Evidence Outline Fall 2009 Professor Cerruti

EVIDENCE OUTLINE
Fall 2009 – Professor Cerruti1
Introduction & Background.....................................................................................................................................2

Admitting & Excluding Evidence............................................................................................................................3
Relevance.................................................................................................................................................................6
Hearsay..................................................................................................................................................................10
Non-Hearsay: Statements that are NOT Hearsay (Exemptions)............................................................................16
Hearsay Exceptions (Unrestricted)........................................................................................................................24
Hearsay Exceptions (Declarant Unavailable)........................................................................................................32
Character Evidence................................................................................................................................................38
Direct and Cross Examination...............................................................................................................................44
Impeachment..........................................................................................................................................................46
Lay Opinion & Expert Testimony.........................................................................................................................53
Attorney-Client Privilege.......................................................................................................................................56
1
Class Materials: Mueller & Kirkpatrick, Evidence Under the Rules (5th ed.); Federal Rules of Evidence (West, 2004).
Evidence
FALL 2010: Professor Cerruti
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Introduction & Background
I. Trial Structure and Evidentiary Mechanics
a. Why Evidence Law?
i. Mistrust of juries
1. jury is required to know nothing of the case, have no prior bias
2. the jury should decide the case only on the info they receive in court
3. Why?
a. Jury members are uneducated as to the system
b. They’re supposed to make common sense judgments, so we have to shield
them from the L’s, who are trying to influence them
c. If L’s are unregulated, they’ll try to influence the jury in any way possible
(i.e., prejudice over reason)
ii. Serves substantive policies relating to the matter litigated
1. e.g., rules allocating the burden of persuasion
2. They are substantive evidence law and exist in the belief that they affect the
outcome in ways that are nearly as significant as purely substantive principles
iii. Furthers substantive policies NOT related to the matter being litigated
1. Extrinsic substantive policies which seek to affect behavior or quality of life
outside of the courtroom
2. E.g., privileges
iv. Ensure accurate fact-finding
v. Control the scope and duration of trials
b. The Overall Purpose of RE
i. Exclude certain information that we think would have an undue influence on juries, and
that L’s will exploit
c. NY Approach to Evidence
i. Primarily common law based
ii. If there’s no answer in the NY codes, look to the FRE
d. The Federal Rules of Evidence
i. Scope
1. Govern proceedings in U.S. courts
2. Exceptions are in Rule 1101.
ii. Using the RE
1. The RE exist for the players to initiate; the application, therefore, comes from the
lawyers, not the judges
2. If the L makes no objection at trial, there is NO issue
3. The judge doesn’t apply the rules on his own, only responds to the L’s
II. Adversarial Litigation System
a. Jury
i. Comprised of peers, non-professionals
ii. The jury is the ultimate fact-finder, NOT the state’s rep
iii. Jury must follow the judge’s instructions on the law
b. Judge
i. Judge cannot decide the facts
ii. The judge’s power to decide what the jury hears is removed and given to L’s
iii. Judge ensures compliance by the parties
c. The parties
i. The 2 sides litigate as opposing forces
ii. L’s decide what the jury hears as evidence
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Admitting & Excluding Evidence
Scope of Direct, Leading Q’s, Evidentiary Rulings
III. Purpose and Construction of the Rules – Rule 102

