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EVIDENCE OUTLINE

Hashimoto – Fall 2006


Purpose of the Rules of Evidence: To filter the information that reaches the jury so that they can reach a fair,
educated verdict.
*** ALL EVIDENCE RULES FAVOR ADISSIBILITY OF EVIDENCE (SO THERE IS A “PRESUMPTION
IN FAVOR OF ADMISSIBILITY”) ***

I. INTRO TO THE JURY SYSTEM:


Rule 606(b): Inquiry into validity of verdict or indictment. Upon inquiry into validity of
verdict/indictment, juror may not testify as to any matter/statement occurring during course of jury’s
deliberations or to effect of anything upon that or any other juror’s mind or emotions as influencing juror
to assent to or dissent from the verdict/indictment or concerning the juror’s mental processes in connection
therewith [testimony regarding internal influences (juror competence) off-limits], except that a juror
may testify on the question whether extraneous prejudicial information was improperly brought to jury’s
attention or whether any outside influence was improperly brought to bear upon any juror [testimony
regarding external influence ok]. Nor may a juror’s affidavit/evidence of any statement by juror
concerning a matter about which juror would be precluded from testifying be received for these purposes.

a. 606(b) comes from C.L. External/Internal Distinction (Tanner v. U.S.): Post-verdict juror testimony concerning
“internal” matters (e.g. physical or mental incompetence of a juror) occurring during the jury deliberations is only
admissible under the gravest of circumstances but juror testimony as to “external” influence (e.g. jury tampering,
effect of prejudicial information, etc.) during jury deliberations is admissible.
b. Note: Rule 606(b) and the C.L. external/internal distinction only covers juror testimony. Non-juror testimony is
not affected.

II. RELEVANCE
a. GENERAL PRINCIPLES OF RELEVANCE:
1. Rules 401 & 402 (Probativeness & Materiality).
Rule 401 Definition of “Relevant Evidence”. “Relevant evidence” means evidence having
any tendency to make existence of any fact that is of consequence to determination of action
[must deal with a material fact] more or less probable than it would be w/out evidence [must be
probative of that material fact].

Rule 402 Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible. All
relevant evidence is admissible, except as otherwise provided by Constitution, by Act of Congress,
by these rules, or by other rules prescribed by S.C. pursuant to statutory authority. Evidence
which is not relevant is not admissible

1. RULE 401 REQUIREMENTS:


a. Evidence must deal with a material fact – must bear on a fact that is “of consequence” to
determination of action: and
i. EG: If prosecutor in murder case seeks to offer evidence of V’s lost earning
potential, this isn’t going to be relevant. However, this same evidence would be
relevant in a wrongful death case.
ii. NOTE: Materiality depends on the substantive law of JN in question.
b. Evidence must be probative of that material fact – must have tendency to make existence
of that material fact more or less probable than it would be w/out evidence.
i. This is very, very low standard – it is not a preponderance of evidence standard!
All that has to happen is that evidence has to make material fact slightly more or
less probable than w/out evidence.
ii. Every piece of evidence is probative of something. But, in order to be relevant
under 401, evidence must be probative of a material fact.

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2. RULE 401 CHECKLIST:
a. Does this particular piece of evidence make some fact more or less probable? IF YES...
b. Is this fact of consequence to determination of the action (e.g. is it a material fact)?
i. NOTE: Fact doesn’t have to be contested in order to be material.
ii. NOTE: Bias of a witness (motive to lie) is always a material fact, it is never
collateral. Therefore, offering evidence to show the bias of a witness is always
relevant under Rule 401.

3. Hypos:
a. Problem 1.3: D submits to polygraph test: “go ahead doc, hook me up.”
i. D: Relevant because it makes it more probable that he had “conscious of
innocence,” which makes it more probable that he was actually innocent.
ii. P: Irrelevant. D could have submitted to this test even knowing that he was
guilty bc he knew that the results couldn’t be used against him in court.
b. Problem 1.6: Officer charged with shooting man holding violin case. Officer testifies
he thought man had machine gun in violin case & acted in self-defense. Prosecution
wants to present evidence that the man did not, in fact, have a gun.
i. Case (Sherrod v. Berry): Inadmissible. Since D didn’t know at time he acted
whether or not V actually had a gun, and since test is “objective reasonableness
under circumstances,” evidence that D didn’t in fact have gun immaterial.
c. Hypo: D kills minister husband. D claims self-defense. State wants to introduce
evidence that on the night before the killing, couple was arguing about $. Relevant?
i. P: Yes; this makes it more likely that D was mad at V on the night he was
murdered which makes it more likely that she killed him.
ii. D: No; D’s claiming self-defense & not contesting fact that she shot husband.
1. P will respond by saying fact that they were fighting makes it less
likely that this was a self-defense murder.
2. In case of a self-defense defense, probative value of this evidence goes
down & then Rule 403 may come into play.

2. Rule 104(b) (Conditional Relevance):


Rule 104(b) Relevancy Conditioned on Fact. When relevancy of evidence depends upon fulfillment
of a condition of fact, court shall admit it upon, or subject to, introduction of evidence sufficient to support
[jury] finding of condition’s fulfillment.
1. Advisory Notes:
a. In some situations, relevancy of evidence depends upon existence of a particular
preliminary fact (“conditional relevancy”).
i. EG: When spoken statement offered to prove notice to X, it is w/out probative
value unless X actually heard it.
ii. EG: If letter allegedly from Y offered to establish an admission by Y, it has no
probative value unless Y actually wrote it, or authorized it.

2. Rule 104(b) Standard. Huddleston & U.S.: Before admitting evidence under Rule 104(b), the
trial judge must determine that, based on the evidence, a reasonable jury could find, by a
preponderance of the evidence, that the conditional fact is true.
a. Under Huddleston, proponent doesn’t have to convince judge of this by preponderance.
Instead, judge must determine that a jury could find this by preponderance.
b. In making determination, judge may only consider admissible evidence (so if its hearsay,
its not allowed)!!
c. 104(b) conditional relevancy standard is slightly higher than 401 standard.
d. 104(b) requires that proponent introduce sufficient evidence that jury could reasonably
find conditional fact to be true by preponderance.

3. Rule 403 (Probativeness vs. Risk of Unfair Prejudice):


Rule 403 Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by danger
of unfair prejudice, confusion of issues, or misleading jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
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1. Unfair Prejudice = an undue tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one (ACN)(see U.S. v. James).
2. 403 permits exclusion of otherwise relevant evidence.
3. Appellate Review. Decisions whether to exclude evidence under 403 are committed to trial
judge’s discretion & are reviewable only for abuse of discretion.
4. 403 is a “liberal rule” in that its friendly towards admission of evidence. Risk of unfair prejudice,
etc. must substantially outweigh evidence’s probative value in order for judge to have discretion
to exclude it.
5. If you’re trying to keep evidence out, 403 objection should be last-ditch effort. You should first
argue that evidence is irrelevant under 401 (although this is unlikely in most cases). Then you
should argue (if appropriate) that evidence is barred by specialized evidence rule. If all of this
fails, then make your 403 objection.
6. Rule 403 doesn’t have to be an “all or nothing.” In order to limit the prejudicial effect of
evidence, judge may admit the evidence with a limiting instruction to jury or evidence may be
redacted to exclude unfairly prejudicial portion.
7. Under ACN, when deciding whether evidence should be excluded under 403, court should
consider evidentiary alternatives.

8. HOW TO MAKE 403 OBJECTION:


a. Identify other side’s theory of relevance & down-play its probativeness, arguing that its
only marginally probative;
b. Identify specific risk of unfair prejudice, etc. and build it up.
c. Make an argument that the latter substantially outweighs the former.

9. 403 & Photographs:


a. General Rule (State v. Bocharski): Relevant photos admissible even though they also
have tendency to prejudice jury against D. This doesn’t mean, however, that every
relevant photo should automatically be admitted. If photo is of nature to incite passion or
inflame jury, court must determine whether danger of unfair prejudice substantially
outweighs exhibit’s probative value.
b. Problem 1.8: D convicted of possessing unregistered machine gun. Govt. alleges that he
converted it to fully auto. Key question is whether gun would rapid-fire. Govt. & D each
have own experts fire gun. In govt’s test, rifle rapid-fired. In D’s test, it didn’t. D’s
expert suggested that gun rapid-fired in govt.’s test because of a malfunction – internal
parts were dirty. In response, Govt. introduces photo of rifle which, it argued, showed
rifle was neither dirty nor defective. Photo showed nothing of interior. Actual gun took
up small part of photo – rest was taken up by dozen other weapons all belonging to D’s
housemate. Should photo have been admitted?
i. NO; although photo is relevant (fact that gun is clean on outside makes it at least
slightly more likely that its clean on inside), marginal relevance substantially
outweighed by undue prejudice to D (jury might think that he is a terrible,
violent thug due to all those guns and convict him on that). Therefore, photos
should stay out.
ii. Another alternative here would be for State to limit undue prejudice by redacting
photo to only include this particular gun. Or, judge can issue limiting
instruction that other guns didn’t belong to D & that jury isn’t to use photo in
any way except to decide whether inside of gun is clean.

10. 403 & Flight Evidence:


a. GENERAL RULE (US v. Myers): Because of inherent unreliability of flight evidence
& danger of prejudice its use may entail, a flight instruction is improper under 403 unless
evidence is sufficient to furnish reasonable support for all 4 of these necessary inferences:
1. From D’s behavior to flight;
2. From flight to consciousness of guilt;
3. From consciousness of guilt to consciousness of guilt concerning crime
changed; and
4. From consciousness of guilt concerning crime charged to actual guilt of
crime charged.
ii. Myers: D denies robbing bank. Govt. introduces evidence that D fled from FBI
on 2 occasions subsequent to robbery. Judge instructs jury that while intentional

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flight is not sufficient in itself to establish guilt, it may be considered in light of
all other evidence & jury should consider motive which prompted it. Court
overturns conviction saying that inferences (1) & (3) can’t be established. (1)
couldn’t be established bc only evidence that D attempted to flee was from
inconclusive testimony; and (3) couldn’t be established because it was known
that D committed another bank robbery in another state; he could have been
attempting to flee due to this robbery & not the one charged.
1. NOTE: There could be conditional relevance argument here – D could
argue that flight evidence is conditionally relevant on fact that D
actually did attempt to flee (since there is conflicting testimony as to
whether this is true or not). Govt. would have to meet 104(b) std.
b. Problem 1.9: D charged w/murder. Over D’s objection, ct permits govt. to offer
evidence that D fled from crime scene. When D took stand, D said he fled because he
was scared of being arrested bc of his prior convictions (robbery). Did court err in
admitting evidence?
i. Under Myers, D would say that flight evidence not admissible bc inferences (2),
(3) & (4) are not established. Since D had priors, this may be why he fled.
ii. This flight evidence is more likely to be admitted than that in Myers since it is
less likely that D fled due to priors since they happened so long ago & since D
was already convicted of those & finished his sentence. Also, they will be less
prejudicial since they happened so long ago & it was a diff. crime.

c. NOTE: Evidence of “no flight” (e.g. D didn’t try to flee) is rarely admitted under Rule
403 due to “waste of time” (See problem 1.10).

11. 403 & Probability Evidence:


a. GENERAL RULE (People v. Collins): Evidence of mathematical probability not
admissible to identify criminal D where evidence is based on estimates, validity of which
hasn’t been demonstrated. This type of evidence, particularly in criminal cases, must be
critically examined in view of substantial unfairness to D which may result from ill-
conceived techniques with which jury is not technically equipped to cope.
i. Collins: D charged 2° robbery. Govt. calls math instructor who presents
evidence that there was “overwhelming” probability that crime was committed
by D. Instructor provides formulas. Govt. “plugs in” arbitrary #s to calculate
probability that D committed robbery. Appeals Ct. overturns conviction stating
that probability evidence shouldn’t have been admitted bc it lacked adequate
foundation in evidence & statistical theory & distracted jury from its proper
function of weighing evidence.

12. Effect of stipulations on 403 balancing:


a. GENERAL RULE (Old Chief v. US): Prosecution generally entitled to prove its case
free from D’s option to stipulate evidence away (“narrative integrity.”) However, when
only contested issue is D’s convict status, D’s proposed stipulation admitting to this
status is sufficient to prevent govt. from presenting D’s record under 403.
1. Policies: both D’s stipulation & govt’s presentation of D’s record
accomplishes same purpose, yet latter carries with it higher risk of
undue prejudice.
a. This is in line with general rule that court should consider
evidentiary alternatives when determining whether to admit
evidence under 403.
2. Effect of stipulation in general: Discounts probative value of evidence
that govt. is trying to admit to prove point that D is stipulating to. This
means that it is less likely evidence will get in under 403.
3. Narrative integrity important bc juries expect parties to prove their case
in certain ways w/certain evidence. If govt. isn’t allowed to present
certain evidence due to D’s stipulation, jury may hold this against Govt.
ii. Old Chief: D charged w/possession firearm by felon. D’s prior conviction was
for assault. D moved for order requiring govt. to refrain from offering into
evidence anything regarding prior conviction except to simply state that she had
been convicted of a felony in past. D offers to stipulate that she had been

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convicted of felony in past in order to keep this evidence out. Trial court turns
down D’s offer for stipulation. Ct. App. overturns based on policies above.

b. SPECIALIZED RELEVANCE RULES:


1. Rule 407 (Subsequent Remedial Measures):
Rule 407 Subsequent Remedial Measures. When, after an injury/harm allegedly caused by an
event, measures are taken that, if taken previously, would have made injury/harm less likely to
occur, evidence of subsequent measures not admissible to prove negligence, culpable conduct, a
defect in a product, a defect in a product’s design, or a need for a warning or instruction. This
rule doesn’t require exclusion of evidence of subsequent measures when offered for another
purpose, such as proving ownership, control, or feasibility of precautionary measures, if
controverted [if other side has disputed this issue], or impeachment.
1. Notes:
a. Under 407, you have to look @ particular theory of relevance to determine whether that
evidence is barred by 407. If theory of relevance is that it makes negligence more
probable, then evidence isn’t admissible under 407. However, if evidence presented to
prove ownership, it is ok.
b. Exceptions to Rule 407 (feasibility, etc.) is an illustrative, non-exaustive list. As long as
evidence’s purpose isn’t expressly banned by 407 (e.g negligence, etc.) it is admissible.
c. “If controverted” language applies to all exceptions – other side has to have disputed
element in order for it to be allowed under 407.
d. Another exception to Rule 407 is impeachment – evidence of subsequent remedial
measures can be used to impeach witness’ testimony.
e. Problem 2.1: Wolf attacks a dog and then later attacks a child. Dog owner could seek
admission of fact that wolf owner chained wolf up after 1st attack to prove ownership and
control but NOT to prove negligence. 407 would not bar child from admitting evidence
of chaining b/c owner chained wolf prior to attack.

2. “If Controverted” Tuer v. McDonald: Feasibility of subsequent remedial measure (continuing


medication to heart patients until operation begins) wasn’t controverted when doctor characterized
the policy as unsafe, but did not claim it was impossible. Therefore, P was not allowed to
introduce evidence of the subsequent remedial measure.
a. In this case, court uses a narrow interpretation of feasibility (physical impossibility)
although it endorses the expansive view (practicability, whether it makes sense to do it).

3. Does 407 exclude evidence of subsequent remedial measures carried out by someone other than
D?
a. Most courts say “no.” However, some courts have said that while evidence of 3rd-party
repairs is not barred by 407, it has too little probative force to get past 403.

2. Rules 408 & 409 (Compromise offers & Payment of Medical Expenses):
Rule 408 Compromise & offers to compromise. Evidence of (1) furnishing/offering/ promising to
furnish, or (2) accepting/offering/promising to accept, a valuable consideration in
compromising/attempting to compromise a claim which was disputed as to either validity or amount,
is not admissible to prove liability for/invalidity of the claim or its amount. Evidence of conduct or
statements made in compromise negotiations is likewise not admissible. This rule doesn’t require
exclusion of any evidence otherwise discoverable merely because it’s presented in course of
compromise negotiations. This rule also doesn’t require exclusion when evidence is offered for
another purpose, such as proving bias/prejudice of witness, negativing contention of undue delay, or
proving an effort to obstruct a criminal investigation or prosecution.
1. Advisory Notes:
a. Exclusion of this evidence may be based on 2 grounds:
i. Evidence is irrelevant, since offer may be motivated for a desire for peace rather
than from any concession of weakness of position.
ii. Promotion of public policy favors compromise & settlement of disputes.
2. Notes:
a. 408 only applies in civil cases.

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b. 408 doesn’t protect offers to compromise before a “claim” of some sort is made.
Lawsuit clearly a claim. Sometimes cts will deem informal oral/written demands to be
claims.
c. Policy considerations behind 408 don’t apply when effort is to induce a creditor to settle
and admittedly due amount for a lesser sum.
d. Under 408, not only is actual compromise offer inadmissible, but so is evidence of
conduct/statements made in compromise negotiations. 408 does not address whether
statements made during compromise offers may be used to impeach witness who later
makes a contradictory statement in court.
i. Some say strict reading of rule doesn’t bar such evidence if used for
impeachment purposes.
ii. Some say that policy considerations behind rules (to promote compromise &
settlement of disputes) would be better accomplished if evidence was banned for
impeachment purposes.
iii. Proposed amendment (12/1/06) says that evidence of settlement negotiations
cannot be used to impeach a witness.
e. Evidence of settlement w/3d party is also inadmissible but it is admissible to prove bias.
3. Proposed Amendments (12/1/06):
a. If civil case followed by criminal case, fact of settlement in civil case not admissible,
BUT statements made during civil negotiations are admissible at criminal trial.
b. Evidence of settlement negotiations not admissible to impeach witness.

4. General Rule (Bankard v. Universal): 408 isn’t absolute ban on all evidence
regarding settlement negotiations. Rule permits evidence that is offered for any
purpose other than establishing liability or invalidity of claim.
a. Bankard: Ct. held that evidence from settlement discussions admissible to explain D’s
conduct in breaching K since D was lead to believe during negotiations that they could
start transferring acts (which breached non-compete). In this case, evidence showed good
faith belief and state of mind, not liability.
i. Again, cts will not allow party to use rule as a sword, since otherwise could trick
D into breaching K
ii. Limiting instruction: prohibited use of the word “settlement” to minimize
prejudice.

5. Problem 2.3: D signs K with P (Ramada) wherein P agreed to build a hotel. D occupied most of
motel using restaurant & resting rooms but at some point D became dissatisfied with motel.
Although K demanded that final payment was due upon “substantial completion,” D admittedly
refused to make final payment. At trial, court excluded document under Rule 408 which was a
report compiled by an architect employed by P to study defects that D alleged. This report was
made to function as basis for settlement negotiations. Did trial court err?
a. Commissioned report prepared detailing needed repairs in advance of settlement
negotiations. Policy would exclude evidence of the report since settlement would have
been impossible without the report. Report would not have been made were it not for the
settlement, so it was inadmissible at trial.

Rule 409 Payment of Medical & Similar Expenses. Evidence of furnishing/offering/promising to


pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability
for the injury.
1. Advisory Notes:
a. Relevance: Offers to pay can be product of human impulse & not admission of liability.
b. Policy: Encourages offers to assist.
2. Note: Unlike 408, 409 does not protect statements made during offers to pay.
a. EG: D offers to pay for P’s medical expenses and says “I’m sorry, its all my fault.”
While D’s offer can’t be admitted into evidence to prove liability, his statements can.
Note: Like with 408, evidence of offer to pay towards 3d party is not admissible BUT may be
admissible to prove bias.

3. Rule 410 (Pleas in Criminal Cases):

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Rule 410 Inadmissibility of pleas, offers to plea, plea discussions & related statements.
Except as otherwise provided in this rule, evidence of following is not, in any civil or criminal
proceeding, admissible against D who made plea or was a participant in plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceeding under Rule 11 of the FR of
criminal procedure or comparable state procedure regarding either of the foregoing pleas;
or
(4) any statement made in course of plea discussions with an attorney for
prosecuting authority which do not result in a plea of guilty or which result in a plea of
guilty later withdrawn.
However, such a statement is admissible (i) in any proceeding wherein another statement
made in course of same plea/plea discussions has been introduced & statement ought in
fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury
or false statement if statement was made by D under oath, on the record & in the presence of
counsel.
1. Rationales:
a. Relevance: Plea not necessarily an indication of guilt – D may plea if he realizes that he
has the weaker position.
b. Policy: Encouarge pleas, criminal justice system would break down if every case went to
trial.
2. Notes:
a. Like 408, 410 bars evidence of actual plea negotiations & statements made during these
negotiations.
b. Evidence barred by 410 is barred regardless of the purpose of admitting it.
c. Statements made by D during plea negotiations are not admissible to impeach her should
she later testify differently at trial.
d. 410 bars evidence of pleas & plea discussions only when offered “against D.” By its
terms, rule doesn’t prevent D from presenting evidence that govt. offered to drop charge
during plea discussions. HOWEVER, due to policy reasons behind 410 (encouraging plea
negotiations), some cts. have ignored literal language of rule & expanded it to bar
evidence used against both D & govt. (U.S. v. Biaggi).
e. 410 does not bar defense evidence of government offered immunity; the Rule only applies
to plea negotiations/discussions. (Biaggi).

3. Problem 2.7: D trial for murder. Govt. offers to permit D to plead guilty to 2nd degree murder. D
turns down offers. Govt. attempts to prove 1st degree murder at trial. D seeks to offer evidence of
govt’s proposed deal. D claims this evidence is relevant in that (1) prosecutor perceived weakness
of her case & (2) D displayed consciousness of innocence in rejecting offer. Admissible?
a. There is a 403 argument here – introduction of plea deal would lead to unfair prejudice –
it would cause govt. to have to testify as to why he offered deal which in turn would be
unfairly prejudicial: either prosecutor wouldn’t be able to testify as to why he offered
deal or he would have to step down as prosecutor if he was going to testify as witness.
4. Hypo: Murder D enters plea deal with govt & agrees to plea to voluntary manslaughter. At plea
hearing, D admits to murder but says he was provoked. Later, D fires atty. & withdraws plea. At
trial, D says he didn’t do it. Govt. wants to admit D’s prior plea. Allowed?
a. D’s statements made during plea hearing would be barred by 410(4).

4. Rule 411 (Liability Insurance):


Rule 411 Liability Insurance. Evidence that a person was/was not insured against liability is
not admissible upon issue whether person acted negligently or otherwise wrongfully. This rule
doesn’t require exclusion of liability insurance evidence when offered for another purpose, such as
proof of agency, ownership, or control, or bias or prejudice of a witness [this is a non-exclusive
list of exceptions].
1. Advisory Notes:
a. Relevance: At beast, inference of fault from fact of insurance coverage is tenuous, as is
its converse.
b. Policy: Knowledge of presence/absence of liability insurance would induce juries to
decide cases on improper grounds.

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c. Rule drafted in broad terms so as to include contributory negligence or other fault of P as
well as fault of D.
2. Despite 411, conversations about liability insurance during jury deliberations occurs in approx.
85% of all cases.

