (0),(-) to prove unavailability for these rules
2 not unavailable if statement"s proponent wrongfully prevented 2 from testifying.
80"+(, The following are not excluded by hearsay rule if declarant is unavailable as a witness:
+1, 8or$er testi$on%. %estimony given as wit at another hearing of same/different proceeding# or in
deposition in course of same/another proceeding$ if party against whom testimony is now offered# or# in
civil action/proceeding# predecessor in interest# had opportunity and similar motive to develop testimony
by direct# cross# or redirect examination.
9f the declarant is unavailable# that party can get declarant"s prior testimony or deposition in if# at the
time these statements were made# the opposing party had an opportunity to develop the testimony by
questioning A)2 if the opposing party"s motivation at the time they were questioning was similar to
its motivation at the current trial.
o (ow was what the opposing questioner was trying to do previously different from what he is
trying to do now>
<hat was the context of the earlier proceeding/deposition>
<hat was the opposing party trying to do>
Are the facts and issues in the two cases similar>
<as the burden of proof in the first proceeding lower>
&x. 8rand jury# probably not similar motivation because prosecutor only has to prove
probable cause
<hat did the cross examination in the earlier proceeding entail>
<ould the opposing party ask different things this time>
#ro(le$ ;.21: ivil suit for damages arising from car accident# C testified about the accident and was
cross,examined by "s lawyer. ?ater criminal case# C unavailable because head injury. 7rosecutor
wants to read C"s testimony from civil trial.
=he is unavailable because of physical/mental infirmity# but it will come in under (b)(0) as former
testimony. =he was cross,examined and it was based on same set of facts. Cight be problem
:.
because 2 might not have had same motivation in civil trial. <hat were the issues in the : cases and
how close were they>
'i<apoli: @similar motive to develop" (b)(0).
Anal%sis: is questioner is on same side of same issue at both proceedings# and did he have substantially
similar interest in asserting that side of substantially similar issue> 7rosecution is only investigating in
grand jury and only has to establish probable cause. 2on"t need to push as hard. !hey stayed away from
asking certain questions because didnFt want to reveal all pieces of their evidence to the witnesses.
8actors +relevant (ut not conclusive,
1, purposes of proceedings#
2, burdens of proof A)2
3, to lesser extent cross,examination at prior proceeding (what was undertaken and what was available
but foregone).
Held: no similar motive in criminal trial when testimony initially occurred in grand jury when
indictment already issued and grand jury expressed that they didn"t believe testimony.
Note: grand jury context will sometimes# but not invariably present circumstances that demonstrate
prosecutor"s lack of similar motive.
2. State$ents Against Interest
80"+(, 9f 2 is unavailable# this is an exception to what would otherwise be hearsay
+3, =tatement against interest. =tatement which was at time made was far contrary to 2"s pecuniary/
proprietary interest# or so far tended to subject 2 to civil/criminal liability# or to render invalid his claim
against another# that 577 in 2"s position wouldn"t have made statement unless believing it true.
=tatement tending to expose 2eclarant to criminal liability and offered to exculpate the accused
inadmissible unless corroborating circumstances clearly indicate trustworthiness of statement.
!hese aren"t admissions because declarant isn$t a party
9f the statement is made to exculpate the accused# it can only come in if corroborated
1ust s-o6 unavaila(le declarant $ade t-e state$ent and 6-en -e $ade it7 it -ad t-e potential
to -ar$ an i$portant interest o' t-e declarant +$one%7 propert%7 cri$inal lia(ilit%,
o R## 6ouldnAt -ave said it i' it 6asnAt true
@-en a state$ent against declarantAs penal interest is o''ered to e=culpate t-e accused7 t-ere
$ust (e circu$stances t-at indicate t-e state$ent is trust6ort-% ASC A!O40 0HIS AN
;.22
#ro(le$ ;.22: 7olice officer hears criminal say in response to his mother"s question about an armed
robbery# NAsk Cagnolia# it was her idea.R
omes in against criminal# but not C
&illiamson: only self7inculpatory portions of statement come in. 'ther parts less credible. Tae
statement apart and as whether each part is so against interest that .// wouldn=t say unless true.
Rule: non,self,inculpatory statements# even if made w/in broader narrative that is generally self,
inculpatory are inadmissible.
3. %ing eclarations
80"+(,+ 9f declarant is unavailable# this can come in
:0
+2, =tate$ent under (elie' o' i$pending deat-. 9n prosecution for homicide/civil action/proceeding#
statement made by 2 while believing his death was imminent# concerning cause/circumstances of what
2 believed to be impending death.
#ro(le$ ;.2*: w/dying declaration he has to be talking about the cause of what is about to kill him. (e
says the cause was not Clyde. =econd# death must be impending. 2oc said he was dying right before he
said it. Admissible.
>hepard: for dying declaration# 2 must have spoken w/o hope of recovery and in shadow of impending
death. ;ear or even belief that illness will end in death will not make a dying declaration by itself6 must
be a settled hopeless expectation that death is near and what is said must have been spoken in hush of its
impending presence. 2eclaration also kept out if speaker is giving expression to suspicion/conjecture#
and not to known facts. Cust be knowledge/opportunity for knowledge as to acts that are declared.
