RULE 606(b):

RULE:

Competency of Jurors as Witness - Inquiry into Validity of Verdict or Indictment Jurors cannot testify as to their own deliberations, incompetent witnesses, but can testify @ external stuff
Internal (physical/mental issues) vs. External (bribe) distinction

Why limit information to the jury?

Finality
Constitutional bars (fruit of poisonous tree)
Privileges - privacy given to certain relationships based on societal policy
Want the truthful verdict
Want decision to have legitimacy/stability
Avoid impassioned juries
Jury cant judge someone who is not in court
Judge as gatekeeper to expert testimony
Tanner v. US:
system unwilling to look past jurys verdict to expose whatever flaws in reasoning or understanding lie
Note tension - systemic mistrust of jury before its decision, but blind faith in them after it.
We protect privacy of deliberations to avoid embarrassment, we want stability and confidence
o Can testify about things external to deliberations, but not internal
o Substance abuse issue considered internal
o No 6th amendment right to jury trial issue b/c could have challenged at trial, not after
Policy reasoning - avoid juror harassment, frankness of deliberations, proceeding finality, community acceptance
(the black box)
Weinstein on Evidence
606b is very difficult (external v internal)
Brothers Keeper
The theory that the police sought to frame Delbert and profit the sale of the Ward land
o If it was a neighbor who heard from a neighbor, hearsay issue
The community members opinion that Delbert is not the sort of man to commit a vicious crime

o
RULE 401:
Definition of Relevant Evidence - probative and material - this is the fundamental rule of evidence
1. Evidence is Relevent if:
a. It has any tendency to make a fact more or less probable than it would be without the evidence
b. The fact is of consequence in determining the action
RULE 402:
Relevant Evidence Generally Admissible (and vice versa)
2. Relevant evidence is admissible unless barred by:
a. The constitution
b. A statute
c. The FRE
d. Other SCOTUS rules
3. Irrelevant evidence is inadmissible
401 Standard:
either element or theory, if not element, then is the theory of material fact or probative value? If not, not admissible.
**looking more at the substantive law, not the FRE
Rule 401 - the Primary Rule of Relevance
Liberal definition of relevance
If fact has any tendency (probative) to prove something of consequence at trial (material), it comes in
Just needs to be a brick, not a wall (dont have to show entire fact)
We depend on and trust the jury, modern sense of fairness.
Policy concerns for probative and materiality
o Truth seeking (dont distract jury function)
o Efficiency of trials
o Promote justice and fairness
Element of culture in understanding whether evidence is probative (think King Solomon)
Think of different legal issues, that will change what evidence is material (who is real mother vs. who is the best
mother?)
Abuse of discretion is the rule governing whether will overturn relevancy decision
Motive will always be a theory under 401
#1.1 Show me the Body
Culturally expect wife to say innocent, instead she says show me the body
Statement indicates husband may have filled her in, or she knows somehow, probative of that fact he did it.
#1.2 Brotherhood
Legal issue is credibility, belonging to liars club shows bad character for truthfulness
Being in liars club also could show bias, both are relevant to credibility
There must be a good faith belief that he is a member of a gang to ask that question
# 1.3 Polygraph Consent Go ahead doc, hook me up, after doctor sd very high success rate detecting liars
Judge lets tester testify about intro to test, but not test itself.
Legal issue is innocent/quality?
willingness to take consistent w/ consciousness of innocence, but other explanations...
Policy decision to keep out, dont let in polygraph, dont let in indirectly
Rule 402 All relevant evidence admissible, unless there is a constitutional bar
Courts reluctant to const. evidence rules, want judicial discretion and room to change over time
# 1.4 Knowledge
Legal issue - whether law requires def to know assault qualified her for law at not transporting gun cross border

It did not, so not material that she was unaware could be punished

#1.5 Voluntary Intoxication

Def wants to testify he was drunk so did not know what he did, but there is no legal requirement for capacity
Intoxication is not a good defense, probative of lack of mens rea but not material
U.S. v James - Legal issue defendants state of mind, or credibility?
Lower Court rejected evidence of victims violent past as immaterial, all that mattered was defs subjective state
of mind when she killed him
9th Circuit looks at it differently, and says relevant legal issue is credibility of this important witness, is she honest
when she says victim told her about his deeds?
If victim really had done those things, it makes it more likely he told her about them, and therefore those acts can
be admitted to support her credibility when she says he told her about them.
Of course, they paint victim as a bad guy deserving what he got
This approach can get in evidence which would otherwise think was inadmissable as immaterial, do so by
focusing credibility of witness
Note 9th cir. dissent notes that was not an abuse of discretion to exclude under 403, since low probative value (not
direct evidence of state of mind) and high prej. effect
This case turns on fundamental human impulse to tell the truth.
En banc- all judges of bench hear it
o Because its an Indian reservation
o The assimilative crimes act- that says if it happens on fed property it is a fed crime
o Very few cases are en banc (like 25 judges need at least 11)
o Only happens when there is a conflict with a supreme court decision or another 9th circuit decision, or the
case presents an issue of exceptional importance
Extrinsic evidence
o Usually outside documents that establish the convictions

#1.6 Violin Case - applying the James Case (see p.20 for ex. where pros. uses to prove def lying)
If legal issue is subjective state of mind of cop claiming self-defense, it does not matter what was in the violin
case of the victim shot by cop.
If legal issue is credibility, fact that there was no gun is more consistent with defendant being a liar (who would
raise a violin case in a threatening manner if no gun were in it?)
It is prejudicial to D- Rule 403
Hunter Appeal- Mundy cited to James
Must have a direct relationship to the extrinsic/collateral evidence offered to the court
o Wont just allow any testimony in, the difference in hunter was it was hearsay and not a direct knowledge
to the violence.

RULE 104(b) Relevancy Conditioned on Fact - Huddleston Standard

Rule 104(b) Conditional Relevancy
EVIDENCE THAT IS CONTINGENG UPON ESTABLISHING OTHER FACTS
Evidence might be relevant, but only after a condition is met.
Judge must find that a reasonable jury by preponderance of evidence must find condition fulfilled
That is, can only exclude when judge finds no reasonable jury could find condition fulfilled
Judge does not have to weigh the credibility or make a finding
104(b) applies in criminal and civil cases
Judge can admit (in limine) or connect up during trial
If do not connect, defense can get a jury instruction
Condition can be a timing issue
401 and 104B thought to be same by academics, but 104B is more of a pointed objection, more focused, bit more
bite b/c have to connect up
#1.7 Threat to Disclose
Def-father possibly reacting to info. that son was to be told by mother that he was not his father
Friend of victims testimony and defs own statement to police (her son)
If he knew son was not his, goes to motive
104B issue - it is only relevant if defendant recently found out about it. Timing
Defs statement her son is not a conditional relevancy issue, just 401
Cox v. State
104B is a liberal standard
testimony of prosecutor only relevant if def had knowledge of what went on at hearing (goes to motive to kill)
defendant hung around the home of woman who attended hearing so reasonable jury could conclude he was
informed of its outcome and reacted emotionally (additional charge filed against his friend)
def spent every day at moms house, close friend w/ guy in jail, mom attended hearing

RULE 403:
1.

Probativeness vs. Risk of Unfair Prejudice

Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, Waste of Time
Even if relevant, evidence can be excluded it its probative value is substantially outweighed by:
a. Unfair prejudice
b. Confusing the issues
c. Misleading the jury
d. Undue delay
e. Wasting time, or
f. Needlessly presenting cumulative evidence

Rule 403 Balancing Test - a liberal rule, designed to get most evidence in
One of the most important evidence rules
Involves judge discretion, can only overturn on abuse of that discretion (rare)
Even if evidence is relevant, it can still be excluded under 403
Only evidence not subject to 403 is 609(a)(2), dealing with evidence of prior conviction for crime dishonesty
Exclude if probative value substantially outweighed by dangers of
o Unfair prejudice
o Confuse, distract the jury
o Waste of time, delay
The subst. outweighs shows scales biased to admit evidence
Unfair prejudice - danger jury will make an unfair and improper decision, but evidence can still have emotional
charge
Alternative ways to deal with highly emotional evidence besides just excluding or admitting as they are offered o admit oral testimony instead of pxs, limited time looking at pxs, limit number of pxs, edit down pxs,
black and white pxs, use diagrams, jury instruction about not react emotionally
o In Furhman tapes, Judge Ito changed the form of the evidence by limiting the number of excerpts and by
summarizing , mitigates prejudicial effect
Way to apply 403
o Define probative value
o Define unfair prejudicial effect
Consider alternative means to get information to jury
401/402 do not need to consider alternatives
o Weigh the two, latter must subst. outweigh the former.
4 Issues to consider
o photos and other inflammatory evidence
o evidence of flight
o Probability evidence
o Effect of Stipulations

R403 & INFLAMMATORY EVIDENCE

Dead baby pics in a shallow hole
Probative of what happened, but could unfairly influence jury
So judge excludes pics, but would let info get described by cop oral testimony
Delberts Semen found on his dead brothers leg
Could be probative of motive, but unfairly prejudicial (incest, homosexuality, targets him specifically)
Also a conditional relevancy issue, did they in fact have sex?
Probably comes in on 104b, but 403 could keep out
Specificity of the prejudicial effect - it targets Delbert, unlike dead baby pics

State v. Bocharski
Defendant concedes extent of injury and manner of death, thus lowering pxs probative value
But prosecution wants to get in exhibits of skull to show angle of knife entry
Lower Court allowed in, it was never connected up (angle), and body tampered w/ during autopsy
403 Balancing - p.v. was substantially outweighed by unfair prejudice from pics introduce to inflame jury
Harmless Error Rule - Appeals says lower court made mistake, , but evidence not thrown out b/c did not effect
trial outcome, they came back only w/ a felony murder
1.8 Photo of Guns
Prosecution says relevant b/c shows gun was clean and therefore could shoot rapidly (only shows clean from the
outside)
Is outside probative of inside mechanisms? Prejudicial effect is gun among many guns, bad guy has lot of guns
U.S. v. James Dissent
Dissent says not an abuse of discretion to keep out documents corroborating what victim had sd he had done
Good reasons to keep out - remote relevancy, do not show anything directly about state of mind, unfair prej
Rule 403 does not limit unfair prejudice determinations to one side
Unfair prejudice at its worst: an undue tendency to move jury to decide on an improper basis, typically
emotionally - like a preventive conviction....
Demonstrative Evidence must be:
1. fair and accurate
2. unfair prejudicial compared to probative value
3. relevant
R403 & EVIDENCE OF FLIGHT
Common law lets it in as a form of admission when you flea police
Probative of factual assertion that def. had a consciousness of quilt
Conditional relevancy under 104B - must show fleeing for the reason you are chasing them for in order to infer
admission for particular charge
o Timing is consideration - closer the flight is to the alleged crime, more likely they ran because of that
crime
o Must consider what was in the mind of the person when they fled.
Also consider if conduct before flight was consistent with consciousness of quilt?
Flight
o Is an admission by conduct, its probative value as circumstantial evidence of guilt depends upon the
degree of confidence with which four inferences can be drawn
From the defendants behavior to flight (He ran)
From flight to consciousness of guilt (He knew he broke the law)
From consciousness of guilt concerning the crime charged and (he ran because he knew he
broke THIS law)
From consciousness of guilt concerning the crime charged to actual guilt of the crime charged
(he is guilty beyond a reasonable doubt)
United State v. Myers - central issue is who did the robbery?
Conflicting testimony about flight, you need to flee before there can be flight
2 flights, 1st one has low probative value, 2nd perhaps b/c of robbery, but there may be an intervening robbery
Look at the time proximity between charge and flight - more remote, more likely caused by something other than
guilt for that particular offense
Also look at whatever other reasons may cause def to flee, perhaps cannot make inference guilty for charged
crime alone
Court addresses the low probative value, but does not discuss the unfair prejudicial effect element....

#1.9 Flight - typically let in....

Prosecution got in eof, def felt compelled to explain fled b/c of past convictions, was convicted, argues that this
eof was unfairly prejudicial
Most courts tend to admit evidence of flight, it would probably allow this to come in because of the age and
nature of the offense, it said it could do either
# 1.11 Staying Put - courts dont let it in. ...
Very little probative value in staying put (many reasons to stay, avoids signal of quilt, family ties) but also very
little unfair prejudicial effect to prosecution
In a pure 403 analysis, would probably let it in, but most courts exclude
R403 and PROBABILITY EVIDENCE
Statistics and Evidence - Why not let empirical facts substitute for intuition, modern rules are liberal?
General rule against convicting individual b/c propensity to commit crime. Specificity is required, focus on
particular individual in relation to particular crime
Concern over racial profiling, black man in trouble before he does anything
Statistical approach is very expensive, and therefore limited to rich
We dont let in lie detectors, even though more reliable than eyewitness testimony... we go w/ eyewitnesses b/c
they have community acceptance
Issue of fairness when rely on mathematical risk...90%/10% blue bus hypo
Concern will distract the jury
People v. Collins - defendant should not have had guilt decided by the odds...
Prosecution uses various characteristics (blond woman w/ ponytail w/ black guy w/ a beard together in a
yellow car) as independent factors in a product rule of probability analysis, w/ result of these combined
circumstances occurring only 1 in 12 million, therefore unlikely would be someone else matching those
factors
Prosecution uses statistical approach to back up his weak case
Probability injected 2 errors in case: distracted jury, and did not have adequate factual & statistical basis
Court asks questions:
o How did prosecution gets its numbers? arbitrary, as there was no scientific survey
o Are the factors truly independent?
o Also, no fudge factor accounting for possible error in eyewitness testimony giving you the
descriptions so statistical model questionable
o Isnt jury distracted by what appears to be powerful evidence? invades jurys traditional realm of
evaluating credibility and probativeness
Court does its own analysis, and concludes 40% chance couple w/ same characteristics was in the same area,
leaving 60% for this couple - not beyond a reasonable doubt!!!
R403 & EFFECT OF STIPULATIONS
U.S. v. Jackson
Prior assault indicted for in NY, then NY robbery, then GA robbery.
Prosecution in NY for robbery wants evidence of GA robbery and arrest in as evidence of flight and consciousness
of guilt (they need corroboration, id issues), but unfair prejudice b/c could convict on propensity to commit crime
Judge Weinstein remedies by letting in stipulation that he was arrested in GA shortly after NY robbery and
had fake id, but cant describe reason arrested.
Court grants def motion to prevent unfair prejudice, but conditions it to prevent him from gaining unfair adv f/
exclusion on entry of a stipulation.
Court reviews risk unfairly punish for other crime, need for evidence, could delay
Old Chief v. U.S.
This case reaffirms methodology of under 403 considering alternative means of proof
Particular federal law prohibits possession of gun if have prior felony conviction

Prosecution wants to get in evidence of the prior felony, its name and nature
Not a 402 issue, certainly relevant, but under 403 there is an alternate way to get information to jury without
unfairly prejudicing def
If the alternative (like a stipulation) provides the same or greater probative value, but less risk of unfair
prejudice, then when youre doing the 403 balancing, you have to discount the probative value of the
unaltered evidence you seek to admit
Souters reasons why generally allow prosecution to get evidence in rather than stipulations
o Descriptive richness...story value, not abstract
o Important for jury so they can understand their moral role as factfinder
o Stipulations disappoint juries and can raise questions about prosecutors case
o dont let def stipulate his way out of full force of the case, prosecution has the burden of proof
Souters concerns are not an issue here,
o Choice between stipulation vs. order for judgment - both abstract
o Congress did not care what the specific felony was
o No gap in a narrative story to disappoint jury - just proving his status, no need to show how got it (prior
convict)

THE SPECIALIZED RELEVANCE RULES 407-411

Specialized Rules of Evidence 407-411 - Categorical outcomes of 403 balancing analysis
Rules say as matter of law that certain kinds of evidence fail 403 balancing
We have these categorical outcomes b/c if rely on 403 will get ad hoc decisions and variability in outcome - but
nonetheless, courts interpret the categories smaller or larger based on their view, and judge always has 403
These rules have the form of excluding for specific uses, allowing for other uses (except 410)
o 407, 408, 409, 411 - everything permitted except what is specifically forbidden
o 410 - everything forbidden except what is specifically permitted
Most courts reluctant to use impeachment as means to get in evidence that would otherwise be excluded by 408,9
o If very low probative value, easily outweighed by any prejudicial effect
o If very large prejudicial effect, likely to substantially outweigh probative
These rules deal w/ evidence that has rather low probative value....
Methodology
o Analyze under specialized rule
o Then go to 403 Once come in under one of these rules still need to do a 403 analysis)
Reasons we have categorical rules (see p. 123)
o Limit judicial discretion, and thus disparity and arbitrariness (and forum shopping)
o Creates predictability, good for settlements
o Helps trial prep b/c can predict
o W/o these rules would need separate systems for civil and criminal cases
Dual Rationales often involved
o Based on relevancy
o Based on public policy
LOOK AT THE TABLE FOR RATIONALES

RULE 407 SUBSEQUENT REMEDIES (SRM)