3. General Rules (Williams v. McCoy):


i. 411 does not absolutely bar admission of evidence concerning liability
insurance. It only excludes this evidence solely on issue of negligent or
wrongful conduct but not if it is offered for another purpose.
ii. In reviewing whether or not to admit evidence of liability insurance under 411,
court must consider Rule 403 balancing test.
b. Williams (personal injury car accident case): trial court instructs P not to testify that there
was liability insurance or make reference to any conversation/contact with liability
insurance adjusters pursuant to 411. D presents argument that P is litigious bc she hired
lawyer prior to seeing chiropractor. P wants to inform jury that she only hired a lawyer
after speaking with D’s insurance claims adjuster. Court refuses.
i. HELD: Trial court erred in not letting P present this evidence. P wasn’t trying
to admit evidence to prove negligence/wrongful conduct, but instead to show
why she hired an attorney before seeing a dr. so its admissible under 411. Also,
under 403, risk of prejudice to D doesn’t substantially outweigh probative value.

c. CHARACTER EVIDENCE
1. Rule 404 (The General Character/Propensity Rule):
Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes.
(a) Character evidence generally. Evidence of a person’s character/trait of character is not
admissible for purpose of proving action in conformity therewith on a particular occasion;
except:
1. Character of accused. Evidence of a pertinent trait of character offered by the
accused, or by prosecution to rebut the same, or if evidence of a trait of character of AV is offered by accused and admitted
under 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;
2. Character of alleged victim. Evidence of a pertinent trait of character of AV
offered by accused, or by prosecution to rebut the same, or evidence of a character trait of peacefulness of AV offered
prosecution in a homicide case to rebut evidence that AV was first aggressor;
3. Character of witness. Evidence of character of a witness, as provided in 607, 608
& 609.
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible
to prove character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon
request by accused, prosecution in a criminal case shall provide reasonable notice in advance
of trial, or during trial if court excuses pretrial notice on good cause shown, of general nature
of any such evidence it intends to introduce at trial (NOTE: 404(b) covers all acts, not
necessarily just “bad” acts and, further, these acts don’t have to be “prior” acts; 404(b)
covers any act, whether prior, concurrent or subsequent to act charged).
1. ADVISORY NOTES:
a. 404 only bars character evidence if offered to prove action in conformity therewith –
every other purpose is ok!
b. Once admissibility of character evidence in some form is established under this rule, go
to 405 to determine appropriate method of proof.
c. Character questions arise in 2 different ways:
i. Character in issue: Character is itself an element of the crime, claim or
defense. Here, 404 does not apply & character evidence is admissible.
ii. Circumstantial Character Evidence: Used for purpose of suggesting
inference that person acted on occasion in question consistently with this
character. Here, 404 applies.
d. Under 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove action
in conformity therewith. However, the evidence may be offered for any other purpose,
including (but not limited to) prove of motive, opportunity, etc.
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2. NOTES:
a. Phrase “other crimes, wrongs, or acts” in 404(b) refers to any acts other than those
directly at issue in case.
i. 404(b)’s statement that such evidence “is not admissible to prove character of
person ...” is superfluous – this provision merely restates substance of 404(a).
b. 404(a) & (b) does not require trial judges to admit evidence that is offered for a reason
other than proving action in conformity therewith (this evidence “may” be admissible for
other purposes.”). Typically, judge will evaluate evidence under 403.
c. 404 bars evidence of any person’s character; not just D’s.
i. E.G.: D charged w/murder. D has alibi that he was somewhere else when
murder occurred. D presents evidence that a man who looks like him was in the
area of the murder at time of murder. D wants to present evidence that this
look-alike has been charged with murder in the past.
1. Govt. can argue that this evidence is barred by 404(b) since it goes to
the look-alike’s propensity. However, court may be lax since prejudice
to D wouldn’t be a factor here.

3. General Rule (Rule 404 & CL [Zackowitz]): Evidence that a person has a
particular character trait generally is not admissible to show that the person acted
in conformity with that trait at a particular time.
a. Policy:
i. Although this type of evidence is technically relevant, there is a
very high risk of unfair prejudice with this type of evidence:
1. Jury will give excessive weight to this & allow it to bear too strongly
on present charge.
2. Jury may take proof of character as justifying condemnation
irrespective of guilt of crime charged.
3. Jury may punish D for having committed prior act on theory that prior
act deserves punishment even if he is not guilty of the crime charged.
ii. There are also risks of jury confusion and waste of time:
1. Evidence of prior acts used to prove character could confuse & distract
jury.
2. Once litigant has offered evidence that someone commited certain
specific acts, other side will want to offer evidence that he didn’t. This
would cause a “min-trial” and would take a lot of time.
b. Note: 404 reflects Congress’ judgment that probative value of propensity
evidence is, as a matter of law, substantially outweighed by risk it poses of
unfair prejudice, jury confusion & waste of time. IE: Congress made 403
judgment for us in this situation.
4. People v. Zackowitz: Character is never an issue in a criminal prosecution unless D chooses to
make it one. In a very real sense, D starts his life afresh when he stands before a jury.
a. In Zackowitz, D charged with murdering men who were harassing his wife. Govt. tries to
make D look “evil” by presenting evidence that he had 4 guns at his apartment at the time
of the shooting. D convicted. HELD: Trial court erred in admitting evidence. The fact
that D had guns at house had no bearing on his guilt and worked to prejudice him in the
eyes of the jury.

2. “Routes Around the Propensity Box” (other uses of character evidence):


General Test (U.S. v. Trenkler): In order to allow in “character evidence” or evidence of “other acts,”
you have to find a way around the “propensity box” since 404 doesn’t allow admission of this evidence
to show D’s propensity to commit crime charged. One can do this by establishing the evidence’s
relevancy based on something else other than propensity. 2-part Test for determining admissibility of
404(b) evidence:
(1) D.C. must determine whether evidence has some “special relevance”
independent of its tendency to show criminal propensity (i.e. routes around
propensity box such as identity, motive, opportunity, etc.)

9
(2) If evidence does have “special relevance” on a material issue, then court must
carefully conduct 403 analysis to ensure that probative value isn’t substantially
outweighed by risk of unfair prejudice.
NOTE: D.C. has considerable leeway in determining whether to admit or exclude 404(b)
evidence & D.C.’s judgment will only be reversed if there is an abuse of discretion.

REMINDER: Even if this evidence is allowed in for another purpose, opponent


should still make a Rule 403 argument for keeping it out!!
1. Proof of Knowledge:
a. PROBLEM 3.1: Hacker hacks into computers on 2 separate occasions. Hacker gets on
company system & has laptops shipped, on each occasion to a different city. D caught in
one of the cases & pleads guilty. Then he is arrested for the other case. Can govt.
introduce evidence of his prior act of hacking?
i. Relevance (401): Relevant because it shows that D had knowledge to hack into
computer systems which makes it more likely that he is person who committed
2nd hacking (notice how this goes around propensity box).
ii. 404(b): Evidence is admissible under 404(b) because it establishes knowledge,
not propensity.
iii. 403: D’s only chance of excluding evidence is 403. D would argue that there
are a lot of people that could hack into computer so this evidence is marginally
relevant if at all. Risk of unfair prejudice substantially outweighs this bc jury
will probably take their knowledge of D’s past crimes & find him guilty of this
one regardless of actual evidence presented to tie D with this particular crime.
Judge can always compromise & admit with limiting instruction (you can only
consider this evidence to determine whether D had knowledge to commit this
crime).
b. PROBLEM 3.2: D charged w/selling drugs & says he didn’t do it. No drugs or money
found on D when arrested. Govt. wants to introduce evidence that D previously dealt
drugs.
i. Relevance (401): Of course – evidence that D dealt drugs on prior occasion
makes it more likely that he did it this time.
ii. Rule 404(b): D would say that govt. is trying to introduce evidence to show that
D has propensity for selling drugs & that he acted in conformity therewith on
this occasion. However, govt. would argue that evidence is not barred by 404(b)
because evidence is being introduced to establish knowledge of drug trade, not
propensity.
iii. 403: D would argue that its very marginally relevant, because there are a lot of
people who sell drugs & have “knowledge” on the subject. Therefore, risk of
unfair prejudice substantially outweighs probativeness.
1. NOTE: It is probably less likely to get this evidence admitted than it
was in previous problem – more people would know how to sell drugs
than hack into a computer.
c. PROBLEM 3.3: Train wreck & injured passenger sues engineer alleging that he was
drunk. P also sues RR company saying that they should have known this & was therefore
negligent in letting him conduct train. P wants to call witness who says engineer is
always drunk all day long.
i. Relevance (401) & 404: Evidence is relevant against engineer but is definitely
blocked by 404. However, evidence is also relevant against RR company – it
makes it more probable that company knew that engineer was drunk at work,
which makes it more probable that RR co. was negligent and it goes to
knowledge, not propensity.
ii. 403: Although evidence is relevant against company, it is extremely prejudicial
to engineer. So, D can ask judge for a limiting instruction or severance of 2
trials.

2. Proof of Motive:
a. PROBLEM 3.4: D charged w/ killing 2 FBI agents. At trial, govt. seeks to prove that D
was previously charged with attempted murder & that, at time of this murder, D was
aware that he had a bench warrant out for him.

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i. This evidence is not barred by 404. Fact that D had outstanding warrant makes
it more likely that he was shooter in this case because it establishes a motive for
the shootings. Since this is not propensity evidence, its allowed subject to 403.
ii. NOTE: Conditional Relevance: D would have to be aware that he had
outstanding warrant and that 2 men he shot were FBI agents in order for this
evidence to be relevant as to motive.

3. Proof of Identity:
a. PROBLEM 3.6: Same as 3.4. At trial govt. tries to introduce evidence that state police
stopped 2 vehicles – motor home & station wagon. D was occupant of motor home.
Upon searching both vehicles, cops recover from motor home FBI agent’s revolver in
paper bag bearing D’s prints and from station wagon several shell casings that had been
fired from agent’s revolver. Cops also recover 14 firearms. M.E. says that FBI agents
were shot with high velocity, small caliber weapon. D’s AR-15 is a high velocity, small
caliber weapon. D objects to introduction of evidence. Admissible?
i. This evidence would not be barred under 404 – fact that D had same kind of gun
used to kill FBI agent is relevant to show identity. Since this is not propensity
evidence, it is not barred by 404.
ii. HOWEVER, D may keep evidence out under 403 – D might be convicted
merely because of exercising his constitutional right to bear arms.
b. PROBLEM 3.7: APD execute search warrant and find cocaine in kitchen along with
small bags used to package cocaine. Police seized from apartment several pieces of
paper w/lottery #s & lists of bets written on them. At D’s trial on drug charges, it was
disputed whether he was occupant of apt. Lists of lottery #s and bets made in illegal
street lotteries found at apt. were admitted along w/D’s prior conviction for commercial
gambling. Govt. argues that this evidence tends to show that occupant of apt. in question
was involved in illegal gambling & since D had previously been convicted of illegal
gambling, it was more likely that D was the one who occupied apt. Admissible?
i. Relevance (401): Evidence is relevant to establish D’s identity as person
occupying apt, which makes it more likely that he was occupant which makes it
more likely that drugs were his.
ii. 404(b): D would argue that this evidence is barred by 404(b) since it is
evidence of prior acts. Fact that he has prior gambling conviction tends to show
he is gambler, which tends to show that lottery tickets were his, which tends to
show apt. is his. Since this goes through propensity box, its probably barred.
c. PROBLEM 3.8: Same situation as last problem but instead of finding gambling slips,
police find various recently published brochures for bicycle-racing equipment along with
drugs. Though no fingerprints found on brochures, govt. wants to link them to D by
offering evidence that 3 years ago, D was known as avid racer. Admissible?
i. 404(b): This evidence, like the evidence in problem 3.7, is barred by 404(b)
because it goes through the propensity box – govt. is trying to use evidence to
show that D is a cyclist which makes it more likely that brochures are his.
1. However, govt. would argue that evidence should be admitted due to
policy reasons – calling someone a bicyclist doesn’t have same risk of
unfair prejudice as calling someone a gambler or murderer.

4. Modus Operandi (“MO”):


a. General Rule: One way to prove guilt when identity is in dispute is to show that crime
matches D’s “MO.” If we know that D committed a particular crime in the past, and the
present offense matches that crime in idiosyncratic ways, then we may infer that D
committed the present offense as well. The permitted inference is not that this is D’s
“kind of crime.” Instead, the idea is that “this could not be anyone else’s crime.” For
this to work, the similarities b/t the 2 crimes must be so distinctive that inference that
nobody else could have committed this crime overcomes the jury’s temptation to engage
in propensity reasoning.
i. U.S. V. TRENKLER: In order for 404(b) evidence to be admitted for purposes
of establishing “MO” evidence, there must be a high degree of similarity b/t.
other act & the charged crime. Proponent must demonstrate that 2 acts exhibit
a commonality of distinguishing features sufficient to earmark them as the
handiwork of the same individual. They must be sufficiently idiosyncratic to
permit an inference of pattern for purposes of proof. However, an exact match
11
is not necessary – the test must focus on the “totality of the comparison,”
demanding not an exact replica but rather the conjunction of several identifying
characteristics (quantitative similarities) or the presence of some highly
distinctive quality (qualitative similarities).”
1. Proponent of evidence has to make this requisite showing to the judge
(104(a) showing).
2. This is very high standard – there has to be a high degree of similarities.
3. In determining whether MO evidence should be admitted, judge must
make 403 analysis, focusing on several factors in particular:
a. Govt’s need for evidence;
b. Strength of evidence establishing similarity;
c. Inflammatory nature of evidence;
d. Degree to which it would promote inference based solely on
D’s criminal propensity.

b. U.S. v. Trenkler: D charged w/ killing cop after planting bomb. Govt’s theory was that
D built bomb for accomplice to use against father. To establish D’s identity as bomb
maker, govt. offers evidence that D had previously constructed remote-control device
very similar to the one in this case 5 years prior. Trial court allows evidence.
i. HELD: Trial court correctly allowed evidence in – there is such a high degree
of similarities b/t 2 incidents, that it meets the test.

c. Reverse-404(b) evidence: Where 2 acts share extreme similarities;


evidence of D’s non-involvement in one may be admitted to show that he
was not involved in the other.
i. General Rule (US v. Stevens): D may use “reverse 404(b)” evidence if in
reason it tends, along or with other evidence, to negate his guilt of crime charged
against him. A lower standard of similarity governs reverse-404(b) evidence
since prejudice to D is not a factor. Therefore, admissibility of reverse-404(b)
evidence should depend on a straight-forward balancing of evidence’s probative
value against 403 considerations such as waste of time & jury confusion.
1. NOTE: In some JNs, reverse-404(b) evidence is subject to same
requirements as regular 404(b) evidence & therefore D has to show a
high degree of similarity under Trenkler rule.
ii. US v. Stevens: D charged w/ robbery & sexual assault of 2 people. At trial, D
seeks to introduce evidence under 404(b) including testimony of a victim of a
similar crime in the same area that it was not D who attacked this witness. D’s
theory of relevance is that in view of the many similarities b/t 2 crimes, one
person very likely committed them both, and because D was not identified as
perpetrator in other crime by witness, D was not that person. HELD: This
evidence is allowed in – since prejudice to D is not a factor in these situations, a
lower degree of similarities should be required than is required under normal
“MO” evidence analysis.

5. Narrative Integrity (Res Gestae):


a. General Rule: Extrinsic acts evidence should be allowed to preserve the narrative
integrity of parties’ theory. Stipulations & limitations which cut heart out of story will
lead jury to conclude that something is being concealed from them, and this may
prejudice the party not admitting the evidence.

b. PROBLEM 3.9 D charged w/murder for hire. Most important evidence is AV’s library
card found in trunk of stolen car abandoned at local mall. Testimony from witness will
link D to car. Witness will testify that she met D 2 days after alleged murder at local
restaurant in mall parking lot in order to buy drugs. Witness will testify that she gave D
$10K at which time D pointed her to abandoned car where she traded $ for drugs. When
police found car & V’s library card, they also found witness’ fingerprints. Witness
admitted to drug transaction & plead guilty, but denied knowledge of alleged murder.
Admissible?

12
i. Relevance (401): Evidence is relevant – witness’ testimony makes it more
likely that D stole abandoned car, which makes it more likely that he was
involved in murder since AV’s library card was found in the trunk of this car.
ii. Conditional relevance (104(b)): D will argue that evidence is conditionally
relevant on fact that D actually stole abandoned car. This doesn’t necessarily
follow from fact that D used car during drug transaction – the car could have
just been sitting there near mall so D decided to use it during transaction. Under
104(b), govt. will have to introduce evidence sufficient to support finding by
reasonable jury by preponderance that D stole car.
iii. Rule 404: Evidence probably not barred by 404. Govt. isn’t introducing
evidence to show D’s propensity. Instead, govt. will argue that this evidence is
probative of D’s identity as V’s killer (which is allowed under 404). Also, this
preserves govt’s narrative integreity. Therefore, line of relevance goes around
propensity box & isn’t barred by 404.
iv. Rule 403: As last ditch effort, D will argue that evidence barred by 403. Risk
of unfair prejudice is that jury will be much more likely to convict D if they
know he is drug dealer even he may not have committed this murder.

6. Absence of Accident:
a. Basic Idea: Where D is claiming accident, evidence allowed to show that since
something like this has happened before & D claimed it was an accident then, D should
have been extra careful this time, which makes it much less likely that the 2nd incident
was an accident (this is expressly mentioned as a permitted use under 404(b) – “proof of
absence of mistake or accident.”).
i. NOTE: If prior act was intentional, then jury would not infer that D would
have taken greater care in the future. Thus, evidence of an intentional prior act
is for propensity purposes only & therefore not admissible (see problem 3.11).
b. PROBLEM 3.10: D charged w/shooting wife. D claims that he was cleaning rifle when
it accidentally went off. After D’s testimony, govt. seeks to admit evidence that 3 years
earlier, D shot & killed his first wife & made the same accident claim. Admissible?
i. Relevance (401): Evidence is surely relevant. Evidence of prior incident makes
it (a lot) more likely that neither one of these incidents was an accident which
makes it more likely that D is guilty of this particular murder.
ii. 404: Evidence not barred by 404 – govt. will argue that they aren’t presenting
evidence to show D’s violent propensity, but to show that this was most likely
not an accident – since its happened before, D should have been more careful
this time while cleaning his gun and, therefore, it is extremely unlikely that 2nd
incident was an accident.
iii. 403: D will fall back on 403 & argue that risk of unfair prejudice substantially
outweighs relevance. Relevance marginal bc even w/evidence, its still possible
that both incidents were in fact accidents. Risk of unfair prejudice = jury will be
tempted to punish D for prior act, whether or not he’s guilty of this one.
c. PROBLEM 3.11 Evidence that D intentionally beat dog in past can only show
propensity to be cruel to dogs, not that there was an absence of accident where D claims
he didn’t mean to throw dog into street on this occasion. Therefore, barred by 404(b).

7. Doctrine of Chances:
a. Basic Idea: It is so statistically unlikely that this type of event would happen to the same
person more than once, that evidence of prior instances can come in (“what is the chance
that all 3 of D’s wives died accidentally in exact same way??”).
b. General Rule (Rex v. Smith): Under doctrine of chances exception to 404(b), jury
determines whether uncharged incidents are so numerous that it is objectively improbable
that so many accidents would befall D. So, jury is not considering D’s “character” at all
& therefore its allowed in.
1. POLICY: Probative dangers posed by doctrine of chances differ to a
marked degree from risks raised by character theory:
a. Doctrine of chances doesn’t compel jurors to focus on D’s
subjective disposition therefore limiting chance that jury will
punish D for these other acts.
b. With doctrine of chances, there is less risk of over-estimation
of evidence’s probative value.
13
ii. Rex v. Smith: D charged w/murdering wife. Govt. wants to admit evidence in
respect to 2 of D’s ex-wives who died in the same exact way (accidentally in
bath tub) under same exact circumstances (after making a will). Evidence
showed many similarities btwn. the 3 incidents. HELD: Evidence allowed in
under doctrine of chances.
c. There is debate as to whether 404(b) evidence should be allowed in under doctrine of
chances. Prof. Imwinkelreid thinks that this evidence should be let in bc jury isn’t
looking at D’s propensity but the objective probability that these 2 events would occur –
it relies on jury’s common sense understanding of probability. Professor Rothstein
disagrees – occurrence of 1st accident has no bearing on chance that 2nd accident would
occur so the only commonality is propensity.

8. Common Scheme or Plan:


a. Differing Definitions:
i. State v. Kirsch: Requires that all bad acts are part of an overall scheme;
individual acts must relate to some whole.
1. EG: Lobbyist charged with bribery of house committee to get bill
passed. If there were enough bribes to get majority vote, the other
bribes might be relevant to show a common plan or scheme.
ii. Lannan v. State: Requires that all bad acts be sufficiently similar to show
common design; “must be so related in character, time and place of commission
so as to establish some plan which embraced both the prior & subsequent
criminal activity and the crime charged.”
1. NOTE: This is broader standard from that in Kirsch. Under this
standard its easier to show common plan or scheme. Under this
standard, accomplishment of overall plan is not necessarily dependent
on each individual part.
2. EG: D victimizes 6 young girls while involved in youth group under
substantially same circumstances. His common plan or scheme is to
use his position as youth pastor to “victimize young girls.” BUT, each
incident of abuse is not dependent on others to accomplish that goal.

3. The Huddleston Standard:


1. General Rule (Huddleston v. U.S.): Before admitting “similar acts” evidence or other evidence
under 404(b) for a permissible purpose, judge must determine that there is sufficient evidence to
support finding by a reasonable jury, by preponderance of the evidence, that D in fact committed
these similar acts.
i. NOTE: This is a form of conditional relevance.
ii. NOTE: Basically, in practice, as long as there is some evidence in the record
that D committed prior act, the evidence has to get in.
iii. NOTE: Evidence of prior acts can get in under Huddleston even if D was
acquitted of these prior acts. Why? Because in prior trials, govt. was held to a
reasonable doubt std. whereas here they must only show that reasonable jury
could determine that D committed prior acts by preponderance. Therefore, govt.
has lower standard under Huddleston to admit prior acts (see problem 3.12).
iv. NOTE: You must apply Huddleston standard any time you are attempting to
proffer evidence under a 404(b) permissible purpose.
2. PROBLEM 3.12 D charged w/bank robbery. At trial, govt. wants to introduce evidence of
robbery that occurred after bank robbery in question that D was also charged with committing. D
was acquitted for 2nd robbery, but govt. wants to bring in evidence of 2nd robbery. Admissible?
a. 404(b): Govt. will say that evidence should be allowed in on theories that it proves
identity, knowledge, etc...
i. Identity: Fact that he was wearing some exact mask in both robberies helps
govt. to prove that he is person who commited bank robbery.
ii. Identity: Fact that he was with same man during both robberies helps govt.
prove that he is culprate. This is an arguably non-propensity use.
b. Fact that D was acquitted for the 2nd robbery does not necessarily mean that its not
admissible under 404(b) due to different standards.

TRUE EXCEPTIONS TO RULE 404(a):


14
1. 404(a)(1) – (3).

2. 413-415.

4. Propensity Evidence in Sexual Assault Cases (Rules 413-415):


Rule 413 Evidence of similar crimes in sexual assault cases.
(a) In a criminal case in which D is accused of an offense of sexual assault, evidence of D’s
commission of another offense(s) of sexual assault is admissible, and may be considered for
its bearing on any matter to which it is relevant.
(b) In a case in which the Govt. intends to offer evidence under this rule, D.A. shall disclose
evidence to D, including statement of witnesses or a summary of substance of any testimony
that is expected to be offered, at least 15 days before scheduled date of trial or at such later
time as the court may allow for good cause.
(c) This rule shall not be construed to limit admission/consideration of evidence under any
other rule.
(d) For purposes of this rule and 415, “offense of sexual assault” means a crime under
Federal or state law that involved:
1. any conduct proscribed by chapter 109A of title 18 USC;
2. contact, w/out consent, b/t any part of D’s body or an object & genitals/anus of
another person;
3. contact, w/out consent, b/t genitals/anus of D & any part of another person’s body;
4. deriving sexual pleasure/gratification from infliction of death, bodily injury, or
physical pain on another person; or
5. an attempt/conspiracy to engage in conduct described in paragraphs (1) – (4).
Rule 414 Evidence of similar crimes in child molestation cases
(a) In a criminal case in which D is accused of an offense of child molestation, evidence of D’s
commission of another offense(s) of child molestation is admissible, and may be considered
for its bearing on any matter to which it is relevant.
(b) Same as (b) in Rule 413.
(c) Same as (c) in Rule 413.
(d) For purposes of this rule & Rule 415, “child” means a person below the age of 14, and
“offense of child molestation” means a crime under Federal or State law that involved:
a. Same as (1) – (5) in Rule 413 with addition of “any conduct proscribed by
chapter 110 of Title 18 USC.