Notes: declarants must be competent and have personal knowledge of facts. 2s" credibility subject to
attack under A.E by any techniques available to attack live wit testimony (only when party"s own
statement/admission comes in against him under A.0(d)(:)(A) or (%) and when live wit"s past words
admitted under A.0(d)(0) is there no provision to attack credibility).
". 8or'eiture (% @rongdoing
80"+(, 9f declarant is unavailable# this comes in4
+*, ;orfeiture by wrongdoing. =tatement offered against a party that has engaged/acquiesced in
wrongdoing that was intended to# and did# procure unavailability of declarant as a witness.
9f the declarant is unavailable because you made him unavailable# his hearsay statements come in
(oulihan: 2 who wrongfully procures wit"s absence for purpose of denying govt. wit"s testimony
waives his right under onfrontation lause to object to admission of absent wit"s hearsay statements.
?. +", State$ent o' personal or 'a$il% -istor%: (A) statement concerning 2"s own birth# adoption#
marriage# divorce# legitimacy# relationship by blood# adoption# or marriage# ancestry# or other similar
fact of personal/family history# even though 2 had no means of acquiring personal knowledge of the
matter stated6 or (%) statement concerning the foregoing matters# and death also# of another person# if 2
was related to him by blood# adoption# or marriage or was so intimately associated w/his family as to be
likely to have accurate information concerning the matter.
=tatements by the declarant about him or herself# about his relatives# or close acquaintances are
admissible to show kinship and similar family history
8. eclarant Availa(ilit% I$$aterial: Rule 803
0-ese arenAt e=cluded (% t-e -earsa% rule7 even t-oug-t t-e declarant is availa(le as a 6itness
(ecause t-ese are (etter t-an -is live testi$on%
7olicy+ 2 availability immaterial because this type hearsay sometimes better than 2"s live testimony
o ircumstantial guarantees of trustworthiness sufficient to justify nonproduction of 24even
though he may be available
1. #resent Sense I$pressions and E=cited 4tterances
+1, 7resent sense impression . =tatement describing%explaining an event/condition made while 2 was
perceiving it# or immediately thereafter.
o short enough so not time for deliberately making up story
::
+2, &xcited utterance. >tatement relating to a startling event%condition made while ' was under stress
0influence3 of excitement caused by it.
o =pontaneity produces utterances free of lies
o 2uration of state of excitement+ how long after are you still under influence>
o =ubject matter broader than 0 because only has to @relate" whereas in 0# has to be a @description"
o 2oesn"t have to be perfectly contemporaneous
2. State$ents o' 0-enFE=isting )ondition
+3, !hen existing mental# emotional# or physical condition. =tatement of declarantFs then existing state
of mind# emotion# sensation# or physical condition (such as intent# plan# motive# design# mental feeling#
pain# and bodily health)# but not including statement of memory or belief to prove the fact remembered
or believed unless it relates to execution# revocation# identification# or terms of 2"s will.
=tatements of feeling
o 9 feel sick can be introduced to prove that declarant felt sick when she spoke
2eclaration of intent to do something is admitted as circumstantial evidence tending to show that the
intent was carried out
o &x. (illmon: written hearsay statement admitted to prove the declarant did what he said he
intended to do
o &x. 9 plan to go to the restaurant tomorrow. Admissible to prove that declarant did go to the
restaurant.
(earsay statement is inadmissible if it expresses declarant$s memory or belief and the statement if
offered to prove the truth of the fact remembered or believed
o &x. 9 saw %ill yesterday can be introduced to show declarant thought he saw %ill yesterday# but
not to prove he actually saw him.
o &x. 9 think 9 left my keys in the car. 9nadmissible to prove that the declarant did leave his keys
in the car.
3. State$ents 'or 1edical iagnosis
+", =tatements for purposes of medical diagnosis/treatment. >tatements made for purposes of medical
diagnosis%treatment and describing medical history# or past/present symptoms# pain# or sensations# or
inception or general character of the cause/external source thereof insofar as reasonably pertinent to
diagnosis/treatment.
5ationale+ if describing something to doctor for purposes of treatment# makes no sense to lie
#ro(le$ ;.32: all to lawyer+ ( said C pushed him then he fell and hit head. ( wants to reduce his
bequest to her. 2octor visit+ reported same events and added that he suffered physical symptoms. 2oc
asked specifically what caused his fall.
(0)+ lawyer"s testimony that he said he fell and hit his head
o )ot a statement for purposes of diagnosis because lawyers aren"t treating people
(:) statement to doctor that he fell and hit his head
o <hy would he tell doctor this> =o doctor could diagnose him. Admissible
(/) statement to doctor about who pushed him
o ould be important for treatment because shows he didn"t fall for other reason
=o fact that he was pushed comes in
o <ho pushed him doesn"t come in because @statements as to fault" don"t qualify
o 9f person who pushed was caretaker# this might affect course of treatment and who could come in
:/
#ron >hell: doctor elicited statements from patient about cause of her injuries. =he said dragged into
bushes# clothing removed and man tried to rape her. (and over her mouth and neck. A./(-) admits
three types of statements+ (0) medical history# (:) past or present sensations# an +3, inceptionDgeneral
cause o' diseaseDin5ur%. Cust be 57 to diagnosis/treatment. 5ule relies on patient"s strong motive to
tell truth because diagnosis/treatment will depend in part upon what patient says.