R407 Subsequent Remedial Measures

Cant get in evidence of SRM to show negligence, culpable conduct, product defect or need for warning
Can get in evidence for all other uses - to impeach, or when these things are controverted: ownership, control, or
feasibility,
SRMs are not relevant - they are not admissions for past, can distract jury, no legitimate tendency to prove prior
negligence (really?)
Need rule to encourage remedial action - social policy reasoning
Should not apply to defective product cases, they are large mfgs. who will make mods regardless, this just serves
as a liability shield...but rules say it does apply.
#2.1 Wolf Attack
Wolf attack dog, owner then puts on a chain, then attacks a kid
Dog owner would not be able to admit chain evidence to show negligence, SRM 408 bars (could use to show
ownership if that were contested)
Policy - we want to encourage remedial measures (but wouldnt we remediate regardless?)
Kid would be able to get in to show negligence because it was not subsequent, it preceded the incident so SRM
408 does not apply and 403 would pass easily
Tuer v. McDonald
Hospital sued over the administration of a drug, medical protocol changed after incident, pl sues and argues
feasibility and impeachment exceptions to SRM
Courts are divided on the FEASIBILITY EXCEPTION
o Some define feasible narrowly as that which is physically, economically and technologically practical this exception more likely to result in evidence being excluded. Strong exclusionary view based on
praticality
o Others define it broadly to include measures that are advisable; this exception more likely to result in
evidence being admitted. Weaker exclusionary rule based on what is advisable
Courts are consistent on the IMPEACHMENT EXCEPTION to SRM
o It is a narrow exception, because almost always would be able to get it in, because the def always argues
it was not practical to do SRM before
o Evidence can only be used if questioning the sincerity of belief of witness at time of the incident, not at
the time on the stand
#2.2 Wood Chipper....when defendant goes too far, SRM may come in....
Chipper was made safer after incident involved in trial
Defendant got a favorable pretrial ruling about SRM, but then during trial tried to take advantage
SRM evidence originally excluded, but cross of decedents coworker talks about same chipper still being used by
city, but it has since been modified. Pl wants to get in evidence of modification
Hard to fit pls request into exception, but seems unfair not to let it in
Jury could be misled by defense into thinking that chipper now used, with its modification, was the one used at
time of the incident - unfair
Most courts would let in evidence of SRM to prevent unfair prejudice, unmentioned exception

RULE 408 Compromise and Offers to Compromise (CIVIL CASES only)

RULE 409 Payment or Offers to Pay Medically -related Expenses
Rule 408 Compromise
Cant get in evidence of compromise attempts or statements made during negotiations to prove validity of a
claim
But can get in to show witness bias, lack of undue delay, or obstruction of criminal investigation
Rules purpose is to prevent chilling of settlement negotiations, we want to encourage settlements
Rule not an absolute ban on all evidence re: settlement negotiations...just a ban on using to est. liability
Applies to civil cases, 410 goes to criminal.
Rule does not protect offers to compromise before a claim, but informal oral demands can be a claim
Strict reading of language does not say cannot use statement made to impeach later contradictory statements,
but that would defeat the policy rationale of the rule...
Bank Card America vs. Universal Bank Card
This case is an exception to the rule that discussions during settlement are inadmissable
Defense claims was misled, thought had deal and that their conduct was ok, so court lets in the evidence to
explain behavior of def but...
But there are limits on what is admissable
o Can only bring in that which specifically helps the jury understand
o And cannot use the word settlement, negotiation (this mitigates any unfair prejudicial effect)
o Cannot go into terms of proposed settlement
# 2.3 Hotel Inspection Report
Hotel commissioned a report re: defects in preparation for negotiations
Driving policy of 408 is to encourage settlements and compromise during settlements
Research to facilitate assessment needed for settlement talks falls under this bar, even if information is not
used directly in the settlement
2 issues dealt with - really involve a party at stake? and if information not used during talks directly?
nevertheless, it comes in b/c researchers are agent for the party (I do not believe it comes in...)
The Verdict
Sues hospital for negligence in delivery of baby, coma

This was a tragic accident says head of hospital, and $210k offer
negotiator (church official) doesnt say An act of God

Could argue whether probative - does it show implicitly thinks guilty, or just that wants to be done with this issue
and embarassment.
We exclude because of the policy of encouraging negotiation and settlement

Rule 409 Offer to pay medical expenses

Im sorry ran light, let me pay medical bills
o R409 protects the offer to pay, b/c it is a human impulse
o But it does not bar the surrounding statement Im sorry I ran the red light... (an admissions?)
Policy rationale of rule is to encourage folks to assist others, and can help avoid later lawsuits
Neither R408,9 also reach discussions w/ 3rd parties...so evidence that offered to settle w/ 3rd party is barred if use to show
liability, unless comes in to show bias or for another purpose than to show liability

RULE 409: Liability Insurance

Rule 411 Exclusionary Rule for Liability Insurance
Generally cannot admit evidence of insurance

Intended to prevent search for the deep pocket and jury decision based on insurance, little relevance
Think of 411 mostly protecting civil defendants
o dont want civil pls double recovering
o Criminal trial different context, concern over due process
o Study of juries says
85% cases insurance is discussed
Jurors concerned w/ pl double recovery
Authors argue trial court judges should use jury instructions emphasizing that jurors should not
be considering insurance
Argue blind folding doesnt work b/c juries will speculate about ins, unlike SRM, so instruction
very important
Williams v. McCoy
Def gets in that pl went to lawyer before went to doctor, saying litigious (she did this b/c bad encounter w/ adj)
Evidence of visit by claims adjuster was excluded b/c it tells jury insurer behind defendant
Even though pl wins, she appeals b/c wants more $
Def had painted the pl as litigious, there was no issue until she talked to lawyer
Pl wants to get in what triggered her visiting the lawyer was adjusters visit
Court lets the evidence in even though normally excluded b/c being used for another purpose - to counter defense
theory of litigiousness
408 would not bar this evidence b/c visit by adjuster does not show liability
#2.4 Claims Adjuster
pl made careless statements on tape to adjuster that would help def
Pl argues on appeal wants to impeach the adjuster who was not called
Pl wants to show overall context, questions were tough and misleading, bias and prejudice
Most courts would let it in under 411 b/c using evidence for impeachment
But most courts see extremely low probative value, and low unfair prejudicial effect and therefore it is
substantially outweighed so 403 excludes
#2.5 Malpractice Insurer
Pl tries to get in evidence of common medical insurer to impeach, to show bias
Could get in under 411 to show bias, want to save your insurer money and keep your premium from increasing
But most courts would exclude under 403, because very low probative value (minimal financial gain w/ costs
spread) and unfair prejudicial effect high (jurors may not know understand malpractice insurance)
#2.6 Failure to Report
Owner of day care failed to report child abuse, in violation of statute.
Def wants in evidence of her ins. policy to show lack of motive to conceal abuse
Most courts would not let 411 be a bar here b/c to let in not contrary to 411 motives
Allow criminal defendant to bring in to show no financial motivation to not report

RULE 410 Inadmissibility of Pleas, Plea Discussions, and Related Statements

Rule 410 - Pleas in Criminal Cases
Statements adverse to criminal def made in course of plea discussion are inadmissible
This is a blanket prohibition with only permitted in two specific circumstances
o When another statement made during plea is brought in and need to bring this one in out of fairness
o Criminal perjury proceedings
Rule text indicates only applies when evidence used against def....
But some courts prevent def from getting in out of fairness (they apply rule to both parties) - majority of courts
rely on 403 to get same result
Form of rule different from other specialized rules - this bars everything except for few specific uses
Policy is to encourage plea negotiations - need effective criminal law administration
U.S. v. Biaggi
Govt. had offered immunity, def turned down claiming he had no knowledge, were in criminal proceedings
Rejecting plea to reduced charge different from offer of immunity - latter is powerful evidence consc. innocence
Views of 410
o Rule is asymmetrical - this courts view
rule meant to protect def, not the govt.
consistent with text evidence against
o other courts view it symmetrically
403 Analysis - high probative value w/ consciousness of innocence, and lots of prejudice to defendant given what
the stakes are (there are other possible explanations for defs behavior)
Court concerned about denying criminal def the chance to try his case
#2.7 Prosecutors Offer
Different from Biaggi, def trying to get plea info. in for him (fact that got offer for 2nd degree, instead of 1st)
Evidence does not fit in under text of 410, since it is for him, so could argue should come in (indicates weak case,
and shows consciousness of innocence)
Some courts construe 410 broadly b/c they want to encourage pleas, so they look at 410 as symmetrical b/c if it
wasnt prosecution would be chilled in plea discussions
So some courts would bar it based on underlying policy
Other courts would let it in under text of 410, but would bar with 403 b/c prejudicial effect on prosecution

RULE 404 Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes
Character Evidence and the General Propensity Doctrine
Although we make personal decisions all the time based on propensity evidence, we consider it unfair to convict
on a general propensity to commit criminal act - only get punished for specific conduct, not b/c youre a generally
bad guy
Thus, we get the GENERAL PROPENSITY DOCTRINE 404a
o Char. evidence is not admissible for the purpose of showing person acted in conformity therewith
on a particular occasion
o Rule does not apply if char. is an element of the crime or char. is at issue
o General rule that char. is not an issue in criminal case unless def chooses to make it one
o Based on a long-standing common law
o We have a general rule, to reflect our principles, but we then build in exceptions to allow flexibility and
to be practical
o If fits in under 404b, still consider whether 404a applicable
If using propensity logic some courts would bar (Fischer would)
Other courts, if using propensity logic that does not paint as evil, let it in but still need to do
403.
BENIGN PROPENSITY
This is an exception to 404a
Problem w/ identity use under 404b is that can always make it so broad that could get anything
in, need to make sure not underlying propensity reasoning (and if it is, is it benign reasoning?)
Exceptions to 404a bar
o True, but no explicit
404a Benign use of propensity reasoning
Signature crimes w/ a particular mo
Reverse 404b
Doctrine of Chances (Rothstein approach)
o True and explicit
Def in criminal case can open the door 404(a)(1), (2)
Impeachment of witnesses in criminal and civil cases 404(a)(3)
Sex assault cases Rules 413-15
Note that we do not bar b/c it is not relevant, it is; we bar b/c of unfair prejudice and distracts/confuses jury
We do not want to convict based on propensity reasoning that:
o It is more likely he committed this specific crime
o Or b/c he deserved it based on his history, as well as a preventive conviction
Mendez article rebuts the new thinking that can predict what someone will do, it depends on a confluence of
factors like environment - trait theorists vs. situational specificity theorists (1998)
We need the 404a bar b/c it is counter-intuitive to our daily thinking, dont want to unfairly punish
Do not look at 404b as an exception, label it as other purpose, because if underlying purpose is to get in for
propensity it would still be banned
Propensity doctrine applies to everyone in a suit, named parties and witnesses
In making 403 decision to let in under 404(b), judge should consider whether instr. to only use evidence for other
purposes, as opposed to for propensity, will be heeded
People v. Zackowitz (Cardozzo Case)
slew of guns at defs apt., prosecution wants to use to show his evil char.
Cardozzo says pros. trying to paint def as an evil man, to show his propensity for murder
Pound argues should let it in, to show the history of the case, that it was
Rule 404(b) Routes Around the Propensity Box
premeditated selection of a specific gun rather than a sudden impulse of
1 Proof of Knowledge
self-defense
2 Proof of Motive
We see the 404a and b dynamics
3 Proof of Identity
o Cardozzo - bar so jury doesnt convict just b/c this propensity
a. Proof of Modus Operandi
4 Narrative Integrity (Res Gestae)
5 Absence of Accident
6 Doctrine of Chances
Applies in criminal and civil cases.

Pound - admit for a purpose other than to show criminal propensity

404(b)s purpose is to assure def tried on the

merits of the crime as charged, and to prevent a
conviction based on evidence of other crimes or
wrongs...Kirsch...

RULE 404(b) OTHER PURPOSES to Avoid the Propensity Ban

404(b) is not true exception

to propensity ban

RULE 404(b) and PROOF OF KNOWLEDGE

#3.1 Hacking
Admits to march hacking, being tried for february hacking, pros. wants march admission into evidence
Seems like 404a applies b/c once a hacker always a hacker, but 404b exceptions apply - opportunity and
knowledge - and has high probative value for 403b/c dealing w/ very special knowledge
Probably comes in....
33.2 Drug Seller
Evidence comes in under 404b knowledge exception, not easy to be a drug dealer in DC.
Defense argues it is common knowledge, pros. argues special, probably comes in
Would be helpful to have more facts to make more probative, like specific area, and specific drug
Video Clip - Korean War vet on trial for Murder
Trial of Korean was vet for murder, prosecution tries to get in his acts in war to show can kill
Certainly probative, once kill one greater ability to kill more and unfair prejudicial effect minimized b/c he was a
hero in war
#3.3 Train Crash
Pl did not show engineer was drunk on a certain occasion, trying to show drunk reputation
In suit against employee, it would be excluded, b/c trying to show once a drunk always a drunk, so more likely
drunk on that day....
As for suit against railroad for negligence, it would come in because using to show evidence for another use notice and knowledge of his drinking, they had a duty to act as a result.
Sever trials to avoid unfair prejudice impact on employee
RULE 404(b) and PROOF OF MOTIVE
#3.4 Murder Trial U.S v. Peltier
Pros. trying to get in evidence of an earlier charge of attempted murder
It comes in under 404b to show motive for fighting off cops and fleeing (to avoid getting arrested for earlier
charge)
As for 403, closer call
o Concerned about prejudicial effect, perhaps dont name earlier crime
o Probative value may be high if close in time to earlier crime, but if more remote in time or if there were
mixed motives then less probative
#3.5 Streetcar mishap (we did not review in class)
Pl suing streetcar b/c as she was de-boarding it took off and caused her to fall
Prior to that, it had not stopped at 2 prior stops despite rings to do so
I would say this comes in - could argue trying to show propensity to not stop...but also could argue shows motive,
this guy driving was in a hurry.
RULE 404(b) and PROOF OF IDENTITY
#3.6 More on Peltier
Allow Peltiers gun b/c it goes to show opportunity and identity
Allow FBI agents gun, b/c it goes to identity
As for other weapons, could argue Zackowitz to keep out, but court did let in as showing a general plan to hurt
cops (preparation, motive, flight)
# 3.7 Lottery Lists - Gambling Den I think

Pros. trying to get in evidence of past gambling conviction to show identity, as gambling slips were found in apt. trying to tie def to this apt., thus to drugs
404 applies even if not getting at the crime in stake, reasoning here based on propensity and jury will likely think
he is bad
So evidence may come in under 404b to show identity, but bar with 404a

#3.8 Cycling Brochures

Evidence here of a biking reputation would not make you think def is bad guy
Using that reputation to tie def to apt. with biking stuff in it, and therefore to...
We have same propensity reasoning as in 3.7, but it is not painting def in bad light so does not offend the basic
underlying 404a policy of preventing convictions based on general propensity
Some courts would find 404a does not apply and get this in under 404b, others would still bar
Note: logic flows like this - occupant of house is biker fan b/c had brochures; this def was a biker fan 3 years ago,
therefore likely he is now; therefore more likely he was the occupant
Modus Operandi and Identity
We know def committed crime in past, and present offense matches that crime in idiosyncratic ways, then infer he
did this one as well.
Modus Operandi is a 404b other use
o Long-standing common law usage
o If evidence shows history of signature crimes, it can be admitted
o Fischer would still bar it...
We are not inferring this is his kind of crime - that is propensity at its worst
We are inferring this could be no one elses crime (sounds like bunk to me. p. 149)
Have to be very similar and distinctive crimes
Two step Analysis to get in evidence of MO
o Must show special relevance, looking at the totality of the factors in making the comparison, independent
of tendency to show propensity
not enough to say used knife in both cases
must have high degree of similarity, commonality of distinguishing features to earmark
but exact match not necessary
o Do a 403 analysis
Def can do a reverse 404(b) to show misidentification, police should be looking at someone else - other crime
evidence.
Signature crime - other crimes sufficiently numerous and similar in execution as to form a clear pattern
U.S. v. Trenkler - Modus Operandi Case
Def conceded quilt in a prior bombing in Quincy, pros. wants that concession in as it resembles this bombing similarities include remote control, located under car, Radio Shack parts, perpetrator for hire
Court finds enough similarity, high probative value (important to prove identity), low prejudicial effect (no one
killed in Quincy, harmless event, jury instruction given on propensity)
Strong dissent
o many similarities but fundamental differences in dynamite v. simulator
o Expert testimony based on some factors and probability evidence that is shaky (People v. Collins)
US v. Stevens - Reverse 404(b) - defendant trying to show Mis-Identity
Reverse 404b issue, converse analysis to Trenkler case
Instead of pros. getting in evidence of past crime to show identity and m.o., defense here tries to get evidence of
some other crime by someone else and tries to show similarity of that crime and this one
Two Step Analysis of Reverse 404b
o Look at relevance, but easier standard than Trenkler, just need simple relevance (401/402), no need to
show it is a signature crime
o 403 analysis

There was another crime committed after defs arrest, close by, same time at night, with a gun, similar appearance,
black victim sd it was not the def, and victims wallet found in same pl as victims in this case. Cops thought same
guy did both (this case did have rape, other did not, but not dispositive given context)
As for 403, little danger of prejudicial effect to def b/c he wants it in, prosecution can only keep it out if def
wasting time or misleading, distracting. Neither applied so came in.
Note in reverse 404(b), def does not have to show there has been more than one similar crime, or that it was
sufficiently similar to be called a signature crime, or that he was misidentified in similar crime
Note in 403 analysis, govt. can complain of unfair prej to its case, but we did not have that here (p. 166)

RULE 404(b) and NARRATIVE INTEGRITY (Res Gestae)

#3.9 Open trunk and a contract killing
Pros. wants to tie def to an abandoned car, which had victims id card in it
The tie is based on testimony of Reardon, who had an illegal drug transaction w/ def and whose fingerprints on
the car
Under 404b it goes to identity (similar to tieing to apt w/ biking reputation or gambling conviction) but 404a bars
b/c it is based on propensity logic
Nonetheless, most courts would let it in!!!!
It comes in under RES GESTAE, things happen
o To preserve narrative integrity
o Evidence so inextricably tied together that could not separate out w/o leaving the jury hanging
Still need to do 403 analysis, but most courts let it in
RULE 404(b) and the ABSENCE OF ACCIDENT
#3.10 Cleaning His Gun
Def charged w/ shooting his wife, he had killed 1st wife
Perhaps 404b absence of mistake or accident
But arent we still relying on some propensity...nonetheless most courts let it in
Can avoid propensity reasoning by using Doctrine of Chances
o Def acknowledges 1st death an accident
o So if that is true youll be much more careful in future, that is the relevance - not using to show violent
propensity, using to show hed be more careful after the accident w/ 1st wife.
#3.11 Cruelty to Dogs
Prosecution wants in evidence of previous acts of cruelty to dogs
This is propensity reasoning, once a dog beater always a dog beater
Prosecution tried to get in by showing absence of mistake, but still 404a issue, and is not a true 404a exception
(mo, doctrine of chances, reverse 404b)
RULE 404(b) and the DOCTRINE OF CHANCES
Doctrine of Chances
Another true exception to 404as bar (as Rothstein views it)