Rule 415 Evidence of similar acts in civil cases concerning sexual assault or
child molestation.
(a) In a civil case in which a claim for damages or other relief is predicated on a
party’s alleged commission of conduct constituting an offense of sexual assault/child
molestation, evidence of that party’s commission of another offense(s) of sexual assault
or child molestation is admissible & may be considered as provided in Rules 413 & 414.
(b) Same as (b) in Rule 413 (15 day provision).
(c) This rule shall not be construed to limit the admission or consideration of
evidence under any other rule.
_____________________________________________________________________________________

1. NOTE: Rules 413-415 were enacted as part of Violent Crime Control & Law Enforcement Act of
’94. These rules permit govt. & civil Ps to offer evidence of D’s other acts of sexual assault/child
molestation “on any matter to which they are relevant.” This includes D’s propensity to commit
sexual assault or child molestation offenses. This is a “sanctioned trip through the propensity
box.”

15
2. Policy: (1) Sexual offenders have higher recidivism rate than other criminals; (2) Allowing such
evidence lends credence to a victim’s testimony describing acts which would otherwise seem
improbable standing alone.
3. Congress passed Rules 413-415 to alleviate problems that prosecutors & civil Ps had in admitting
evidence of prior bad acts in sexual assault cases.
a. Lannan v. State: Indiana Supreme Court abandons long-established rule in Indiana, the
“deprived sexual instinct” exception to propensity ban, under which evidence about
uncharged acts in sexual assault cases were admitted. Court instead adopts 404(b). Court
said that using this rule doesn’t necessarily mean that such evidence will never be
admitted – instead the evidence will have to be admitted for purposes other than
establishing D’s propensity like motive, opportunity, intent, knowledge, etc.
b. State v. Kirsch: D charged w/13 counts of sexual assaults on children. In addition to
these Vs, govt. has 3 other young girls testify, pursuant to 404(b), about sexual abuse
committed against them by D. D argues that court erred in admitting this evidence of
other acts. Govt. argues that this evidence goes to D’s (1) motive; (2) intent: (3) common
plan/scheme. HELD: N.H. Supreme Court erred in admitting this evidence because, no
matter how govt. labeled the evidence, it showed D’s propensity to molest & was
therefore inadmissible under 404(b).
c. Note: Rules 413-415 was Congress’ attempt to ensure that federal trial judges could
admit evidence of past sexual misconduct in sexual assault & child molestation cases
w/out having to stretch meaning of “intent,” “motive,” and “plan” like we saw in above
cases. Since few sexual assault or child molestation cases are tried in federal courts,
however, state courts will remain “primary battlefields of this evidentiary war.”

4. Rule (U.S. v. Guardia): 403 balancing test applies to evidence presented under Rules 413-415.
In accordance with this rule, D.C. should first resolve 3 threshold issues: (1) Ct. must determine
that D is accused of sexual assault offense; (2) Ct. msut find that evidence proferred is evidence of
D’s commission of another sexual assault; (3) Evidence must be relevant (NOTE: propensity
evidence is almost always “relevant”). Next, ct. must proceed to balance probative value of 413
evidence against 403 considerations (unfair prejudice, jury confusion, etc.).
a. Note: When it comes to 403 & sexual assault propensity evidence, some courts have
adopted the normal 403 standard (substantially outweighs probativeness) & some courts
have adopted a lower standard.
b. While 413-415 removes per se exclusion of character evidence, courts should continue to
consider traditional reasons for the prohibition of character evidence such as risk of
unfair prejudice (e.g. court should take into account chance that jury will convict D for
crimes other than those charged or jury will believe that a “bad person deserves
punishment.”).
c. 413-415, like all other rules, favors introduction of evidence (“presumption is in favor of
admission.”).
d. Because of sensitive nature of balancing test in these cases, it will be particularly
important for a court to fully evaluate proffered 413-415 evidence & make a clear record
of the reasoning behind its findings.

5. D.P. Concern? In US v. Mound (8th 1998), J. Arnold (dissent) criticizes 413 & 414 &
advocates for courts to consider whether these rules present so great a risk that jury will convict D
for his past conduct or unsavory character that it violates DP Clause.

5. Proof of D’s & V’s Character in Criminal Cases (Rules 404(a)(1) & (2) & 405):
Rule 404(a): Evidence of a person’s character/trait of character is not admissible
for the purpose of proving action in conformity therewith on a particular occasion,
except:
(1) Character of accused. Evidence of a pertinent trait of character offered by
an accused, or by the prosecution to rebut the same, or if evidence of a trait of character
of the AV of the crime is offered by an accused and admitted under 404(a)(2), evidence
of the same trait of character of the accused offered by the prosecution;
(2) Character of AV. Evidence of a pertinent character trait of the AV of the
crime offered by an accused, or by prosecution to rebut the same, or evidence of a

16
character trait of peacefulness of the AV offered by the prosecution in a homicide case to
rebut evidence that AV was the first aggressor.

Rule 405:
(a) Reputation or opinion. In all cases in which evidence of character/trait of
character of a person is admissible, proof may be made by (1) testimony as to reputation
or (2) by testimony in the form of an opinion. On cross-examination, inquiry is
allowable into relevant specific instances of conduct.
(b) Specific instances of conduct. In cases in which character/trait of character of
a person is an essential element of a charge, claim, or defense, proof may also be made of
specific instances of that person’s conduct.
___________________________________________________________________
1. NOTE: These rules only represent exceptions to 404(a)’s general ban on propensity evidence. If
evidence in question being offered for another purpose (identity, knowledge, etc.) then you don’t
have to go through (a)(1) or (2). Further, if evidence is being offered for purpose other than
propensity, you are not limited by 405 and may present evidence in any form (including by
evidence of specific acts).
2. ONCE YOU DETERMINE THAT CHARACTER EVIDENCE IS ALLOWED UNDER (a)(1) or
(2), THEN YOU MOVE TO RULE 405 TO DETERMINE HOW YOU MAY PRESENT THIS
EVIDENCE.
3. Notes:
a. These rules only apply in criminal cases.
b. 404(a)(1) & (2) allow pertinent character traits – so that character trait introduced must
always be pertinent. This depends on the substantive charge at issue. Most popular
examples include:
i. For D, character for law-abidingness.
ii. Charcter for peacefulness/non-violence.
iii. Character for honesty.
1. Honesty evidence usually only comes in with fraud/white-collar crimes
where someone is charged with dishonesty.
c. At CL, proof of character could only take form of reputation. Under 405, it can take form
of reputation or opinion.
d. (a)(1) & (2) allows jury to take a “sanctioned trip through the propensity box.”

4. 404(a)(1) & (2) set up three permissible first uses of character evidence of D &
V (“opening character door”):
a. (a)(1): Evidence of D’s pertinent character traits if offered by D (then govt. can present
evidence of D’s character to rebut).
i. NOTE: When govt. offers rebuttal evidence, they can’t offer this evidence to
show D’s “bad character,” but instead only to dispute the quality of D’s
testimony as to his good character.
b. (a)(2): Evidence of AV’s pertinent character traits if offered by D (then govt. can present
rebuttal character evidence).
i. NOTE: Once D puts up evidence of AV’s character, not only can govt. put up
rebuttal evidence as to AV’s character but can also put up evidence that D has
the same character trait under (a)(1).
c. (a)(2): Evidence of AV’s character trait for peacefulness offered by govt. in homicide
case if D has raised defense that AV was first aggressor.
i. NOTE: Under this alternative, it is not necessary that D puts on character
evidence as to AV. The moment that D puts up defense that AV was first
aggressor, door is opened to AV’s character & govt. may present evidence as to
AV’s peacefulness.

5. Methods of proof under 405:


i. Reputation = witness can say how long they knew D & what they know about
his reputation in the community.
1. NOTE: This is hearsay but falls under a hearsay exception.
ii. Opinion = you ask all the reputation questions and then ask the witness’ opinion
as to D’s relevant character trait.
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b. NOTE: Rule 405’s requirement that proof be by reputation or opinion does not apply to
413-415 – these rules require proof by specific acts.

c. 405(a) permits inquiry into relevant specific instances of conduct on cross of character
witness. However, cross about specific acts is not, under 405(a), a means or proving or
disproving that D (or V) actually has character trait in question. Rather, litigant may ask
about specific acts only to test character witness’ knowledge of D’s reputation (if witness
has offered reputation evidence) or her familiarity with D (if she has offered opinion
evidence).
d. 405(b) almost never comes up and applies to both criminal & civil cases. 405(b) only
applies when the existence of a character trait – and not any conduct done in conformity
with that trait – is the thing to be proved. 3 situations where this comes up:
1. Rebutting an entrapment defense: To rebut entrapment claim, state
may show that D was “predisposed” to commit the crime in question.
2. Rebutting a defense of truth in a libel or slander action: If D claims
that his allegedly slanderous statements were truthful, trial will focus
on whether P is indeed whatever D said he was.
3. Resolving a parental custody dispute: Judge must determine which
of the parties is the better parent. Here each litigant’s character as a
good or bad parent is the critical thing.
ii. The important thing to remember with 404(b) is that the critical thing must be
the existence of the character trait, not to prove action in conformity therewith.

6. PROBLEM 3.14 D charged drive-by shooting death. At trial, she testifies that she fired gun only
when a passenger in her car told her to. During direct, D states “I wouldn’t shoot anybody.”
During cross, govt. asks D about her statement to police that she had shot people in past. Is this
statement allowed?
a. YES – since D brought her own character into issue by testifying that she “wouldn’t
shoot anybody,” under 404(a)(1), govt. can now present evidence to rebut this. However,
this doesn’t mean that state can present evidence as to D’s bad character – they can only
present evidence disputing quality of D’s testimony.
7. PROBLEM 3.15: D charged w/shooting V. D claims self-defense. During break in trial, V
encounters D’s brother in courthouse & yells “there’s his brother. I want you to remember that
face.” D’s lawyer now seeks to offer testimony about this incident as evidence of V’s violent
nature. Admissible?
a. This evidence would be allowed in under 404(a)(2) (evidence of AV’s pertinent character
trait offered by D). Since this would be evidence of a “specific instance of conduct,” and
since D trying to admit it on direct examination, we would have to see if its allowed by
405(b). D can argue that it is an “essential element” of his self-defense claim (in order to
be successful with a self-defense claim, D must prove that V is violent).

6. Proof of D’s & V’s Character in Civil Cases:


1. ISSUE: Does 404(a)(1) & (2) apply in civil cases as well?
a. Perrin v. Anderson: Court says “yes.” Although literal language of 404(a) exceptions
applies only to criminal cases, when central issue in a civil case is in nature criminal
(“quasi-criminal”), D may involve 404(a) exceptions.
i. In Perrin, court applies 404(a) exceptions to civil case in context of a §1983
action for wrongful death against a highway patrol officer, since this case is
“quasi-criminal” in nature.
b. SEC v. Towers Financial: Court says “no.” Court holds that 404(a) exceptions only
applies in criminal cases & excludes character evidence in civil litigation.
c. ACN shows that drafters intended to limit 404(a) exceptions to criminal cases.

7. Evidence of Habit:
Rule 406. Habit; Routine Practice. Evidence of the habit of a person or of routine
practice of an organization, whether corroborated or not & regardless of presence of eyewitnesses, is
relevant to prove that the conduct of the person or organization on a particular occasion was in
conformity with the habit or routine practice.
1. Advisory Notes:
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a. Difference b/t character & habit: character is a generalized description of one’s
disposition; habit is one’s regular response to a repeated specific situation/
b. Habit = a person’s regular practice of meeting a particular kind of situation with a
specific type of conduct. The doing of habitual acts may become “semi-automatic.”
c. Levin v. U.S. (1964): Testimony as to the religious “habits” of the accused, offered as
tending to prove that he was at home observing Sabbath rather than out committing a
crime was held properly excluded.

2. Factors for finding Habit:


i. Regularity: The more frequent, the more likely that habit is not merely
character.
ii. Consistency: If interspersed with non-conforming conduct, less likely to be
habit.
iii. Lack of Volition: Not an essential factor, but an indication that habit is
ingrained.
iv. Predictability: All acts combine to make future conduct predictable.
b. Examples: Wearing seatbelt, taking same route to work.

3. Notes/Rules/Cases:
a. Evidence of habit is not character propensity evidence, and therefore is not limited by
character evidence rules. Therefore, habit evidence can be presented in any form (not
limited by Rule 405) including proof by evidence of specific acts.
b. You are not allowed to use habit to establish propensity to show action in conformity
therewith.
c. Habit = behavior of invariable regularity (Wigmore).
d. With evidence, must show that this is part of routine practice, not just random
occurrence.
e. 403 balancing applies to 406 – after determining that evidence may be admitted under
406, judge must perform a 403 analysis.
f. Advisory committee determined that regular drinking doesn’t have quality of habit &
shows that committee meant to extend category of habit only to relatively innocuous
behavior.
g. Halloran v. VA Chemicals: N.Y. Ct. App. holds that specific instances of using
immersion coil to heat refrigerant, barred during direct examination of defense witness
under 405(a), could be admitted since practice was so regular as to constitute habit.

d. CHARACTER FOR TRUTHFULNESS (IMPEACHMENT OF WITNESSES):

1. General Principles:
1. There are some non-character uses of character evidence that can be used to
impeach a witness. When evidence is used in these was, they are not subject to
character evidence rules and can be offered even when the character door hasn’t
been opened by D under 404(a)(1) & (2):
a. BIAS: Synonymous with motive to lie (e.g., a medical examiner may
have bias/motive to lie to uphold his professional reputation).
i. REMEMBER THAT BIAS IS NEVER COLLATERAL – IT DOES NOT
OPEN CHARACTER DOOR. Which means that extrinsic evidence can always
come in to prove it! – you have to be able to show why/how someone is biased.
Extrinsic evidence can never come in to prove a collateral issue.
b. PAST INCONISTENT STATEMENTS: E.G., D says something
different at trial than he did in deposition or police report.
i. May be character evidence where atty. attempts to show several past
inconsistent statements to imply that witness is now lying (witness has
propensity to lie).
c. CONFLICTING EVIDENCE/CIRCUMSTANCES: E.G., another
eyewiness’s testimony that light was red not green.

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404(a)(3): Character of witness. Evidence of a person’s character or a trait of
character is not admissible for the purpose of proving action in conformity therewith on a
particular occasion, except: (a)(3) evidence of the character of a witness, as provided in 607,
608, and 609.
1. NOTE: This rule provides us with a “sanctioned trip” through the propensity box.
2. ACN: Character trait of a witness is only admissible if it bears on that witness’ credibility!

Rule 608:
(a) Opinion and reputation evidence of character. The credibility of a witness may be
attacked or supported by evidence in the form of opinion or reputation, but subject to these
limitations:
(1) The evidence may refer only to character for truthfulness or untruthfulness, and
(2) evidence of truthful character (“rehabilitation evidence”) is admissible
only after the character of the witness for truthfulness has been attacked by
opinion or reputation evidence or otherwise.
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’ character for truthfulness, other than conviction
of crime as provided in rule 609, may not be proved by extrinsic evidence. They may,
however, in the discretion of the court, if probative of truthfulness or untruthfulness be inquired
into on cross-examination of the witness (1) concerning the witness’ character for truthfulness
or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another
witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a
waiver of the accused’s or the witness’ privilege against self-incrimination when examined with
respect to matters that relate only to character for truthfulness

1. Notes:
a. The only character trait that is ever pertinent for a witness is the character trait for
truthfulness!!
b. Either side can call into question the varacity of a witness – you can impeach your own
witness if need be.
c. These rules apply both to civil and criminal cases.
d. 608 only applies once you determine that character evidence of witness is admissible
under 404(a)(3) – 608 deals with the ways that you can present this evidence.
e. Under 608, character evidence of a witness can only be presented in form of opinion or
reputation as to witness’ truthfulness, except on cross, where you can inquire into specific
instances of conduct. Under 608(b), specific instances of conduct of a witness (other than
conviction of crime under 609) may not be proved by extrinsic evidence.

2. HYPO: D charged w/ murder. D claims misidentification – he was no where near scene. Witness
testifies that he saw D kill V. D has evidence that witness has filed false insurance claims in past.
Admissible?
a. This evidence is relevant under 401 & allowed under 404(a)(3). This would be a
“specific instance of conduct” -- Under 608(b), since this evidence goes to witness’
character for truthfulness, D can ask witness about this on cross.

2. Use of Past Convictions:


Rule 609 Impeachment by Evidence of Conviction of Crime.
(a) General rule. For the purpose of attacking credibility character for truthfulness of a witness,
(1) Evidence that a witness other than an accused has been convicted of a crime shall be
admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess
of one year under the law under which the witness was convicted, and evidence that an
accused has been convicted of such a crime shall be admitted if the court determines that the
probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

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(2) Evidence that any witness (including D) has been convicted of a crime shall be admitted
if it involved dishonesty or false statement, regardless of the punishment, if it readily can be
determined that establishing the elements of the crime required proof or admission of an act of
dishonesty or false statement by the witness.
(b) Time Limit. Evidence of conviction under this rule is not admissible if a period of more than 10 years
has elapsed since the date of conviction (date of sentencing) or of the release of the witness from the
confinement (date witness was released from prison) imposed for that conviction, whichever is the later
date, unless the court determines, in the interests of justice, that the probative value of the conviction
supported by specific facts & circumstances substantially outweighs its prejudicial effect. However,
evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent
gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the
adverse party with a fair opportunity to contest the use of such evidence.
(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence f a conviction is not admissible
under this rule if:
(1) The conviction has been the subject of a pardon, annulment, certificate of rehabilitation,
or other equivalent procedure based on a finding of the rehabilitation of the person convicted,
and that person has not been convicted of a subsequent crime which was punishable by death
or imprisonment in excess of one year; or
(2) The conviction has been the subject of a pardon, annulment, or other equivalent
procedure based on a finding of innocence.
(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule.
The court may, howeve,r in a criminal case allow evidence of a juvenile adjudication of a witness other
than the accused if conviction of the offense would be admissible to attack the credibility of an adult and
the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or
innocence.
(e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction
inadmissible. Evidence of the pendency of an appeal is admissible.
1. Advisory Notes:
a. When it comes to which types of crimes are admissible for purpose of determining
credibility of a witness, weight of traditional authority has been to allow use of felonies
generally, without regard to nature of the particular offense, and of crimen falsi without
regard to the grade of the offense (this traditional rule is adopted by 609).
2. Rule 609 Notes:
a. Situations where evidence of prior convictions can be admitted under 609:
i. Evidence of prior convictions of a witness other than D can be
admitted if they meet 609(b) time requirement, were punishable by
> 1 yr. in prison, subject to 403 balancing.
1. NOTE: It doesn’t matter what witness was actually sentenced to – all
that matters is whether offense is punishable by > 1 year in prison.
ii. Evidence of prior convictions of D (as a witness) is admissible if it
meets 609(b) time requirements, was punishable by > 1 yr. and
probative value outweighs prejudicial effect.
1. NOTE: This is different from 403’s balancing test. Under 609(a)(1), if
prejudicial effect is greater than or equal to probativeness, evidence
should not be admitted (whereas under 403, prejudice must
substantially outweigh probativeness).
2. NOTE: When admitting such evidence, trial judge should instruct the
jury that D’s prior record should be used solely to asses the credibility
of D as a witness and not to determine D’s propensity to commit the
present crime or to determine guilt.
3. NOTE: Brewer discusses 5 factors to consider when making the
balancing determination under this rule (see below).
iii. Evidence of prior convictions of any witness (including D) of
offenses involving dishonesty/false statements are admissible as
long as they meet 609(b) time requirement.
1. NOTE: This is not subject to any balancing test and does not require
any specific length of punishment.

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iv. Evidence of a prior conviction that came prior to 10 year time limit
is admissible if it was punishable > 1 yr. and the court determines
that its probative value substantially outweighs prejudicial effect
(“reverse-403 balancing test”).
1. NOTE: If witness is criminal D, time-barred conviction most likely
will not come in (since in these cases risk of unfair prejudice is always
high).
2. NOTE: One factor to consider when making this determination is how
close the conviction is to the 10 year line.
3. Note of Senate Judiciary Committee: It is intended that convictions
> 10 y.o. will be admitted “very rarely & only in exceptional
circumstances.”
b. You are allowed to bring in extrinsic evidence for truthfulness under 609 – if you have a
prior conviction that meets 609 criteria, you can introduce this conviction at trial in order
to show that they have a bad character for truthfulness.
c. Difference b/t Rules 609 & 404(b) – under 609, the actual conviction is relevant and
under 404(b) it is the acts underlying the conviction that is relevant.

3. Factors to consider when performing 609(a) balancing to determine whether


evidence of D’s prior convictions should come in (Brewer):
a. NATURE OF CRIME;
b. TIME OF CONVICTION & WITNESS’ SUBSEQUENT HISTORY;
c. SIMILARITY B/T PAST CRIME & CRIME CHARGED;
i. Rule: Where multiple convictions of various kinds can be shown, strong
reasons arise for excluding those whicha re for the same crime because of the
inevitable pressure on jurors to take evidence for propensity purposes. Those
convictions which are for the same crime should be admitted sparingly.
d. IMPORTANCE OF D’S TESTIMONY;
e. CENTRAILITY OF CREDIBILITY ISSUE.
i. NOTE: Usually factors 4 & 5 cancel each other out (like in this case).

4. What is a crime of “dishonesty” for purposes of 609(a)(2)?


a. General Rule (US v. Brackeen): As used in 609(a)(2), a crime of “dishonesty” is an
offense in the nature of crimen falsi: crimes that factually or by definition entail some
element of misrepresentation or deceit.
i. There are two different tests to use to determine whether a crime is a crime of
“dishonesty” – some crimes are per se a crime of dishonesty & sometimes court
must use the “facts/circumstances” of the case analysis:
1. An offense is per se a crime of dishonesty if, in order to convict D of
that crime, govt. must prove a dishonesty element.
2. Under amendment to 609 (effective 12/1/06), there is no more
“facts/circumstances” of the case analysis. After amendment takes
effect, you only look at whether crime was per se offense of
dishonesty.
ii. Court in Brackeen holds that bank robbery is not a crime of dishonesty and
therefore evidence of prior convictions for bank robbery is not admissible under
609(a)(2) but must instead be admitted, if at all, under (a)(1).

5. Rule 609 & Appellate Review:


a. When arguing a Rule 609 case on appeal, you should argue that the judge
got the legal standard wrong instead of arguing that the judge applied the
correct standard but came to the wrong result. If you only argue that result
was wrong, appellate court will only review for abuse of discretion.

b. General Rule: If Judge disregards 609’s safeguards protective of


criminal Ds and wrongfully admits evidence of past convictions to
impeach D, D may normally appeal, except:
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i. Luce v. U.S.: D may not appeal from trial judge’s ruling under
609 unless:
a. D did, in fact, testify at trial; and
b. Prosecutor did, in fact, introduce evidence of
contested conviction.
2. In Luce, D asked judge to determine in advance whether govt. would be
permitted to impeach him with past convictions should he choose to
testify. Judge tentatively ruled that convictions would be admissible &
as a result, D doesn’t testify. D convicted & appeals. Court rules that
his failure to testify barred his appeal.
ii. Ohler v. U.S.: Party introducing evidence cannot complain on
appeal that the evidence was erroneously admitted. Therefore, if D
offers evidence of his own prior convictions under 609 & judge
lets it in, D cannot appeal.
1. In Ohler, D’s own atty. elicited testimony about D’s past conviction in
order to take the “sting” out of Govt’s evidence.
3. Rehabilitation:
1. Rehabilitation concerns a party’s attempt to support a witness’ character for
truthfulness. 608(a)(2) makes clear that one party may rehabilitate its own
witness’ character for truthfulness only after other party has attacked witness’
character for truthfulness. Otherwise, it would be impermissible bolstering. The
tricky issue is to determine what constitutes an attack on a witness’ character for
truthfulness thereby allowing rehabilitation. Any of the forms of attack in 608 &
609 qualifies. Therefore, if one party has:
i. Offered opinion or reputation testimony of witness’ bad character for
truthfulness (608(a));
ii. Elicited on cross evidence of specific acts of the witness that are probative of
untruthful character (608(b)); or
iii. Offered evidence of a past conviction of witness under 609,
Then the other party may use any of the techniques permitted by Rule 608 to
rehabilitate the witness’ character for truthfulness.

b. NOTE: Cross-examination concerning witness’ motive to lie/bias is not


attacking character for truthfulness. This does not open up character door.

c. NOTE: There are at least 3 ways to attack the truthfulness of a witness’


testimony in this proceeding:
i. Evidence of bias (motive to lie);
1. This is not attacking character for truthfulness & does not open
character door.
ii. Contradiction by past inconsistent statement;
1. This does open character door – now other side can rehabilitate.
iii. Contradiction by conflicting evidence.
1. This will sometimes be deemed an attack on character for truthfulness
but normally, this does not open character door.