0est:
+1, is declarant"s motive consistent w/purpose of the rule>
)o facts that patient"s motive was other than a patient seeking treatment
+2, is it reasonable for the physician to rely on the information in diagnosis/treatment>
2oc"s purpose was to treat patient and preserve evidence.
7atient"s statements concerned what happened (reasonably pertinent)# not who did it
9t is enough that the information eliminated potential physical problems from doc"s exam
#ro(le$ ;.3?: wife testified that husband said he ate something bad and pointed to food container from
specific place. )urse testified wife said @my husband told me he ate bad meat from D." <ife testified
that doctor said+ @all signs of arsenic poisoning." (offered to prove husband showed signs of arsenic
poisoning)
(usband"s words and gestures offered to prove that he ate the food from this deli
o =tatements to family included if made w/intent that they should be passed on to doctor
)urse"s statement+ offered to prove husband had eaten food from the deli
o (earsay w/in hearsay+ need exception for both
<ife+ statement for purpose of medical diagnosis
)urse+ wife"s excited utterance
=he called doctor right after he told her# she was probably still scared
o %ut how excited was she> ;ood poisoning pretty common. =he doesn"t know cause
yet.
7roblem w/this probably not admissible
o 2octor"s statement+ A./(-) rule doesn"t require that declarant be patient
". Re'res-ing 1e$or% and Recorded Recollections
)ot excluded by the hearsay rule even though the declarant is available
+?, 5ecorded recollection. Cemo/record concerning matter about which wit once had knowledge but
now has insufficient recollection to testify fully and accurately# shown to have been made/adopted by
wit when matter was fresh in wit"s memory and to reflect that knowledge correctly. 9f admitted#
memo/record may be read into evidence but not received as exhibit unless offered by adverse party.
#olic%+ Cuch more reliable than having people remember minute details
#ro(le$ ;.3*: !wo witnesses to escaping bank robbers
?ee+ didn"t see plate M
o $otted M on candy wrapper w/in 1 mins.
o ertain accurately recorded what $ said# but doesn"t remember M# and seeing wrapper doesn"t
refresh his memory
$+ saw plate number and began repeating out loud over and over again
!wo layers of hearsay
o $ says number+ present sense impression
o ? writes it down+ A./(1)
andy wrapper can only be read but can"t admit it (because not offered by adverse party)
:-
an refresh with anything# not requirement that witness have made writing used to refresh her
recollection
o 9f the witness is refreshed# rule E0: applies

Johnson: 803+?, Ele$ents
+1, witness must have had firsthand knowledge of the event
+2, written statement must be a memorandum made at or near the time of the event while the witness
had a clear and accurate memory of it
+3, witness must lack a present recollection of the event A)2
+", witness must vouch for the accuracy of the written memo (at trial)
o <it may testify that she presently remembers recording correctly '5 remembers recogni*ing the
writing as accurate when she read it at an earlier time
o =ufficient if wit testifies that she knows memo is correct because habit/practice to record matters
accurately or to check them for accuracy
o <it can testify she recogni*es her signature and believes statement correct because wouldn"t sign
if didn"t believe true at the time
o Assertion of accuracy in acknowledgment line memo/such acknowledgement made previously
under oath insufficient
?. !usiness Records 803+*,7 +;,
foundations of exceptions+ reliability and necessity
motivation to make statement because regular routine practice or are you making the record for some
other purpose like litigation>
+*, Records o' regularl% conducted activit%. Cemo# report# record# or data compilation in any form of
acts# events# conditions# opinions# or diagnoses made at or near the time by or from info transmitted by a
person w/knowledge if kept in regularly conducted business activity if regular practice of that business
to make such record all as show by testimony of custodian or other qualified wit# or by certification that
complies w/H.:(00)# (0:)# or statute permitting certification# unless source of info or method
/circumstances of preparation indicate lack of trustworthiness. NbusinessP includes business# institution#
association# profession# occupation# and calling of every kind# whether/not for profit.
%usiness records are trustworthy because
o 5egularity serving to counteract the possible temptation to misstatements
o =ituation which would lead to detection of falsification so that misstatements cannot safely be
made
o A relationship# when writing is made by employee under duty to employer# which includes risk
of censure and disgrace for misstatements
doesn"t allow statements contained w/in business record if that person isn"t part of business
o 'nly guarantee of trust because made by employees
an"t come in to prove guy who filled it out was 3
9f someone else"s hearsay is in it# need exception
+;, A(sence o' entr% in records 3ept in accordance 6D+*,. Admissible to prove
nonoccurrence/nonexistence of matter unless lack of trustworthiness
/almer: interview w/train"s engineer who died shortly before trial excluded. (e had a motivation to
falsify because he was getting sued.