Sort of like a 404b use, it relies on statistics and not on any particular character trait
o relies on unusualness of occurrence and number of times it occurred
Fischer supports it... do something 1st time by accident, much less likely it will be an accident the second time,
more likely it was intentional
Fischer thinks does not use propensity reasoning b/c 2 events different, one is accidental, the other is intentional
(Rhetorical gimmick to Hashimoto)
Two views on DOC:
o Inwinkelreid - is a 404b exception, not using propensity logic looking at a character trait, rather looking
at repetitive events and statistical odds
Never have to look at defs bad char

Just look at number of uncharged incidents, if so numerous it is objectively improbable so many

accidents would befall accused....
Rothstein - it is a 404a common law exception, you are using propensity logic

The Brides Case - Rex v. Smith

o Classic Case involves change of will, murder of wife in the bath, three wives ended that way
o Definitely using propensity logic here - making an inference of quilt
o Perhaps could get in under mo, but DOC most appropriate due to repetitiveness being especially relevant

THE HUDDLESTON STANDARD

RULE - Similar act and other 404(b) evidence should be admitted if there is sufficient evidence to support a
finding by the jury that the def committed the similar act. That is, you do not need a preliminary finding by the
court that the act in question actually occurred.
Huddleston
Admissible under 404(b) only if it is relevant - only relevant if jury can reasonably conclude act occurred and
defendant did it - so this is conditional relevancy, 104(b) applies, not 104(a).
Court under 104(b) does not weigh credibility
Court under 104(b) does not make a finding based on preponderance.
Basically, decide whether enough information for jury to reasonably find the conditional fact occurred by
preponderance std.
I believe judge can only consider admissible evidence, b/c that is all the jury would be able to review
Huddleston v. US Rule 104b
Illegal transactions in Feb, Apr and May, prosecution wants illegal feb and may transactions in as evidence
Court lets in evidence based on 404b to show knowledge of illegal selling
Court lets that evidence in based on a jury using a preponderance of the evidence standard
o even though a criminal trial
o on a condition that connect up during trial by showing relevance

104b issues
o std of evidence - preponderance (criminal and civil trials), not beyond a reasonable doubt
o conditional on showing relevance (prior to admitting, or admit then connect)
Court here finds low prices, large quantities and lack of any bills of sale in the other transactions is sufficient to
meet preponderance standard
Court sd concerned over 404(b) letting unduly prejudicial info get to jury, but a court finding not best way to
protect - they point to these as the proper protections:
o 404(b) requires a proper purpose
o 402 requires relevancy (104(b) enforces this requirement)
o 403 determination
o Rule 105 allows jury instruction upon request (jury only to use 404(b) evidence for proper purpose)
#3.12 Past Acquittal - Yes, You can ADMIT PAST ACQUITTAL if meets Huddlestons Preponderance...
On trial for bank robbery, had mask and small gun, allegedly committed w/ Mr. X
Prosecution wants to get in testimony of house owner who was previously robbed
Def acquitted in earlier trial for house robbery w/ mask and small gun, also w/ Mr. X (in that trial, govt. could
prove by a preponderance but not beyond a reasonable doubt)
Prosecution wants in to show identity, also wants to link w/ Mr. X who they have independ. info for on bank job
Evidence from witness relating to that prior trial can come in as long as passes the 404 and 403 analysis
Just b/c acquitted does not free you up from other legal rules based on preponderance std. (think OJ - criminal vs.
civil)
o There is no double jeopardy b/c being tried for separate incident
o W/o Huddleston, youd think acquittal would bar evidence of past acts

Note: Now we are talking about true exceptions to propensity evidence ban.
RULE 413:
RULE 414:
RULE 415:

Evidence of Similar Crimes in Sex Assault Cases

Evidence of Similar Crimes in Child Molestation Cases
Evidence of Similar Acts in Civil Cases about the above 2

404a

413-15 104b

403

Rules 413-415:
Let prosecutors and civil pls offer evidence of defs other acts on any matter to which [they are] relevant
Basically, these rules supersede 404(b), can use propensity evidence... but still must do 403 (se Guardia)
Adopted in 1995.
Many folks opposed these rules, including Judicial Conference, most judges, lawyers, professors, etc...
Underlying policies
o Difficult evidentiary issues
He sd she sd (contextual argument)
Child abuse and rape, victims can be intimidated and credibility attacked
But counter once jury hears about past sex assaults, def is all done!!! Propensity ban is supposed to
prevent this!!
Also unfair discrimination against certain class of criminal defendants, lot of testimony
based on mugshots, accuracy is bad and that pool of suspects limited and known to
police so they go to them first (prejudice to poor and minorities)
o Studies show those who assault sexually likely to do so repeatedly
Yes this is contrary to propensity doctr, but let it in b/c based on genuine propensity based on
empirical studies
But the degree of propensity is quite low compared to drug trafficking and robbery.... If we care
about actual propensity, should extend rule to those categories
Before 413-415, many states had common law exceptions or relied on 404b to get in evidence of past sex crimes
(they stretch common scheme and plan under 404(b)).
Lannan v. State (sex assault cases pre rules 413-15)
Common law exception to propensity bar, depraved sexual instinct exception, lets pros. get in uncharged acts
Common law exception was justified by:
General rule of
o Recidivism (sex assault crimes different so deserve special attention)
inadmissibility of
o Bolstering victims case rationale
prior bad acts....
Tough to get evidence, under-reporting, embarrassment, level playing field
This court rejects this common law exception to propensity bar
o Studies show sex cases have recidivism, but not as much as other crimes that do not have a propensity
bar exception
o Lot of under-reporting for other crimes and they do not have exception
o Dont need bolstering in todays culture, juries are modern
Court notes in most cases do not need this exception anyway b/c comes in under one of 404b other uses (common
plan, scheme, signature crimes)
This court adopts 404(b) approach to past bad sex acts, so cant get in to show propensity to commit, but can get
them in for other purposes....common scheme, plan, preparation, motive, knowledge, intent, i.d., abs. mistake, etc.
For the common plan/scheme, they require more than just having elements in common, must have help est. a
preconceived plan that lead to the charged offense....must be related in char., time and place
State v. Kirsch (pre rules 413-415)
In sex assault case prosecution tries to bring in evidence of 3 other victims of def under 404(b)
They argue should come in under 404b to show motive, intent, and scheme/pattern to show something other than
character
Motive
o This does not work b/c still relying on propensity logic
o Trying to paint defendant as prone to do crime and as deserving punishment

Intent use has same flaw as the motive use.

o Prosecution arguing that the def purposefully selecting victims based on a propensity logic

o But this rests on propensity reasoning

Common Plan or Scheme
o this too does not work
o It is not enough to show a series of similar events , or a pattern, or course of conduct w/ victims,
o Must show some interdependency among the acts, so that other bad acts must be constituent parts of
overall scheme
This court interpreting 404b other uses very narrowly

#3.13 Common Plan and Domestic Violence

Assume pre rules 413-415
Arguing against admission - relying on Kirsch, this all comes down to propensity logic so all should be excluded
Arguing for admission
o Prof. Raeders arguments: pattern of assault to exert control, it is a matter of control, wife beater tries to
exert control in several ways, and murder is the ultimate control
o So argue common scheme, motive, opportunity, lack of mistake - they all describe defs state of mind
o Harder to get in series of physical assaults, b/c they are more prejudicial and once a beater always a
beater
o Easier to get in series of events showing non-physical control (criticism, making her report where she is,
making her ask permission to come in etc) b/c they are less of 404a issue, seem to show more of what is
on d mind
Group of heterogeneous acts show trying to control, that desire to control is the interdependency
that gives us a common plan
OJ Simpson Video Clip
Prosecution wants in evidence of 911 calls w/ OJ beating wife in background
pre 413-415, so Ito let in evidence under 404b to show motive
Ito bought into Raeders arguments on scheme of control
Under Kirsch you would exclude

All the Art. IV rules,

including 404, are concrete
applications of rules 402 and
403 evolved for particular
situations

US v. Guardia
Dr. on trial for allegedly abusing 2 during gyno exam, pros. wants 4 other victims brought in as evidence w/ 413
Lower court excluded under 403 analysis, this court affirmed b/c risk of jury confusion, lot rested on medical
propriety of drs actions, as well as fact would have 4 additional mini-trials
All court looking at isse hold that still need to apply 403 when get in under 413/414

Textual analysis
o text is is admissable, so can make argument that 403 not applicable
o This court compares to 402 and says it shows should do 403 analysis b/c 402 doesnt mention 403 and
yet we still apply it (court error - it does, except by these rules...)
There is a strong argument based on textual analysis not to do a 403 analysis based on text of sex assault rules
But when have statutory analysis, look to legislative history, which tells us
o Conference brought up 403, but did not make decision
o Senator Molinari sd 403 still applies, as well as hear say rules
This court holds must do a 403 analysis
o But do not apply in a way to make 413 ineffective
o Understand that 413 designed to let in evidence in face of propensity logic
o That is, discount the unfair prejudice caused by using propensity logic (but still look at it - probative
value depends on prior acts similarity, closeness in time, frequency, intervening events, need for evidence
beyond def and victim testimony)
o Look to unfair delay, misleading jury
Applying 403, court bars b/c would need 4 additional trials, too time consuming and might mislead the jury
(remember, court has lot of discretion and it did not abuse)
Even if got in still a 104 issue, need sufficient evidence

US v. Mound -

o
o

all courts found that 413-15 do not violate the constitution (concern was would violate due process by
not giving beyond a reasonable doubt)
Courts reluctant to constitutionalize rules of evidence, want trial judges to have flexibility to adapt to
changing times

RULE 404:
RULE 404(a):
RULE 405:
RULE 405(a):

Char. Ev. Not Admissible to Prove Conduct; Exceptions; Other Crimes

Char. Ev. generally - (1) char of the accused; (2) char of the alleged victim
Methods of Proving Character
Reputation or Opinion

More true exceptions

to the propensity bar...

Proof of Defs and Victims Character

Another explicit exception to 404a
Only in CRIMINAL trial can you introduce such char evidence, not in CIVIL (but see Perrin)
404(a)(1) - criminal def can offer char. evidence about himself (propensity)
404(a)(2) - criminal def can offer char. evidence as proof of victims character
o Most often used when def claims self-defense against charge of violence
o to show victim was the 1st aggressor
OPENING THE DOOR
o Only after the def introduces char evidence can the prosecutor introduce char evidence to rebut
o Rules leave it up to the def whether to open the door to char evidence
Cross examining a character
o If def opens door on char of alleged victim, door is open on himself as well.
witness about specific acts is
o But note that in a homicide, def does not control the door
questioned by some, b/c jury
404(a)(2) lets pros. offer evidence of victims peacable char cannot distinguish facts going
If the def has offered evidence victim 1st agrressor
to reputation/impeachment
Even if this was non-char evidence
versus propensity, and judge
If def decides to introduce such propensity evidence, 405a regulates what FORM it can take instruction doesnt
rectify....injure by indirection
o 405a lets def introduce propensity evidence as
a char which they cannot do
reputation evidence (local community thinks...) - hs exception 803(21)
so directly
opinion evidence (I think he is fair, would not...)
o After def opens the door, prosecution can rebut with
Reputation evidence
Opinion evidence
And SPECIFIC ACTS - but only to test knowledge of reputation or basis for opinion, not to
prove/disprove actually has trait
o Note that 413-15 require specific acts.
o If def opens door on victim, pros. can respond w/ evidence on victim and def
o Everything still subject to 403 analysis
o 405(a) prevents specific acts, even though they are the best way to prove char, b/c such acts also most
likely way to arouse unfair prejudice, confuse and waste time.
o Rule 405(b) Essential Elements if char. is an essential element, then you can get in specific acts, 404(a)(1) and (2) do not apply
that is, char is the thing to be proved, not trying to show conduct in conformity with it.
Note if def claiming self-def, violent char of victim still not essential, b/c essential element is
that def be reasonably in fear
Three cases - rebutting a claim of entrapment, rebutting def of truth in libel/slander, resolving
parental custody
This analysis which prevents def from getting in specific acts does not apply to other 404a exceptions, which do
require specific acts (benign use of propensity, signature crime, reverse 404b, 413-415, doc, 404b other purposes)
Still do a 403 analysis, and def may be entitled to a jury instruction telling why evidence comes in

PATH OF USE FOR PROPENSITY PURPOSES - to show CHARACTER

404a

404(a)(1) (a)(2) 405a

403

Make sure lay adequate foundation, and it must be pertinent

For cross on specific, make sure good faith belief and reasonable basis

Michelson v. US (old rules, def restricted to reputation at the time, no opinion evidence allowed)
Def opened the door w/ witness testifying @ his good reputation, prosecution responded w/ specific acts
o Past conviction on trademark law
o Past arrest for stolen goods (Court says can ask about arrest on witness cross.... for conviction, see 609)
Def on appeal challenges right to ask witness if aware of these specific acts, loses!!
Court points out the reason we have propensity ban is to prevent confusion and unfair prejudice
Under 403 analysis, evidence comes in
o Trial judge gave careful jury instruction
o Not being introduced for the truth of the matter asserted
o Being introduced to show how much weight should be given testimony of witness
Prosecution could not get in record showing conviction, arrest, can only hear prosecution ask how much witness
really knows about reputation (use to challenge reputation evidence, not establish facts)
Delbert Video Clip - someone believes he could not do that type of act, not that kind of guy
for the defense to get it in
o def must open the door
o must establish an adequate foundation, some reasonable familiarity w/ Delbert so can offer opinion
(char evid. of peacefulness) or reputation - meets in this case b/c distant relative and met a few times
o Must establish information is pertinent - char trait of non-violence certainly is pertinent here
o Form of evidence - Def cannot get into specific acts w/ the witness
Now the prosecution can cross examine witness
o Attack foundation - not really familiar w/ Delbert, dont talk to folks in town, so not competent to testify
o Can ask about specific acts as long as a good faith believe and reasonable basis for believing they
occurred
Prosecution can also put on their own witness to rebut claim of non-violent char, but will be doing to on direct and
therefore cannot get into specific acts (def can on cross)
Whatever evidence the prosecution does get in, the def can get a jury instruction saying that the evidence does not
go to show the truth of the fact, but rather to rebut opinion or challenge reputation (relevant only for those issues)
Were not supposed to be getting into a battle over whether specific acts occurred, dont want to create mini-trials.
But on cross the def can ask the significance of these specific acts
#3.14 I wouldnt shoot anybody
On direct exam of def, defs lawyer asks if had to do it again would you shoot anyone, and def says would not.
On cross, pros. asks about specific acts in past where def did shoot at other people
Def lawyer argues did not open the door to establish non-violent character, rather presenting a hypothetical and
def answering to specific set of facts
Pros. argues it is a general assertion of her char, and in any event should be able to impeach the statement
This is an ambiguous statement, both reasonable arguments, comes down to a fact finder interpretation
#3.15 Character of Victim 1
Def is arguing self-def, trying to get in evidence that victim threatened defs brother during a break in the trial to
establish he is aggressive
Would come in under 404(a)(2) to show char of victim to be aggressor, but the form is not correct b/c 405(a) does
not allow specific acts on direct
#3.16 Character of Victim II
Def trying to get in def testifying about all the violent acts victim told the def about.

This comes in under 404(b) to show the defs motive/state of mind (404(b) requires specific acts)
Were not bringing it in under 404(a)(2) to show char. of victim or truth of matter asserted

#3.17 Character of Victim III

Expert opinion of toxicologist - courts look at is as physical evidence
Def argues self-defense, wants to get in evidence of a toxicologist who examined victims hospital records and
concluded that combo of drugs made more likely victim was aggressor (booze lowers your control, cocaine makes
aggressive)
Does this evidence establish a char trait? Seems to fit 404(a)(2)....
Cant we distinguish biological functions (based on medical reports) from general traits of character (but
ultimately, they are tied....)
Most courts would not think of the effects of drugs on the brain as char evidence for 404(a)(2) purposes
Would 403 nonetheless keep it out?
o Argue very unfair prejudicial effect, jury using propensity logic will see victim in bad light
o Could argue low probative value...
o Courts divided on this 50/50...
PROOF OF DEFs and VICTIMs CHARACTER IN CIVIL CASES
Perrin v. Anderson and the Securities and Exchange Commission v. Tower Financial
Perrin is a very limited exception to rule that 404(a) applies only to criminal cases
o It was a civil 1983 action involving cops who claimed self-def in wrongful death
o Issue over whether cops can testify about previous violent encounters w/ victim, to show 1st aggressor
o Court held 404(a) applicable even though civil b/c involves someone killing someone, similar issues to a
criminal case, great stigma attaches
o So can get in char evidence, but on direct court limits to opinion and reputation b/c 405(a)
Securities cases
o Involved a civil action for securities fraud, def wanted to call a character witness
o 404(a) does not apply b/c it is a civil case (crt relies on precedent, text of rule, history of rule, drafters
intent)
o Perrin exception does not apply b/c what is at issue, Perrin involved killing which resembles criminal
case, false representation does not
404(a) is limited to criminal cases, and only def can open the door - WHY?
o b/c of what is at stake - stigma, imprisonment, execution
o char evid has low probative value, but it can mean a lot to a def who has lowest burden (pros. bears)
o char evid. in criminal case can be very persuasive (see p.230)
o char evid. creates asymmetrical risk of unfair prejudice - bad info very prejudicial, good info little risk
o Char evid. can distract - punish bad guy, reward good guy,
o Court gives leeway to protect due process rights.
o But some holes here...If def claims self-def and paints victim as aggressor, can be unfairly prej to pros.
o See p.230-31 for more.