4. Extrinsic Evidence:
1. The only time you are allowed to bring in extrinsic evidence on character for witness’ truthfulness
is under 609 – Under 609, if you have a prior conviction that meets 609 criteria, you may
introduce this conviction at trial in order to show that they have a bad character for truthfulness.
2. 608(b) says that specific instances of conduct is not admissible in attacking/supporting witnesses
credibility. A proposed rule change will change “credibility” to “character for truthfulness” and
therefore, motive to lie is not blocked by 608(b). You can show motive to lie/bias through
extrinsic evidence!

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e. RAPE SHIELD
1. Historical Backdrop:
a. PEOPLE V. ABBOT (1838): Court allowed evidence that rape V is prostitute because it
shows that it was more likely that she consented to sex at issue. “Any fact tending to the
inference that there was not the utmost reluctance & the utmost resistance is always
received.” Although both prostate & chaste woman are both entited to EP of the law, in a
case of rape of a prostitute, stronger evidence is required.
b. STATE V. SIBLEY (1895): While a female witness may be impeached by proof of
general reutation for unchasity, a male witness may not.

2. Coming out of Abbot & Sibley is the general rule that evidence of promiscuity is
admissible because it is relevant on 2 grounds:
a. It makes it more likely that V consented; and
b. Character for being promiscuous reflects on her character for truthfulness.

2. The Shield Law:

Rule 412 Sex Offense Cases; Relevance of AV’s Past Sexual Behavior or Alleged
Sexual Predisposition.
(a) Evidence generally inadmissible. The following evidence is not admissible in any civil or
criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) & (c):
(1) Evidence offered to prove that any AV engaged in other sexual behavior.
(2) Evidence offered to prove any AV’s sexual predisposition.
(b) Exceptions.
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
a. Evidence of specific instances of sexual behavior by AV offered to prove that a person
other than the accused was the source of semen, injury or other physical evidence;
b. Evidence of specific instances of sexual behavior by AV with respect to person accused
of sexual misconduct offered by accused to prove consent or by the prosecution; and
c. Evidence the exclusion of which would violate the constitutional rights of the defendant.
(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of
any AV is admissible if it is otherwise admissible under these rules and its probative value
substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.
Evidence of an AV’s reputation is admissible only if it has been placed in controversy by the AV.

1. NOTES:
a. Evidence offered to prove allegedly false prior claims by V is not barred by this Rule.
b. 412 is a basic flat prohibition on AV’s sexual history except evidence of AV’s sexual
history w/D or evidence to help establish alternative sources for AV’s injuries.
c. Unlike 404(b), the list of exceptions under 412 is exhaustive – these are the only
exceptions that are available.
d. Under 412, in order for evidence to be admissible, it must meet the requirements of all
other rules, including 403 (State v. Smith).

3. The Law in Force:


1. Past Sexual Behavior with D:
a. PROBLEM 5.1 This evidence may be admissible under 412(b)(1)(A) since they are
evidence of specific instances of sexual behavior used to prove that a person other than D
was source of injury to AV. They would also be admissible under 412(b)(1)(B) since it
is evidence of specific instances of sexual behavior by AV with respect to D offered to
prove consent. However, since Rule 403 balancing applies, Judge may still keep this out
if he believes that they would be unfairly prejudicial to AV.
2. Explaining the Source of Physical Evidence:
a. PROBLEM 5.2 Evidence is probably not admissible – under 412(b)(1)(B), evidence of
specific instances of sexual behavior by AV with respect to D is admissible to prove

24
consent. In this case, D isn’t trying to prove consent so its probably not admissible. Also
not admissible under 412(b)(1)(B) since D isn’t offering evidence to show that someone
else was source of physical evidence.
3. Past Allegedly False Accusations:
a. STATE V. SMITH: Rule 412 is inapplicable in sexual assault cases where D seeks to
question witness regarding V’s prior false allegations concerning sexual behavior for
impeachment purposes. When considering admissibility of such evidence, question for
trial court is not whether it believes that prior allegations were false, but whether
reasonable jurors could find, based on evidence presented by D & by a preponderance of
the evidence (104(b) huddleston std.) that V had made prior false accusations. Court
must also determine that evidence meets all of the other evidence requirements (403, 404,
608, etc...)
4. 404(b)-style Uses of Evidence of Past Sexual Behavior:
a. Proof of Bias:
i. Odgen v. Ky.: Criminal D’s constitutional right under 6th Amendment’s
confrontation clause will trump 412 when: 1) used to show bias of a witness,
and 2) asked on cross.
ii. Boggs v. Collins: The 6th Amendment’s Confrontation Clause protects D’s right
to cross regarding bias, motive or prejudice. However, Clause doesn’t protect a
“general attack” on credibility of a witness by pointing to individual instances of
past conduct, no matter how central an accuser’s credibility is to the case.
b. Narrative Integrity (Res Gestae):
i. Stephens v. Miller: There is no narrative integrity exception to rape-shield law.
Criminal D has right to testify in his own defense, but this right is limited & may
bow to accommodate other legit interests in the criminal trial process. While
412 represents such a legit interest, the restrictions imposed by 412 may not be
arbitrary or disproportionate to the purposes which they are designed to serve.
State is required to evaluate whether the interests served by 412 justify
limitation imposed on D’s right to testify.
c. D’s State of Mind:
i. U.S. v. Knox: 412 is not an absolute bar to offering evidence related to AV’s
past sexual experience is relevant and “constitutionally required.” Criminal Ds
may have a right under either 5th or 6th Amendment to offer evidence that is
“critical” to their defense even if it violates 412.
ii. NOTE: Only in criminal cases can you argue that D’s constitutional rights
trump rape shield law.

III. RELIABILITY
a. COMPETENCY OF WITNESSES:
1. Historical Prelude:
1. Historically, parties to proceeding – both P & D in civil suits & all criminal Ds – could not testify
at trial. Also excluded were spouses, parties w/financial interest in case, convicted felons &
atheists. These rules were repealed beginning in the mid-1800s and were all but gone by 1890.

2. Modern Rules:

1. General Presumption under FRE is that every person is competent to be a


witness:
a. Rule 601: General Rule of Competency. Every person is competent to be a witness
except as otherwise provided by these rules. However, in civil actions and proceedings,
with respect to an element of a claim or defense as to which State law supplies the rule of
decision, the competency of a witness shall be determined in accordance with state law
(IE: In diversity cases, state competency laws apply).
i. NOTE: The only people that are categorically prohibited from testifying under
FRE are the presiding judges (605) and a member of the jury (606).

25
b. Rule 602 Lack of Personal Knowledge. A witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter. Evidence to prove personal knowledge may, but need not,
consist of the witness’ own testimony. This rule is subject to the provisions of 703
relating to expert testimony.
i. NOTES:
1. Personal knowledge may be proven by witness’ own testimony.
2. This rules does not apply to admissions by party-opponents (801,
infra).
3. Rock v. Arkansas: Testimony obtained through hypnotically refreshed
memory (or similar means) is admissible unless the opposing party can
show that the testimony is so unrealistic that the exclusion is justified.
4. Personal knowledge requirement often overlaps with hearsay. EG:
Witness testifies that someone told her that D ran the light. Not only
does witness not have personal knowledge of this fact & it is therefore
barred by 602, but it is also hearsay.
c. Rule 603 Oath or Affirmation. Before testifying, every witness shall be required to declare
that the witness will testify truthfully, by oath or affirmation administered in a form calculated to
awaken the witness’ conscience and impress the witness’ mind with the duty to do so.
d. Rule 610 Religious Beliefs or Opinions. Evidence of the beliefs or opinions of a
witness on matters of religion is not admissible for the purpose of showing that “by
reason of their nature the witness’ credibility is impaired or enhanced.

2. Child Witnesses: The most common case where the issue of witness competency arises is
when a very young child takes the stand. Factors that determine child’s competency vary from JN
to JN, but generally include whether child can perceive & remember events accurately, whether
she can communicate them intelligibly, whether she understands difference b/t truth & falsehood
& the obligation to tell the truth, and whether she can respond intelligently to questions posed on
cross. When there is a doubt as to child’s capacity along any of these dimensions, trial court will
normally hold a competency hearing before permitting a child to testify.
a. In federal child abuse cases, 18 USC §3509(a) creates a rebuttable presumption that
children are competent witnesses. Trial courts may conduct competency hearings only
upon finding that “compelling reasons exist” and a child’s age alone is not a compelling
reason.

b. THE RULE AGAINST HEARSAY

* 2 questions to ask:
(1) Is it hearsay? If yes...
(2) Does it fall under a hearsay exception?

1. Defining Hearsay (Is it hearsay??):


1. Rule 801 Definitions.
a. Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a
person, if intended by the person as an assertion.
b. Declarant. A “declarant” is a person who makes a statement.
c. Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying
at the trial or hearing (“out of court”) offered in evidence to prove the truth of the matter
asserted.
2. Rule 802 Hearsay Rule. Hearsay is not admissible except as provided by these rules or by
other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

3. Hearsay is an out-of-court statement offered by a litigant to prove what the


statement asserts.
a. In determining whether any particular statement is hearsay, we must ask:
1. Was there an assertion?;

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2. Was this assertion made at some point other than right now when the
witness is testifying on the stand (i.e. is it “out-of-court”)?;
3. Is this assertion being offered to prove the truth of the matter asserted?
ii. If yes to all 3 of these questions, you have hearsay!!
b. Non-hearsay uses of out-of-court statements. Why would a litigant offer
an out-of-court statement if not to prove what it says?
i. EG: Declarant told Defendant “Watch out for Joey. He’s looking for you, and
he has a gun.” Defendant, who is charged with killing Joey, testifies: “the day
before I had the run-in with Joey, declarant called me and said, ‘Watch out for
Joey. He’s looking for you, and he has a gun.’”
1. In this case, if D offered evidence of declarant’s statement to prove that
Joey was, in fact, really looking for him & really did have a gun, then
declarant’s statement is hearsay and barred by 802.
2. HOWEVER, D’s testimony is not hearsay if offered to prove that D
had a reason to fear Joey at the time of the attack. In this case, D isn’t
offering statement to prove the truth of the matter asserted, but instead
is offering it to prove D’s reasonable fear of Joey.
ii. Problem 7.7 D sued for defamation. P testifies “and then D stood up, in the
middle of meeting, and said ‘D is a cheat!’.” Hearsay?
1. NO; evidence not to prove that P is really a cheat, but only to prove that
statements were made & heard. Admissible.
iii. US v. James: D charged w/killing BF. Claims self-defense & testifies that bf
bragged to her about killing someone.
1. This is not hearsay bc it isn’t being offered to prove truth of matter
asserted. Instead, its being offered to show that statement was made &
heard & therefore D had reason to fear V.

4. CRITICAL QUESTION: Whether litigant is offering evidence of the out-of-


court statement (1) to prove what the out-of-court speaker was asserting (in which
case it is hearsay); or (2) merely to prove that the statement was made & heard (in
which case it is not hearsay).
a. Another question to ask is whether or not it matters that the out-of-court declarant was
telling the truth when making the assertion in question. If this does matter, then it is
being offered to p(rove the truth of the matter asserted & is hearsay. If not, its ok. “An
out-of-court statement will not be hearsay unless its evidentiary force depends on the
sincerity of the declarant.”).

5. Double Hearsay: EG: “Betty told me that Veronica said ...” In these cases you
have to focus on both levels & ask yourself what the assertion is & whether the
assertion is being offered for truth of matter asserted. If both levels are ok (they
are either not hearsay or fall under an exception), statement admissible. If either
level is hearsay & does not fall under exception, the entire statement is barred.
a. Rule 805: Hearsay within hearsay. Hearsay included within hearsay is not excluded
under the hearsay rule if each part of the combined statement conforms with an exception
to the hearsay rule.

6. Reminder: Even if evidence is not hearsay (not offered to prove truth of matter
asserted) & therefore not barred under 802 (or if it is hearsay & comes in under an
exception), the opponent of the evidence can still make a 403 argument to keep
the evidence out! Opponent would argue that jury will likely consider statement
for truth of matter asserted & therefore that there is a high risk of unfair prejudice.
2. Defining Assertions:
1. Under 801(a) a “statement” is (1) an oral or written assertion or (2) nonverbal
conduct of a person, if it is intended by the person as an assertion.

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2. An “assertion” is conduct or words (including written words) with a
communicative intent. “Nothing is an assertion unless intended to be one”
(ACN). Non-assertive conduct cannot constitute hearsay:
a. Conduct:
i. Rubbing thumb & finger together to communicate need for $.
ii. Commissioner taking family to site of atomic bomb test, if done in public eye in
front of reporters, is meant to communicate safety.
1. BUT, when ship captain inspects ship for seaworthiness, it is not done
to communicate anything so its not an assertion of seaworthiness.
iii. NOTE: Inaction may be an assertion if meant to communicate a message.
b. Words: Most words are assertions since they intend to communicate something.
However, words that aren’t meant to communicate anything to anyone are not assertions.
i. EG: Talking in your sleep.
ii. EG: Person bangs knee and says “ouch.”
c. NOTE: Distinction b/t an assertion & non-assertion often will depend on context.
d. NOTE: Assertions need not be declarative sentences.
i. Commands also have an assertive content.
1. EG: Person warns “don’t run that stop sign” intends to inform listener
that there is stop sign ahead. Therefore, statement is assertion & if
offered to prove that there was indeed a stop sign, is hearsay.
ii. Questions may also be assertive.
1. EG: The questions “does Sarah sell drugs? How do you think she
affords that car?” would be hearsay if offered to prove Sarah sells drugs
& bought her car from the proceeds.
2. EG: “What is your name?” would probably be hearsay if offered to
prove that speaker didn’t know other person’s name.

3. HEARSAY EXCEPTIONS:
(1) Rule 801(d)(1): Prior Statements by Witnesses:
(A) Prior Inconsistent Statements.
(B) Prior Consistent Statements.
(C) Statements of Identification.
(2) Rule 801(d)(2): Admissions by Party-Opponents:
(A) The Party’s Own Statement.
(B) Adoptive Statements.
(C) Statements by Spokespersons.
(D) Statements by Agents.
(E) Coconspirator’s Statements.
(3) Rule 803: Exceptions in Which the Availability of the Declarant is Immaterial:
(1) Present Sense Impressions.
(2) Excited Utterances.
(3) Then-Existing Mental, Emotional, or Physical Condition.
(4) Statements for Medical Diagnosis.
(5) Recorded Recollections.
(6) & (7) Business Records.
(8) & (10) Public Records & Reports.
(4) Rule 804: Exceptions Applicable Only When Declarant Is Unavailable:
(b)(1) Former testimony.
(b)(2) Dying Declarations.
(b)(3) Statements Against Interest.
(b)(6) Forfeiture by Wrongdoing.
(5) Rule 807: Residual Exception.

Note: With the exception of admissions by party-opponents, statements that


come in under a hearsay exception must comply with 602’s personal
knowledge requirement! Under 104(a), proponent of evidence must prove by
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preponderance that declarant meets personal knowledge requirement.

Note: Anytime there is a preliminary question to answer when dealing with a


hearsay exception, judge must make preponderance determination under
104(a). In making this determination, judge isn’t bound by hearsay rules & may
consider evidence that is not itself admissible (except for privileged information).

Note: If a statement is hearsay & gets in under an exception, opponent should


still make a 403 argument to keep it out!

Note: 806 permits litigants to attack a hearsay declarant’s credibility by


any of the techniques available against live witness, including proof of bias,
contradiction by inconsistent statement, evidence of untruthful character, etc.
NON-HEARSAY TO BE REGARDED AS EXCEPTIONS: 801(d):
a. Statements of Party-Opponents (801(d)(2)):
i. Note: There is no 602 personal knowledge requirement for
statements by a party opponent. While usual rule is that statements
that come in under hearsay exception are subject to all other
witness rules, party-opponent statements are different. Even if out-
of-court declarant has no personal knowledge as to what he is
asserting, it can still come in under 801(d)(2) whether or not it
meets 602 standard (Mahlandt v. Wild Canid).
ii. The Party’s Own Words: 801(d)(2)(A): A party’s own words are
“not hearsay” if statement is offered against a party & is party’s
own statement in either an individual or representative capacity.
1. P7.10 Lawyer sues airline after rough landing claiming injuries prevent
her from working @ full capacity. At trial, D offers P’s time sheets
signed by P in which she billed avg. of 104hrs/wk. after flight. If
offered to prove her capacity for work was not diminished, hearsay?
a. NO; falls under 801(d)(2)(A) since it is a (written) statement
by P and it is being offered against P.
2. P7.11 Robert Shapiro (OJ) wants to ask detective on stand “Isn’t it true
that you asked about OJ’s blood he said ‘Well, take my blood test &
we’ll see.” Hearsay?
a. YES; although this is OJ’s own statement, it is not being
offered against him, but for him.

iii. Adoptive Admissions: 801(d)(2)(B): Statement offered against a


party & is a statement of which party has manifested an adoption
or belief in its truth.
1. Silence may equal adoption. Requirements:
i. Adoptee must have heard & understood statement;
ii. Adoptee must have been at liberty to respond;
iii. The circumstances must have naturally called for a
response; and
iv. The adoptee must have failed to respond.
2. 7.12 Undercover cop buys crack from Monroe. Officer asks Monroe
for another “fifty” and Monroe tells officer “you can get some from my
buddy.” Cop walks up to D (sitting close to Monroe) and D pulls out
crack. Govt. wants to admit Monroe’s statement to show that D had
intent to distribute. Hearsay?

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a. No; falls under 801(d)(2)(B), Monroe made the statement & D
manifested an adoption of its truth by pulling out bag of crack.
3. 7.13 D tried for murder. D’s daughter is govt’s star witness who
claimed to see murder. Before trial, daughter goes to visit dad in jail.
Daughter tells dad she is testifying because the “truth will set her free.”
In response, D points to a “Warning: Conversations Monitored” sign.
If this incident is offered by govt., hearsay?
a. No; daughter’s statements were adopted by D by his silence.
This shows that he adopted statement as true & didn’t want
her to say it while being recorded.
4. Note: Judge to decide whether opposing party manifested an adoption
or belief in the truth of the statement under 104(a) standard.

iv. Statements of Agents: 801(d)(2)(C) & (D): Statement offered


against a party and is (c) a statement by a person authorized by
party to make a statement concerning the subject, or (d) a
statement by party’s agent or servant concerning a matter w/in
scope of agency or employment, made during existence of the
relationship.
1. Mahlandt: There is no “in-house” exception to the admissibility of
admissions by party-opponents. Under 801(d)(2)(D, once agency, and
the making of the statement while the relationship continues are
established, the statement is exempt from hearsay rule so long as it
realtes to matter w/in scope of agency.
a. In Mahlandt, D tried to argue that rule didn’t provide for
admission of “in-house” statements but instead allowed only
admissions made to 3rd parties. Court rejects this.
2. (C) Notes:
a. Authorization under 801(d)(2)(C) is a 104(a) determination for
judge. Corroborating evidence is required under (C) to show
authority to make statement, but statement is considered in
this determination.
3. (D) Notes:
a. All of the initial determinations (whether statement was w/in
scope of agency & made during relationship) are 104(a)
determination for judge. Corroborating evidence required to
show agency relationship & to ensure that statement made
w/in scope of duties. Statement is considered while making
this determination, but not sufficient.
b. Can be used against govt. agents.

v. Co-Conspirator Statements: 801(d)(2)(E): Statement offered


against a party and is a statement by a co-conspirator of a party
during course & in furtherance of conspiracy. The contents of the
statement shall be considered but are not alone sufficient to
establish existence of conspiracy & participation therein of
declarant & party against whom statement is offered.
1. General Rule (Bourjaly): Before admitting co-conspirator’s statement
over hearsay object under 801(d)(2)(E), court must be satisfied that
statement actually falls w/in Rule’s definition. There must be evidence
that there was a conspiracy involving declarant & non-offering party,
and that statement was made during course & in furtherance of
conspiracy. Under 104(a), these preliminary questions must be
resolved by court & offering party must prove them by a
preponderance of the evidence.
a. In determining whether these requirements are met, court may
consider any evidence, including the hearsay statement itself.

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HOWEVER, under 801(d)(2), the hearsay statements are not
alone sufficient to prove conspiracy.
i. Note: In making this ruling, court rejects D’s
proposed “bootstrapping rule” (from Glasser) which
says that when determining preliminary manners,
court must look only to independent evidence.
2. Note: Once a co-conspirator’s statement comes in under 801(d)(2)(E),
D can impeach that co-conspirator in any way that you would
otherwise be able to impeach a witness.

b. Prior Statement by Witness (801(d)(1) & 613):


i. Note: When dealing with prior statement, first ask yourself why
you are trying to get statement in. If you are trying to get it in for
impeachment purposes, go to 600 series of rules. If you are trying
to get it in for truth of the matter asserted, go to 800 series.
1. You have to meet a higher standard if you are trying to get prior
statement in to prove truth of matter asserted (801(d)(1)) than if you are
trying to admit it for impeachment purposes (600 series).
2. There is a difference b/t presenting evidence of prior instances of
untruthfulness 608(b) & presenting evidence of prior inconsistent
statement 613. Under 608(b), you can only inquire into prior instance
but can’t present extrinsic evidence. Under 613, subject to some
limitations, you can bring in extrinsic evidence (e.g. you can present
prior statement itself or bring someone in to testify about prior
statement).
3. When admitting evidence for impeachment purposes under 613, it
doesn’t matter which of the witness’ statements is true, all that matters
is that witness made inconsistent statements & is a liar. When
admitting evidence to prove truth of matter asserted under 801(d)(1),
you are saying that prior statement was true & that witness is lying
now.

ii. There are 2 ways that evidence of prior inconsistent statement of a


witness is used under Rules:
1. To impeach witness under 613. In this situation, it doesn’t matter
which statement is true, all that matters is that statements are
inconsistent so witness is liar. Under 613, evidence is only used for
impeachment purposes (and not to prove truth of matter asserted) and
judge should offer limiting instruction to this point.
2. To prove truth of what the prior statement asserts under 801(d)(1)(A).
This is harder standard to meet.

iii. Inconsistent Statements offered to impeach (613):


1. Rule 613 Prior Statements of Witness.
a. Examining witness concerning prior statement. In
examining witness concerning prior statement made by
witness, whether written or not, statement need not be shown
nor its contents disclosed to witness at that time, but on
request same shall be shown or disclosed to opposing counsel.
b. Extrinsic evidence of prior inconsistent statement of
witness. Extrinsic evidence of a prior inconsistent statement
by a witness is not admissible unless the witness is afforded
opportunity to explain/deny the same & opposite party
afforded opportunity to interrogate witness thereon, or the
interests of justice otherwise require. This does not apply to
801(d)(2).
2. Note: When prior inconsistent statement offered to impeach, and this
is the only evidence offered, case cannot survive directed verdict
motion (bc party hasn’t proven anything except that witness is a liar).
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3. U.S. v. Barrett: To be received as a prior inconsistent statement,
contradiction need not be in “plain terms.” It is enough if proffered
testimony, taken as a whole, either by what it says or what it omits,
affords some indication that fact was different from testimony of
witness whom it sought to contradict.
a. Note: When there is a question as to whether statements are
really inconsistent, this is a 104(b) determination
(Huddleston). However, if you are trying to get statement in
under 801(d) for substantive purpose, this is a 104(a)
determination.
4. U.S. v. Ince: Even if prior inconsistent statement would otherwise be
inadmissible as hearsay, it may be admissible for limited purpose of
impeaching witness under 613. At criminal trial, however, there are
limits to Govt’s power to impeach its own witnesses by presenting
prior inconsistent statements. When govt. employs impeachment by
prior inconsistent statement as a “mere subterfuge” to get otherwise
inadmissible evidence in, this is not allowed.
a. In deciding whether evidence of PIS was used to simply
impeach or as “mere subterfuge” to get around hearsay rules,
judge should apply 403 & weigh testimony’s impeachment
value against prejudicial tendencies against D or tendency to
confuse jury.
b. Due to extreme risk of prejudice, trial judge should rarely, if
ever permit Govt. to “impeach” its own witness at criminal
trial by presenting what would otherwise be inadmissible
hearsay if that hearsay contains an alleged confession to the
crime for which D is being tried.
5. Impeaching by Silence: You can impeach someone by prior silence.
However, where D was silent after being read his Miranda rights, you
cannot use this silence to impeach D.
a. SEE CHART ON 404.
iv. Inconsistent Statements offered Substantively (801(d)(1)(A)):
1. Rule 801(d)(1)(A): The declarant testifies at the trial or hearing & is
subject to cross-examination concerning the statement, and the
statement is inconsistent with the declarant’s testimony, and was given
under oath subject to penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition. REQUIREMENTS:
a. Declarant testifies @ trial;
b. Declarant is presently subject to cross;
c. And prior statement is:
i. Inconsistent with current testimony; and
ii. Was given under oath subject to perjury.