:1
Anla%sis: if admit# any business by installing regular system for recording and preserving its version of
accidents could qualify those reports for admission. !hese reports were not for systematic conduct of
55. Qnlike payrolls# etc.# these reports are calculated for use essentially in court# not in the business.
Held: not made @in the regular course of business#" so inadmissible.
#ro(le$ ;.3;.: 2 sued lawnmower co. for injuries. laimed that plug was defective b/c it was loose.
<ants to submit : merchandise return records that cashier wrote when other parties returned items
because cords loose.
9nadmissible because written by customer (not employee) and unverified by employee.
<itness isn"t required to have made the record# just must be familiar w/the particular record and
w/routine preparation of such records
<hat if the manufacturer wanted to turn in 2"s return form which stated that she returned mower for
clogging>
o 9nadmissible under business records exception for the same reason# but admissible under
admission by party opponent under A.0(:)(A).
5igneau: 2"s name on O transfer as sender. 9nfo filled out by sender and not verified by <Q.
Anal%sis: A./(E) doesn"t embrace statements contained w/in business record made by one not of
business if statements offered for their truth. =uch info is excluded as hearsay unless another exception
applies. when a clerk records the receipt of an order over the phone# the regularity of the procedure#
coupled w/business incentives to keep accurate records# provide reasonable assurance that the record
reflects the clerk"s original entry. (owever# no such safeguards automatically assure the trust of a
statement to the business by a stranger to it (statement made by money senderclerk). !he evidence
could be admitted w/sufficient circumstantial evidence that the forms were linked to 7 (ex. ;ound in his
car or if clerk checked sender"s 92).
Held: forms shouldn"t have been admitted for their truth.
*. #u(lic Records and Reports 803+8,+ availa(ilit% o' declarant i$$aterial,
+8, #u(lic records and reports. 5ecords# reports# statements# or data compilations# in any form# of
public offices or agencies# setting forth
+A, activities of office or agency# or
+!, matters observed pursuant to duty imposed by law w/duty to report# but excluding in criminal cases
matters observed by police and law enforcement personnel# or
+), in civil actions and against 4ovt in criminal cases# factual findings resulting from investigation
made pursuant to authority granted by law# unless sources of info/other circumstances indicate lack of
trustworthiness. (assume admissible unless untrustworthy)
7olicy+ assumption that public official will perform duty property and unlikely to remember details
independently of the record.
+10, A(sence o' pu(lic record or entr%. !o prove the absence of a record# etc '5 nonoccurrence/
nonexistence that matter testimony that diligent search failed to disclose it is admissibleS
Beech *ircraft: +), provides exception to hearsay rule for public investigatory reports containing
@factual findings." &xtends to conclusions and opinions contained in such reports.
Anal%sis: &valuative reports admissible Nunless sources of info or other circumstances indicate lack of
trustworthiness.R !rial judge has discretion to exclude entire report/portions whether narrow factual
statements/broader conclusions untrustworthy. 5eports not based on factual investigating inadmissible.
0rust6ort-iness 8actors:
:E
timeliness of investigation#
investigator"s skill/experience#
whether a hearing was held# and
possible bias when reports are prepared w/view to possible litigation.
)on'rontation )lause and #olice Reports and !usiness Records
can"t make end run around confrontation clause by using A./(E) or A.G
"ates: A./(A)(%) (police reports) and () (evaluative reports) don"t extend to reports of law enforcement
personnel or evaluative reports if offered against 2 in criminal case. onfrontation clause+ ongress
intended to make law enforcement reports absolutely inadmissible against criminal 2s because want
avoid impinging upon criminal 2"s right to confront wits against him
Notes: 1
th
and H
th
cir. reject+ exclusionary provision of A./(A)(%) only intended to apply to observations
made by law enforcement officials at scene of crime or investigating crime# not to reports of routine
matters made in nonadversarial settings. A./(A)() doesn"t compel exclusion of documents properly
admitted under A./(E) (business records) where authoring officer or investigator testifies because no
confrontation clause problem.
o !his is really shaky6 police are pretty much always adversarial
Ot-er e=ceptions 803+<,7 +11,F+23,
+<, Records o' vital statistics. 5ecord of births# deaths# or marriages# if made to public office pursuant
to requirements of law.
+11, Records o' religious organi:ations. =tatements of births# marriages# divorces# deaths# legitimacy#
ancestry# relationship by blood or marriage# or other similar facts of personal/family history# contained
in a regularly kept record of a religious organi*ation.
+12, 1arriage7 (aptis$al7 and si$ilar certi'icates. =tatements of fact contained in certificate that
maker performed ceremony/administered sacrament# made by clergyman# public official# or other person
authori*ed by rules/practices of religious organi*ation/by law to perform act certified# and purporting to
be issued at time of act/w/in reasonable time thereafter.