RULE 406 Habit; Routine Practice

Rule 406 and Habit Evidence
Rule - if a person demonstrates a consistent response under given circumstances, it is more likely person will
repeat that response when circumstances arise again. s
Similar to
o using evidence for another purpose under 404(b)
o Also similar to benign use of propensity logic 404(a) exception
Difference between char trait and habit are:
o Habit is automatic, reflexive, routine
o Habit lacks the volitional quality of a char trait
Habit must also be based on a sufficient regularity
Habit requirements
o Must be relatively innocuous (courts reluctant to treat heavy drinking as habit)
o Must be automatic, less volitional
o Must be a predictable routine
o Must be a simple process
o Must have high degree of regularity (every time worked on a/c used heating coil)
If prescribed steriods 100% of time, that is a habit
If did only 70%, that is not a habit
No limit on form habit evidence can take,
Halloran V. VA Chemicals
Def wants to show that mechanic improperly heated can of refrigerant w/ heating coil
So he wants to have witness testify that this was a regular practice
Court remands to have habit evidence included, if it occurred sufficient number of times..
#3.18 Steriods
Estate wants to get in testimony of 8 witnesses to say that as former patients of doctor they too were given
steriods....
Issue is their is no sense of proportion, we dont know if def doctor prescribed steroids w/ sufficient regularity to
say that it is a habit....
Furthermore, prescribing drugs is intensely volitional - it is a complex decision involving debate and so is not a
habit

USE OF PAST CONDUCT FOR OTHER PURPOSES

404b (use char evidence for other purposes, as long as no underlying propensity logic)
104b (conditional relevancy w/ Huddleston std)
403

Cases where char evidence is among claim ESSENTIAL ELEMENTS

405b
o

if goes to prove essential element of claim, then evidence evades propensity

ban and can use all 3 types of char evidence (reputation, opinion, specific acts)

104b
403
Essential element cases
o Rebut a charge of affirmative defense entrapment - def in this case is saying he
is otherwise a good guy, pros. can rebut w/ all 3 forms of char evidence b/c
essential to a claim of entrapment is that def (did not?) have criminal proclivity
o Libel and slander - good character and truthfulness essential to claim, truth is a
def
o Parental custody - child goes according to the best interests of the child

SELF DEFENSE
must use 404a 404a(1) and (2) path....cannot use 405(a)(2)
char evidence does not automatically come in in that type of case,
essential element is the reasonableness of the defs response
but char evidence can be used to show lack of propensity to commit
act or to show victims propensity to be aggressor.
Note that even if def does not use char evidence to paint victim as
aggressor, but rather uses some other form of evidence, the door is
open for prosecution

Six Exceptions to General Rule barring evid. of char. to prove action in

conformity therewith....
1
FRE 413
Similar offenses in sex assault
2
FRE 414
Similar offenses in child molestation
3
FRE 415
Above two, in civil case
4
FRE 404(a)(1) Char of accused
5
FRE 404(a)(2) Char of victim
6
FRE 404(a)(3) Char of witness - but only for truthfulness

CHARACTER FOR TRUTHFULLNESS

RULE 404(a)(3):
RULE 608:

Another exception to
the Propensity ban Impeachment
Evidence

Character of the Witness

Evidence of Character and Conduct of Witness

Impeachment
We have two types of impeachment evidence
o Non-character evidence (specifically shows whether telling truth in a specific case)
o Char trait for truthfulness (shows a general propensity for truth telling)
In practice, most attacks on witnesss credibility are non-char based, just saying he is lying about this specific
point
Rule 607 permits either party to attack a witnesss credibility, including the witnesss sponsor
NON CHAR EVIDENCE USED FOR IMPEACHMENT
Forms
o Contradiction by Past inconsistent statements (Delberts brother)
o Contradiction by conflicting evidence (physical evidence, another witnesss testimony, life experience)
o Bias (Doctor in a few good men)
We allow this evidence b/c it has a high degree of specificity showing credibility, does not involve propensity
No need to apply 608 to this evidence, the critical test is RULE 402 and 403
Extrinsic evidence rule does not apply
BIAS - A Few Good Men
Doctor testifying why victim died, Cruise trying to impeach him
Def claims doctor biased b/c he examined before death and missed heart issue, what they claim is the real cause of
death, and so doctor has bias to cover up
Prosecution had objected b/c the question was going to char evidence for truthfulness.. and this is direct I believe?
Court lets in evidence of bias, still goes to credibility, but it is specific
Evidence of BIAS is not an attack on char for truthfulness, so cannot counter bias attack w/ char for
truthfulness (608(a)(2))
PAST INCONSISTENT STATEMENTS Delbert Video Clip
Another brother of victim told police Delbert did the smothering
Now up on stand the brother changes his story, says he did not say that
This is evidence is not char evidence for truthfulness, not trying to show Lyman is always a liar, it is prior
inconsistent statements to goes to the credibility of witness
Philadelphia Movie
Pl w/ aids suing law firm for employment discrimination
Pl testified on direct, now def cross-examining him - asked if he had ever been to a gay porno theater?
Not pertinent, unless on direct he denied going to such a theater, because this is not going to his general char for
truthfulness (this is a civil case, not allowed to use propensity logic!)....prosecution using to show bad char trait
which 404a should bar
Could have asked if he lied on bar exam when he said had no speeding txs when he actually did... this comes in
b/c goes to his general propensity to tell the truth
but he if he said he did not lie, you cannot introduce those txs as evidence b/c 608b extrinsic evidence rules bars
Another hypo for CONFLICTING EVIDENCE OR CIRCUMSTANCES under non-char impeachment
evidence
o Say on direct Hanks testifies he was a productive lawyer who wrote t memos.
o Def wants to get in that he wrote only 2 memos.
o These memos come in as non-char evidence to impeach, it is specific and does not rely on a general
propensity
See Problem 4.5 for examples on non-char, and for rehabilitating the witness in general. Very good examples.

CHAR FOR TRUTHFULNESS 607, 608

404(a)(3) 608a (opinion/rep) 608b (specific acts on cross)
o 404(a)(1)/(2) and 608 have similarities
403
on direct, both limited to opinion and reputation
on cross, can bring in specific acts
o 404(a)(1)/(2) and 608 differences
608 applies in criminal/civil contexts, 401(a)(1) (2) only criminal
Either party can initiate a credibility attack under 608, but in 404(a)(1) (2) only the defendant
accused can open the door
o Rule 608(a)
Before you can bring in char evidence for truthfulness, must have an attack on credibility of
witness to open the door. 608(a).
Aka - Under 608 can only offer supporting char evidence to rehabilitate witness
When testify on direct, must be specifically for reputation or opinion of truthfulness, not the
persons general reputation. 608(a).
o 608(b) and the extrinsic evidence rule - aka Collateral evidence rule
on cross you ask witness about specific incidents involving witness where he lied, prod him, but
if he maintains he was telling truth you can NOT introduce evidence to prove telling a lie - you
are stuck w/ his testimony
This rule applies in two circumstances
Concerning the char for truthfulness of witness
Concerning the char for truthfulness of another witness which this witness testified to
this rule does not apply when dealing w/ non-char evidence for impeachment
this rule prevents the scope of the trial f/ being too expansive, dont want extensive search on
every issue raised, and dont want outright attack on witness, so we have LIMITS in 608(b):
specific conduct must involve char for truthfulness
Cannot be proved by extrinsic evidence
Judicial discretion, 403 balancing test
Lawyer must have good faith basis for asking specific question (must possess info that
reasonably leads him to believe the acts occurred).
If involves conviction, see Rule 609 - most courts will not let 608(b) be aback door for
admission of evidence covered by, but no admissible under, 609
Understand this from PAGE 244 - THIS IS TRICKY, MAKE SURE YOU UNDERSTAND.
608(b) allows more liberal use of specific instances than does 405(a).
see example in book...
On cross, you can inquire about a lie with person X who is a direct witness, and you
can inquire about that lie with person Y, who vouches for char of truthfulness of X.
Cannot do this w/ 405(a) char evidence - say def has witness Q bring up peacefulness,
you can cross about specifics, and if def later gets on stand you cannot bring up
specifics about peacefulness unless you avoid the propensity box or def somehow
raises the char issue in question. MAKE SURE THIS IS CORRECT....ASK HASH.
o The Rationale for allowing impeachment by char for truthfulness: see page 238-39.
Dishonest people are more likely to lie in a given situation than honest people
The char trait of veracity/mendacity is detectable by casual observers in the community, and the
community consensus is accurately transmitted amongst acquaintances.
Ordinary people properly instructed by jurors will appreciate the difference between an
inference from dishonest char to untruthful testimony and an inference from dishonest char to
criminal conduct....and will only use it to evaluate truthfulness
Lot of assumptions here. black and white, does not reflect real world

RULE 609:

Impeachment by Evidence of Conviction of Crime

609 and Past convictions to Impeach

o Rule 609 lets opposing counsel impeach witnesses w/ evidence of their past crimes.
o Courts often admit past convictions, even if would seem to have little to do w/ credibility, even
though we do not typically let in other specific acts...
Judicial efficiency - criminal conviction easier to show than other specific acts

Social/moral level - generally we feel that if convicted in the past it hurts your credibility
Certainty - greater w/ past conviction than specific acts, higher level of proof

Easy to anticipate issue of past conviction - hard to prepare for all past acts, but can prepare for
past convictions, so more efficiency....
o To get conviction in under 609(a), available penalty just needs to be >1 year (actual sentence does not
matter - what this typically means is prior must be a felony
o From easy to exclude to hard to exclude:

609d Juvenile Crime

Juvenile crime - not admissible except....
In criminal cases where credibility of witness is at issue (other than the accused) as
long as otherwise admissible and necessary for fair trial
609
403 (unless it is

So never admissible in civil cases, or to impeach the testimony of criminal def

609(a)(2))
608b Vintage crime
Effectively a rebuttable presumption that evidence of old convictions not admissible
note most courts do not let
prior conviction in under
Exclude convictions when it has been more than 10 yrs since date of conviction or
608(b) if 609 would keep it
release, whichever is later, unless
out...
Court finds that pv of conviction substantially outweighs prejudicial effect
Generally we exclude vintage crimes, rare it will be let in
Notice must be given to adversary that will use this evidence
609a1 Accused is the witness (stricter test than 403)
if the accused is a witness, admit past conviction if pv outweighs prejudicial effect
But conviction must have been punishable by imprisonment in excess of one year.
Do not use the std 403 balancing analysis
See Brewer Case for factors to consider
Note that criminal def has more protection against impeachment by past crimes than
most witnesses.
609a1 Witness Not the Accused This applies when the witness is not the accused
Conviction trying to get in must be for more than one year (potential punishment)
403 analysis
Crimes of honesty 609(a)(2) See Brackeen Case
Perjury or criminal fraud
It must be admitted, do not apply 403, and judge has no discretion
But this prior conviction is subject to 609(b), (c), (d)
o Think of 609 as a special exception to 608b, which lets bring in specific acts on cross exam - for 609, we
can bring in certain specific acts on direct!!!
o 609c says cant use past conviction if pardoned, annulled, rehabilitated
o 609e says pendency of an appeal does not prevent past conviction from being admitted
o These 609(a) and (b) stds reflect several discrete 403 weighing tests, with preconceived notions of
probative value of evidence involved
(a)(1) - more serious the crime, more likely will lie, so must be >1 yr possible penalty
(a)(2) - if involves deceit, especially probative of propensity to lie, so readily admissible
(b) - if more recent, more probative, so make it harder to get in old crimes
(c) - if rehabbed, prior conviction has nearly no probative value
(d) - if was a juvenile, significant chance his character has altered as time passed (improved)
Rule guards against unfair prej to criminal defs especially, so more protective of them than civil
defs or witnesses in general

o
o

See 255/269 examples - Say have grand theft auto - 12 yr old perjury - presume inadmissible under
609(b), but perhaps can get it w/ tougher test - probative, only moderate risk unfair prej b/c crimes
different
609 lets the conviction in, but not the underlying facts, although judge may permit witness to explain
circumstances

US v. Brewer
Govt wants to introduce evidence of 4 past convictions to impeach, on trial for kidnapping and stolen car
Prior kidnapping conviction, would be vintage crime but he violated parole and was reconfined, release date is
determinative under 609(b), since it is the later date
After do the 609b analysis, must do the 609a analysis - 5 FACTORS
o Nature of the crime if it involves violence, prej. outweighs pv for truthfulness
violent char not probative of truthful char
o Time conviction/subs. history fact of continuing pattern makes more likely will admit
court wants to see def rehabilitated
o Similarity between past and current crime greater the similarity the greater the prejudicial effect and so would be more likely to exclude
concern is that a limiting instruction would not prevent jury f/ making impermissible
assumption that if he did it before, he probably did this time.
o Importance of ds testimony - in this case very important so tend to exclude evidence that would hurt
the def
o Centrality of credibility issue important for def here so disfavors admission of past conviction
court in this case says opposite from above, if central issue, it says admit it
Court concludes to keep the kidnapping conviction out, but lets in other 3 past convictions (rape and 2 assaults)
#4.3

Weighing tests def appealing drug conviction, has a prior drug conviction
Lower court denied use of prior drug conviction under 404b/403 to show knowledge
But same court allowed prior in to impeach under 609a
Def argues that under 609a it is easier to exclude evidence, so if excluded under more stringent 403 test, should
have done same under 609, and therefore he claims abuse of discretion
The difference is in the probative value being weighed under each test
o 404/403 is testing the knowledge and opportunity of the def
o 609a1 is testing the probative value of the char for truthfulness
So cannot directly compare 403 and 609, giving theoretical support to court decision
Appeals court affirmed lower court.... but seems probative value low compared to prej effect

US v. Brackeen Defining a CRIME OF DISHONESTY for 609(a)(2)

Conviction for bank robbery is not admissible per se under 609(a)(2) as crime of dishonesty or false statement
Distinguish dishonorable activity from inherent lying - obtaining property by force versus obtaining by deceit
I believe if he had made a false statement during robbery, or committed fraud, it could come in.
Court arrives at its holding looking at the lang. of the rule, but dishonest can include liar and thief, so go to leg.
history for clarification - clearly says need deceit, untruthfulness, falsification
609(a)(2) includes perjury, false statement, criminal fraud, embezzlement
Must look at the underlying facts of the crime, not just the charge.
4.4 Meter fixing
Court looks at the underlying facts of the crime
Def helped alter the meters to decr. bills so fair to describe as crime of dishonesty
Philadelphia Hypo

Say convicted for 6 mos. sentence for sex in gay theater (assume potential punishment > 1 yr)
Employer could get conviction in under 609a1, but would have to pass 403 test b/c this is a civil case not criminal

REHABILITATING THE CREDIBILITY OF A WITNESS

Rehabilitation is one partys attempt to support witnesss char for truthfulness

Can only rehab only after the other party has attacked witnesss char for truthfulness. b
So what constitutes an attack on char? See p. 280
o 608(a) testimony about reputation/opinion of witnesss bad char for truthfulness
o 608(b) specific acts brought out on cross that are probative of untruthful char
o 609 evidence of past conviction
o Sometime an attack on truthfulness of witnesss testimony in this proceeding can be an attack on general
char for truthfulness.
Cannot rehab bias attack w/ char for truthfulness (see p.280 #1)
Cannot rehab when attack one part of testimony w/ specific contradictory evidence, esp. if
mistake (p.280 #2)
But contradiction by past inconsistent statements and contradiction by conflicting evidence
possibly can be an attack on char for truthfulness, depends on circumstances
Pros enters criminal conviction under 609(a)(1), def can respond w/ char for truthfulness from neighbor, pros. can
then ask neighbor about specific incident if probative of truthfulness, to test whether neighbors opinion is wellinformed and well-considered. (p.280 #4).

USE OF EXTRINSIC EVIDENCE

Extrinsic Evidence will not be admitted on a collateral matter

608(b)s bar to extrinsic evidence applies only to evidence offered to show witnesss general char for
truthfulness; rule does not bar extrinsic evidence showing witness lied in this specific case!!!
608(b) and 405(a) bars the use of extrinsic evidence
o 405(a): can ask char witness on cross about specific act committed by person about whose char the
witness is testifying, but may present no other evidence about the act
o 608(b): can cross witness about specific incidents of conduct that bear on char for truthfulness, but can
go no further unless prior conviction (609). Ironic - 608(b) impeachment only works if witness is
honest.
609 allows the use of extrinsic evidence (to bring in conviction, not the underlying facts of the conviction p. 264)
You can use extrinsic evidence here:
o Bias is not a collateral matter, and so you can bring in extrinsic evidence to prove bias
o Contradicting Specific Testimony relating to issue in case is not collateral, so can bring in extr.
evidence. see 284. That is, counterproof is admissible if it contradicts on matter that counts, but not
otherwise.
o 404(b): If evidence comes in under 404(b), it is not character evidence and therefore you can bring in
extrinsic evidence
o See Problems p. 280.
US v. Abel: extrinsic evidence that tends to prove both a collateral matter and something else (like bias) may be
admissible.