2. Note: When PIS offered substantively under 801(d)(1)(A) and there is


a question about whether statement is really inconsistent, this is a
104(a) judge determination.
3. Note: Maj. rule says that memory loss is not inconsistent with a prior
statement. In some JNs, however, if judge determines under 104(b)
that memory loss is made up, this can be allowed in under 613 to
impeach.
4. Note: Sometimes you can get something in as PIS & it will have been
under oath but you don’t want it to come in to prove truth of matter
asserted.
a. EG: In civil case, you have witness that testified under oath
that he saw D speeding, running red light & driving past 18
cars before he hit P. At trial, Witness testifies that D passed 4
cars. In this situation, D would want to present evidence of
PIS under 613 to impeach witness, but wouldn’t want to enter

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evidence to prove truth of matter asserted in prior statement
since prior statement makes D look worse.

v. Past Consistent Statements: 801(d)(1)(B): The declarant testifies


at the trial or hearing & is subject to cross concerning statement,
and the statement is consistent with the declarant’s testimony & is
offered to rebut an express or implied charge against declarant of
recent fabrication or improper influence or motive.
1. Notes:
a. There is no oath requirement under this rule.
b. If statement comes in under this rule, it goes both to prove
truth of matter asserted & to help rehabilitate credibility of
witness.
c. Prior consistent statements may not be admitted to counter all
forms of impeachment or to bolster witness merely because he
has been discredited. Instead, admissibility under Rule is
confined to those statements offered to rebut a charge of
“recent fabrication or improper influence or motive” (Tome).
2. Requirements:
a. Must be consistent w/current testimony;
b. Offered to rebut express/implied charge against declarant of
recent fabrication or improper influence/motive;
c. Must be subject to cross at trial.
3. Pre-Motive Requirement (U.S. v. Tome): 801(d)(1)(B)
permits introduction of declarant’s consistent out-of-court statements to
rebut charge of recent fabrication or improper influence or motive only
when those statements were made before charged recent fabrication or
improper influence or motive allegedly arose.
a. NOTE: Charge of express/implied recent fabrication usually
involves impeachment by introduction of prior inconsistent
statement. When PIS is introduced, party is essentially saying
that there has been a recent fabrication. In order to rebut, you
may introduce evidence of a prior consistent statement. There
consistent statement must precede the inconsistent statement
that was used to impeach the witness & to show recent
fabrication. Prior consistent statements are also introduce to
rebut charge of improper influence/motive. In this situation,
prior consistent statement must precede the development of
the improper influence/motive.
b. This is a 104(a) judge determination.

vi. Statements of Identification: 801(d)(1)(C): The declarant testifies


at trial or hearing & is subject to cross concerning statement, and
statement is one of identification of a person made after perceiving
person.
1. Requirements:
a. Witness testifies at trial;
b. Is subject to cross; and
c. The statement is one of identification made after perceiving
person.
2. General Rule (Commonwealth v. Weichell): Under 801(d)(1)(C),
statement of prior identification is not hearsay if made by witness who
testifies at trial & is subject to cross.
3. Composite Sketches (Weichell): Composite sketches based on prior
statements of identification are also admissible. Although these
sketches are technically hearsay (an out of court “assertion” [intended
to communicate] offered to prove truth of matter asserted [witness saw

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D commit crime]) they are admissible under 801(d)(1)(C) as a
statement of prior ID.
a. Dissent in Weichell says that “translation” makes sketch
inadmissible, what is lost b/t witness & sketch artist is imp.,
and the artiest may improperly influence memory of witness,
and artiest may be unavailable for cross.
4. U.S. v. Owens: 801(d)(1)(C) allows admission of an ID statement of a
witness who is unable, due to memory loss, to testify concerning basis
for ID. Physical availability of witness alone satisfies requirement
under 801(d)(1)(C) that witness is “subject to cross.”

HEARSAY EXCEPTIONS – “DECLARANT UNAVALABLE” When declarant is unavailable


as a witness (see 804(a) for definition of unavailability), the following is not excluded by the
hearsay rule:
804(a) Definition of unavailability. Unavailability of a witness includes situations in
which declarant –
(1) is exempted by ruling of court on ground of privilege from testifying concerning subject matter of
declarant’s statement; or
(2) persists in refusing to testify concerning subject matter of the declarant’s statement despite order
of the court to do so; or
(3) testifies as to lack of memory of subject matter of declarant’s statement, or
(4) is unable to be present or to testify at hearing because of death or then-existing physical or mental
illness or infirmity; or
(5) is absent form hearing & proponent of a statement has been unable to procure the declarant’s
attendance (or in the case of a hearsay exception under (b)(2), (3), or (4), the declarant’s
attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or
absence is due to procurement or wrongdoing of proponent of a statement for purpose of preventing
witness from attending or testifying.

NOTE: In order to admit these out-of-court statements, proponent of evidence must


prove (using 104(a) standard) that declarant meets 602’s personal knowledge
requirement as to what he is asserting!
a. PAST TESTIMONY:
i. 804(b)(1): Testimony given as a witness at another hearing of the same or a
different proceeding, or in a deposition taken in compliance with law in
course of the same or another proceeding, if party against whom testimony is
now offered, or, in a civil action or proceeding, a predecessor in interest, had
an opportunity & similar motive to develop the testimony by direct, cross, or
redirect examination.
1. REQUIREMENTS:
a. Testimony given at another hearing, deposition, or proceeding;
b. And
i. In a criminal trial, the party against whom the statement is offered
must have had the opportunity AND similar motive to develop the
testimony at the time statement was made.
ii. In a civil trial the party against whom statement is offered OR
“predecessor in interest” must have had opportunity AND similar
motive to develop testimony at time statement was made.
2. Note: Grand jury testimony may be admissible as prior testimony against govt. but
not always – you have to make sure that govt. had similar motive at grand jury
hearing to develop testimony of witness (DiNapoli). In DiNapoli, court determined
that govt. did not have similar motive & therefore grand jury testimony inadmissible.
3. Note: Grand jury testimony is not admissible against D since D is not present at
grand jury.

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ii. Determining “similar motive” (U.S. v. DiNapoli): In assessing similarity of
motive under 804(b)(1), one must consider whether party resisting testimony
had at prior proceeding an interest of substantially similar intensity to prove
(or disprove) same side of a substantially similar issue. Nature of 2
proceedings – both what is at stake & applicable burden – and to lesser extent,
cross at prior proceeding – both what was undertaken & what was available
but forgone – will be relevant though not conclusive on ultimate issue of
similarity of motive.
iii. Determining “predecessor in interest” (Lloyd v. Amer. Export): Court in
Floyd held that prior testimony of witness who was unavailable for trial had
been adequately developed by a predecessor in interest rejecting a strict
privity requirement and adopting “community of interest”: If it appears that,
in former suit, a party having a like motive to cross-examine about same
matters as present party would have, was accorded an adequate opportunity
for such examination, testimony may be received against present party. Under
these circumstances, previous party having like motive to develop testimony
about same material fact is, in final analysis, a predecessor in interest to the
present party.
1. Note: “Predecessor in interest” only works in civil suits. You cannot use
predecessor in interest language in criminal cases. In criminal cases, non-offering
party himself must have had opportunity to cross-examine the witness.

b. STATEMENTS AGAINST INTEREST:


i. 804(b)(3): A statement which was at the time of its making so far contrary to
declarant’s pecuniary or proprietary interest, or so far tended to subject
declarant to civil/criminal liability, or to render invalid a claim by declarant
against another, that a reasonable person in declarant’s position would not
have made statement unless believing it to be true. A statement tending to
expose declarant to criminal liability & offered to exculpate accused is not
admissible unless corroborating circumstances clearly indicate trustworthiness
of the statement.
1. Advisory Notes:
a. Whether a statement is in fact against interest must be determined from
circumstances of each case under 104(a).
b. Last sentence only applies in situations where statement exposes declarant
to criminal liability & is offered to exculpate D. To determine whether
corroborating circumstances clearly indicate trustworthiness of statement,
104(a) applies.
c. Statement does not have to be against D’s interest; only against declarant’s
interest.
2. REQUIREMNETS:
a. Statement must be against pecuniary, proprietary, or penal interest
b. At time statement was made reasonable person in declarant’s position
wouldn’t have made statement unless believing it to be true.

ii. Williamson v. U.S.: For purposes of 804(b)(3), court must pull apart
declarant’s statement & consider each of declarant’s assertions individually.
804(b)(3) only allows admission of self-inculpating assertions and not non-
self-inculpating assertions made collateral to them, even if these latter
statements are made w/in a broader narrative that is generally self-inculpating.
In this situation, the statement (e.g. confession) must be redacted so that only
the self-inculpating statements remain.

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1. Note: A statement in which declarant tries to “pass the blame” to someone else &
therefore keep himself out of trouble is generally not self-inculpating. The outcome
depends on the degree of self-inculpation in the statement.

iii. Note: If you have a choice to get in evidence under 804(b)(3) exception or under party-
opponent exception, go for the latter because this is an easier standard to meet & 602’s
personal knowledge requirement doesn’t apply to party-opponent exception as it does here.

c. DYING DECLARATIONS
i. 804(b)(2) Statement under belief of impending death. In a prosecution for
homicide or in a civil action or proceeding, a statement made by a declarant
while believing that declarant’s death was imminent, concerning the
cause/circumstances of what declarant believed to be impending death.
1. REQUIREMENTS:
a. Prosecution for homicide or civil action.
b. Made while believing death was imminent; and
i. This is a subjective requirement but objective evidence (e.g., Dr.
telling them they were going to die) helps support that subjective
belief.
ii. Belief determined by judge under 104(a).
c. Statement concerning cause/circumstances of death.
2. NOTES:
a. It is ok if declarant doesn’t actually die as long as he/she stated assertion
under fear of imminent death. However, under 804(b)(2), declarant must be
unavailable. So, if they recover & are available to testify at trial, you
cannot offer their out-of-court statement made under impending death.
However, if they recover & then become unavailable for another reason,
this is ok.
b. Under 804(b)(2), proponent of evidence must prove that declarant’s
statements were made under fear of impending death under 104(a).
c. Remember, Rule 602’s personal knowledge requirement must be met.
Proponent of evidence must prove by preponderance that declarant had
personal knowledge under 104(a).

ii. General Rule (Shepard v. U.S.): CJ Cardozo: To make out a dying


declaration, declarant must have spoken without hope of recovery & in
shadow of impending death. Fear or even belief that illness will result in
death will not avail itself to making of a dying declaration. There must be a
settled hopeless expectation that death is (very) near at hand, and what is said
must have been spoken in the hush of its impending presence.
1. Despair of recovery may be gathered from circumstances if facts support this
inference. EG: A Dr. testifies that he told declarant they he was about to die.
2. Despair may even be gathered though period of survival outruns bounds of
expectations. What is decisive is the state of mind. The statement of mind must be
exhibited in the evidence & not left to conjecture. The patient must have spoken
with the consciousness of a swift & certain doom.

d. FORFEITURE BY WRONGDOING
i. 804(b)(6) A statement offered against a party that has engaged or acquiesced
in wrongdoing that was intended to, and did, procure the unavailability of the
declarant as a witness.
1. REQUIREMENTS:
a. Statement must be offered against person that engaged/acquiesced in
wrongdoing (not a Co-D; if there is a co-D that didn’t engage/acquiesce in
wrongdoing, you may have to severe trials. Judge will making this
determination under Rule 403).

36
b. Wrongdoing must have been intended to & must have succeeded in making
the witness unavailability. DECLARANT’S UNAVAILBILILITY MUST
BE CAUSED BY THE PARTY’S WRONGDOING! Proponent of
evidence must prove this by preponderance of evidence under 104(a) (see
Houlihan).
ii. General Rule (U.S. v. Houlihan): When a person who eventually emerges as a defendant (1)
causes a potential witness’ unavailability (2) by a wrongful act (3) undertaken with the
intention of preventing the potential witness from testifying at a future trial, then D waives his
right to object on Confrontation Clause or hearsay grounds to the admission of the unavailable
declarant’s out-of-court statements at trial. Govt. need only prove such predicate facts by a
preponderance of the evidence under 104(a).

HEARSAY EXCEPTIONS – AVAILABILITY IMMATERIAL: The following are not


excluded by the hearsay rule even though declarant is available as a witness:

Note: As with 804 exceptions, Rule 602’s personal knowledge requirement


applies to 803 hearsay exceptions!
a. PRESENT SENSE IMPRESSIONS (“the running narrative”):
a. 803(1): A statement describing/explaining an event/condition made while
declarant was perceiving the event/condition, or immediately thereafter.
i. REQUIREMENTS:
1. Statement must describe or explain the event or condition.
2. Statement must be made while or immediately after declarant perceives the
event or experiences the condition.
a. Although there can be a slight lapse of time (“immediately
thereafter”), there is less lapse allowed under this exception than
under 803(2) excited utterances.
3. Statement must be made with personal knowledge (602).
ii. ADVISORY NOTES:
1. Spontaneity is the key factor.
2. Exception recognizes that in many, if not most, instances precise
contemporaniety is not possible and hense a slight lapse is allowable.
3. Participation by declarant is not required – an non-participant may be
moved to describe what he perceives.
4. May statement itself be used to prove the occurrence of the event/condition?
a. Courts are split. Most courts say that when making this
determination under 104(a), judge is not limited by hearsay rule &
therefore may consider the statement itself.
5. Permissible subject matter of statement under this exception is limited to
description/explanation of the event/condition.
iii. EG: Someone calls 911 and says “there is someone in my house, he is walking
down the hall, he is coming up the stairs, he is walking towards me...” This is a
“running narrative” and will come in as a present sense impression.

b. EXCITED UTTERANCES
a. 803(2): A statement relating to a startling event/condition made while
declarant was under the stress of excitement by the event/condition.
i. REQUIREMENTS:
1. There must have been a startling event or condition;
2. The statement must relate to that startling event or condition;
3. Must be spoken while declarant is still under stress of excitement caused by
startling event/condition.
a. The longer period of time that has passed the less likely that it is
for declarant to still be under stress of excitement. However, this
depends on the circumstances (the more startling the event, the
longer you probably have).
b. Factors to consider:
i. Time passage;
37
ii. Shock value of event;
iii. Demeanor of the person.
4. Declarant must have personal knowledge as to whatever they are saying
(602).
a. If declarant is testifying at trial, you want to make sure that you
establish that the out-of-court statement was based on personal
knowledge.
ii. Advisory Notes:
1. Spontaneity is again a key factor.
2. Under this exception, the standard measurement of time passage is the
duration of the state of excitement.
3. Participation by declarant not required: a non-participant may be startled by
an event even if he’s not an actor.
4. May statement itself be used to prove the occurrence of the event/condition?
a. Courts are split. Most courts say that when making this
determination under 104(a), judge is not limited by hearsay rule &
therefore may consider the statement itself.
5. Permissible subject matter of statement is limited under exception to
statements that “relate” to the startling event or condition. This affords
803(2) a broader scope of subject matter coverage than 803(1).

c. STATEMENTS OF THEN-EXISTING CONDITION


a. Rule 803(3): A statement of the declarant’s then existing state of mind,
emotion, sensation, or physical condition (such as intent, plan, motive, design,
mental feeling, pain, and bodily health), but not including a statement of
memory or belief to prove the fact remembered or believed unless it relates to
the execution, revocation, identification, or terms of declarant’s will.
i. NOTE: Under this exception, you have to make sure that the statement concerns
what the declarant is feeling and not the basis for that feeling.
ii. Rationale (Hillmon): The existence of a particular intention in a certain person at a
certain time being a material fact to be proved, evidence that he expressed that
intention at that time is as reliable, if not more reliable, than his own testimony & is
therefore admissible as a hearsay exception.

b. General Rules:
i. Statement can not be used to show future intent of anyone else except declarant!
Judge can redact statement to exclude reference to anyone else’s mental state.
ii. Under this exception, declarations of intention, casting light upon the future, are
allowed, while declarations of memory, pointing backwards to the past are not (CJ
Cardozo in Shephard v. U.S.).
iii. KEY QUESTION: Is someone talking only about what they (the declarant) is
planning to do or are they talking about someone else’s plan as well? If they are
talking about someone else’s plan as well, then it is not a then-existing condition
(e.g., in Hillmon, the letters wouldn’t be admissible under 803(3) because the letters
are relying on Hillmon’s intent and therefore are impliedly pointing backwards to
plans that the letter-writer & Hillmon made in the past)).
1. Examples:
a. “I am going to class.” This is admissible.
i. BUT, “I am going to class with X” is inadmissible b/c the
statement is backward looking. It implies that I have
talked to X prior to going to class & that portion relies on
my memory of a past conversation with X & on X’s
intention to go to class as well.
b. “I will be back after I meet Angelo at 9:30.”
i. Declarant is essentially saying two things:
1. “I will be back”; and
2. “After I meet Angelo.”

38
ii. “I will be back” is admissible, but the rest is not b/c it is
backward looking & relies on memory of what Angelo
said his plan would be.

d. STATEMENTS FOR MEDICAL DIAGNOSIS


a. 803(4): Statements made for purposes of medical diagnosis/treatment &
describing medical history, or past or present symptoms, pain, or sensations,
or the inception of general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment.
i. ADVISORY NOTES:
1. Policy behind this is that when it comes to these statements, patients have a
strong motivation to be truthful.
2. Statements as to fault do not ordinarily qualify under this exception. Thus,
patient’s statement that he was struck by car would qualify but his statement
that the car was driven through a red light would not.
3. Statement need not have been made to a physician. Statements to hospital
attendants, ambulance drivers, or even family members might be included.
4. Not included in this rule are statements made to a physician consulted only
for purpose of enabling him to testify.
ii. REQUIREMENTS:
1. Statements must be made for purposes of medical diagnosis/treatment; and
2. Statements must be describing
a. Medical history,
b. Past symptoms,
c. Pain, or
d. Inception of general character of the cause or external source of
disease or injury; and
3. Statement must be reasonably pertinent to diagnosis or treatment (objective
standard).

b. 2 Part Test for determining admissibility under 803(4) (U.S. v. Iron Shell):
i. Is declarant’s motive in making the statement consistent with the purpose of the rule
(i.e., obtaining medical treatment)??
ii. Is the information the type that is reasonably relied on by doctors in diagnosing &
treating patients (i.e., is it reasonably pertinent)?
1. The type of info. reasonably relied on depends on the definition of Dr.’s
role & what he is diagnosing (so it will vary case by case).
2. The info. does not have to be NECESSARY to the diagnosis/treatment –
even though the diagnosis/treatment would be the same without the info., if
the info. helps the Dr. in arriving at diagnosis (e.g., by eliminating potential
physical problems), it falls w/in this exception.
3. The fact that Dr. took info. is not prima facie evidence that it is pertinent.
Instead, case-by-case inquiry required.

c. Note: Statements as to fault (e.g., “X pushed me down the stairs) ordinarily


do not come in under 803(4) (see advisory notes). However, there are times
when they do come in, when they are “reasonably pertinent” to treatment:
i. Hypo: During counseling session, young rape victim tells counselor that it was her
father who raped her. This statement as to fault would likely be admissible under
803(4) since it is reasonably pertinent because it matters to the counselor who raped
V – her treatment would be different if it were a family member or a stranger.
ii. Note: Anytime you are dealing with an injury caused by a care-giver, you can
probably make an argument that statements of fault come in under 803(4) because a
Dr. would want to know this in order to prevent it from happening again. Part of a
Dr.’s job is to prevent future injuries!
iii. Hypo: “My arm hurts. I was hit by a car driven by X.”
1. The statements “my arm hurts” and “I was hit by a car” are probably both
admissible under 803(4) if made for purpose of obtaining medical

39
treatment. However, the statement of fault (that the car was driven by X) is
probably not admissible because it is not reasonably pertinent to medical
treatment. Therefore, judge should redact statement to exclude this
statement.

e. REFRESHING MEMORY & RECORDED RECOLLECTIONS


a. 612: Except as otherwise provided in criminal proceedings by 18 USC §3500, if a witness
uses a Writing to refresh memory for the purpose of testifying, either –
1. While testifying, or
2. Before testifying, if the court in its discretion determines it necessary in the
interests of justice,
an adverse party is entitled ot have the writing produced at the hearing, to inspect
it, to cross-examine the witness thereon, and to introduce in evidence those
portions which relate to the testimony of the witness. If it is claimed that the
writing contains matters not related to the subject matter of the testimony the court
shall examine the writing in camera, excise any portions not so related, and order
delivery of the remainder to the party entitled thereto. Any portion withheld over
objections shall be preserved & made available to the appellate court in event of
appeal. If a writing is not produced or delivered pursuant to order under this rule,
the court shall make any order justice requires, except that in criminal cases when
the prosecution elects not to coply, the order shall be on striking the testimony or,
if the court in its discretion determines that the interests of justice so require,
declaring a mistrial.
i. NOTES:
1. Rule 612 is not a hearsay exception.
2. Since piece of paper that you are using to refresh recollection is not coming
into evidence itself, it can be anything. The only thing you have to be
careful of is that the other side gets to cross anything that is on the piece of
paper you use.
3. You should try this before you go on to 803(5).
ii. REQUIREMENTS:
1. Must establish that witness has failure of recollection; and
2. There is something that would help refresh witness’ recollection.
ii. STEPS FOR REFRESHING RECOLLECTION:
1. Establish that the witness has a lack of recollection;
2. Ask if there is anything that would refresh the recollection (“would looking
at this refresh your memory?”)
3. Let the witness read whatever it is, it can be anything;
4. Ask if witness’ recollection has been refreshed.
5. If it has, ask what happened/what she know remembers that she didn’t
before.

b. 803(5): A memo/record concerning a matter which a witness once had


knowledge but now has insufficient recollection to enable witness to testify
fully & accurately, shown to have been made or adopted by the witness when
the matter was fresh in the witness’ memory and to reflect that knowledge
correctly. If admitted, the memo or record may be read into evidence but may
not itself be received as an exhibit unless offered by an adverse party.
i. REQUIREMENTS (Johnson v. State):
1. The witness must have had firsthand knowledge of the event;
a. Witness must have participated in making of the original
statement.
2. The written statement must be a memo made at or near the time of the event
while the witness had a clear & accurate memory of it;
3. The witness must lack a present recollection of the event; and
4. The witness must vouch for the accuracy of the written memo.
a. To meet this requirement, witness may testify that she presently
remembers recording the fact correctly or remembers recognizing
the writing as accurate when she read it at an earlier time. It the
40
witness’ present memory is less effective, it is sufficient if the
witness testifies that she knows the memo is correct because of a
habit or practice to record matters accuarately or the check them
for accuracy. At the extreme, it is even sufficient if the individual
testifies to recognizing her signature on the statement & believes
the statement is correct because she wouldn’t have signed it if she
hadn’t believed it true at the time.
b. However, witness must acknowledge at trial the accuracy of the
statement in some way. An assertion of the statements’ accuracy
in the acknowledgement line of a written memo or such an
acknowledgement made previously under oath will not be
sufficient. No statement should be allowed to verify itself,
especially by boilerplate language.
ii. NOTES:
1. If admitted, the memo or recording MAY be read into evidence but may not
itself be received as an exhibit unless offered by an adverse party.
2. Use 803(5) when witness does not have any memory to refresh. Otherwise
use 612 to refresh the witness’ recollection.
3. Unlike 612, this is a hearsay exception. It deals with situation when witness
cannot remember something & there is a memo or something written earlier
in time by that witness where witness can say, “yes at the time I wrote that I
remember writing it & I remember it was the truth and now I can’t
remember at all.” At this point, past recorded recollection gets read into
record – the actual piece of paper itself does not come in as evidence unless
adverse party wants it to come in.

f. BUSINESS RECORDS & ABSENCE OF ENTRY IN BUSINESS RECORDS


a. 803(6): A memo, report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses, made at or near the time by, or
from information transmitted by, a person with knowledge, if kept in the
course of regularly conducted business activity, and if it was the regular
practice of that business activity to make the memo, report, record, or data
compilation, all as shown by the testimony of the custodian or other qualified
witness, or by certification that complies with 902(11), (12), or a statute
permitted certification, unless the source of information or method or
circumstances of preparation indicate lack of trustworthiness. The term
“business” as used in this paragraph includes business, institution, association,
profession, occupation, and calling of every kind, whether or not conducted
for profit.
i. ADVISORY NOTES:
1. A requirement under this rule is an informant with knowledge acting in
course of regularly conducted activity (PERSONAL KNOWLEDGE
REQUIREMENT).
2. Records prepared for use in litigation usually not admissible due to
trustworthiness problems.
3. There is a presumption of admissibility subject to authority to exclude if the
sources of information or other circumstances indicate lack of
trustworthiness.
4. “Data Compilation” = any means of storing information other than the
conventional words & figures in written or documentary form. EG:
Electronic computer storage.
ii. REQUIREMENTS:
1. Records must be of acts, events, conditions, opinions, or diagnoses.
2. Such records must be kept in “regular course of business”
a. ACN exclude records prepared for litigation, unless that is
routinely done.
3. Source of information must have personal knowledge.