+13, 8a$il% records. =tatements of fact concerning personal/family history contained in family %ibles#
genealogies# charts# engravings on rings# etc.
+1", Records o' docu$ents a''ecting an interest in propert%. as proof of content of original recorded
document if record is of public office and statute authori*es recording
+1?, State$ents in docu$ents a''ecting an interest in propert%. =tatement contained in document
purporting to establish/affect an interest in property if matter stated was relevant to purpose of
document# unless dealings w/property since document was made have been inconsistent w/truth of
statement/purport of the document.
+1*, State$ents in ancient docu$ents. :. yrs.T# authenticity of which is established.
+1;, 1ar3et reports7 co$$ercial pu(lications. Carket quotations# tabulations# lists# directories# or
other published compilations# generally used and relied upon by public/persons in certain occupations.
+18, >earned treatises. 9n expert wit context if established as reliable. 5ead into evidence but don"t
receive as exhibits.
+1<, Reputation concerning personalD'a$il% -istor%. 5eputation among members of personFs family
or among associates# or in community# concerning personFs birth# adoption# marriage# divorce# death#
legitimacy# or other similar fact of personal or family history.
+20, Reputation concerning (oundariesDgeneral -istor%. 5eputation in community# arising before
controversy# as to boundaries of/customs affecting land.
:G
+21, Reputation as to c-aracter. 5eputation of personFs character among associates/community.
+22, /udg$ent o' previous conviction. &vidence of final judgment# entered after trial/upon plea of
guilty adjudging person guilty of felony# to prove any fact essential to sustain judgment# but not
including# when offered by 8ovt in criminal prosecution for purposes other than impeachment#
judgments against persons other than accused. 7endency of appeal may be shown but doesn"t affect
admissibility.
+23, /udg$ent as proo' o' personal7 'a$il% or general -istor%7 or (oundaries.
B. Rule 80;. Residual E=ception
=tatement not specifically covered by A.//A.-# but having equivalent circumstantial guarantees of
trustworthiness# not excluded by hearsay rule# if court determines +A, statement offered as evidence of
material fact6 +!, statement is more probative on point for which offered than any other evidence which
proponent can procure through reasonable efforts6 and +), general purposes of rules and interests of
justice best be served by admission. )otice to other party.
Qsed for statements that have significant reliability# but are not provided for in the detailed
exceptions
o 9sn"t covered by the rest of the rules
'allas County: claims previous fire weakened structure and caused current damage (not covered).
)ewspaper article reporting fire admitted.
0est:
1. Necessit%: +reasona(le e''orts standard,
Qnless hearsay statement admitted# facts may otherwise be lost# either because person whose
assertion is offered may be dead/unavailable# or because assertion is of such nature that one couldn"t
expect to obtain evidence of same value.
here$ necessity since article &' yrs old$ witnesses too old to remember( )rticle more accurate and
reliable than memory(
2. 0rust6ort-iness: / sets circumstances when hearsay trustworthy enough
sincere U accurate statement would naturally be uttered and no plan of falsification formed
!hough desire to falsify might be present# other considerations# such as danger of easy detection or
fear of punishment would probably counteract.
=tatement made under such conditions of publicity that an error# if it had occurred# would probably
have been detected U corrected.
Notes: more likely to be admitted under this exception if usual hearsay dangers are not here (lack of
memory# faulty narration# intent to influence the court proceedings# U plain lack of truthfulness)
?aster issent: if evidence is specifically covered by a rule and *ust not admissible$ residual exception
shouldnt apply( This exception should only be available if no rule applies 0drafters didn$t thin of
this situation3. &xception would swallow rest of rules if allow things that come close# but don"t make it.
'bviously# if drafters created a rule and the evidence doesn"t meet the rule"s requirements# shouldn"t be
let in at all.
&mployee ordered meth chemicals. 2A wants to admit company records (invoices w/sale date of
chemical by detective). 7"s say detective not qualified to admit company"s business records because he
hadn"t examined the business"s books so couldn"t establish made in regular course business# etc.
2on"t let it in# business records exception is applicable# but this evidence doesn"t meet it
G. Constitutional Constraints: Confrontation & Crawford.
6
th
Amendment: The right to be confronted with the witnesses against him.
:A
Applies in criminal cases only6 no problem in civil cases
<hen hearsay testimony offered against criminal 2# must consider
On the Other Hand: Prosecution may need to use hearsay exceptions to conict defendant when
dec!arant is unaai!ab!e and cannot be confronted "i.e. cross#examined$.
8eneral Analysis
o 3iolate (= rule>
o 9f not# does it violate >
o 9f joint trial# and want to use out,of,court admission/statement of co,2 against other 2 consider
%ruton
Confrontation Clause is not offended if the declarant is in court & can be cross-examined.
Must be able to face accuser% &hether 'ids re()d to face abusers sti!! undecided
CC prohibits use of the confession of one of accuseds co-Ds against D. (Bruton
Cra!ford: ensure un-cross-examined "testimonial# statements are not used against D.
&ife is unaai!ab!e because of spousa! prii!ege* so she can)t testify and can)t be cross#examined.