RULE 412: Sex Offense Cases; Relevance of Alleged Victims Past Sex Behavior or Disposition
RAPE SHIELD LAW - 412

412a - as a general rule, evidence of past sexual behavior and predisposition of victim is not admissable
Old rule let sex history and disposition in to show unchaste char, from which could infer consent, as well as to
show lack of credibility (woman lie....)
412b1 lists the EXCEPTIONS to this general rule (1 for criminal cases, 2 for civil)
o criminal cases
if constitutionally required
courts generally reluctant to admit this evidence
unless def argues reasonable mistake and bases his defense on his knowledge of the
victims reputation and specific acts
when victims specific acts involve sex w/ 3rd parties and issues involve source of semen,
injury, or other physical evidence (eg, to explain why semen on victims clothing)
victims past sex in form of specific incidents that involve def so that def can establish consent
on night of alleged rape
o civil cases
sex behavior or disposition is admissable if pv substantially outweighs danger of harm to the
any victim and of unfair prejudice to any party (resembles vintage crime rule balancing test)
Evidence must also be admissable under other rules of evidence
o Note that false accusations are not barred by rule 412, see State v. Smith.
Determine false w/ 104b.
Other rules apply - 403, 404, and 608
We have a general ban w/ specific exceptions, so like 410s plea negotiations
Courts attempt by statutory interpretation to find fairness, courts conscious of not only text of rule but also leg.
history and intent
Different std in civil cases versus criminal to get in evidence of sex act or behavior o have to show pv substantially outweighs danger/unfair prejudice to any party
o tougher balancing test than 403.
Galvin Article - he suggests using the 404(b) model, banning propensity use but allowing other uses
o She proposes a better rule would be to prohibit use of sex acts of victims consistent w/ the 404a2
propensity doctrine
o That is, you cannot show general propensity for past sex behavior to show consent for this act
o She would also ban evidence being used to show lack of credibility
o She would allow evidence being used for 404b other purposes - could use to show consent
o She would rely on 403 as another filter to exclude past sex acts
o Thinks existing rape shield laws dont distinguish between benign + invidious use of sex evidence
Framers of RSL trying to describe circumstances where fair to admit evidence of past sex acts or predisposition fair when it has a specific purpose, not fair to show general propensity for sex act
Without RSL, you could get in victims past sex history as
o 404b other purposes - say to show motive, state of mind
o 405a1 could get in reputation or opinion, but not specific, unless victim opens the door on cross
o 608b cross exam could get in specific acts as probative of truthfulness
But there are LIMITATIONS ON RSL:
o Past allegations made by victim that are determined to be false (State v. Smith)
Def on cross of victim can bring up to impeach
Def on cross of char witness vouching for victim can also bring up
Courts divided on whether can bring up when victim claims rape but witness believes was
consensual
o Evidence being used to show motive or bias to lie. (Older v. Ky)
6th amendment right to confront witness, to show specifically a bias or motive
Boggs limits Olden to when def cross examines about a specific credibility issue, not general
char for truthfulness
o Issues of narrative integrity/res gestae, or when def alleges reasonable mistake (defs state of mind)
Courts reluctant to admit this evidence, if it comes in, it comes in substantively.

In Stevens, court limited what def could say about his angering victim during consensual sex.
Specific statements not allowed, can only say her sd something that caused her to fabricate story
In Knox, court does not let in victims past reputation b/c there is too great a divide between
parties stories
Galvin would let in evidence in both Stephens and Knox, using for another purpose than to
show a general propensity to consent to sex.
Perhaps on cross you could get in evidence to show bias or motive to lie, Olden supports that, but
Stephens seems to undercut.

OLD LAW PRIOR TO RAPE SHIELD STATUTES (let you use sex propensity to infer consent on given occasion)
People v. Abbott
Old law - any circumstantial evidence tending to show woman did not resist sex comes in.
Lets sex history of woman victim in, b/c there is a difference between the virgin and the tenant of the stew.
State v. Sibley
court says past acts of immoral sex do come in as probative of truthfulness
But only for women, does not come in for men!
PAST SEX WITH THE ACCUSED
#5.1 Emails
Trial court excludes the emails Yes, I am submissive... and Im his slave....
But it probably does come in as sex behavior by def w/ victim to show consent
o Def can argue to get it in as 412b1b exception to show consent
o Def argue the communications themselves constitute a form of sex between parties
o Most courts would fit it into the 412b1B box
Neither seems to fit nicely into 412 text....
EXPLAINING THE SOURCE OF THE PHYSICAL EVIDENCE
#5.2 Fingerprints
Def claims he had sex w/ victim one month before alleged rape, that is why fingerprint is in her room
412b1B talks about consent regarding the alleged rape, but here we are talking about consent one month prior...so
evidence would not go to consent on the night of the rape
Evidence does not fit nicely into 412b1B
But it seems fair for def to have access to admit this information, it does not go to general propensity
Galvin would let it in for reasons other than to show general propensity for consent or to show lack of credibility
of victim. Here he is trying to get it in for misidentification....
Two sections of 412 may be involved here
o 412b1B and consent
o 412b1A and showing someone else left physical evidence (but def not trying to show someone else left
it, just when he left it)
o Text itself would bar, but if look at 2 sections together...
Some courts would just look at text and bar evidence
Other courts would stretch the box to allow in evidence based upon legislative purpose behind the statute. Make
an exception b/c of the unusual importance of this evidence, need evidence to mount a reasonable defense (court
has choice to create additional common law exceptions, or to stretch statutory interpretation).
The counter argument to stretching statutory interpretation of legislative intent is that Congress was very
particular w/ its language, suggests should not enlarge box.
PAST ALLEGEDELY FALSE ACCUSATIONS
State v. Smith

Def wants to get in evidence of prior false accusations of molestation, claims not sex acts, use to impeach; this
case rested completely on testimony of victim, as no phys evidence
Prior false accusations are not barred by 412
Here we have a judicial technique - court says 412 does not apply b/c it only applies to past sex behavior, here we
have none! Court remands for fair trial, to include testimony of past false allegations
Another example of statutory interpretation which allows court to get in evidence of victims sexual history
How do you decide whether the allegedly false accusation is in fact false?
o Use the 104b standard of conditional relevancy (Huddleston standard).
o That is, would a reasonable jury believe the past allegations are false based on a preponderance of the
evidence

#5.3 Smith on Remand

Even if 412 does not apply, b/c old accusations turn out to be false, still have to meet other rules (403, 404, 608)
608(b) - If prosecution puts on victim and char witnesses vouching for credibility of victim, def could get at
credibility under 608(b) w/ specific acts.
404(a) - If you believe def, Hashimoto thinks could come in - but would be restrained in form, could only get in
on cross examination, and cant bring in extrinsic evidence. If victim says they were not false, try to shake her,
but if she doesnt budge you are stuck... (I added in 404(a) label, but believe it is correct)
404(b) - b other purposes to get in evidence - maybe goes to intent, bias or motive, but need more information if
want to show it was more than general propensity.
#5.4 Old Accusation - an exception to the Smith exception?
Rape claim, def trying to get in witness to an earlier rape accusation who did not believe it was rape, both victim
and the partner in prior sex act deny incident occurred (that is, no rape, and no accusation).
could come in under 608b, but first you would need pros. to bring in a character witness, and then you could get in
on cross exam b/c it involves a specific act
Smith offers an exception to 412a, because that case dealt w/ false allegations and so 412 does not apply
o But can distinguish this case from Smith - this case does involve sex, whether consensual or forced,
whereas in Smith there was no sex!
o Courts divided on the Smith exception

404(b)-STYLE USES OF EVIDENCE OF PAST SEXUAL BEHAVIOR

404(b)-like uses of past sex

1 Proof of bias
2 Narrative integrity
3 Defs state of mind

PROOF OF BIAS
Cross-examination as to motive, bias or prejudice is const. protected, but cross as to general credibility is not!
Older v. Kentucky - Const. Right to Cross-Examine Accusers....
Def claims alleged victim fabricated rape charge to protect relationship w/ man she was cheating on husband with
Def wants evidence in of victims relationship w/ man she is cheating with b/c shows her motive to lie, also to
impeach
6th amendment gives a def right to reasonable cross-examination of witnesses
here def wants to point out that victim biased to protect her relationship
Central to case so must be allowed - const. right to confront witnesses under Sixth Amendment via 14th.
412 is a general ban, but few specific exceptions
If you takes galvins approach, and allow evidence in for some other purpose than to show a general propensity
for consent, you do not need to argue it is a constitutional right (Galvin models his approach on 404b).
Boggs v. Collins but that const. right is not totally unrestricted.
This case deals with alleged prior false allegations, case narrows the Olden holding...
Distinguish between general attacks on credibility and particular attack on credibility
o General attack - just look at char for truthfulness

o Particular attack - reveals bias, prejudice, ulterior motives dealing w/ particular case
Const. right does not cover all evidence that goes to credibility, just particular attacks showing motive to testify
It only covers the defs right to cross-examine when something specific at stake, like motive or bias
It does not cover defs right to cross-examine regarding general credibility (propensity to lie )
This court says def cannot wage a general attack on credibility by pointing to individual instances of past conduct.

IS THERE A TENSION BETWEEN SMITH AND BOGGS? One seems to let in false allegations to impeach, the
other does not.... What do majority hold? Would Boggs bar Smith outcome?
NARRATIVE INTEGRITY (RES GESTAE)
Stephens v. Miller doin it doggy-style...Tim told me you like it like this
Def wants to get in specific words he sd to alleged victim that he claims sparked her to fabricate rape charges
Court says we do not have a const. issue regarding application of Rape Shield Statute here b/c the jury was able
to hear some of the evidence, even if it was not able to hear all of it.
o 412 restricts right of def here of defense in order to protect right of rape victim (privacy, harass.,
embarass.)
o 412 addresses an issue in criminal justice system - victims not coming forward b/c sex hist. would be
dragged out
Def also argues specific words should be heard by jury based on res gestae and narrative integrity o Court notes this would gut rape shield statutes and
o Say no const. right to res gestae, fed rules control, res gestae as old catchall disappearing
From an outcome perspective, we dont believe d so we dont feel bad
But lot of division amongst judges on this principle - tough to force defendant to talk vaguely about a critical
factor of his case, may make jury not believe him.
Galvin would come in b/c it is not going to consent/general propensity, rather comes in for another purpose includes res gestae, perhaps motive...
Note that the def could get at this wording on cross exam of victim as a witness, if she goes on the stand, under
608bs specific incidents. But cannot prove extrinsically.
DEFENDANTS STATE OF MIND
US v. Knox
Def argues reasonable mistake, thought victim had consented, tries to get in testimony of reputation and specific
sex acts as they created his state of mind. tries to get in w/ const. exception 412(b)(1)(C)
Reasonable mistake? Not when polar differences between stories - one side was lying.
o IF parties agree on the facts what happened that night, evidence would come in to show defs state of
mind
o If very different stories about what occurred, and thus consent is the issue, evidence does not come based
on 412.
Court states defs state of mind is not the critical issue here, what is important is whether you believe his story that
she consented.
Under the Galvin approach, more likely it would come in - use it for other purposes, not asking jury to use
propensity logic in a banned way, rather def is alleging that he used propensity logic to think she was more likely
to consent based on her reputation.

Witness competency and hearsay rules are both concerned w/ a partys ability to test a witness by means of crossexamination....the greatest legal engine ever invented for the discovery of truth. Wigmore.
Competency of Witnesses
Today is not an important issue, used to be....couldnt testify if had an interest in the case, if were minority, felons,
or a child
Today we have a liberal approach, rely on adversarial system and cross-examination to get a t the truth

Biggest concern is for kids (perception, memory, communication, distinguish truth and falsehood, obligation to
tell truth, intelligence).
Rule 601 - everyone can testify unless rules provide otherwise
Rule 602 - personal knowledge requirement
Rule 603 - requires an oath

HEARSAY - WE ARE CONCERNED W/ THE RELIABILITY OF THE EVIDENCE!!!

Everything above is on relevancy, now we are talking about reliability
Definition
o HS is a statement other than one made by declarant while testifying
o That is being offered to prove the truth of the matter asserted
o HS is an out of court assertion offered to prove the assertion
Policy Reasons for it o Important for fact finder to examine testimonial capacity of witness (clarity/narration, sincerity, memory,
perception)
Belief accurately reflects event only if perceives and remembers event accurately
Testimony accurately reflects her belief only if narrates accurately and truthfully.
o Want to be able to cross-examine witness so we can point out weaknesses
We test non-hearsay via oath, demeanor and cross-examination.
Note most hs is very relevant, but that is not the only std for admission - need reliability too...
To decide whether an out of court statement is hearsay, we must ask:
o Is it being offered to prove the truth of the matter asserted?
o Is it an assertion

801(d)(1) defines when past statements by a witness are not hearsay

What constitutes an assertion? see below for more....
o It can be an oral or written assertion, as well as nonverbal conduct intended to be an assertion
Not all written or oral expressions are assertions, but most are...conduct is the tricky one
Speech and purposeful conduct can be non-assertive.
o Requirements
An intent to assert (communicate)
To some audience (w/o an audience, would be lying to self, people do not ordinarily do this)
Idle chatter is not an assertion, it is not communicative, just information
o Think of a spectrum of inferences:
Why did you stab me is a strong one
Piece of paper w/ names is weak
Paper allows enough of a gap in inferences that fact-finder can make his own conclusion, it is
not being fed to him, not being directly asserted
o You can have implied assertions as well as indirect (She should give that dog a bath - implies dog is
dirty)
o independent legal significance contract terms, notice, offer and acceptance, consent - those are not HS
b/c they are the equivalent of a verbal act
o Non-assertive communication is the tough stuff to id!
Analogous to non-assertive conduct cops firing a gun at 1 of 2 people in an alley is not an assertion.
Another example - cop shot, gets in car, chases down shooter, says in car thats him
to partner, swerves off road and hits def, cop dies.
The swerving and the statement are both non assertions!!! If conduct non-assertive, so is the
closely related speech.
The statement is not assertive b/c does not come in to show directly that he shot cop, rather it
comes in to describe what the declarant saw - a conscious act as opposed to an involuntary act.
Think of the conduct and speech as showing an association between out of court declarant cop
and def, but not to prove conclusion that he shot cop
I believe this category is called a verbal part of an action and is not HS. Utterances part and
parcel of conduct itself, just adds more in interpretation
Rule 805 - DOUBLE HEARSAY
o Have to justify each level of HS w/ one of the exceptions to HS.
o Anything written on paper is HS, and if it describes a conversation, double HS

See p. 448, it says under 806 can attack hs declarants credibility by any technique could do to a live witness (bias,
inconsistent statements, contradicting evidence, untruthful character by opinion or rep, or specific acts under
608(b), or 609s past conviction).
o This extends to vicarious statements of agents, co-conspirators, etc
o Applies to hs admitted under 803, 804
o Does not apply when it is partys own words or adoption 801(d)(2)(A) or (B) - they can take stand.
o Also does not apply when use 801(d)(1) - on the stand.

Offered to Prove the Truth

7.1 Affidavit
affidavit is an out of court statement that is a written assertion

in this case pl does want it to prove tma , so exclude it....

7.2 Gesture
exclude rubbing fingers together
out of court, offered to prove tma that is short on cash
Non-verbal conduct can be an assertion (gesture here)
7.3 Quoting Herself
Witness on the stand quoting herself when she idd defendant
This meets the hs definition, but witness can be crossed so
Rules specifically define as not hearsay under 801(d)(1)(c)
Offered to Not Prove the Truth
7.4 Boasts
This is the US v. James case, where defendant is on trial for aiding in murder of her boyfriend
Out of court statement not being made to prove the truth of the matter asserted
It is being used to prove her state of mind, the effect of those statements on her
7.5 Horse Theft
Woman convicted of selling 2 horses she did not own
Her testimony, that guy she lives w/ sd he had owned them and wanted her help to sell, was excluded as
hearsay
Id say this is wrong, not offering to prove he owned them, just showing she though he did
7.6 Ineffective Assistance
Atty1 never called to stand person who could take client1 out of room where abuse occurred, even though
atty2 told him his client2 would say that
2 uses for the out of court statement
o To show notice - counsel knew there was an important piece of evidence
o To show prejudice - client was prejudiced and so claim of ineffective assistance
Notice it comes in, but prejudice does not b/c have to presume statement is true
Given piece of evidence can be used for HS or non-HS purposes
Here it comes in for notice, but give jury instruction not to use for tma.
7.7 Hes a Cheat
Pl suing man for saying at meeting he is a cheat
Not being used to show tma, in fact pl thinks it is not true.
Just want to prove he sd it, not its truth.
DEFINING ASSERTIONS.....
7.8 Ship Inspection
Ship captain inspects vessel before he goes on voyage
Hs can be non-verbal conduct, but....
He was not asserting to dockworkers it was a seaworthy vessel, so not Hearsay
7.9 Amchitka Holiday
Head of Atomic Agency says is taking kids to site of atomic blast
Hearsay must be an intended statement must be an assertion
This was intended, he was communicating that it was safe.
If he went, it would be non-verbal assertion of safety.

Note the only testimonial capacity difference between 7.8 and 7.9 is that of sincerity. We rely on both for
their perception, memory and narration, and we rely on captain for sincerity - Man does not lie to himself.
But Agency head could lie....sincerity is the main issue w/ hearsay.
P. 355 Assertion Problems
1. Hearsay. Public official intending to send message safe to eat beef.
2. Probably not Hearsay.
Witness testifies that the injured cop shoots 1 of 2 guys in an alley

HS use - I would guess if believe the cop, by shooting guy, asserted he shot him?????