41
a. If many others handle the records, only the first person must have
personal knowledge.
4. Information in the record must have been recorded “at or near” the time of
the event.
5. You must have the custodian of the records or another qualifying witness to
show that the foundational requirements are satisfied (i.e. that the records
are regularly kept)!
a. There is no need for the qualifying witness to have personal
knowledge of the record’s content.
b. 803(7): Absence of entry in record kept in accordance with (6). Evidence
that a matter is not included in the memoranda, reports, records, or data
compilations, in any form, kept in accordance with (6), to prove the
nonoccurrence or nonexistence of the matter, if the matter was of a kind of
which a memorandum, report, record, or data compilation was regularly made
& preserved, unless the source of information or other circumstances indicate
a lack of trustworthiness.
i. ADVISORY NOTES:
1. Failure of a record to mention a matter which would ordinarily be
mentioned is satisfactory evidence of its nonexistence.

c. “Regular Course of Business”: Documents prepared in preparation for


litigation are not generally admissible under the business records hearsay
exception (ACN). The more it looks like a statement was prepared in
preparation for litigation, the less likely it is to come in under the business
records exception! In Palmer v. Hoffman (before Rules), S.C. held that
accident reports, even if regularly taken & kept by a business, are not records
made in the “regular course of business” as required by Business Records Act.
d. Statements by “Outsiders” (US v. Vigneau): Despite its language, business
records exception does not embrace statements contained w/in a business
record that were made by one who is not a party of the business if the
embraced statements are offered for their truth. However, statement by the
outsider reflected in the business record may be admissible for some other
purpose or may come in under another hearsay exception.
i. This is essentially double hearsay & therefore the business records exception alone
isn’t sufficient – you must have an exception for the inner level of hearsay as well.
1. Outer level = business record itself // Inner level = the statement of the
outsider that is included in the business record.
ii. Note: Some cases have admitted under business records exception “outsider”
statements contained in business records where there is evidence that the business
itself used a procedure for verifying information. In these cases, employee has
personal knowledge and you are probably ok.

g. PUBLIC RECORDS & REPORTS:


a. 803(8): Records, reports, statements, or data compilations, in any form, of public offices or
agencies, setting forth (A) the activities of the office or agency (applies in all civil or
criminal cases), or (B) matters observed pursuant to duty imposed by law as to which matters
there was a duty to report, excluding, however, in criminal cases matters observed by police
officers & other law enforcement personnel, or (C) in civil actions & proceedings and against
the Govt. in criminal cases, factual findings resulting from an investigation made pursuant to
authority granted by law, unless the sources of information or other circumstances indicate
lack of trustworthiness (applies in all civil cases and in criminal cases against govt).
i. REQUIREMENTS:
1. Records in any form of public offices/agencies setting forth:
a. Activities of the office/agency (this applies to all civil & criminal
cases);

42
b. Matters observed pursuant to duty imposed by law which matters
there was a duty to report
i. BUT not matters observed by law enforcement personnel
in criminal cases (i.e. police reports in criminal cases are
excluded by law).
c. Factual findings from an investigation made pursuant to law
(applies to all civil cases & criminal cases against govt.) unless the
sources indicate lack of trustworthiness.
i. Factors to determine trustworthiness (ACN):
1. Timeliness of investigation;
2. Investigator’s skill or experience;
3. Whether a hearing was held; and
4. Possible bias when, e.g., reports are prepared
with view towards possible litigation.
b. 803(10) Absence of public record or entry. To prove the absence of a record, report,
statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter
of which a record, report, statement, or data compilation, in any form, was regularly made &
preserved by a public office or agency, evidence in the form of a certification in accordance
with Rule 902, or testimony, that diligent search failed to disclose the record, report,
statement, or data compilation, or entry.

c. 803(8)(C) Evaluative Reports: Beech Aircraft v. Rainey: Portions of


investigatory report otherwise admissible under 803(8)(C) are not
inadmissible merely because they state a conclusion or opinion. The rule’s
language “factual findings” extends to statements of opinions or conclusions.
So long as the conclusion is based on a factual investigation that satisfies the
Rule’s trustworthiness requirement, it should be admissible along with the
other portions of the report. Judge should consider 4 ACN factors when
determining trustworthiness.
i. IE: 803(8)(c) admits “reports/records … that contain factual findings.” If this
requirement is met (i.e., the report contains factual findings), then the entire report is
admissible, even if the report contains opinions or conclusions.

d. Note: Police Reports & Business Records. 803(8) creates a hearsay


exception for certain public records & reports but by its clear terms, (B) & (C)
do not extend to reports of law enforcement personnel or evaluative reports if
offered against D in a criminal case. What if the report in question satisfies
the criteria of the business records exception 803(6)? Should court admit the
report against criminal Ds under that rule??
i. US v. Oates: 2d Cir. Says “no.” Such documents are not admissible against criminal
Ds either under (6) or (8). Law enforcement reports are absolutely inadmissible
against criminal Ds.
ii. US v Hayes: 10th Cir. Says “yes.” 803(8)(c) doesn’t compel exclusion of documents
properly admitted under 803(6) where authoring officer/investigator testifies. 803(8)
(C) only intended to apply to observations made by law enforcement officials at the
scene of the crime or in investigating a crime, and not to reports of routine matters
made in non-adversarial settings.
1. This approach has been adopted by 5th, 9th & 10th Circuits.

THE RESIDUAL EXCEPTION (807):


a. Rule 807 Residual Exception. A statement not specifically covered by Rule 803 or 804, but
having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule if
the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement
is more probative on the point for which it is offered than any other evidence which the proponent can
procure through reasonable efforts; and (C) the general purposes of these rules and the interests of
justice will best be served by admission of the statement into evidence. However, a statement may not
be admitted under this exception unless the proponent of it makes known to the adverse party
43
sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to
prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including
the name and address of the declarant.

b. General Rule: “Close Enough” Rule: A hearsay statement not expressly falling
under Rules 803 or 804 can still be admissible where there are circumstantial
guarantees of reliability & trustworthiness so long as 3 requirements of 807 are met
(evidence of material fact; more probative than any other evidence; serves general
purpose of the rules) (US v. Laster).
a. In Dallas County v. Commercial Union Assurance Co. (61) (pre-Rule), 5th Circuit ruled that
where you can establish necessity & there is a circumstantial guaranty of trustworthiness,
evidence should come in even if it doesn’t fall under a hearsay exception.
i. Necessity: Unless hearsay statement admittd, facts it brings out may otherwise be
lost, because declarant is dead or unavailable or because assertion is of nature that
one couldn’t expect to obtain evidence of same value from same person or other
sources.
1. Necessity doesn’t require total inaccessibility of firsthand knowledge but
general practical inconvenience in making desired proof.
ii. Trustworthiness: 3 sets of circumstances when hearsay is trustworthy enough to
serve as a practicable substitute for cross:
1. Where circumstances such that sincere & accurate statement would
naturally be uttered, and no plan of falsification be formed;
2. Where, even though a desire to falsify might present itself, other
considerations, such as danger of easy detection or fear of punishment,
would probably counteract its force;
3. Where statement made under such conditions of publicity that an error, if it
had occurred, would probably have been detected & corrected.
b. Note: A minority of courts follows the “near miss” rule – if a statement just narrowly
misses being covered by an exception, then 807 should not apply.

CONFRONTATION CLAUSE
6TH Amendment’s Confrontation Clause: In all criminal prosecutions, the accused
shall enjoy the right to be confronted with the witnesses against him.”
a. Notes:
i. Courts have interpreted CC to include hearsay declarants. Therefore, hearsay
statements must survive scrutiny under CC. If CC were read literally, it would
forbid use of hearsay evidence against criminal Ds even if the evidence fell under a
hearsay exception. However, the S.C. has never given CC such broad-reaching force
& has long recognized that some hearsay may be admitted against criminal Ds even
if declarant never submits to cross. However, Court has insisted that CC bars at least
some out-of-court statements by absent declarants even when those statements
satisfy a hearsay exception.
ii. Confrontation Clause only applies to criminal cases!
iii. Confrontation Clause is not offended where out-of-court declarant is present at trial
& subject to cross (Cal. V. Green).
iv. Out-of-court statements trigger the CC only if they are offered to prove truth of the
matter asserted! If they are offered for another reason, then the CC doesn’t apply.
v. One who obtains the absence of a witness by wrongdoing forfeits the constitutional
right to confront that witness (same standard as 804(b)(6))(Davis / Hammon).

a. The Roberts 2-Part Confrontation Clause Test (Oh v. Roberts): In order for an
out-of-court statement of an absent declarant to be admissible against criminal D for
truth of matter asserted, it must be “necessary” and “reliable”:
a. Necessity: Whether or not statement was subject to cross, govt. must either
produce, or demonstrate unavailability of, declarant.
i. This requirement doesn’t apply to:
44
1. Co-conspirator statements (US v. Inadi);
2. Medical diagnoses (White);
3. Excited utterances (White).
b. Reliability: A statement is “reliable” under Roberts when:
1. It falls under a “firmly rooted hearsay exception;” OR
a. Statements against interests (Lilly v. Va.) and the Residual
Exception (Id. v. Wright) are not “firmly rooted” hearsay
exceptions under Roberts test.
2. There are “particularized guarantees of trustworthiness.”
a. Particularized guarantees must derive exclusively from
circumstances surrounding the statement, not on other evidence
that corroborates the truth of the statements (ID. v. Wright).
b. Statements that shift the blame to someone else are per se
unreliable (Lilly v. Va.).
c. Statements elicited by leading questions are not reliable (ID. v.
Wright).

b. Testimonial vs. Non-Testimonial Statements: In Crawford v. Washington, J.


Scalia held that under CC, testimonial statements of witnesses absent from trial can
only be admitted to prove truth of matter asserted where (1) the declarant is
unavailable; and (2) the defendant has had a prior opportunity for cross-examination.
Therefore, when it comes to testimonial statements, Roberts rule no longer applies!
a. How about Non-testimonial Statements?: Court in Crawford expressly stated that it was
not deciding whether CC applies to non-testimonial hearsay statements. However, Court did
say, in dicta, that it would be consistent with Framer’s intent to exempt non-testimonial
hearsay from CC scrutiny altogether. In Davis v. Wash./Hammon v. Ind., Scalia stated that
“only [testimonial statements] cause the declarant to be a ‘witness’ within the meaning of the
CC. It is the testimonial character of the statement that separates it from other hearsay that,
while subject to traditional limitations upon hearsay evidence, is not subject to CC.” This
suggests again that CC doesn’t come into play when dealing with non-testimonial statements.
According to Hashi, however, Court has not conclusively said that CC doesn’t apply to non-
testimonial hearsay statements and, therefore, you can make the argument that these
statements must pass the Roberts 2-part test in order to be admissible.
b. What constitutes “testimonial”?: In Crawford, J. Scalia refuses to spell out a
comprehensive definition of “testimonial.” Scalia does, however, state that at a minimum, the
term covers prior testimony at a preliminary hearing, before a grand jury, or at a former
trial; and police interrogations. Although he doesn’t adopt a definition, Scalia does offer
some possible definitions:
1. Ex Parte in-court testimony or its functional equivalent – that is, material
such as affidavits, custodial examinations, prior testimony that D was
unable to cross examine, or similar pretrial statements that declarants would
reasonably expect to be used prosecutorially.
2. Extrajudicial statements contained in formalized testimonial materials, such
as affidavits, depositions, prior testimony, or confessions.
3. Statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be
available for use at a later trial.
4. Note: Statements made in furtherance of a conspiracy are usually not
testimonial!
5. Note: In Dicta, J. Scalia states that there is authority for admitting dying
declarations even if they are clearly testimonial. However, he doesn’t
conclude one way or the other.

i. In Crawford, Scalia states that statements taken by police in course of interrogations


(including 911 calls) are testimonial regardless of the definition of that term.
However, Crawford failed to define the word “interrogation.” This caused

45
confusion. In Davis v. Washington / Hammon v. Indiana (06), Scalia set forth the
Primary Purpose Test:
a. Statements are non-testimonial when made in the course of
police interrogations under circumstances objectively
indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency (a “cry
for help.”).
b. Statements are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency and that the
primary purpose of the interrogation is to prove past events
potentially relevant to later criminal prosecution.
1. Scalia suggests possible factors bearing on statement’s “primary
purpose”:
a. Was declarant speaking about events as they actually
happened? If yes, leans towards non-testimonial.
b. Was declarant facing on-going emergency? If yes, leans
towards non-testimonial.
c. Were statement elicited from declarant “necessary” to be able
to resolve present emergency rather than simply to learn what
happened in past? If yes, leans towards non-testionial.
d. Interviews at a “higher level of formality” might suggest
testimonial statements.
2. Sometimes a conversation begins as an interrogation to determine need
for emergency assistance & evolves into testimonial statements once
that purpose has been achieved. In these situations, court should redact
or exclude portions of statement that have become testimonial.
3. Note: Court in Davis/Hammon are only dealing with police
interrogations and is not deciding what counts as “testimonial” outside
of this realm.

ii. Court in Davis is only deciding what statements made in response to govt.
interrogations are testimonial. Court does hint through footnotes, however, that it is
at least possible that a statement to a non-government employee could be deemed
testimonial if objective circumstances indicated that the purpose of the statement was
to put a case together against someone. This will particularly come up in child
victim cases.

c. Wrap-Up: Testimonial statements come in under following circumstances:


(1) If declarant testifies in court & is cross-examined (Cal. v. Green).
(2) If there was a prior opportunity for cross & declarant is now
unavailable (Crawford).
(3) If testimonial statement is not being offered to prove truth of matter
asserted.
(4) If opponent of evidence made witness unavailable (forfeiture by
wrongdoing) (Crawford).
(5) Possibly if they are dying declarations (Crawford dicta).
c. The Bruton Doctrine (Bruton v. US):
a. General Rule: Where a non-testifying co-defendant’s confession
incriminating the defendant is not directly admissible against D, the C.C. bars
its admission at their joint trial, even if the jury is instructed not to consider it
against D.
1. Statement must be redacted to exclude any reference to D (see below) or
trials must be severed.
2. If Co-D testifies at trial, the confession can come in and there is no CC
problem!

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3. The only time you have a Bruton problem is when a statement is
admissible against one D but not the other!
4. In Bruton, Court overruled Delli Paoli which held that it is “reasonably
possible for the jury to follow sufficiently clear instructions to disregard the
confessor’s extrajudicial statement that his Co-D participated with him in
committing the crime.” Court stated that the assumption that the jury could
be trusted to disregard reference to the D had been repudiated by Jackson v.
Denno, where Court expressly rejected proposition that a jury, when
determining confessor’s guilt, could be relied on to ignore his confession of
guilt should it find the confession involuntary.
b. Bruton & “interlocking confessions” (Cruz v. NY): Bruton principle applies
even where D’s own confession (which corroborates coD’s confession) is
admitted against him. Where a non-testifying coD’s confession incriminating
D is not directly admissible against D, the CC bars its admission at their joint
trial, even if the jury is instructed not to consider it against D (Bruton) and
even if D’s own confession (which corroborates CoD’s confession) is
admitted against him. However, D’s confession may be considered on appeal
in assessing whether any CC violation was harmless.
c. Redacting Codefendant Confessions (Richardson v. Marsh & Gray v.
Md.): C.C. is not violated by the admission of non-testifying codefendant’s
confession with a proper limiting instruction when the confession is redacted
to eliminate not only D’s name but any reference to his or her existence
(Richardson v. Marsh – confession must implicate D facially to fall under
Bruton). HOWEVER, redaction that replaces D’s name with an obvious
indication of deletion, such as a blank space, the word “deleted,” or a similar
symbol, falls under Bruton’s protective rule and violates the CC (Gray v.
Md.).
i. J. Scalia, in dissent, disagrees with Richardson. He believes that once you start
redacting a statement to get around CC for co-D, you begin to run into problems with
the declarant’s rights (because the statement is no longer really what he said). Scalia
doesn’t agree with any sort of redaction.

d. COMPULSORY PROCESS & DUE PROCESS


6TH Amendment Compulsory Process Clause: Grants criminal Ds “the right to have
compulsory process for obtaining witnesses in their favor.
a. General Rule (Washington v. Tx.): The Compulsory Process Clause encompasses
the right to present a defense. A state violates this guarantee by arbitrarily denying a
criminal D the right to put on the stand a witness whose testimony would have been relevant
& material to the defense. Court also rules that the Compulsory Process Clause is
incorporated by 14th Amendment & therefore applicable to the states.
a. In Washington, the Court invoked the Compulsory Process Clause to strike down
application of a state competency rule that barred accomplices from testifying on one
another’s behalf ruling that the rule was arbitrary.

b. Green v. Ga.: GA’s hearsay rule precluded statements against penal interests. D
was convicted & tried to get in statement of his coD that coD was the shooter & not
D. Ct. held that barring evidence violated D’s compulsory process right b/c the
evidence was critical to D’s defense & was unusually trustworthy.
c. Crane v. Ky.: Regardless of whether it is a matter of the 6th (CP) or 14th (DP)
Amendment, the Constitution guarantees criminal D a meaningful opportunity to
present a complete defense.

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14th Amendment DP Clause: Nor shall any State deprive any person of life, liberty,
or property, without due process of law.
a. General Rule (Chambers v. Miss.): Under the 14th’s DP Clause, where
constitutional rights directly affecting the ascertainment of guilt are
implicated, rules of evidence (such as hearsay rules) may not be applied
mechanistically to defeat the ends of justice where statements are (1) reliable
& (2) critical to D’s defense.
a. In Chambers, the Court held that a criminal D was deprived of his DP rights by a
Miss. hearsay rules that prevented D from presenting hearsay statements of 4
individuals since the excluded testimony was reliable & critical to D’s defense.
b. Note: Chambers is decided under DP Clause rather than Compulsory Process
Clause. This may be because D didn’t mention Compulsory Process Clause as basis
for his appeal but also may be because it would have been difficult to apply
Washington’s arbitrariness standard in the context of Chambers since Miss.’s
hearsay rules fell w/in the mainstream of traditional American evidence law and
therefore couldn’t be classified as “arbitrary.”

e. LAY OPINIONS & EXPERT TESTIMONY


a. Lay Opinions
a. Rule 701 Opinion Testimony by lay witnesses. If the witness is not
testifying as an expert, the witness’ testimony in the form of opinions or
inferences is limited to those opinions or inferences which are (a) rationally
based on the perception of the witness (witness must have personal
knowledge), (b) helpful to a clear understanding of the witness’ testimony or
the determination of a fact in issue, and (c) not based on scientific, technical,
or other specialized knowledge w/in scope of 702.
i. Requirements:
a. Opinion/inference testimony must be rationally based on perception of
witness – I.E., witness must have first-hand knowledge (this is familiar
first-hand knowledge requirement). Many times you have to lay foundation
to establish that witness has personal knowledge as to fact that he is
testifying (e.g., before asking witness to identify D as person who
committed the crime, you have to ask whether witness saw who did it).
b. Testimony must be helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue. Under this requirement,
you have to ask yourself whether it would be more helpful to the jury to
hear the opinion/inference of the witness rather than just the underlying
sensory perceptions (e.g., would it be easier for jury if witness said “he
looked dpressed,” rather than the witness simply stating all the sensory
perceptiosn that lead him to this conclusion?)
c. Testimony must not be based on scientific, technical, or other specialized
knowledge w/in scope of 702. I.E., testimony must not go into realm of
expert testimony.
a. Notes (ACN):
i. (c) doesn’t distinguish b/t expert & lay witnesses, but
rather b/t expert & lay testimony. It is therefore possible
for the same witness to provide both lay & expert
testimony in a single case.
ii. (c) is not intended to affect testimony relating to the
appearance of persons or things, identity, manner of
conduct, competency of a person, degrees of light or
darkness, sound, size, weight, distance, and other items
that can’t be described factually in words apart from
inferences.
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iii. Notwithstanding (c), lay witness may testify as to
“particularized knowledge” that he has by virtue of his
experience:
1. IE: Owner/officer of a business may testify to
the value/projected profits of the business.
2. IE: Lay witness may testify that a substance
appeared to be a narcotic, so long as a foundation
of familiarity with the substance is established.
a. HOWEVER, lay witness may not
testify about how a narcotic is
manufactured or describe the intricate
workings of a narcotic distribution
network without qualifying as an expert
under 702 (US v. Figueroa-Lopez).
ii. Examples/Hypos:
a. 9.1 D would object to this response under 701 since this is opinion
testimony (“he sounded depressed”) and insurance adjuster isn’t expert
when it comes to human emotions. Govt. would argue that it meets all 3
requirements of 701. D would respond that it is based on specialized
knowledge since it takes an expert to determine when someone is
depressed. HOWEVER, witness testified that D sounded depressed & not
that he actually was depressed and, therefore, this will come in under 701.
b. 9.3 D would argue that this lay opinion testimony is based on “specialized
knowledge.” However, Govt. will probably be able to get this in since
under the ACN, a lay witness may testify that a substance appeared to be a
narcotic, so long as a foundation of familiarity with the substance is
established. Here, since Christina had a lot of experience using cocaine,
this foundation is probably met.

b. General Rule: “Specialized Knowledge” (US v. Figueroa-Lopez): If


opinion testimony is based on “specialized knowledge,” then it is only
admissible if the witness has been qualified as an expert under 702.
i. In Figueroa-Lopez, trial court admitted testimony of a lay DEA agent as to how D’s
conduct, observed by him, conformed to methods & techniques of experienced drug
dealers. Court held that this was in error – this testimony was precisely the type of
“specialized knowledge” (witness wasn’t simply identifying drugs) governed by 702.

b. Expert Testimony:

a. Rule 702: If scientific, technical, or other specialized knowledge will assist


the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training or
education may testify thereto in the form of an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data; (2) the testimony is the
product of reliable principles & methods; and (3) the witness has applied the
principles & methods reliably to the facts of the case.
b. Rule 704: Opinion on Ultimate Issue.
(a) Except as provided in (b), testimony in the form of an
opinion/inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier of
fact.
(b) No expert witness testifying with respect to the mental
state/condition of a criminal D may state an opinion/inference as
to whether D did(n’t) have the mental state/condition constituting
an element of the crime charged of defense thereto. Such ultimate
issues are matters for the trier of fact alone.