Her out of court statement can)t come in een if a hearsay exception app!ies* because her
statement was testimonia! in nature
Rule+ 9f testimonial hearsay (out of court statement that is @testimonial in nature) and 2 can"t cross#
can"t come in even if covered w/hearsay exception because it violates
o Qse of unexamined out of court testimonial statements inadmissible because violate
&xamples of testimonial statements
o =tatement was directed at proving a fact#
o statement given w/structure and formality (not casual)#
o statements directed at officers of govt. agencies/bodies (7rosecutors# judges# grand juries)# and
o prior testimony at preliminary hearing# before grand jury# or at former trial
o statements made in police interrogations.
Testimonia! statements cannot be used against a defendant un!ess
o +ec!arant is aai!ab!e for cross examination at the tria! O,
o +ec!arant is unaai!ab!e* but the defendant against whom the statement is sought to be
introduced had an ear!ier opportunity to cross#examine the dec!arant
$%% Calls: on-going emergenc& test
Da'is: - ca!!s .// 0 reports she is being beaten. 1he does not up at tria! 0 po!ice stuc' with on!y the
.// tapes as testimony.
Primary purpose of .// operator)s (uestions was to enab!e the po!ice to respond to an ongoing
emergency* these (uestions weren)t as'ed tor the purpose of inestigation so the out#of#court
statements were non#testimonia! and it wou!dn)t io!ate 22 to admit these hearsay statements
against the defendant een though the witness was unaai!ab!e.
(ammod: .// ca!!* po!ice show up and wife fi!!s out affidait. This is inestigatie% po!ice were trying to
figure out what happened* so the statement contained w3in the affidait is testimonia! in nature and
inadmissib!e een if a hearsay exception technica!!y app!ies.
:H
)ule: 1tatements wi!! be considered testimonia! when ob4ectie circumstances show that there was no
emergency and that the primary purpose of the (uestioning was to estab!ish past eents potentia!!y
re!eant to a crimina! prosecution
Anal%sis: 2onsider the reason for the po!ice in(uiry% are they responding to an emergency5 Or is
the emergency oer and they ta'ing statements to inestigate.
(. Constitutional Constraints: Bruton Doctrine.
'ut,of,court admission made by co,2 who is tried jointly w/his accomplice
o onfessing co,2"s words are admissible as to him as statement of party,opponent
o 9f offered against other 2# most likely fails scrutiny#
an"t cross,examine the co,2 about his statement (privilege against self,incrimination)
o )o problem if confessor (co,2) testifies at trial
&xample+
o 'ne co,2 confessed# implicating self and 2
o $oint trial w/same jury
o o,2 won"t testify
o Admissible against co,2# but against 2# raises issue
Bruton: &vans confessed and implicated %ruton. &vans didn"t take the stand. $udge had used limiting
instruction saying &"s confession was admissible as to him# but inadmissible hearsay as to %# and
therefore had to be disregarded when determining %"s guilt.
Anal%sis: because of substantial risk that jury# despite instructions to the contrary looked to the
incriminating statements in determining %"s guilt# admission of &"s confession in this joint trial violated
%"s right of cross,examination secured by .
Held: 9n context of joint trial# we can"t accept limiting instructions as an adequate substitute for %"s
constitutional right of cross,examination.
6ust hae two tria!s* two 4uries* or some other method that won)t cause pre4udice to the defendant
against which the statement is being offered.
>i$iting instruction su''ices in civil trial (ecause ?
t-
and *
t-
arenAt involved in civil cases
*pinion +estimon&
,. -a& *pinion.
.)/ 01%. *2343*4 +/5+3M*46 B6 -,6 73+4/55/5.
7f the witness is not testifying as an expert* the !itness testimon& in the form of opinions or
inferences is limited to those opinions or inferences !hich are:
"a$ rationall& based on the perception of the !itness* and
"b$ helpful to a clear understanding of 7s testimon& or the determination of a fact in issue
0
"c$ not based on scientific* technical or other speciali8ed 9no!ledge within the scope of
,u!e 89:.
2roblem $.%. Despondentl&.
/.
Prosecution)s & at tria!* an insurance c!aims inestigator* testifies about a conersation he had w3 +
concerning the +)s c!aim on a truc' destroyed by fire. &hen he accused + of setting fire to his own
truc' the + said in a depressed oice that he was 4ust a poor man. + counse! ob4ects. &hat
resu!t5
o Has first#hand 'now!edge* heard the statement* heard the tone of oice* etc.
o He!pfu! to the 4ury b3c 4urors were not there 0
o ;ot based on technica! or specia!i<ed 'now!edge ====o' to come in as opinion
2roblem $.:. (o! *ld;
>a<<ie charged w3 se!!ing cigarettes to minor. 1tatute permits + to raise affirmatie defense that he
reasonab!y be!ieed buyer to be of age. >a<<ie see's to offer testimony of & who were fami!iar w3
the buyer and wou!d testify that she appeared to be :9#:/ years o!d. Admissib!e5
o >es* &)s hae first#hand 'now!edge* 4ury not there so he!pfu! in !earning factors 0 not technica!