Non HS use - Not offering to prove shot cop, offering to show they were in the alley.
3. Not HS.
Call to a gambling den, while cops there.
It is not an assertion, b/c the caller to the gambling den is not telling person on phone this is a
gambling den, they already know that
caller obviously thought was making a bet, acting on that belief, but not asserting that belief.
4. Not HS.
Jailee told co-jailee that he told cops nothing about him. I didnt tell them anything @ you
More like an action b/c idle chatter
When you see words, you think assertion, may be wrong if not a lot of substance... here he is
just describing conduct
Example of non-assertive speech; Prisoner acting on belief was complicit, but not asserting it.
5. HS. Clearly we have an assertion when he says why did you stab me?
6. HS/notHS.
Slip of paper w/ 2 names and number / comment to give slip to cops if not back in 1 day.
Paper being admitted to show he knew 2 guys, describing conduct, not an assertion, shows an
association, but does not directly prove it
If admit to show he was murdered by the two, it would be HS
Statement of directions may be an assertion, particularly if offer to prove murder, but maybe not
if offer to prove association - could argue incidental to the paper
7. Yes/No.
It depends on what the intent of the writer in the diary is? Did she intend for it to be read by
others (audience), in which case it would be an assertion and therefore HS, or was it just for
her?
Prosecution would argue it was private, therefore not an assertion, therefore can get it in
Unlikely to get it in by tying to her state of mind, like we did w/ the boasts of violence above,
too powerful - could get in everything that way. E.g. He is going to kill me is hs, cant get it
in to show you were in fear, but the boasts were from someone else, can get in.
HEARSAY PROBLEMS P.358

#1 - Past statements of an witness are hearsay, unless 801(d) makes take them out of that category
#5 - videotapes are not hs, because they are not a statement of a person.
Ive got a gun and I am not afraid to use it is a verbal act, his words are a threat, he has made a threat, not
asserted one...so not hs.
indirect assertions are still hs if offered to prove tma, think I did not ring up a sale all night, leads to inference
few customers, to final conclusion no customers at time of robbery.
Manifesting a belief in something is different from asserting that belief (think the gambling den hypo)
heres the 10k I owe you is a verbal act, not an assertion, certainly guy he is paying knows.
I am Jesse James, if to prove insane, is hearsay.... I am Jesse....I think I am Jesse.... I am insane - chain of
inferences.
They have guiness between bud and coors, to prove was in the store, is not hs, b/c not using to prove the tma,
rather using as circumstantial evidence that he was in the store.
Not hs if the significance of the statement is the effect it had on the listener (notice, fear)

Videotapes on HS
Wife testifies husband threatened her - not HS b/c using to show state of mind fear, self-defense, not using to
prove he threatened her.

In harassment suit against employer, telling supervisor you were harassed could come in for notice, a non HS use,
but if use to prove actually were harassed that would be HS
Few Good Men - victim had not packed his bag or called anyone, this involves conduct, but there was no intent to
communicate to audience...not HS

Miracle on 34th St - trial whether he is Santa? Letters delivered for Santa to him, not HS b/c no intent to
communicate by post office

HEARSAY EXCEPTIONS

How to approach HS problems?

o Is the out of court statement HS at all?
Do we have an assertion?
Is it being used to prove the truth of the matter asserted?
o Is there a hearsay exclusion or exception?
o Other ways to get evidence in than HS pathway? Can it come in to impeach?
o How many HS issues? Double HS? Must justify each level.
Policies driving the exceptions: NECESSITY AND TRUSTWORTHINESS (reliability)
Policy concerns underlying hearsay exceptions
o High relevance of certain kinds of evidence
o Necessary to get in this evidence b/c difficult/impossible to get otherwise
o Concern for reliability - some HS evidence may be the most reliable around

ADMISSIONS BY PARTY OPPONENTS

Personal admissions - declarants own statement or when party manifests adoption or belief
Vicarious admissions - include statements by authorized agents or co-conspirators
Note that party admissions are not restricted by Rule 602s personal knowledge requirement or the opinion rule,
b/c this is war....
Partys own words 801(d)(2)(A)
Have to be offered against the party
There is no requirement that the party admitted anything, just that he sd something and it is offered against him.
Admissions do not have to be to 3rd parties, they can be in-house - see Wolf case
Underlying rationale o Reliability statement harming speakers interest more likely to be truthful than ordinary hs b/c people rarely
lie to hurt themselves.
- but not good justification b/c not everything against interest.
o Game theory - part of adversarial system, enforce consequences upon those who say it
o Moral view - you say it you own it, responsible
o Party is there to be cross examined
but can be tough in criminal cases (609),

and it can be applied to partys agents, spokepersons and co-conspirators who may not be in
court to cross.
7.10 Billables
Def tries to get in signed pl billing records which show was working a lot despite disability
this comes in as HS exception, partys own words
Considered an admission by pl
Not concerned about reliability, seems more likely it is reliable b/c the party sd it
Even if unreliable, well let the adversarial system work it out - if you say it, you admit it, you own it!!!
Of course, you can explain it, let process work it out
7.11 OJ says take my blood
It would be HS if it were brought in to show consciousness of innocence
A non HS use would be to use to simply show consent, it was a verbal act w/ no assertion.
801(d)(2)(A) exception does not apply, OJ cant get it in under that, b/c statement would help him, it has
to be used against him according to text
Adoptive Admissions 801(d)(2)(B)
Requirements for when party is silent and want to interpret as adoptive admission:
Heard and understood

At liberty to response
Natural to rebut statement
Failure to respond
7.12 Buddies
Want to use cops statement against individual who was present and silent during drug deal
Run through 4 requirements for adoptive admission, even though silent context makes it an adoptive
admission.
o He clearly heard and understood what was said by his friend
o He was at liberty to respond
o It was natural to respond to the statement you can get [more drugs] from my buddy, but
instead he remained silent; also have adoptive conduct, went to get drugs
7.13 Jailhouse meeting
Defs daughter in jail asks her dad to tell the truth about murder, and he remains silent and points at sign
saying may be monitored.
4 requirements - was he at liberty to respond? this is the key issue - some coercion going on here,
environment restricting his ability to speak
For most courts, evidence does come in, silence is an adoptive admission in this context, even though
some coercion.
If a cop or investigator had been involved, silence would not be an admission, but here were dealing w/
a private party so no 5th amendment issue
Would still let in even if he argues that he was following his attys advise to keep quiet.

Statements of Agents 801(d)(2)(C) & (D)

Is person an agent?

Concern matter within scope of agency/employment?

Statement made during relationship?
Pet Wolf Bites Boy - Statements of Agents
Pl trying to get in note from wolfkeeper to institute which says wolf bit boy; oral statement by
keeper to inst. president; minutes of inst. board mtg.
Note
o Comes in against wolf keeper as his own statement 801(d)(2)(A)
o Comes in against inst. under scope of work 801(d)(2)(D), within scope of work
Oral statement - comes in as partys own statement

Board Minutes
o Minutes do not come in against wolf keeper, cant hold employee by words of employer
o Minutes do come in against institute, as their own statement 801(d)(2)(A)

Rule here not based on reliability, as physical evidence did not support wolf bite, employee
panicked, but come in b/c adversarial system. This is war...

7.14 Shovel and Bucket

Man w/ shovel never idd, not available to testify, context suggests he was an employee
Pl wants to get in statements made by this man about performance of others maintaining walkway
It comes in under 801(d)(2)(D) agency exception.
To determine if enough of a foundation, id employee, or at least identify as an employee
Coconspirators Statements 801(d)(2)(E)
Requirements
o Show conspiracy existed
Do not need to charge w/ conspiracy,

 just need close relationship as joint venturers (knows about it and intends to associate w/ it)
Show def and declarant involved in conspiracy
Statement must be made in course of conspiracy,
o Statements must be made to further conspiracy
Statements can be considered to establish conspiracy, but alone are insufficient
104a governs to determine if evidence for these exceptions comes in
judge determines
std is preponderance
ok for judge to consider non-admissable evidence, including HS itself
questions - see above
This exclusion never applies to confessions to cops, as conspiracy is over and not furthering it
o
o

Bourjaily v. US
pros. gets in phone conversation of buyer with the def distributor under 801(d)(2)(e)
It is not a question whether those statements are relevant, question is are they reliable?
Key Holding - you establish that there has been a conspiracy by applying 104(a)
o Can look at hearsay statement along w/ any other evidence, some boot-strapping allowed
o Balancing is a preponderance, even if it is a criminal case (evidentiary standard is unrelated
to the substantive issues)
Bourjaily/104a and Huddleston/104b
o 104a determination within realm of reliability
judge determines
requires determination on a preponderance - tougher than 104b
But inadmissible evidence may be used
Governs all preliminary facts except those dealing w/ conditional relevance
o 104b
determination within realm of relevancy (conditional)
sufficient evidence std o sufficient evidence so that a reasonable jury could determine based on
preponderance standard lower std
o easier std than 104a.
o But only admissible evidence may be used to prove contested preliminary
facts
o Applies to preliminary questions upon which the relevancy depends
Huddleston therefore was 104 b/c sale of tv sets only relevant if they were stolen!!!
7.15 Translation
statement by def Y to N, who interprets for undercover cop. N is dead. Y doesnt give cops
version.
Pros. wants agent to testify about what Y told him via N.
2 issues
o an admission by party opponent? Y spoke in his own words to N, cop.
o An authorized statement by Y? Ns interpretation role.
It could come in as a coconspirator statement as well
We have here DOUBLE HEARSAY.
Delbert Video - talking w/ Lyman about how to kill
Lyman talked him out of killing, they agreed on smothering
If Lyman agrees to testify could perhaps get in under co-conspirator exception, depends on degree of
complicity, and could get in Delberts statements as admission by party opponent
But probably wont be able to get Lyman, so want investigating cop
DOUBLE HEARSAY problem
o Regarding Delberts statements, admission by party opponent

Regarding Lymans statements, co-conspirator exception wont work b/c conspiracy is over
once Lyman talks to cops....

PAST STATEMENTS OF WITNESS AND PRIOR TESTIMONY

Following defined as non-HS by 801(d)(1)
o Inconsistent past statements
o Consistent past statements
o Identification
Prior Statements come in substantively when declarant on stand?
o Morgan argues it makes no sense to keep prior statements out as HS when witness on stand and recalls
past statement
Earlier statement was contemporaneous and therefore more likely to be more reliable
Out of court statement likely comes in in some form anyway (if statement inconsistent, can
come in under cross to attack credibility)
If rationale is reliability and not being subject to cross, not an issue here b/c can cross!!
o Nonetheless, past inconsistent statements do not come in unless come in under exceptions in 801(d)(1)!!!
In addition to getting in substantively under a 801(d)(1) exclusion, you can try 803, 804; and you can get in to just
impeach under 613
RULE 613: Inconsistent Statements offered to Impeach Rule
Comes in to impeach witnesses credibility, not to prove truth of the matter asserted

Weak extrinsic evidence ban, just need to give proper notice

Considered non-char evidence (I assume it must relate to statement made on direct)
Silence can be used to impeach if it is inconsistent.
Cabbie Video
def charged w/ robbery, the victim says robber all $, yet she took cab ride home, cabbie initially told cops
victim pd him just before got out of cab, victim testifies boyfriend came out of house to pay, cabbie
changes his story
2 main pathways for past inconsistent statements to come in:
o Challenge Credibility of Witness - 613 controls (follow w/ 403)
Getting in to impeach the witness, not for substance
This is a broad pathway
Weak extrinsic evidence ban, just need to give notice b/c not subject to 608/609 bar
Considered non-char evidence going to credibility, not thought of as based on
propensity logic
o Exception to HS Rule 801(d)(1)
Rules defines as non-hearsay, but functionally an exception
Getting in to prove the matter asserted (Comes in substantively)
This is a very narrow pathway, only can use if prior statement was given under oath at
trial or another proceeding. Even if get in may have 403 issue
US v. Barrett
Guy and waitress overheard prior statements from key witness, who at trial is saying def was involved in
museum heist, that contradict his trial testimony and indicate def not involved
It is allowed under 613 if give proper notice, as long as it relates to credibility!!! Cannot come
substantively.
Extrinsic evidence issue, but do not have 608/609 extrinsic evidence ban, and just need to give witness
opportunity at some time to explain or deny
7.16 Retraction
Only evidence on identity comes in under 613, to challenge credibility of main witness who earlier out of
court sd def did it. Now is saying has no idea who did it.
Not coming under hs pathway b/c no oath or formal proceeding
Extrinsic evidence allowed under 613, so the investigating cop can testify.
All about credibility, to impeach, does not come in substantively for tma
So prosecution has no subst. evidence so judge must acquit

US v. Ince
facts
o
o

Witness made a statement to cop that def admitted quilt to her

At 1st trial, she could not recall, even after trying to refresh w/ signed statement, deadlocked
jury. 2nd trial convicted.
o Rule 607 lets either party attack credibility of a witness, govt does just that.
o In closing arguments of 2nd trial, pros. refers to HS evidence in a substantive way
Prosecution should not have been able to get witness on stand when they knew their only use for her was
to challenge her own credibility (so jury would hear prior statement)
o And the HS exceptions would not get the statement in... and jury instruction not sufficient here.
o Letting prosecution do this only would encourage misuse of evidence
Court does 403 analysis:
o nil probative value b/c pros. knew she had no memory and only using to challenge credibility,
o and large unfair prejudicial effect b/c it can get in defs admission
Rules on their face it is easy to decide this case, but doesnt it seem unfair to the prosecutions case o probably dealing with duress, more likely to believe her earlier statement
o Paradoxical that HS rules meant to ensure reliability, yet here we are excluding earlier statement
that is more reliable (403 analysis may be different in civil case)
Rare should let govt impeach its own witness w/ evidence that would be barred by hs rule when it
contains an admission

7.17
Why such excitement? If they caught us w/ goods, they got us Silence by def...Is it an adoption by
silence???
Assertion would be they got us in the act!!!
If silence occurs after being given miranda warning, may not be an adoption, may be heeding warning
How do you distinguish jailhouse statement in 7.13 which came in, and this not coming in?
o In 7.13 daughter induced silence and she is testifying
o Here speaking to co-conspirator in custody, overheard by agent
o Difference is the degree of interrogation and degree of govt. involvement
Really these situations are not that different, but courts treat differently, miranda important
Silence come in substantively ?
o If you just got your miranda rights, courts will not admit under exception
o If you have not gotten miranda warning
Probably will not... but it is .....
more like the prison situation - the key factor would be #3, it is natural to rebut
Could you get it in to impeach if def testifies?
o Yes if Pre-Miranda
o No post Miranda
Cannot get in under co-conspirator exception b/c conspiracy has ended
LOOK AT MIRANDA CHART
Fletcher v. Weir
Dealing w/ post-arrest, pre-miranda, but in custody
On stand was the 1st time def sd he stabbed victim in self-defense
Court holds that can get in silence on cross-exam to challenge def as witness in terms of his credibility
Separate issue whether could get in for substantive use
o This is not decided yet by S. Ct.
o Flecha would probably not let it in for substantive

RULE

801(d)(1)(A): INCONSISTENT STATEMENTS OFFERED SUBSTANTIVELY

7.18 Spousal Abuse I

Wife at grand jury hearing testifies she was hit by husband, but at trial say hit by swing
At trial can get her grand jury statement in:
o To impeach her credibility under 613
o Substantively under 801(d)(1)
Grand jury more reliable here, even though we normally we say out of court statement unreliable - who knows
why she changed statement - fear, reconciled, kids, etc...
Grand jury easier for victim b/c does not have to confront def or his atty
Even though grand jury testimony not cross-examined, but can cross at trial so that is sufficient
This differs from 7.16 in that we have a formal proceeding here, but dont we believe what she told cop in 7.16?
Applying HS policy exceptions
o This evidence highly relevant
o Evidence is necessary, like sex assault cases, only one key witness
o It is reliable, sometimes statements most reliable right after incident rather than some time later
7.19 Spousal Abuse II
Same as above, now wife she cannot remember how she hurt her jaw
We need a prior inconsistent statement to get it in as a HS exception
Could argue no inconsistency here, b/c nothing subs. sd hear at trial
Could argue still inconsistent, if fact finder finds that she is lying
Courts come out mixed on this one using a pragmatic approach, academics take approach that there is no
inconsistency so should not apply
What about if wife refuses to testify? cannot get it in under 801(d)(1)(a), she needs to be testifying, but perhaps
the residual exception will help? 807

RULE 801(D)(1)(B): PAST CONSISTENT STATEMENTS

Come in as non HS if they are offered to rebut charge of fabrication or improper motive/influence
HS statement only comes in if it was made before the recent fabrication or motive arose
Tome v. US
o Statements in question about sex abuse here did not occur before development of the alleged motive to
keep child custody (that is, ex-wife and daughter did not want daughter going back to dad)
o Holding - statements must be made prior to motives origin in order to come in
o Following old common law rule that lets in evidence of statement if it was made prior to the motive to lie
developing
o Statement has little probative rebuttal force if statement made after motive arose
o Cant get in substantively, can we get it in under 613 for credibility?
o Court looks to adv. notes and common law for guidance
o Scalias dissent
He says just apply the rule, no need to get into leg. history or advisory notes
He is a textualist (Hashimoto points out need common law too, text alone not enough)
Textualism confines judges, leg. history can be read in many ways
Textualsim forces legislatures to be clear in their text (leg. tends to compromise statutes w/
ambiguous language, then throw to courts to sort it out)
Justification for this exception o these consistent statements are highly relevant, but are they reliable and necessary enough???
o Not absolutely necessary, and concerned over reliability - we are already getting this testimony via her
testimony
RULE 801(d)(1)(C): STATEMENTS OF IDENTIFICATION
Statements made of identification after perceiving the person
Declarant has to be testifying...I am not sure he was in Weichell....
Declarant has to be subject to cross, but not effective cross.
Id closer to event, so more reliable than unnatural court room id, and necessary if memory loss
Comm. v. Weichell
Composite drawing of the def by a cop based on witnesss instruction, saw def for 1 sec. at night
Does the out of court drawing of perp fit under HS exception/definition of nonHS?
Drawing comes in
Dissent is concerned that communication between cop and witness could be compromised, cop could influence,
feels like hs and feels unreliable. Witness only saw for 1 second at night yet can get detailed description????
We let this is even through feels like HS, out of reliability concern, this is generally thought to be more reliable
than an in court identification which is artificial, because closer to event and less suggestive setting
Court does not answer whether this is an out of court assertion....
US v. Owens
Witness traumatized, at one point in lucid state makes an identification, but now at trial cannot remember any
details of his identification or basis for it, or whether visitors suggested the id
Court allows this id in b/c it is subject to cross-exam, even if that cross-exam not very effective
Underlying policies - clearly necessary, and is reliable enough for the jury - we trust the adversarial process and
cross-exam to point out the weakness and let jury decide
Scalia jurisprudence tutorial
o He is a textualist, does that fit w/ this case?
o Under 804 he would be considered unavailable, yet Scalia says text for that rule does not apply to 801(d)
(1)(c)
o Also, looking at the plain meaning of the text of 801(d)(1)(c), it says subject to cross, does not say
anything about being subject to effective cross.
o Scalia and plain meaning
He is forcing leg. to be clear, to not send ambiguities that the court has to clear up

But this is unsatisfying at times, and what about common law development?
Conservative judges split between following precedent and following textualism

Now we have true exceptions to HS.....