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c. Note: There are several advantages to qualifying your witness as an expert. First, an expert
doesn’t have to testify as to personal knowledge but can testify based on hearsay (this is
limited - see Rule 703. Second, you can pick anyone you want to be your expert as long as
he/she is qualified in that particular field (Rule 706). Third, you get an instruction from the
judge that the person is qualified as an expert in this particular field & this will probably
weigh heavily with the jury.

d. 5 demands that the law places on expert opinion testimony:


i. Proper Qualifications: The witness must be “qualified as an expert by knowledge,
skill, experience, training, or education” (702).
ii. Proper Topic: In general, expert’s testimony must concern a topic that is beyond the
ken of the jurors. Moreover, expert may not simply tell jurors what result to reach in
the case & may not intrude on judge’s role as a legal expert. That is, expert’s
opinion must “assist” jurors by supplying info. Or insights they otherwise would
lack.
iii. Sufficient Basis: Expert must have an adequate factual basis for his opinions.
iv. Relevant & Reliable Methods: Expert’s testimony must be “the product of reliable
principles & methods … reliably applied to the facts of the case” (Daubert).
v. Rule 403 Challenge: The evidence, if challenged, must survive a Rule 403 weighing
test.

e. Is the Expert Qualified?


i. General Rule: When qualifying an expert, two questions to ask:
a. In what particular area do you want to qualify this expert?
b. Is the witness qualified in that particular area? Under Rule 702, the witness
can be qualified by knowledge, skill, experience, training or education.
a. NOTE: Witness must be qualified in the particular area that you
want him to testify in! For instance, in Johnson, expert must be
qualified in area of identifying origins of marijuana, not just
marijuana in general!

ii. US v. Johnson: In order to be qualified as an expert, the witness must


have such knowledge or experience in that field or calling as to make
it appear that his opinion or inference will probably aid the trier in his
search for truth. Rule 702 provides that expertise may be obtained by
experience as well as from formal training or education.
a. In Johnson, Court upheld admission of expert testimony by an experienced
drug user/dealer as to the origin of certain marijuana. Court concluded that
the man’s substantial experience in dealing w/marijuana (which included
identification of marijuana’s origins) lead to a reasonably conclusion that he
was qualified by experience in presenting expert testimony in this particular
field.
b. In Jinro America v. Secure Investments, Court reversed a trial court ruling
admitting a man’s expert testimony as to Korean law & business practices
of Korean companies. Court focused on fact that witness didn’t have the
legal, business or finance expertise to testify on the subject; had no
education or training, etc. Court noted that while persons experienced in
certain fields may have “practical” expertise or specialized knowledge that
might qualify them as an expert witness, witness here didn’t have such
expertise.
c. In 9.5 (drug argot), witness would probably be deemed unqualified –
although he may be qualified to testify as to drug lingo among N.Y. drug
dealers, he is not qualified to testify as to L.A. drug lingo (remember:
witness must be qualified in the particular field he is testifying about).

f. (Im)proper Topics of Expert Testimony:


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General Rule: Under 702, expert testimony must “assist the trier of
fact.” Test for determining whether expert testimony may be used
under ACN is whether untrained layman would be qualified to
determine intelligently & to the best possible degree the particular issue
without enlightenment from those having a specialized understanding of
the subject involved in the dispute.
a. See also, State v. Batangan: Under 702, in order for expert testimony to be
appropriate, testimony must involve scientific, technical or specialized
knowledge. “Specialized knowledge” is knowledge not possessed by the
average trier of fact who lacks the expert’s skill, experience, training or
education.

i. MATTERS OF COMMON KNOWLEDGE: Expert testimony must


concern a matter beyond the ken of the lay juror. It may not concern
matters of common knowledge.
b. 9.6 (confusion?): Jury doesn’t need a linguistic expert to testify that two
words are “confusingly similar” in sounds & spellings. This is common
knowledge.
c. 9.7 (housing ads): In this case, jury would be assisted by expert – most
layment aren’t going to be familiar with how advertisements send messages
to target markets or how ad campaigns affect certain groups of people.

ii. OPINIONS ON LAW & OPINIONS ON ULTIMATE ISSUES:


d. General Rule (Hygh v. Jacobs): While 704(a) abolishes CL “ultimate
issue” rule (which stated that witnesses weren’t allowed to express opinions
upon ultimate issues), it does not lower bar so as to admit all opinions
(ACN). Under ACN, expert testimony expressing a legal conclusion must
be excluded since they are opinions which merely tell the jury what result to
reach. These types of opinions infringe on province of judge & jury.

iii. OPINIONS ON CREDIBILITY:


e. General Rule (State v. Batangan): The common experience of a jury, in
most cases, provides a sufficient basis for assessment of a witness’
credibility. Thus, expert testimony on a witness’ credibility is inappropriate
because it is not helpful to the jury & invades the jury’s province.
a. BUT, in child sexual abuse cases, expert testimony explaining a
child victim’s “seemingly bizarre” behavior should be admitted.
However, conclusory opinions that abuse did occur & that child V
is truthful & believable should not be admitted – jury is fully
capable on its own of making the connections to the facts of the
particular case before them & drawing inferences & conclusions
therefrom (Batangan).

iv. OPINIONS ON EYEWITNESS IDENTIFICATION:


f. General Rule (US v. Hines): In the case of eyewitness identifications, the
common sense inference of jurors may be way of the mark & therefore,
expert testimony is admissible under 702 to provide the jury with more
information on eyewitness identification so that jury can make a more
informed decision. This is especially true with cross-racial identifications.

g. Proper Bases of Expert Testimony:


i. Rule 703 Bases of opinion testimony by experts. The facts or data in the particular
case upon which an expert bases an opinion/inference may be those perceived by or
made known to the expert at or before the hearing. If of a type reasonably relied
upon by experts in the particular field in forming opinions/inferences on the subject,
51
the facts or data need not be admissible in evidence in order for the opinion or
inference to be admitted. Facts or data that are otherwise inadmissible shall not be
disclosed to the jury by the proponent of the opinion or inference unless the court
determines that their probative value in assisting the jury to evaluate the expert’s
opinion substantially outweighs their prejudicial effect.
ii. Rule 705 Disclosure of facts/data underlying expert opinion. The expert may
testify in terms of opinions/inferences & give reasons therefore without first
testifying to the underlying facts or data, unless the court requires otherwise. The
expert may in any event be required to disclose the underlying facts or data on cross.

iii. PERMISSIBLE BASES OF EXPERT TESTIMONY UNDER 703:


(1) Expert may rely upon those facts perceived by the expert

before the hearing.


(2) Expert may rely on those facts perceived by or made

known to expert at the hearing:


- An expert who attends trial & watches the proceedings may rely
on trial testimony & exhibits when forming opinion.
- If expert didn’t attend trial & watch proceedings, lawyer may pose
hypothetical questions to the experts (e.g., “Dr., assume the
following facts to be true…”). Lawyer may not make up the facts
but there must be “enough evidence to support of a finding that
the necessary facts exist” (similar to 104(b) standard).
(3) Expert may rely on those facts made known to the expert

before the hearing. Expert may rely on inadmissible


hearsay if the hearsay is the type reasonably relied upon
by experts in the particular field in forming
opinions/inferences upon the subject.
a. Note: The only time you have to worry about this is if the
statement is inadmissible hearsay – if it falls under an exception, or
is not hearsay, then it is ok!
b. Note: Under 703, expert’s reliance on otherwise inadmissible facts
(e.g., hearsay), does not make those facts admissible – only the
expert’s opinion, based in part on those facts, is admissible. On
cross, the evidence’s opponent can bring out the underlying
inadmissible facts. The only other time these inadmissible facts
are presented is if the judge determines that the probative value
substantially outweighs the risk of unfair prejudice (reverse-404(b)
standard).
i. EXCEPTION: Expert’s reliance on learned treatises &
medical statements under 803(18), which states that an
expert’s reliance on a learned treatise during direct or
acknowledgement of it on cross dissolves any hearsay
objection to pertinent parts of the book. This includes
“published treatises, periodicals, or pamphlets on a
subject of history, medicine, or other science or art.”
ii. EXCEPTION: Statements made for purpose of medical
diagnosis under 803(4). This applies even if patient
speaks with Dr. not to obtain medical treatment but only
to enable Dr. to form diagnosis & testify about it at trial.

h. Reliability of Expert Testimony:


i. Old Rule (Frye v. US): While courts should admit expert testimony
deduced from a well-recognized scientific principle/discovery, the
52
thing from which the deduction is made must be sufficiently
established to have gained general acceptance in the particular field in
which it belongs.
ii. New Rule (Daubert): Faced with proffer of expert scientific
testimony, trial judge must determine at the outset, pursuant to 104(a)
(preponderance standard), whether the expert is proposing to testify
to (1) scientific knowledge (reliability) that (2) will assist trier of fact
to understand or determine a fact in issue (relevance). This entails
preliminary assessment of (a) whether reasoning/methodology
underlying testimony is scientifically valid (reliable) & (b) whether
that reasoning or methodology properly can be applied to facts in issue
(IE: Evidence must “FIT” [assist trier of fact] – this is a higher std.
than simple relevance).
a. Non-exhausive/non-dispositive list of factors to consider for reliability
analysis:
a. Whether theory/technique can be & has been tested;
b. Whether theory/technique has been subjected to peer review &
publication.
c. Known or potential rate of error;
d. Existence & maintenance of standards controlling the techniques &
operation.
e. “General acceptance” in relevant scientific community.
f. On remand, 9th Circuit added another factor for trial court to
consider – whether experts are proposing to testify about
matters growing naturally & directly out of research they have
conducted independently of litigation or whether they have
developed their opinions expressly for the purpose of testifying.
If proffered testimony isn’t based on independent research,
proffering party must come forward with other objective,
verifiable evidence that testimony is based on scientifically
valid principles like by showing peer review & publication.
b. Last question is whether expert testimony will “assist trier of fact” (i.e.,
whether it “fits”/ is “relavant”).

c. Note: Daubert’s relevant reliability test applies to all expert matters


described in Rule 702, whether the testimony is based on “scientific,”
“technical,” or “other specialized” knowledge (Kumho Tire).
d. Note: Trial judge must have considerable leeway in deciding in a particular
case how to go about determining whether particular expert testimony is
reliable. Trial court should consider specific Daubert factors where they
are reasonable measures of the reliability of expert testimony. Daubert’s
relevant reliability inquiry should be flexible, and was intended neither to
be exhaustive nor to apply in every case (Kumho Tire).
a. Daubert factors do not constitute a “definite checklist or test.”
Gate-keeping inquiry must be tied to facts of a particular case.
Daubert factors may or may not be pertinent in assessing
reliability, depending on the nature of the issue, the expert’s
particular area of expertise, and the subject of his testimony.
b. See also State v. Kinney: When determining reliability of expert
testimony, trial court is not required to make findings on each of
Daubert’s specific factors since these are neither necessarily nor
exclusively applied to all experts or in every case. Trial court may
instead find expert testimony admissible because its reliability
equals that of other technical evidence that appeals courts have
allowed trial courts to admit & evaluation of other courts allowing
admission of this particular evidence.
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e. Note: Appellate Review. A court of Appeals is to apply an abuse of
discretion standard when it reviews the trial court’s decision to admit or
exclude expert testimony or when reviewing the trial court’s decision about
how to determine reliability (Kumho Tire).
f. Note: Rule 702 Amended. The 2000 amendment embraces Daubert’s
notion that trial judge should act as gate-keeper, guarding against unreliable
expert evidence. The amendment also embraces Kumho’s conclusion that
Daubert applies not only to testimony based on ‘scientific’ knowledge, but
also to testimony based on ‘technical’ and ‘other specialized’ knowledge.
g. Note: Syndrome Evidence. Expert testimony about Rape Trauma
Syndrome & the behavior of rape victims is admissible under Daubert.
However, evidence of false reporting of rapes is not admissible since it is
tantamount to an expert opinion that V was telling the truth & therefore
invades proper role of jury (State v. Kinney).
h. Note: Specific Examples:
a. Fingerprints will usually pass Daubert analysis.
b. DNA evidence usually passes Daubert analysis.
c. Polygraph test will not pass Daubert because it isn’t generally
accepted.
i. Note: Rule 403 & Expert Testimony. Even if expert’s methodology
passes Daubert, opponent of testimony can still keep it out under Rule 403!
j. Exam Tip: When going through a Daubert analysis, the first thing to do is
to identify the expert’s methodology. This is the hardest part. Once you do
this, then you simply ask yourself whether that methodology meets
Daubert’s relevance & reliability standards.

AUTHENTICATION & IDENTIFICATION


a. Basic Rule: Under Rule 901(a), the proponent of evidence must present
extrinsic evidence to prove that the proffered evidence is what he says it is. This is
governed by 104(b)/Huddleston std – proponent must present evidence so that judge may
determine that a reasonable jury, by a preponderance of the evidence, would determine
that evidence is what proponent says it is. In making this determination, judge may only
consider admissible evidence.
i. Exam Tip: First figure out what evidence purports to be. Then put together argument that
proponent can show that it is what it purports to be using 104(b)/Huddleston std.

Rule 901 Requirement of Authentication or Identification.


(a) General provision. The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the
following are examples of authentication or identification conforming with the
requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting,


based upon familiarity not acquired for purposes of the litigation.

(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses
with specimens which have been authenticated.

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or
other distinctive characteristics, taken in conjunction with circumstances.

54
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or
electronic transmission or recording, by opinion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker.

(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the
number assigned at the time by the telephone company to a particular person or business, if (A) in
the case of a person, circumstances, including self-identification, show the person answering to be
the one called, or (B) in the case of a business, the call was made to a place of business and the
conversation related to business reasonably transacted over the telephone. (ACN STATES THAT
MERE SELF-IDENTIFICATION IS NOT ENOUGH!)

(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and
in fact recorded or filed in a public office, or a purported public record, report, statement, or data
compilation, in any form, is from the public office where items of this nature are kept.

(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any
form, (A) is in such condition as to create no suspicion concerning its authenticity (B) was in a place
where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is
offered.

US v. Stelmokas: Ct held that docs showing D’s involvement in concentration camps


and German Luftwaffe were authentic despite D’s argument that they were not in a
condition and not in a place that they would likely be found when they were moved to
Moscow b/c there was direct evidence from archivists and holocaust experts that the
docs were authentic., and circumstantial evidence that they would be unlikely to have
such an elaborate scheme to implicate a minor player.

(9) Process or system. Evidence describing a process or system used to produce a result and
showing that the process or system produces an accurate result.

(10) Methods provided by statute or rule. Any method of authentication or identification provided
by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory
authority.

a. IMPORTANT: Compliance with the requirements of authentication by no means assures


admission of an item into evidence. Just because evidence is authentic does not mean it comes in!
You still have to go through hearsay analysis, relevance, etc.!!

c. Rule 902 (Self Authentication) states that extrinsic evidence is not required to show
authenticity of: (1) Domestic public documents under seal; (2) Domestic public documents not
under seal; (3) Foreign public documents; (4) Certified copies of public records; (5) Official
publications; (6) Newspapers & periodicals; (7) Trade inspections & the like; (8) Acknowledged
documents; (9) Commercial paper & related documents; (10) Presumptions under Acts of
Congress; (11) Certified domestic records of regularly conducted activity (803(6) requirements +
requirement of written declaration by custodian); (12) Certified foreign records of regularly
conducted activity.
d. Proof of “Chain of Custody”: Although chain of custody need not be
perfect, the final arbiter of authentication is 901(a) and it demands only that the
chain of custody be good enough to support finding that matter in question is what
proponent claims it to be. Absence of one or more of exhibit’s custodians will
not always – or even usually – keep evidence out. As long as chain is strong
enough to satisfy 901(a), then any defect goes to weight, not admissibility.
i. Normally chain of custody is good enough if it supports a finding that item in
question is the same item & in subantially same condition. Judge will decide using
901(a).

b. Phone Calls (People v. Lynes): While in each case issue is one to be decided
upon its own peculiar facts, in the first instance judge must determine that proffered proof
55
permits drawing of inferences which make it improbable that caller’s voice belongs to
anyone other than purported caller.
a. When witness testified that he recognizes caller’s voice, irrespective of whether
familiarity was acquired before or after conversation, there is no real question of authentication.
Without more, however, a self-serving statement of identity by a caller whose voice is unknown to
listener is not enough to authenticate. However, this defect need not be fatal where alternative
indices of reliability are to be found in surrounding facts & circumstances.
b. In some instances, the placing of a call to a # listed in a directory, coupled with an
unforced acknowledgment by the one answering that he/she is the one so listed, has been held to
constitute an adequate showing. In other cases, substance of the conversation itself has furnished
confirmation of the caller’s identity as, for example, when subsequent events indicated that party
whose identity is sought to be established had to have been a conversant in the telephone talk or
when the caller makes reference to facts of which he alone is likely to have knowledge.
c. Remember: For authenticating phone calls, ACN (and Lynes) says that self-
authentication alone is not enough!

c. Photos (Simms v. Dixon): The prime condition on admissibility is that photo


be identified by a witness as a portrayal of certain facts relevant to the issues, and verified
by such a witness on personal knowledge as a correct representation of those facts.
Witness who thus lays foundation need not be photographer nor need the witness know
anything of time/conditions of the taking. It is the facts represented, the scene or the
object, that he must know about, and when this knowledge is shown, he can say whether
photo correctly portrays the fact.
a. IE: to authenticate a photo, you must have a witness with personal knowledge
as to the scene depicted and have that witness say “yes, this is what the scene looked like. The
photo is an accurate depiction of the scene.”

d. Videos (Wagner v. State): There are two ways to authenticate videos:


a. Pictoral Testimony: State offers testimony of a witness that based on his/her personal
knowledge, tape fairly & accurately portrays incidents reflected in them (similar to Sims standard);
OR
b. “Silent Witness” theory: Video admitted upon proof of the reliability of the process which
produced the video. Under this theory, even if nobody can swear that they personally perceived
what the video purports to portray, given an adequate foundation assuring accuracy of the process
producing it, video can be received into evidence (basically, the video acts as a witness itself).
Under this theory, trial judge should determine whether evidence is reliable after considering
following factors:
a. Evidence establishing time & date of video
b. Any evidence of editing or tampering;
c. Operating condition & capability of equipment producing the video as it relates to
accuracy & reliability of video;
d. Proceure employed as it relates to preparation, testing, operation & security of equipment
used to produce video, including security of video itself; and
e. Testimony identifying relevant participants depicted in video.

g. BEST EVIDENCE RULE:


a. General Rule: When offering a writing, recording, or photograph to
prove its content, you must either present the “original” or a “duplicate” (defined as a
“mechanical reproduction”). The only thing that isn’t permissible under best evidence
rule is when a human reproduced the writing, recording or photo. If there is no human
effort going into the transcription, then you have no best evidence problem. If the
writing, recording, or photo is not an original or a mechanical duplicate, then the only
way you can get in a human reproduction is under 1004, if the originals were lost or
destroyed and not in bad faith.
i. Rule 1001 (Definitions):
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1. “Writings and recording” (1001(1)) – consists of letters, words,
or numbers, or their equivalent, set down by handwriting, typewriting, printing,
photostating, photographing, magnetic impulse, mechanical or electronic recording, or
other form of data compilation.
2. “Photographs” (1001(2)) – include still photos, x-ray film, video
tapes and motion pictures.
3. “Original” (1001(3)) – The writing or recording itself or any
counterpart intended to have the same effect by a person executing or issuing it. An
“original” of a photograph includes the negative or any print therefrom. If data are stored
in a computer or similar device, any printout or other output readable by sight, shown to
reflect data accurately, is an “original.”
4. “Duplicate” (1001(4)) – A counterpart produced by the same
impression as the original, or from the same matrix, or by means of photography, including
enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical
reproduction, or by other equivalent techniques which accurately reproduces the original.
ii. Rule 1002 (Requirement of original): To prove the content of a writing, recording, or photo, the
original writing, recording, or photo is required, except as otherwise provided in these rules or by
Act of Congress.
iii. Rule 1003 (Admissibility of duplicates): A duplicate is admissible to the same extent as an
original unless (1) a genuine question is raised as to authenticity of original; or (2) in circumstance
it would be unfair to admit duplicate in lieu of original.
iv. Rule 1004 (Admissibility of other evidence of content): The original is not required, and other
evidence of the content of a writing, recording or photo, is admissible if –
1. All originals are lost or have been destroyed, unless proponent lost
or destroyed them in bad faith; or
2. No original can be obtained by any available judicial
process/procedure; or
3. At a time when an original was under the control of the party
against whom offered, that party was put on notice, by the pleadings or otherwise, that
contents would be a subject of proof at hearing & that party didn’t produce the original at
the hearing; or
4. The writing, recording, or photo is not closely related to a
controlling issue.

v. Notes:
1. Best evidence rule only applies to writings, recordings &
photographs (and things very similar to these like drawings). For anything else, rule doesn’t
apply.
2. Best evidence rule only applies if you are trying to prove the
content of the writing, recording or photograph. If content of writing itself isn’t at issue in the
case, you have no best evidence rule.
a. Ex. of what does not constitute proof of content: bank
robbed & bank’s hidden camera captured robber. At trial, govt. perfectly free to
present teller’s testimony about what he saw during robbery w/out ever presenting
videotape. This rule doesn’t forbid prosecutor to substitute teller’s memory for
camera’s recording, even though most people would agree that tape is better
evidence. This is because prosecutor isn’t trying to prove content of the recording,
but rather the fact of the robbery. Teller isn’t telling jury what is on the tape, but
rather what he remembers of event.
b. ACN: A litigant proves “the content” of a writing,
recording or photo in 2 contexts:
i. Where writing, recording or photo is itself at issue (e.g. copyright
infringement lawsuit);
ii. Where photo has “independent probative value” (where proponent attempts
to prove the event depicted in the photo through the actual photo).
3. Even if you don’t have a best evidence problem, you still have to
go through hearsay, reliability, etc. Just because no best evidence problem doesn’t mean that there
is no hearsay!

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4. Seiler v. Lucas Films: Under 1001(1), a document can be
considered a “writing” even if they don’t consist of “letters, words, or numbers” but of their
equivalent. Things “very similar” to writings, recordings or photo are included under Rule 1001,
including drawings.

IV. PRIVILEGES:
a. GENERAL PRINCIPLES:
1. Rule 501 General Rule. Except as otherwise required by the Constitution or provided
by Act of Congress or in rules prescribed by the Supreme Court, the privilege of a
witness, person, government, State, or political subdivision thereof shall be governed by
the principles of the common law as they may be interpreted by the courts of the US in
light of reason & experience. However, in civil actions and proceedings, with respect to
an element of a claim or defense as to which State law supplies the rule of decision
(diversity cases), the privilege of a witness, person, government, State, or political
subdivision thereof shall be determined in accordance with state law.

1. Notes:
a. Under 501, federal common law of privilege controls in all federal criminal actions & in
civil actions in federal court insofar as federal law supplies rule of decision. But
whenever state law supplies rule of decision (diversity cases), state privilege law controls.
b. Originally there were 13 proposed rules (501 – 513) dealing with privileges. These rules
were vastly criticized and, therefore, were abandoned by Congress. In the end, the only
privilege rule enacted by Congress was 501 which left the law of privileges where it was
& directed federal courts to enforce & develop privileges according to the principles of
CL as they may be interpreted by the courts in light of reason & experience.
c. In rejecting the proposed rules of privileges, Senate was careful to point out that
Congress’ action shouldn’t be construed as disapproving any of the enumerated
privileges contained in the proposed rules , but simply as reflecting the view that
privileges should be determined on a case-by-case basis. Therefore, proposed rules are
reflections of the CL and both federal & state courts look to them for guidance.
d. Privileges that apply in all federal courts:
i. A-C;
ii. Psychotherapist-Patient;
iii. Marital confidential communications & marital testimonial privilege;
iv. NO parent/child privilege. NO regular physician/patient privilege.
e. Under 501, federal CL of privileges is not supposed to stay frozen in time. It is basically
up to the courts to recognize new privileges “in light of reason & experience.” If you
want court to recognize a privilege not already recognized, you have to argue under
Jaffee standard.
f. It is the burden of the party asserting the privilege to show that the privilege should
apply! There is a presumption against recognizing a privilege.