2roblem $.<. 7hite 2o!der.
Paia asserts improper to admit testimony of 2hristina* who expressed her opinion as to the identify
of a p!astic bag of cocaine in one of Paia)s shoes. 2hristina had used cocaine for oer 8 years and
testified that she be!ieed based on appearance and taste* that the powder was cocaine.
Admissib!e5
o 2ou!d be a prob!em w3 89: b3c substance identification cou!d re(uire some expertise
=nited 5tates '. .igueroa--ope8 ".
th
2ir. /..?$.
@udge be!ieed counse! trying to spring experts on opposing counse! by not dec!aring them as
expert witnesses A po!ice officer)s testimony about whether Bope<)s behaior was consistent w3
experienced drug traffic'er was expert opinion b3c based on experience* obserations* career in
!aw enforcement
1ays if expert witness* must proide notice* etc. under /6"a$"/$"e$
!. E=pert 0esti$on% and its Relia(ilit%
1. Rule ;02. 0esti$on% (% E=perts
9f scientific# technical# or other speciali*ed knowledge will assist trier of fact (relevant) to understand
evidence/determine a fact in issue# a witness qualified as an expert by knowledge# skill# experience#
training# or education# may testify in form of opinion/otherwise# if
+1, testimony is based upon sufficient facts or data#
+2, testimony is the product of reliable principles and methods# and
+3, witness has applied the principles and methods reliably to facts of case.
$udge as gatekeeper is theme that has emerged over time (applies to all expert testimony# not just
scientific expert testimony)6 2on"t let in @junk" science
an"t avoid disclosure requirements by characteri*ing expert as lay witness
2. Scienti'ic 0esti$on%
Old rule +:rye 0est,: admissible if it is generally accepted in scientific community.
o 7roblems+ high standard. Cany new scientific principles wouldn"t get in.
o Cust be sufficiently established to have gained general acceptance in the fieldR
Ne6 rule +'aubert (alancing test,: $udge assesses relevance (assisting the jury and fit) and weighs
reliability factors and determines admissibility
o 5eliability ;actors (nonexclusive list)
/0
!estability of theory or technique
7eer review/publication
5ate of error for method used
=tandards controlling technique"s operation
<ay technique is used>
&x. 2)A protocol
8eneral acceptance in scientific community (holdover from +rye)
)ot enough to get in by itself# but something to consider
o After factors# judge can still exclude under -./
o =tandard for appeal is abuse of discretion
o =tates are free to follow +rye
'aubert 0>Ct.3: $udge must ensure all scientific testimony relevant and reliable (judge as gatekeeper)
)eliabilit&: The scientific methods3'now!edge must hae good scientific grounds
o 7hether 5cientific >no!ledge !ill ,ssist the +rier of .act
(o! !ell does the testimon& fit !?issues in the case;
2reponderance standard under %1@(a
o Aalid 5cientific Method
5ee abo'e test
o +hat is 2roperl& ,pplied to the .acts
'aubert on re$and: )eliabilit&# whether scientific research was made prior to this !itigation and
independent of the !itigation 0 a!so !oo's to peer reiew of the scientific research "2t ignores other
factors by 1.2t$
E''ect o' ;02
7robably meant to liberali*e admission of expert testimony# but has in fact raised the bar
?ittle change from general acceptance standard
8reater use of summary judgment (if get evidence excluded# down to non,controverted facts)
C. Bualif&ing /xperts.
C Demands 2laced on /xpert *pinion +estimon&:
/$ 2roper Bualifications : The witness must be (ua!ified as an expert by 'now!edge* s'i!!*
experience* training* or education ",u!e 89:$
:$ 2roper +opic : Cxpert)s testimony must concern a topic that is beyond the 'en of 4urors. Cxpert may
not simp!y te!! 4urors what resu!t to reach in case 0 may not intrude on 4udge)s ro!e as !ega! expert.
Cxpert)s opinion must Dassist) 4urors by supp!ying info. or insight they otherwise wou!d !ac'. ",u!es
89: and 89E$.
F$ 5ufficient Basis : Cxpert must hae an ade(uate factua! basis for her opinions. ",u!e 89: and 89F$.
E$ )ele'ant & )eliable Methods : Cxpert)s testimony must be Dproduct of re!iab!e princip!es 0
methods = re!iab!y Gapp!iedH to the facts of the case. ",u!e 89:% +aubert$.
I$ )ole @1< Challenge : The eidence* if cha!!enged* must surie a J,C E9F weighing test.
2roblem $.@. (orticulturist.
Kuy he!ped drug smugg!ing ring testified that he smo'ed mari4uana more than /999 times 0
identified it more than /99 times. 2a!!ed by Ko)t to proe mari4uana came from outside L.1.