RULE 804: DECLARANT UNAVAILABLE
Analysis
o Fit under the definition of unavailable? 804(a)(2)
o Fit under 804(b) exception?

Unavailability
o Privilege exertion (self-incrimination, marriage)
o Refusal
o Lack of memory
o Death, illness
o Absent (must have tried reasonable means to make present - see Lloyd)
Rule strikes balance between risk of admitting statement of someone not on stand and risk of denying the fact
finder relevant information. Statement of someone on stand > HS meeting conditions > complete loss
So this testimony is not as good as if decl. was on stand, but prefer to let it in rather than lose it.
In contrast, 803 evidence is considered better than decls live testimony.
804(b)(1): Former testimony
o Must have had prior proceeding w/ form of examination by party against whom it is offered (in civil
cases, predecessor in interest is sufficient)
o Must have had opportunity and similar motive to develop testimony
specific issue in question contested in same way at both hearings?
In civil cases, court just looks for sufficient community of interest (predecessor in interest), do
not need privity.
Similar intensity to prove? nature of proceeding? (same std of proof? what is at stake?), crossexam foregone?
7.20 Spousal Abuse III
witness refuses to testify at trial, but did testify at grand jury
So she is unavailable as defined in rule
But def did not have an opportunity and motive to develop testimony at grand jury, b/c he was
not there.
Perhaps could get it in under 807 residual exception
7.21 Roadway Incident
Prior to this proceeding for criminal drunk driving, they had a civil suit
Witness for criminal case was unavailable b/c head injury, physically infirmity
Statement fits under exception 804(b)(1) if def had an opportunity and similar motive as he has
in the criminal trial
There may be different motives at the civil hearing - may concede liability, and instead focus on
minimizing his liability Different intensity between proceedings, $ on the line at one hearing,
prison on the other, and different stds of proof at the hearings.
Bottom line, it depends on circumstances whether fits under 804(b)(1)
US v. Dinapoli
Witnesses at grand jury claimed there was no conspiracy
Now at trial, def wants witness statements in (they refuse to testify, privilege), pros wants out as
HS
Court excludes after intense factual examination, finding prosecution had different motives at 2
hearings
o Pros. did have opportunity, but did not do a full exam at grand jury
o Why not a full exam?
Nature of the proceeding
Investigation was ongoing
Prosecution already had their case and indictment

Different burdens of proof

Didnt want to disclose secret investigation
Jury already disbelieved
Isnt this somewhat unfair to def? Pros. knew testimony of these 2 would hurt, so called them to
grand jury to intimidate them - freezing out important witnesses

Lloyd v American Export

Facts
There was a prior hearing by Coast Guard whether Lloyd can keep sailor license, under
oath and subject to cross examination
Lloyd sued other sailor, who counterclaimed against Export, Lloyd skipped, Export
wants Lloyds statements from Coast Guard hearing in
Witness is unavailable as defined in 804(a)(5) - both his own and def Export atty tried to find
him
Former testimony exception of 804(b)(1) fits
Key: A predecessor in interest does not require formal privity/common property interest
it is enough to show sufficient community of interest
we have this here b/c CG vindicating public interest in safety, and here in this case we
have other sailor vindicating his interest in recovering for injuries
both seeking to establish culpability and penalize
Lloyd and Dinapoli both show practical approaches to whether similar opportunity and motive,
but different outcomes based on facts

RULE 804(b)(2): Statements made under belief of impending death

Shepard makes this a very narrow exception
3 fundamental requirements
o statement has to concern the cause/circumstances of death (you can infer from the physical evidence that
declarant had sufficient knowledge - needs to be more than a suspicion)
o declarant must have died or be unavailable for testimony
o declarant must subjectively believe death is imminent
Underlying Policy
o Reliability
Questioned in Liang article - hypoxia?
Based on Judeo-Christian ethic, meeting your maker so you will be honest
Not backed up by any empirical evidence, many reasons to lie (protect reputation, family)
o Necessity - drives the exception, witness victim is dead
Note that
declarant
under 803
and 804 are
witnesses
subject to
Rule 602s
requirement
of personal
knowledge,
firsthand.

7.26 Clyde Mattox

Doctors statement to patient unclear, so not sure if death is imminent, no show for you at all
Also victim was perfectly conscious and in normal mind
Victim was talking and conscious, not apparent that he thought was going to die imminently
Shepard v . US
Wife dies after making statements to her nurse that husband tried to poison her
Cardozzo concludes that does not fit dying declaration exception to HS rule
o Not imminent enough
o Not enough evidence about her knowledge of what was causing her death (insufficient
personal knowledge), so it was no more than suspicion and conjecture.
Video Clip - murder victim wrote name of assailant in rug before death
Def can attack in couple of ways
o Was it really based on personal knowledge?
o Argue 1-3 not met (maybe didnt think death evident...)
Physical evidence is pretty strong (clear plastic bag over head, eyes open)
But is this evidence really reliable?
See Liang article, which talks about hypoxia and its effect on victims

804(b)(3): Statements Against Interest

Requirements for this HS exception:
o Unavailability of the declarant
o reasonable person would not have made the statement unless it was true b/c it would be against interest
o in criminal cases, need corroborating evidence
S. Ct. decided need corroboration when exposes accused
S. Ct. had not decided if need corroboration when it exculpates the accused, but most courts
require it
Rule says if implicates declarant and exculpates def, need corroboration showing truthfulness to
prevent fabrication.
Applies narrowly, to individual remarks rather than extended declarations
Use redaction so that only that portion against interest comes in...
o But still may be able to use against def, if you can link the declarant to the def
Use reformation when statement contains several ideas and you only want one
Exclude statements that are not self-inculpatory
Statement can implicate or exculpate the accused def.
7.22 Ask Magnolia, it was her idea
Cops at the door asking about robbery, Mom asks if he did it.
Hard to say does not come in for Barton, but harder for Magnolia
Wont get in under co-conspirator b/c not being made to further conspiracy
To what extent is this statement against interest? It is implicit, but not explicit...
Not against his interest to implicate Magnolia, in fact it mitigates his liability
We face a practical issue of redaction, impossible in this case
Some courts allow Reformation - I admitted I was involved when my mom asked me
Dont allow in part blaming Magnolia, but still helpful if can link him w/ Magnolia
If no additional evidence to link the two, may have a conditional relevancy issue
Also would need corroborating evidence as is criminal context
Williamson v. US
Drug transporter arrested and blames dealer, talking to cops.
Must look at evidence w/ redaction in mind
Statements against interest stay in, those not are out
So get in I transported cocaine, but omit for Williamson
When Harris blames Williamson, not against his interest, currying favor possibly.
Kennedy would allow it in as long as it was collateral to main statements against interest, but this
view rejected - you must redact parts not against interest
Crt applies statement under 804(3) narrowly, to individual remarks, not broad statements.
Crt also says redacted statement can be useful, if can link def to the declarant saying something
against interest
7.23 Alices Restaurant
Investigator has statement from arsonist. Case against owner, who asked him to torch place.
Part about arsonist losing his nerve and kids upstairs is not against his interest, self-serving, and
seems to imply blame for def
Appeals court lets the redacted statement in, just too indirect an implication of the def
Most courts would let it in, but Hashimoto thinks not unreasonable to keep it out
We would need some link of this evidence to the def - conditional relevancy
We also need corroboration b/c this is a criminal trial - 804(b)(3)
7.24 Accomplices
3 pieces of out of court statements
o Lemon juice prevents from testing if fired a gun
o he committed robbery w/ Barone

o Barone shot it neck, I got his foot

Let in 1st two, but not 3rd which seems to be blaming Barone somewhat
2nd one is a close call, but different from Williamson so can see why comes in:
o we have corroborating evidence
o he was talking to his sister, not the police, not trying to curry police favor
1st circuit let in all 3, shows how reasonable folks can disagree
There is corroborating evidence to support this exception also - Jordans testimony of what Barone
told him

7.25 Bucky Wasnt Involved

Statement comes in
It is against interest b/c shows he knows who the players are, knows enough @ the conspiracy
Delaney/Kelly statements come in to impeach, they can be used as corroborating evidence for HS
exception

804(b)(6): Forfeiture by Wrong Doing

U.S. v. Houlihan (decided before 804(b)(6))
o Defendants murdered a member of their crime organization when they thought he was a snitch
o If can prove under a 104a determination that def killed potential witness, the def waives right to crossexamine that witness under Confrontation Clause, as well as any hs objections (they claimed they were
self-interested) (analogous to co-conspirator exception analysis)
o So statements come in
o Not really waiving, is forfeiting, does not need to be voluntary and knowing
o Requirements:
Def causes potential witnesss unavailability
By wrongful act (does not have to be criminal)
With intent to prevent testimony at a future trial
Note that Conf. clause and hs rules strike a bal between need for probative evidence and defs right to test govts
case via cross examination
Evidentiary Standard
o Under 104a, judge can consider impeachment and substantive HS evidence
o When deciding under 104a whether sufficient corroborating evidence to say evidence is trustworthy,
judge can consider credibility
Personal Knowledge True of 803, 804 exceptions unless explicitly state otherwise
o statements must be based upon personal knowledge, they cannot rest on simple supposition (this is not
required for 801(d)(2)(A) and (B))
o Fischer argues 104a should be std
o Most courts apply 104b conditional relevancy
o In either event, preponderance is the std of evidence, even if criminal trial!!!!
CHECK OUT THE 104b v 104a bit here....

RULE 803 DECLARANT DOES NOT NEED TO BE UNAVAILABLE

803 evidence is considered better than decls live testimony, that is why availability does not matter
These hs statements are trustworthy enough that we do not need declarant.
circumstantial guarantees of trustworthiness
803(1) Present Sense Impression
o made while perceiving event or condition or immediately after
o essentially narrating contemporaneous events
o see 7.36, some courts would let in repititous statements made right after seeing incident as a present
sense impression, others would not
803(2) Excited Utterance
o Statement made while agitated in response to an event or condition
o Apply a subjective test - we care about declarants state of mind, may be an extraordinary calm person
ordinarily
o Concern over reliability, if person is calm, they can reflect and hence manipulate; if excited, high degree
of trustworthiness, assuming spontaneous
o This is the main exception for domestic abuse cases, statements made to cops while under stress can be
admitted
The Graduate Clip We have a robber here...

Mrs. Robinson calls cops, says there is a robber in house - does the call come in?
She was calm during phone call, so wouldnt be an excited utterance
Seems like she is describing current observations
But in context of their affair, it is manipulative, and makes a legal conclusion
But it comes in!!!

7.27 Spousal Abuse IV

Wife changes her story, now at trial says he did not hit her
pros wants to bring in statement she made to investigating cop
Excited utterance? Yes, crying, upset, rubbing head and cops saw her immediately after incident
Does not come in under 801(d)(1)(a) (prior inconsistent statements) or 804(b)(1) as both require
prior proceeding under oath
We could also get it in under 613 to impeach, but if she is the only witness little help, need substance
7.28 Joe Puleio
Bartender hears gunshot, calls cops, runs outside, asks who shot victim, person yelled out name
Doesnt come in as a present sense impression, as not contemporaneous enough w/ event
Probably does come in as an excited utterance, shouting out shows excited and this was just after
incident
Could argue declarant may not have had sufficient knowledge, but likely was in vicinity at time of
shooting
7.29/7.30 Dog-mauling
Whipple statements immediately after the dog-biting come in, as they were excited utterances made
immediately after the incident
But statements made after she came home do not come in as they are not contemporaneous, no
evidence she is still agitated, and too much time for reflection
As for her neighbor who heard incident from behind door, question of whether or not she had
sufficient personal knowledge for her statements that dog was biting owner too. How does she know
voices, does she look through a peep in the door? 104a analysis REALLY? see one section up?

803(3) STATEMENTS OF THEN EXISTING CONDITIONS

Declarants statement of an existing state of mind, emotion, etc... intent, plan, design, pain
3 Categories:
o existing state of mind
(intent, plan, motive, design)
o Emotions
(feelings, pain)
o Physical conditions
(bodily health)
Rule excludes statement of memory or belief offered to prove fact remembered or believed
Distinction between backward looking and forward looking events
o Can have statement indicating intent based on a condition
o Cannot have statements including past agreements, accusations (husband poisoned me)
o Cut any part of statements that are backward looking (couldnt redact he poisoned me, so excluded it
all)
Why distrust backward looking statements?
o For forward looking evidence, it is the best evidence we have, fits w/ necessity and reliability.
Contemporaneous statements showing state of mind arguably more reliable than those made in
court b/c not subject to manipulation
In many cases, really no other way we could know...
No memory issue, trust decl perceives his own mind, only risk is sincerity and narrative
o Distrust backward looking b/c it is not the best evidence we have
if want to know what the agreement was, an out of court statement may not be most reliable, so
want to be able to cross-exam
Backward looking statements subject to the same critiques as regular hs - issues of perception,
memory, narration, sincerity
Backward statements risk all 4 testimonial capacities (mem, perc., narr., sincerity)
Hillmon
o then - broad exception - can get in agreement to meet in the future
o now - narrow exception - only forward looking intent to meet, go somewhere, cant describe past
agreement
Can only get in to prove declarants future conduct, not that of another person
We dont know who to trust about the past agreement, but we trust when say something on your mind
contemporaneously, not likely to be manipulated
Mutual Life Ins. Co v. Hillmon
Hillmon disappears, his insurers claim it was not his body that turned up, but rather than of Walters;
suspicious timing of policies to his disappearance/death
Evidence in question is Walters letters to fiance and sister in which he writes he intends to go
somewhere w/ Hillmon
Court lets in b/c the statements in the letter are forward-looking, talk about an agreement to meet in
the future
Forward looking intent to meet, but backward looking agreement
Cardozzo in Shepard criticizes this case for making this HS exception (then existing condition) too
broad, he says can only look forward!
Cardozzo in Shepard narrows both the dying declaration and the then existing condition HS
exceptions - modern courts follow him.
7.31 Kidnapper
Statement that intends to meet someone and return comes in (going to lot, will be right back)
Statement that intends to meet Angelo does not come in, reflects a past agreement w/ Angelo
If you mention Angelo, it raises a strong assumption of a prior agreement and predicts the conduct of
another person, so avoid by only letting in general part of statement
Shepard v. US.
think my husband poisoned me
It does not come in substantively as a present sense impression despite showing state of mind b/c it
is a statement that looks backward.

Declarations of intention, casting light on the future, have been sharply distinguished from
declarations of memory, pointing backwards to the past...if ignore this end hs rule meaning.
Theoretically, could get in to challenge victims credibility, as def opened door attacking state of
mind of victim
it would impeach statements by victim brought in by def where she sd was suicidal (def could
get those in as present sense impressions).
But 403 should exclude, just too unfairly prejudicial

Video Clip
Husband on trial for wifes murder, body never found, victim sd to her friend (witness) if she got
pregnant by another man would have to disappear. Prosecution wants it in for motive
This is a present intent w/ a condition, shell disappear only if...but still forward looking
It does not come in to show pregnant, or to show she disappeared, but only to show present intent
There is a backward looking component, she makes the statement knowing what he has done in the
past, so there is some history that creates her fear, but not enough to keep it out.