2. Standard for Recognizing New Privileges Under 501 (Jaffee): When dealing with
asserted privileges, courts will start with a presumption against any such privilege.
Exceptions from the general rule disfavoring testimonial privileges may be justified by a
public good transcending the normally predominant principle of utilizing all rational
means for ascertaining the truth. Asserted privilege must also serve public ends.
1. Balancing Test: Public good served by privilege vs. evidentiary importance of admitting
evidence. Court should look to:
a. State practice;
b. Is there imperative need for confidence & trust in this relationship?
c. Does asserted privilege serve public ends?
d. How much evidentiary benefit would result if privilege was denied?
e. Was privilege recognized by proposed rules?
2. See also In Re Grand Jury Proceedings (3d Cir.), where Court held that although federal courts
have authority to develop & modfy CL of privileges under 501, the general rule is against
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recognizing new privilege & courts should be weary in doing so. Court also applies Wigmore’s
4-factor test for recognizing a new privilege:
1. Communications must originate in a confidence that they will not be
disclosed.
2. This element of confidentiality must be essential to the full &
satisfactory maintenance of the relationship b/t the parties;
3. The relation must be one which in the opinion of the community ought
to be sedulously fostered;
4. The injury that would inure to the relation by the disclosure of the
communications must be greater than the benefit thereby gained for the
correct disposal of litigation.

3. Waiving a Privilege (Morales): One waives a privilege when he voluntarily discloses or


consents to disclose of any significant part of the matter or communication. This rule
does not apply if the disclosure is itself a privileged communication.
1. Note: When dealing with waiver of A-C privilege, client has to disclose fact of communication
with is lawyer (“I told my attorney that …”).
2. Note: Morales rule is exactly the same as Proposed Rule 511 (waiver of privilege).

4. Compulsory Process/Due Process & Privileges (Morales): In some cases, a criminal


D’s 5th Amendment CP & DP rights override certain privileges (except 5th Amendment
privilege against self-incrimination). In balancing these two opposing interests, Court
must consider particular facts on a case-by-case basis.
1. Note: Morales does not stand for proposition that criminal D’s claim under DP or CP will always
defeat a witness’ assertion of privilege. Claim of privileges in Morales were particularly weak
(“heart to heart talk” instead of real confession, Fornes was dead, etc.). Had Fornes’s claim of
privilege been full force, they might have prevailed over DP or CP rights.
2. Note: Since there are different rationales behind testimonial privilege than behind hearsay rules,
when determining whether D’s right under DP overrules a testimonial privilege, Court must look
past Chamber’s two-factor analysis & must weigh the interests protected by the privileges against
D’s need for the evidence.
3. EXAM TIP: CP/DP never trumps 5th Amendment privilege against self-incrimination. First line
of analysis is looking to see if evidence is otherwise admissible. If it is, then you go to whether
privilege applies. It is burden of person invoking privilege to establish this. If privilege applies,
then you go to CP/DP and try to get those Clauses to override privilege.

5. PRIVILEGES RECOGNIZED UNDER 501:


1. Psychotherapist-Patient Privilege (Jaffee): Utilizing balancing test set out
above, Ct. holds that psychotherapist-patient privilege should be recognized under
501. Court concludes that public good at issue here (encouraging individuals who
need it to get help) outweighs the “modest” evidentiary benefit that would result
from rejeciting this privilege. Court focuses on fact that all states have adopted
such a privilege and that Advisory Committee proposed such a privilege in
Proposed Rule 504. Court says that this privilege is absolute, and not qualified.
a. Scope of Privilege: Confidential communications b/t a licensed psychotherapist and her
patients in the course of diagnosis/treatment are protected from compelled disclosure
under 501. This absolute privilege extends to confidential communications made to
licensed psychiatrists, psychologists and social workers in the course of psychotherapy.
i. Note: Although court says that privilege is absolute, in a footnote, it recognizes
that there may be situations where privilege must give way, for example, if a
serious threat of harm to the patient or to others can be averted only by means of
a disclosure by a therapist.
b. Proposed Rule 504 recognized psychotherapist-patient privilege. Under 504, “a patient
has a privilege to refuse to disclose & to prevent any other person from disclosing
confidential communications, made for the purposes of diagnosis/treatment of his
mental/emotional condition, including drug addiction, among himself, his
psychotherapist, or persons who are participating in the diagnosis/treatment under
direction of the psychotherapist, including members of the patient’s family.” Under 504,
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patient may claim privilege. Psychotherapist can claim privilege but only on behalf of
patient. 504 exceptions: (1) proceeding for hospitalization, (2) examination by order of
judge; and (3) condition an element of claim or defense. 504 defined “psychotherapist”
as (A) a person authorized to practice medicine (or reasonably believed by patient so to
be) while engaged in diagnosis of a mental/emotional condition, including drug
addiction, or (B) a person licensed or certified as a psychologist under the laws of any
state or nation, while similarly engaged (is this narrower than Jaffee privilege??)
2. Clergyman-Penitent Privilege (Morales): A minister, priest, or other member
of the clergy may not disclose, at trial, “a confession or confidence made to him
in his professional character as a spiritual advisory” absent a waiver of privilege
by the confessing person.
a. Note: This privilege applies to all clergymen of all religions.
b. Note: Privilege recognized in Morales very similar to Proposed Rule 506 which states,
“a person has a privilege to refuse to disclose and to prevent another from disclosing a
confidential communication by the person to a clergyman in his professional character as
a spiritual advisor.” Under 506, privilege may be claimed by person or by clergyman on
behalf of person. “Clergyman” is “minister, priest, rabbi, or other similar functionary of
a religious organization, or an individual reasonably believed so to be by the person
consulting him.” A communication is “confidential” under 506 “if made privately & not
intended for further disclosure except to other persons present in furtherance of the
purpose of the communication.”

b. ATTORNEY-CLIENT PRIVILEGE:
1. Proposed Rule 503: Client has privilege to refuse to disclose & to prevent any other person from
disclosing confidential communications made for purpose of facilitating rendition of professional legal
services to client, (1) b/t himself or his representative & his lawyer of his lawyer’s representative, or (2) b/t
his lawyer & lawyer’s representative, or (3) by him or his lawyer to a lawyer representing another in a
matter of common interest, or (4) b/t representatives of the client or b/t the client and representative of the
client, or (5) b/t lawyers representing the client.
1. 503 exceptions: (1) Furtherance of crime or fraud; (2) claimants through same deceased
client; (3) breach of duty by lawyer or client; (4) documents attested by lawyer; (5) Joint clients.
2. Under 503, client may claim privilege and lawyer may do so but only on behalf of client.

2. Scope of A-C Privilege:

1. General Rule: In order for A-C privilege to apply, there has to be a (1)
confidential (2) communication (3) made to facilitate legal services. In
determining whether the privilege exists, judge must make a 104(a) determination
as to the fulfillment of these requirements.
2. Note: The A-C privilege protects against disclosure of communications b/t a
lawyer & his client, but not against disclosure of underlying facts (Upjohn v.
U.S.). A person cannot privilege a fact by disclosing it to her lawyer.
a. EG: Client tells lawyer in confidence & for purpose of getting legal help that his
business has been losing money. If lawyer subpoenaed to testify about health of client’s
business, she must decline to reveal what she learned during the conversation under A-C
privilege. If client is asked what he said to lawyer, he may also decline to testify. If,
however, client is asked about the health of his business, A-C privilege gives him no
grounds to refuse to answer.

3. NATURE OF LEGAL SERVICES (Gionis):


a. A-C privilege doesn’t require that atty. actually be retained. Where person seeks atty.’s
assistance with view of employing him professionally, privilege kicks in whether or not
actual employment results. A-C privilege applies when communications are made with
anticipation of representation by client.
b. Party claiming A-C privilege carries burden of showing that evidence which it seeks to
suppress falls w/in terms of privilege.

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c. A-C privilege doesn’t apply whenever issues touching upon legal matters are discussed
w/atty. A communication is not privileged, even though it may involve a legal matter, if
it has no relation to any professional relation of the atty. with the client. It is not enough
that client seeks advice from an atty.; such advice must be sought from atty. “in his
professional capacity.”
d. A-C privilege doesn’t protect statements made after an atty. declines employment. Once
atty. clearly & explicitly refuses to represent D, there is no basis for D to form a
reasonable belief that an A-C relationship existed.

4. DEFINING “CONFIDENTIALITY” (Blackmon):


a. For purposes of A-C privilege, a communication is “confidential” when the
circumstances show that the client intended them to be. An important factor to look at
when determining client’s intent is the reasonableness of the precautions (or lack
thereof) that he took in keeping the communications confidential. The reasonableness of
the precautions taken should be viewed from the perspective of the client & not the
lawyer.

5. DEFINING “COMMUNICATIONS”: SOURCE OF FEES & CLIENT’S


IDENTITY (In re Osterhoudt):
a. General Rule: Source of fees & client’s identity are not covered by A-C privileges
because they are not considered “confidential communications.” This general rule
applies even when the information may evidence wrongdoing by the client. The exception
is where identification conveys information which ordinarily would be conceded to be
part of the usual privileged communication b/t atty. & client.
i. There are almost no situations where source of fees would fall under this
exception.
ii. The only type of situation where identity of client falls under this situation is in
cases like Baird (client gives lawyer $ to give to IRS).

6. DURATION OF THE PRIVILEGE (Swidler & Berlin v. U.S.):


a. The absolute posthumous A-C privilege: The A-C privilege survives posthumously
(even after client has died). This rule is absolute (not subject to balancing) and applies
even in criminal cases of “substantial importance.”
i. Testimonial Exception: When you have to prove the intent of a testator in
situations where two potential heirs are the parties.
ii. Constitutional Rights: Exceptional circumstances implicating a criminal
defendant’s constitutional rights might warrant breaching the privilege
posthumously.

3. The Crime-Fraud Exception:


1. General Rule (U.S. v. Zolin): Under the crime-fraud exception to the A-C
privilege, the privilege does not apply where the desired advice refers not to prior
wrongdoing, but to future wrongdoing.
a. Under Proposed Rule 503, privilege doesn’t apply “if the services of the lawyer were
sought or obtained to enable or aid anyone to commit or plan to commit what the client
knew or reasonably should have known to be a crime or fraud.”

2. Determining whether crime-fraud exception applies & in camera review (US


v. Zolin): Problem arises because court must decide whether certain evidence is
privileged under 104(a) (preponderance) standard. Under 104(a), while Court
may usually consider inadmissible evidence in making preliminary
determinations, the Rule states that the “rules of privilege apply.” This means
that when making preliminary determinations, judge usually may not consider
privileged information. The exceptions to this rule is where a judge is trying to
determine whether there is a privilege and when he is trying to decide whether the
crime-fraud exception applies (Zolin). In these two situations, judge may

61
consider privileged communication itself in camera (Zolin). By sharing
privileged information with judge so that he can make this determination, person
claiming privilege does not waive the privilege.
a. General Rule: In determining whether crime-fraud exception applies. D.C. may inspect
the communications at issue in camera under the following procedure:
i. Before engaging in in camera review to determine applicability of crime-fraud
exception, judge should require showing of a factual basis adequate to support a
good faith belief by a reasonable person that in camera review of the
materials may reveal evidence to establish the claim that the crime-fraud
exception applies. Once this showing is made, decision whether to engage in in
camera review is in D.C.’s sound discretion (BASICALLY THIS MEANS
PROPONENT MUST COME UP WITH SOME SORT OF SHOWING
THAT THERE IS CRIME-FRAUD AND THEN IT IS COMPLETELY UP
TO TRIAL JUDGE WHETHER OR NOT TO TAKE UP IN CAMERA
REVIEW) and the court should make the decision in light of the facts &
circumstances of the particular case, including, inter alia:
1. The volume of materials that they have been asked to review;
2. The relative importance to the case of the alleged privileged
information; and
3. The likelihood that the evidence produced through in camera review,
together with other available evidence before the court, will establish
that the crime-fraud exception does apply.
ii. D.C. is also free to defer its in camera review if it concludes that additional
evidence in support of the crime-fraud exception may be available that is not
allegedly privileged & the production of the additional evidence will not unduly
disrupt or delay the proceedings.
iii. NOTE: Sicne this is a 104(a) determination, judge must determine by a
preponderance of the evidence that the crime-fraud exception applies.
iv. NOTE: When a party hands over a communication for judge to examine in
camera to see whether crime-fraud exception applies, that party is not waiving
the privilege!

4. Government Lawyers:

1. General Rule (In re Lindsey (Grand Jury Testimony)): While there is a


government A-C privilege, this privilege is more limited than the A-C privilege
that exists b/t a private attorney & a client. When government attorneys learn,
through communications with their clients, of information related to criminal
misconduct, they may not rely on the government A-C privilege to shield such
information from disclosure to a grand jury.
a. Note: This rule applies only to govt. attorneys. Govt. officials may still retain private
counsel & enjoy the full protection of the A-C privilege.
b. Note: This rule only applies in criminal cases. In civil cases, the full A-C privilege
applies.

c. 5th AMENDMENT SELF-INCRIMINATION PRIVILEGE:


1. Requirements:
1. Must be a testimonial communication;
a. Question to ask here is whether the communication discloses contents of the witness’
mind/whether the person can lie about the issue.
b. Examples of things which are not testimonial – handwriting exemplars, voice exemplars,
blood tests, etc. Things that witness cannot lie about.
2. Communication must be compelled by the government; and
a. The communication must have been compelled at the time of creation. Thus, voluntarily
produced documents are excluded from 5th Amendment protection (see Fisher below).

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b. If D confesses her involvement in a crime to a friend while sitting at a lunch counter, a
police officer who overhears the remark may testify about it since the remarks were not
compelled when they were made.
3. Communication must be self-incriminatory.
a. The witness’ attorney may assert the privilege for the client or the client may get on the
stand and assert it himself. In the former case, the judge will appoint the witness a
lawyer who will examine the witness and then report to the judge whether there is an
incriminatory aspect to the testimony. The judge will then make his ruling base on the
lawyer’s recommendation.
b. If govt. offers witness use/transactional immunity, there is no more 5th Amendment
privilege since there is no risk that these communications will incriminate the witness
(see below).

2. Reminder: Criminal D’s CP/DP rights can never outweigh witness’ 5th privilege!
3. “Fruit of Poisonous Tree”: EG: X testifies in front of grand jury that he killed V &
that Andy & Carla saw this. X then says that his 5th Amendment privilege was violated.
If judge agrees that X’s 5th Amendment privilege was violated, then the govt. can’t call
Andy or Carla as witnesses either since this would be fruit of the poisonous tree unless
govt. can show that they knew about Andy & Carla prior to X’s privileged testimony.

4. 5th Amendment Privilege & Attorney-Client Communications (Fisher v. US): Since


the 5th Amendment privilege is limited to prohibiting use of compulsion exerted on the
person asserting the privilege, compelled production of a document from an attorney does
not implicate whatever 5th Amendment privilege the client may have enjoyed from being
compelled to produce them himself. However, where the client himself would have been
privileged under 5th Amendment from production of the document, the attorney having
possession of the document is not bound to produce under A-C privilege where the
transfer to the attorney is for the purpose of obtaining legal advice.
1. Rule: A-C privilege applies to protect documents transmitted to lawyer IF:
a. Docs would have been privileged under 5th while in possession of client; and
b. Documents were transmitted to lawyer for purpose of obtaining legal advice.
5. 5th Amendment & compelled production of documents (Fisher): The 5th Amendment
does not independently proscribe the compelled production of every sort of incriminating
evidence but applies only when the accused is compelled to make a testimonial
communication that is incriminating. 5th Amendment would not be violated by the fact
alone that papers on their face might incriminate D, for privilege protects a person only
against being incriminated by his own compelled testimonial communications. As long
as the person claiming the privilege wasn’t compelled to prepare the document, then 5th
Amendment doesn’t apply! IE: 5th Amendment doesn’t apply to voluntarily-produced
documents, even if Govt. is compelling production and the documents are self-
incriminating. This is because compulsion, testimonial evidence & self-incrimination
must be present in the same act in order for 5th Amendment to apply.
1. Exception: “The Act-of-production Doctrine”: While the contents of
documents aren’t privileged under 5th Amendment unless the actual documents
were created under compulsion, where the act of production has communicative
aspects of its own, 5th Amendment privilege may apply on a case-by-case basis.
a. Where the act of producing the evidence itself has communicative aspects of its own,
then the act of producing is privileged under 5th Amendment but not the contents of the
documents. The act of producing documents may be communicative in 3 ways. It may
show: (a) existence of documents; (b) possession & control by client; and (c)
authentication of these documents (these are the docs that D believes are being asked
for).
b. It is more likely that the act of producing a document is itself incriminating when there is
a very broad subpoena since in these case, it is less likely that govt. knew of the existence
of the document before D produced it.
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c. In US v. Doe, the Court held that the act of production itself would involve testimonial
self-incrimination (since the govt. didn’t know that the docs existed before D produced
them) and, therefore, 5th Amendment protects against such compelled disclosure.

6. Grants of Immunity & 5th Amendment privilege:


1. There are two types of immunity that the govt. may grant a witness. When either
of these immunities are offered, there is no 5th Amendment privilege since there is
no longer the possibility of self-incrimination.
a. Use Immunity: While govt. can continue to prosecute witness, the
testimony can’t be used against the producing person, either directly or by
derivative use.
i. US v. Doe: Where the govt. follows the procedure laid out in 18 U.S.C. § 6002
& 6003, and offers witness use immunity, witness may no longer claim privilege
under 5th Amendment. However, in order for use immunity to be effective
against witness’ 5th Amendment privilege, govt. must make the formal request
that these federal statutes require.
ii. Derivative Use (US v. Hubbel): When a prosecutor grants use immunity &
then compels a witness to produce certain evidence, the prosecutor is precluded
from future prosecution based on knowledge & sources of information obtained
from the compelled testimony. The immunity statute imposes an affirmative
duty on the govt. to show that its evidence is not tainted by the prior testimony
& to prove that the testimony it proposes to use is derived from a legitimate
source wholly independent of the compelled testimony.
1. Under US v. Kastigar, the prosecution has a “heavy burden” to show
that there is no taint on the evidence coming in and that they got the
evidence wholly independent of the compelled testimony.
b. Transactional Immunity: Govt. can’t prosecute the producing party for
any crimes associated with the transactional testimony – the producing
party will get off completely (even the info. the govt. had on the party
prior to the production will not be used against him).

d. MARITAL PRIVILEGES:
Proposed Rule 505 (husband-wife privilege) stated “an accused in a criminal proceeding has a privilege to
prevent his spouse from testifying against him. Under 505, privilege may be claimed by accused or by
spouse on his behalf. Exceptions were (1) where spouse charged with crime against person/property of the
other or child of either, (2) as to matters occurring prior to marriage, or (3) in proceedings where spouse
charged with importing alien for prostitution under 8 USC § 1328.
- Note: 505 would have only recognized spousal testimonial privilege & no
confidential communications privilege. Plus, testimonial privilege would have been
narrower than under Trammel. For instance, under 505, spouse would have to
testify about things that happened prior to marriage. Under Trammel, spouse doesn’t
have to testify to anything. However, 505 was broader in that defendant-spouse
could claim privilege to prevent other spouse from testifying whereas under
Trammel, only witness-spouse can invoke privilege.

1. Spousal Testimonial Privilege:


1. General Rule (Trammel v. U.S.): The witness-spouse alone has a privilege to
refuse to testify adversely; the witness-spouse may be neither compelled to testify
nor foreclosed from testifying.
a. Note: In making this ruling, Court overruled Hawkins v. US which held that a spouse
was not allowed to testify adversely against another spouse unless both spouses consent
to the testimony. This rule is also contrary to proposed Rule 505, which provided that
“an accused in a criminal proceeding has a privilege to prevent his spouse from testifying
against him.” Under proposed Rule 505, the spousal testimonial privilege would have
been claimable by the accused or by the spouse on his behalf.

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b. Note: Court in Trammel holds that testimonial privilege is not needed to protect
information privately disclosed b/t husband & wife in the confidence of the marital
relationship. Those confidences are privileged under the independent rule protecting
confidential marital communications.
2. This privilege resides in the hands of the testifying spouse (Trammel). The
defendant-spouse cannot invoke it.
a. Note: If testifying spouse decides to waive this privilege, testifying spouse can testify as
to anything that she observed during the marriage & anything that she observed or was
said to her before the marriage. For anything said during the marriage in confidence,
defendant-spouse can invoke marital confidences privilege (see below).
3. Spousal testimonial privilege applies only to adverse testimony.
4. Two people must be married at the time the trial is taking place.
a. There has to be a legally recognized marriage. However, some JNs recognize CL
marriage & in these JNs there is some dispute as to whether people who are CL married
can invoke spousal testimonial privilege.
5. The subject matter covered by this privilege is everything – spouse cannot be
called to stand & required to testify adversely at all if she doesn’t want to.
a. As long as the marriage is in effect at the time the spouse is being called to testify,
testifying-spouse can invoke the privilege! Even when events occurred before marriage.
6. Spousal testimonial privilege applies only in criminal cases where the other
spouse is the defendant.
7. Subject to crime-fraud exception and exception when it is a case of domestic
violence.
2. Marital Confidential Communications Privilege:

1. General Rule (US v. Rakes): Generally, marital confidences privilege permits an


individual to refuse to testify, and to prevent a spouse/former spouse from
testifying, as to any confidential communication made by the individual to the
spouse during their marriage.
a. Covers only (1) confidential (look at intent) (2) communications (3) made
during course of marriage.
2. Couple must have been married when the communication was made. So, even if
couple is now divorced and communication was made during course of marriage,
there is a marital confidential communications privilege.
3. This privilege is held by the non-testifying spouse.
4. This privilege applies in both civil & criminal cases. Non-testifying spouse does
not have to be a party to the suit.
5. Subject to crime-fraud exception and exception when it is a case of domestic
violence.
6. Note: Crime-Fraud Exception. Marital confidences privilege typically
forfeited where both husband & wife are jointly engaged in criminal activity or
where V is the other spouse or some other family member. Under this exception,
it takes wrongful complicity by privilege holder, not innocent or involuntary
action, to forfeit the privilege.
7. Note: Waiver of Privilege. Ordinarily, deliberate disclosure of a privileged
communication, where no privilege protects this further disclosure, waives a
communications privilege. However, this later disclosure has to be of the
privileged communications itself (“I told my wife that ...”), not the underlying
facts.
8. Note: Just like A-C privilege, this privilege prevents inquiry into
communications and not into underlying facts (see Upjohn). Therefore, if spouse
has independent knowledge of the underlying facts, this privilege doesn’t help
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(although spousal testimonial privilege may if they are still married). However,
when spouse knows facts only because they were confidentially communicated to
her by other spouse, the govt. can’t circumvent privilege by asking spouse about
“the facts.” US v. Rakes.
e. PARENT-CHILD PRIVILEGE?

1. There is no recognized parent-child privilege. In In re Grand Jury Proceedings (3rd 97),


3d circuit refused to recognize parent-child privilege. Appellants in that case were trying
to invoke two separate privileges: (1) parent-child confidential communications
privilege; and (2) parent-child testimonial privilege (just like marital privileges). Court
held that although federal courts have authority to develop & modify the CL of privileges
under 501, the general rule is against recognizing new privileges & courts should be
weary in doing so. Court focuses on fact that no federal Court of Appeals nor state
supreme court has ever recognized such a privilege, that proposed privilege wasn’t one of
the proposed privileges under Rules and that proposed privilege is a relatively new idea.
Court also applies Wigmore’s 4-factor formula, concluding that this cut against
recognizing the privilege (Court said Wigmore factors 2 & 4 were not met here).

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