,u!e 89:: Boo'ing for a connection between the expert)s proffered experience 0 their opinion
o Here* not a good fit between using certain mari4uana 0 being ab!e to identify particu!ar stuff
/:
A!so* +aubert prob!em w3 re!iabi!ity b3c his methods of testing "use$ does not necessari!y ma'e
him capab!e of identifying this mari4uana A not a particu!ar!y re!iab!e way to identify mari4uana)s
origin
Johnson: marijuana @expert" wants to testify that by the way it smelled# etc.# that he knew it was from
olumbia. 'ffered to prove weed came from outside Q=
Anal%sis: expertise may be obtained by experience as well as from formal training or education.
@expert" had substantial experience w/marijuana which included identifying olumbian marijuana. $ury
determines whether they believe the expert.
Notes: 5ule G.0 notes+ lay witness may testify that a substance appeared to be a narcotic so long as a
foundation of familiarity w/substance is established
!ry to prove weed from ol.# get @expert" for his opinion on the source of the drugs
2oes he qualify>
o an this person be a lay witness under G.0>
)o# he has a more precise opinion than lay witness would
o 2oes he qualify as an expert>
Argument against qualifying+
?ook for fit b/w proffered experience (getting high# etc.) and the opinion they wish to express
(ow is this experience enough to let him know how to identify col. weed>
Dinro ,mericaE 3nc. '. 5ecure 3n'estmentsE 3nc. ".
th
:99/$.
6i!itary 0 7nestigator who has !ied in Morea for a !ong time ca!!ed to testify about Morean business
cu!ture 0 whether ora! contracts are reasonab!e
2ourt says un(ua!ified b3c no academic experiences 3 (ua!ifications but mere!y persona!
experiences
Prob!em is not 4ust his (ua!ifications* but (ua!ifications to render this opinion b3c 4ust b3c he can
gie an oeriew of Morean go)t and ban'ing* there is no specific (ua!ifications about business
2roblem $.C. Drug ,rgot.
Ko)t ca!!ed +etectie of ;>P+ who had !istened to oer FI9 wire taps 0 ca!!ed as an expert to
testify to the meanings of s!ang3codes used in drug operations.
O' to come in
D. (o! /xperts +estif&.
.)/ 01<. B,5/5 *. *2343*4 +/5+3M*46 B6 /F2/)+5.
The fact or data in the particular case upon !hich an expert bases an opinion or inference may be
those percei'ed b& or made 9no!n to the expert at or before the hearing. 7f of a type reasonabl&
relied upon by experts in the particular field in forming opinions or inferences upon the sub4ect* the
facts or data need not be admissib!e in eidence in order for the opinion or inference to be admitted.
.acts or data that are other!ise inadmissible shall not be disclosed to the Gur& by the proponent of
the opinion or inference unless the court determines that their probati'e 'alue in assisting the Gur&
to ea!uate the expert)s opinion substantiall& out!eighs their preGudicial effect.
&xpert opinions distinguished from lay opinions
o %ackground knowledge that informs them and the specific facts on which they rest
o 'nly lay opinions must be based on facts w/in perception of the wit (G.0(a))
&xperts need not testify from personal knowledge
&xpert can base opinion on / sorts of facts
//
o !hose facts perceived by the expert before the hearing+ facts personally observed
o ;acts perceived by or made known to the expert at the hearing+ may rely on trial testimony and
exhibits when forming her opinions
?awyers can phrase questions asking experts to assume certain facts to be true (there must be
enough evidence to support a finding that the necessary fact exists) if the expert hasn"t sat
and listened to the testimony
o ;acts made known to expert before the hearing
an rely on hearsay reports if of the type reasonably relied upon by experts in the particular
field
&xpert can"t act as conduit for hearsay information# rather# she may reasonably rely on such
reports in reaching an opinion that is otherwise informed by the tools of her discipline
&xpert can rely on inadmissible facts in forming his opinion# these facts aren"t admissible# but the
opinion is
o Qnless4
&xpert can reveal otherwise inadmissible information that was the basis of his testimony only if the
judge concludes that its probative value substantially outweighs its prejudicial effect
o 9f these facts come in# they don"t come in for the truth# only to help jury assess reliability of
expert"s opinion
?imiting instruction
.)/ 01@. *2343*4 *4 =-+3M,+/ 355=/.
"a$ Cxcept as in "b$* testimon& in the form of an opinion or inference other!ise admissible is not
obGectionable b?c it embraces an ultimate issue to be decided by the trier of fact.
"b$ 4o expert !itness testif&ing !? respect to the mental state or condition of a D in a criminal
case may state an opinion or inference as to !hether the D did or did not ha'e the mental state
or condition constituting an e!ement of the crime charged or of a defense thereto. 1uch u!timate
issues are matters for the trier of fact a!one.
Testimony can contain conc!usions: trier of fact must decide whether or not they be!iee
.)/ 01C. D35C-*5=)/ *. .,C+5 *) D,+, =4D/)-634G /F2/)+ *2343*4.
The expert ma& testif& in terms of opinions or inference and gi'e reasons therefore !?out first
testif&ing to the underl&ing facts or data* unless the court reHuires other!ise. The expert ma& in
any eent be reHuired to disclose the under!ying facts or data on cross#examination.
/-