803(4) STATEMENTS FOR MEDICAL DIAGNOSIS

Pertinent statements for treatment or diagnosis, describing
o history,
o past and present pain and symptoms,
o general causality
Must be pertinent to treatment of diagnosis
Underlying policies
o This exception based on reliability (but do see some necessity)
More likely to tell truth b/c medical impact, little incentive to lie. Motive to tell truth.
Statements good enough for medical system are good enough for legal system (this is the
broader of the 2 policies), doctors rely on it.
o There is some necessity for this exception, especially when have sex assault involving child - easier to
talk to doctor than in court
Identity of causation harm - courts divided on whether to let this information in if too detailed...
o Courts that let in identity of person do so because they view it as part of treatment (prevention),
o Courts that exclude view it as not pertinent to immediate treatment, is too strong and may be unreliable
o ACN notes
Struck by car comes in, it went through red light does not
Statement that was shot comes in, by a white man does not.
Information only needs to focus medical exam, does not have to be dispositive in exam
Consultation vs. Treatment
o Old rules distinguished between statements to doctor when seeking treatment and those made when
seeking consultation for future consultation
o now no longer matters
Medical records usually redacted, not entirely let in, nor entirely excluded (redact out anything not pertinent, some
courts redact indentification)
Courts do not require doctor to tell child truth-telling important
Rule applies to family members - they can be declarants - as well as doctors, nurses, as long as purpose is to get
medical treatment
If declarant is doctor, must establish foundation for statement as an expert
Statement can be written or oral
7.32 Elder Abuse
Old man abused, called lawyer to change will, then visited doctor.
Lawyers testimony is not admissable b/c not being used for treatment/diagnosis
Doctors testimony admissable regarding statement that man had fallen and hit head
Doctors testimony that he sd Maple pushed him - courts divided on this one
o Doctors want to know the cause, especially when it involved elder/child abuse, obliged to
report so can prevent abuse
o But not necessary for immediate treatment, cant come in for blame purposes
US v. IronShell
Pros. wants in statement of an allegedly sexually assaulted child to a doctor
Concern of defense
is that doctor was in the dual role of doctor treating and investigator (he asked if man had taken
clothes off)
exam would have been the same regardless of what child sd, so not medically necessary
Court holds statements come in, relating to general causality, as they influenced his exam, even
though would do complete exam anyway.
Court no longer focuses on distinction seeking treatment/ seeking consultation for future litigation
Child more willing to give info to treating doctor, harder to talk in court, especially when sex case
7.33 Child Abuse I
Child got dads records dirty so he twisted and broke his arm

Twisting of arm comes in

Identifying father - some courts let it in, others wont (may get redacted)
Playing w/ record and got dirty does not come in, it is not pertinent, not necessary to trtmnt

7.34 Child Abuse II

Courts do no require doctors to tell child that it is important to tell the truth in order to establish
reliability of childs statements
Court concludes that 5 yr old knows implicitly should tell truth to doctor
7.35 Food Poisoning
I think I ate bad meat, pointing to empty restaurant food container
Wifes testimony about his statement and gesture
o Rule allows in statements to family member as long as purpose was for medical treatment
o As for gesture, it does identify who is at fault, but it is so tied w/ treatment (confirming
what poison) that most courts would let it in
o Doesnt make a difference that wife is not a doctor

Nurses testimony about what wife sd to her about what husband sd to wife
o Double HS
o Husbands statement to wife - comes in for medical diagnosis
o Wifes statement to nurse
- comes in for medical diagnosis (excited utterance?)
o It is okay that statement is from family member
Wifes testimony about what doctor sd at house about need for immediate hospitalization
o It is necessary for medical treatment so comes in
o Doesnt matter statement was to wife b/c she was family member
o Need some foundation for doctors testimony as an expert

803(5): REFRESHING MEMORY AND RECORDED RECOLLECTIONS

612: WRITING USED TO REFRESH MEMORY
memo about a subject for which witness once had personal knowledge but now in court cannot recollect
o Can show recorded recollection to refresh memory to testify
o But cannot get written record in unless adverse party wants it in (opposing party on cross can get it in
under 612)
When recollection not refreshed, it can be read into the record
o as long as witness on stand adopts it as true despite fact that cannot remember substance of memo.
o On witness stand you have to vouch for the accuracy, vouching out of court does not satisfy
requirements, even if it was w/ an oath.
o 4 Requirements:
witness had personal knowledge of the event
written statement is a memo written at or near the time of the event while witness had a clear
and accurate memory of the event
witness must lack a present recollection of the event
witness must vouch for the accuracy of the memo
o Vouching can be met by saying it is your signature and you know you would not have signed it if you did
not believe it was true.
Prosecution can do a number of things to avoid the issue in Johnson (witness not cooperating) and preserve
evidence
o Have witness testify to grand jury - 801(d)(1)(a) is non-HS
o Have him testify at probable cause hearing where can be crossed by def - 804(B)(1) former testimony
o w/o these efforts, a signed affidavit can end up as worthless as HS if witness refuses to testify
7.36 License Plate
Lee able to write down on wrapper what Gerald kept repeating after seeing robbery get-away car, pros.
wants in to id car
Lee and the wrapper - can you get it in if Gerald has not testified? Double Hearsay
o Statement made by Gerald Not excited utterance, b/c was calmly repeated
Could be a present sense impression, but not entirely contemporaneous - some courts
would let it in under 803(1), others would not
o Wrapper written statement - 803(5) - Lee ids it as the wrapper she wrote on, so it comes in
803(5) to be read but not as an exhibit
Gerald testifying
o She cannot testify from memory, but it is okay to show her the wrapper to refresh her memory
o Her statement comes in, wrapper does not ????? REALLY??? Did she adopt the wrapper?
Johnson v. State
Witness gave statement to police about what happened, but at trial not cooperating
Prosecution brings up signed affidavit and statement, but witness does not remember and therefore
writing does not come in.
On witness stand you have to vouch for the accuracy of your statement, vouching out of court does not
satisfy requirements of this exception

803(6) & (7) EXCEPTION FOR BUSINESS RECORDS

Regular system of entries provides a circumstantial guaranty of trustworthiness
Underlying policies
o Necessity
Records capture info. that would otherwise be very tough to get, as so many people and
transactions involved, and folks quit and die
It may be the best possible information so therefore necessary
o Reliability
B/c it is routinely recorded and unremarkable not much incentive to lie, and business has a
quality control system to make sure accurate, duty placed on employees to do so
Key issue is whether report was put together in anticipation of future litigation - if so, cant come in
Supposed to be a routine procedure to preserve information for business purposes
General requirements to be a business record
o Needs to be made at the time or near the time of the recorded event
o Recorder must have personal knowledge (must have observed)
o Recording must be part of regularly conducted business activity
o Must be regular practice to make such recordings (not done in anticipation of litigation)
Anytime we see a written record make sure look for double hearsay.
Have to have custodian/sponsoring witness establish that meet the above requirements
o Must be familiar with recording process
o Does not have to be the recorder himself
Record has to be filled out by employees,
o cannot be partly filled out by customer, need to get in customers under another hearsay exception....?
o This exception does not extend to customers.
Medical records can be considered a business record exception.
803(7) the absence of a fact can be used to prove it doesnt exist..do we really need this, is there an assertion?
Palmer v. Hoffman Negligence case, whether light, bell, whistle sounded before train hit car
Evidence in issue is report documenting interview of engineer post accident (engineer died before trial)
that was conducted by high level train mgt., including legal counsel.
Key issue is whether this report was put together in anticipation of future litigation?
Court concluded def trying to build their case too much document is for prepping for litigation v. not for running train (3),
and not routine to have lawyer and sr. mgt. present (4).
Not in the regular course of conduct.
It was not a typical entry, not done to record events, not done to reflect transactions w/ others, not done
for internal control.
Verdict Video Clip
Nurse is on the stand, patient told her ate 1 hour before came in, it was put on her medical record,
surgery and anesthesia issues, death
If record comes on only to prove doctor on notice when she last ate, it comes in as non-HS (not coming
in to prove truth of the matter asserted as to when she last ate)
If trying to get just nurses testimony on the stand, it comes in under 803(4) b/c it is for medical
treatment
What if could not find nurse, so want to get in record from admittance to prove when last ate?

Double Hearsay

Statement of patient to nurse - comes in under 803(4) as it was for medical

diagnosis/treatment

Written record by nurse - comes in under business records 803(6)

7.37 Lawn Mowers

Return slips, store clerk asked reason for return and recorded it on slip, but did not inspect
If offered by the pl to prove that the cords actually came loose, we have a double hearsay issue
o Customers statement - we cannot justify b/c customer not part of business????
o Within Business record - it would come in under business record exception
o SO DOES NOT COME IN to prove cords loose ????????
o But you could get it on for another purpose - notice - to show folks complaining about the
cords, this would come in as non-HSs
As for the second form, it also is Double Hearsay - def mfg seeks to bring in against pl
o Customers statement to clerk that she retuned b/c grass clogged
comes in as a party admission
perhaps statement against interest
o Return form - comes in as a business record exception
o Customer here gave a different reason for return than the one that underpins her case

US v. Vigneau
Wire transfer form is the key piece of evidence, typical for money laundering cases
One issue - Western Union does not autheniticate who sends $ by checking id
Second issue is that person filling out the form is not an employee of Western Union, is a customer,
therefore entire form does not come in (perhaps can get in as admission by party opponent, co-conspiracy
exception)

803(8) PUBLIC RECORDS EXCEPTION

803(10) ABSENCE OF PUBLIC RECORD OR ENTRY
o before Beech, some court distinguished between fact findings and opinions/conclusions
o Beech Test: reports including opinions are admissible if can show they meet a trustworthiness test:
Now legal test is whether the report is trustworthy, based on multi-factorial test
Assurance report is based on factual inquiry actually done? (issue in Beech)
Report issued in a timely manner relative to incident?
Officials involved in making report have special expertise?
Was there a hearing? What kind?
Report done in anticipation of litigation or is it a routine safety investigation?
o Police Reports under Public Records exception

803(8) explicitly excludes police or other govt. evaluative reports in criminal cases
also have const. confrontation clause issue, must be able to confront witness
Can you get in police reports under business record exception?
US v. Oates - NO
o Failed to get in govt. chemists report in criminal drug case
o Crt says would subvert 803(8) explicit text, if cannot get it in under public
records should not be able to get it in as business record
US v. Hayes - YES
o IRS tax examiner filled out a certificate that a tax return was not filed
o Crt rules that is can come in where it occurred in a non-adversarial setting and
the examiner is testifying (so no confrontation clause issue)
So division in federal courts over public records o Some courts will let in as business records where if not involving a police
investigation
o Other courts will not let it in as a business record if it could not come in as a
public record
o Absence/failure to find fact in record can come in to show it does not exist under 803(10).

Beech v.
This is a civil case, 803(8)(c), suing mfg of plane, public record is military report of cause of accident
Few Good Men
Informal disc. system, not in Marine manual
Prosecutor trying to get that fact in, under public record exception
Under 804(10) it comes in, absence to find says it comes in to show there was no such system
Can also argue that this is not hearsay to begin with, not making any assertion.

803 RESIDUAL EXCEPTION

Crts do not construe this exception broadly as it would destroy the HS rule
The test - can get in a fact not admissible under other rules if....
o It is material
o It is necessary (more probative than any other info. proponent can procure via reasonable efforts)
o It is reliable - trustworthy
In Laster we see the tension in the interpretation of this rule
o Dissent there sd subverting the rules, too much judicial discretion if it doesnt fit rule exclude
Only apply 807 in situations not covered by other exceptions, when necessary and reliable
Situations not covered
o Majority courts follow Laster - just misses if trustworthy come in. situation close enough
Dallas Co. v. Commercial Union Ins.
At issue is a newspaper article 40 yrs old about a fire in the church
803(16) Ancient Document Exception does not work, it could get the document in, but not the statements within
it
Many look at this as an activist judge create a powerful exception
Certainly necessary, 40 yrs have passed, witness gone or wont remember
Certainly reliable, it was trustworthy b/c it was a small town and article subject to public review, if any error or lie
would have been brought to peoples attention
US v. Laster
Evidence at issue is information showing def bought a drug component from company, need to make drug
Owner of the company died, and no other sponsoring witness available - so cop who owner told information to
fills in to tell court
Sponsoring witness here did not have personal knowledge of the companies recording system, so would not come
in under business record exception
Evidence does not quite fit in an exception box, court here lets it in under 807.

RULE 901: Requirements of AUTHENTICATION

An additional requirement beyond all the other rules, it is the foundation you need in order to get evidence in
Involves issue of conditional relevancy, so legal std mirrors 104b
901(a): It is authenticate if a reasonable jury would find sufficient evidence based on preponderance
Std is same for criminal and civil cases.
901(b) provides illustrations
Underlying policy is a concern over forgery
Ways to authenticate
o Establish a chain of custody (where has it been, is it the same item and is it in the same condition?)
o Serial # on a gun
o A form: testimony by a witness familiar w/ handwriting (even a friend), expert on handwriting, let jury
compare to authenticated hand-writing, do a chain of custody (if found on def, that is on link in chain),
witness can testify he saw him sign it....
Can use both circumstantial as well as eyewitness testimony to establish
Focus on whether it is authenticate of not, do not focus on whether it is truthful

For documents:
o Chain of custody or
o Anonymous note is unique on its face, testimony of note finder about where found and contents or
o Ancient docs w/ expert testimony as well as circumstantial evidence (where found, contents)
901(6) For phone calls
o Id caller
o Id recipient
o Trace locations - have to id link
o Consider relevance of content helping to id who called (can auth. by contents themselves)
o Self identification helps, but not sufficient
For photos:
o Pictorial description/testimony
As long as we have a witness who based on personal observation can testify as to the accuracy
of photos, we do not need the photographer (Simms. v. Dixon, pics of damaged car)
Timing of photos do not matter, can photo the next day....key is accuracy and personally
observed
Staged photos can come in to show possibility could have shot from a certain position, but not
the certainty that he did
Need to show reasonable accuracy and for what purpose and personal obs.
o Silent witness theory a recording, must show the following: (Wagner v. State)
The time and date of the recoding
No tampering
Operating condition and capability of equipment (accurate, reliable)
Chain of custody (operation and security)
Testimony identifying all participants
This is not based on personal observation, it is based on reliability and accuracy of a recording
and security of that process

US v. Stelmokas
Not intuitive Nazis would forge document, it is authenticated by its being an ancient document and we also have
expert testimony and archival testimony.
#10.2

May be troubled note it not truthful...it is anonymous....authentication does not involve that
Could establish it is auth. by chain of custody, just needs to show this was note cop found and deposited in secure
facility w/ limited access


#10.3

Can also establish based on its being unique on its face. Cop could testify about what he saw, it was unique.

Phone calls 901(b)(6) you can id voice on phone even after the call is made
Content of the call displays knowledge of the robbery also
Also the star69 feature also authenticates as it ids where call coming from
Caller ids by his voice, contents of call, and star 69

People v. Lynes
Self identification helps, but not enough....
Caller here showed knowledge, that would be consistent with proper identification
OJ Simpson
In civil trial judge let counselor describe called she took 5 days before murder, based on woman iding self as
Nicole, description seemed to fit, and voice sounded like authenticate 911 recordings
Matched voice and contents enough to authenticate

Note documents face following issues: authentication, hearsay and best evidence rules!!!!
BEST EVIDENCE RULE (applies when trying to prove contents true!!!)
Similar to authentication, its purposes is to prevent forgeries or human error in recollection (fraud, poor memory)
Applies to writings, recordings and photos (including art)
Another requirement beyond all the other rules, including authentication
Originals include carbon copies and new print from original template
Duplicates include photocopy or some other mechanical reproduction not based on human recollection
Authentication does not care about truthfulness of document
But best evidence rule does!!!
Rule 1004 allows in testimony about a documents content if original and duplicates not available because they
are lost, destroyed or in possession of the opponent; unless proponent lost or destroyed them in bad faith
o If you have original or dup, you have to get them in, cant rely on hearsay
o If do not, can rely on human recollection
BER does apply when have testimony based on personal observation, even if better evidence available:
o Obviously it does not apply when witness giving personal observations, but it would apply if witness was
testifying as to the accuracy of a transcript
o Witness testified about license # on car, not ber, b/c she remembers and it testifying about her personal
knowledge
Seiler v. Lucas Film - key concern her was fraud, crt thought proponent had bad motive losing originals; okay to
produce duplicates, but not later drawings. Copies by human hand are not admissible
10.4 ber does apply, to the audio, but since they are lost not in bad faith the transcripts can come in.
PRIVILEGES
developed by common law b/c we just got 501
Justifications
o certain special relationships in which we want to encourage honest communications, ensure
confidentiality
o certain domains demand privacy
Fed crts have never established a doctor patient privilege, but most states have (so federalism and choice of law
issue). But we do have psychiatrist/psychologist-patient priet-penitent lawyer-client marital communications
Jaffee v Redmond - crts holds physciatrist/physchologist-patient privileged, and include social worker, this studd
depends on sensitive conversation, unlike objective testing a doctor does. Scalia dissents, lots of relations are
special, we dont give them protection (parent child); worker does not have lawyer training; relation would not
change w/o protection. He does not like privileges generally.
Criminal cases - defs right to due process vs. witnesss right to privilege
11.1 def wants boy to testify he did the crime, boy takes the 5th, so def goes to the boys psychologist. probably
cannot get it in.
Morales case - confessed to priest and atty, now is dead
o Hs issue - 807 could get it in b/c highly reliable
o Priest-penitent issue - they got it in saying it was not a formal confession, rather just a heart to heart chat,
this is a weak justification
o Constitutional issue - due process right of criminal vs. 5th amendment right priest-penitent.
o Reasonable to argue let it in, since he is dead and he effectively waived it.
Generally, 5th amendment privilege rights win out over due process (Morales was an exception b/c witness
dead and he waived).
Factors considered by court in weighing due process vs. privilege
o Is testimony especially trustworthy?
o Is it critical to the defs case? Is there a substitute?
o What is the weightiness of the claim of privilege? often in criminal cases due process and 6th am. beat
privilege, but no black letter law.
LAY AND EXPERT TESTIMONY
Lay testimony

Rationally based on 1st hand knowledge

Need factual underpinnings of lay persons conclusions
O
Helpful (relevant)
O
Not based on expert knowledge
Let guy testify other guy was depressed b/c hard to give all factual detail and surrounding facts,
similar to letting someone testifying that car was speeding - facts and conclusion mushed
together
Expert testimony
O
Formal Qualification or job experience
O
Topic - only testify about an area which they have specialized knowledge about
O
Factual basis - have to disclose factual basis relying on in rendering conclusion
Need to establish nexus between general knowledge and this specific context
O
Relevant and reliable methods - must disclose methods used whether it is based sufficiently on science?
US v. Figueroa-Lopez: lower crt abused discretion letting in cop testimony as lay, had to qualify as experts
US v. Johnson - crt lets testimony in as expert, both sides can have their experts and let the jury decide, dealing
w/ whether witness can tell if dope grown in US or Columbia? Professor had abstract knowledge vs. guy in the
field with not only general knowledge but also a nexus to specific context. Believe guy in field as he has richer
experience. Need
Unlike lay people, judges let experts make conclusions that are close to legal conclusions for issue at stake
Assessing the Reliability of Expert Scientific Testimony
O
Trial crts use the 4th factor above to filter out experts
O
Frye v. US
Had been leading opinion up until Daubert
Lie detector rejected under Frye.
It basically relies on accepted opinion in scientific community - need general acceptance in
particular scientific community
O
Daubert v. Merrel Dow
Bendectin causing birth defects? all the published studies show no stat. link
Crt changes std for assessing expert testimony, dumps Frye test, it was before rule 702.
New test mutlifactorial looks at the underlying scientific method, it is strong enough?
General acceptance is one factor still
Can it be scientifically tested?
Has material been subject to peer review in published journals?
Is there a known error rate?
O
Supposedly liberals won out w/ new test, Frye was tough and excluded a lot, but in practice Daubert
keeps out a lot. Trial crts acting as gatekeepers. Blackmun came up w/ a tough test not grounded in text
of rules. he wanted flexibility for new science, but making it tougher for pls.
O
Expert opinion reflecting a new world not committed to adversarial system and juries, but instead to
experts?
O