a. ensure fairness of administration
b. eliminate unjustifiable expense and delay
c. promote growth and development of the law of evidence so that truth may be attained and
proceedings justly determined
i. They apply only at the trial level; there is no fact-finding at the appellate level
IV. Admitting and Excluding Evidence – FRE 611
a. FRE 611 generally
i. Deals w/ form rather than substance of the evidence being offered
b. Control by the Court – 611(a)
i. Generally
1. This rule limits the court’s power
2. Judge is referee, passive observer
3. Judge’s power of control is not triggered unless the L’s call on the judge to rule
ii. 3 goals for the judge:
1. effective ascertainment of the truth
2. avoid needless consumption of time
3. protect witnesses
c. Scope of Direct Rule
i. Cross exam is limited to 2 types of matters:
1. scope of direct exam
2. credibility of witness
a. This element drives our system
b. The ‘test’ for truthfulness is supposed to come thru credibility of witnesses
c. Credibility is always at issue, so L’s are entitled to challenge a W’s
credibility
ii. Rationale
1. Order of proof
a. Allows parties to control the presentation of their cases
iii. Example – Problem 1-A, p. 26.
1. Car accident. Passenger of the driver plaintiff testifies. Are these questions
beyond the scope of direct?
2. Q1 asks whether the W is seeing the P socially.
a. Subject matter of direct – not relevant; whether they had a social rel’ship
is not relevant to who collided w/ whom.
b. Credibility – goes to credibility of the W; his credibility and testimony may
be affected by his rel’ship w/ P
3. Q2 asks whether the driver had turned around in her seat so that she was looking
out the back window
a. Subject matter of direct – it goes to P’s own liability (as long as that is at
issue in the case, per j/d); so relevant to the extent that P’s liability is at
issue in the case. D atty will argue that the question is not relevant to the
W’s testimony about what the defendant did
b. Also goes to credibility of the W – if he was watching P, then he didn’t see
the defendant and didn’t see what he said he saw
4. Q3 is a leading Q trying to get at whether the driver had drunk alcohol just prior
to the accident
a. Subject matter of direct – if driver was drunk, the alcohol might have
affected her driving and is probably relevant to the issue of her negligence
as compared to D’s negligence
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b. Credibility – if driver was drinking, maybe the W was too, in which case it
undermines the credibility of what he says he observed; if the driver was
drinking, then permits the inference that the W was too
d. Leading Questions – 611(c)
i. What is a leading question?
1. A question that implies the answer sought
2. signals what the answer should be
3. Asking leading questions exerts control over what the person says and prevents
the witness from providing additional information
ii. Limitations on leading questions
1. Not allowed on direct, only on cross
2. Only permitted on direct exam if:
a. necessary to develop the witness’s testimony
OR
b. the witness is hostile
3. Rationale
a. On direct, the L already has control of the W and W’s testimony b/c W is
usually a favorable witness for the L
i. So … there’s no need for leading q’s
ii. Use of leading Q’s would make the W the mouthpiece of the L, thus
giving the L too much power
b. On cross, W is usually not cooperative or compromised
i. W won’t want to give the info that the L is seeking
ii. Danger of asking LQ’s on direct does not exist here
iii. Hostile Witnesses
1. LQ’s are permitted for hostile witnesses b/c a hostile W will not be susceptible to
leading questions
e. Real Evidence v. Demonstrative Evidence
i. Real Evidence =
1. actual, tangible item
2. Ex: the actual gun used in the crime
ii. Demonstrative Evidence =
1. evidence that demonstrates sth about the real evidence, but is not itself the real
evidence; a substitute for the real evidence used in order to represent the real
evidence
2. Ex: if the actual gun was not recovered, the prosecution might introduce a
replica/fake gun to demonstrate the actual gun; also might include photos, maps,
etc.
iii. Use of real vs. demonstrative evidence
1. Real evidence can go into the jury room
2. Demonstrative evidence not allowed in the jury room; jury can only observe it in
the courtroom
f. Rulings on Evidence – FRE 103
i. Who keeps evidence out
1. It is the L’s responsibility to try to keep evidence out; it’s not the judge’s job to
exclude/keep evidence out
ii. Erroneous Rulings – FRE 103(a)
1. 2 requirements to establish an erroneous ruling:
a. Substantial right of the party is affected
i. Just b/c a judge made an error at trial does not mean that it is
reviewable by the appellate court
ii. The error has to matter
iii. The error must have been substantial enough that it probably had
an effect on the outcome
iv. If the outcome would not have been different, then a subs’tal right
is not affect => Harmless error
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AND EITHER
b. The L objected (trying to keep evidence out)
i. Applies when the L is trying to keep evidence out and the judge
admits it
ii. The L must object
iii. Timely objection
1. was it reasonable for the L to make the objection prior to
when it was actually raised?
iv. Specific objection
1. general objections are not sufficient to preserve the issue
for appeal
2. L must state the rule being relied on
OR
c. Made an offer of proof (trying to get evidence in)
i. Applies when the L tries to get evidence in, but the judge excludes
it
ii. Here, the record doesn’t reflect the evidence, but its exclusion only
iii. L must make an offer of proof
1. Orally – describe the proof offered
2. Witness – question the witness on the record, but not in
front of the jury to allow the court to make a determination
2. Effect
a. The judge has no duty to rule on evidence on his own
b. This rule puts the ball in the L’s court
c. The judge may screw up, but the party can only appeal if the L fulfilled his
responsibility to object in a timely and specific manner
3. General objections
a. If a judge sustains a general, rather than a specific objection, then the L is
in the best possible situation b/c on appeal, the ruling will be affirmed if
any ground exists for supporting the objection
4. Curative and Limiting Instructions
a. The judge tells the jury to disregard a piece of evidence that was
erroneously admitted
b. Curative = immediate response to evidence erroneously admitted
c. Limiting = tells the jury to limit the evidence to a certain part of its
deliberations/verdict
iii. Consequences of Evidential Error
1. Errors are common, but reversals on appeal are not common
2. 3 causes of error
a. rules are complex and vague
b. the system is adversarial
c. quick response are required
3. 3 reasons for low number of reversals
a. Errors are part of the system due to the volume and nature of the rulings
i. The system limits appeals that can be based on error
ii. Reversible error requires that the error affect a substantial right
(probably affected outcome) and complied with either objection or
offer of proof requirements
b. Appellate Deference
i. Some rules are vague standards, so appellate cts will defer to trial
judge unless clearly erroneous
c. Preservation of right to appeal
i. When L fails to make an objection or offer of proof, can’t raise it on
appeal b/c 103(a) is not satisfied
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Relevance
I. Relevance
a. Role:
i. Foundation concept for all evidence
ii. If sth is not relevant, it’s not evidence
Facts in Issue
RELEVANCE?
Evidence
Evidential
Hypothesis
b. Determining Relevance
i. It’s a fact-based determination; no formal test
ii. What are Facts in Issue:
1. Determined by the law governing the claims, elements of the offense or claim
2. The facts that the jury must resolve to decide the case
3. Parties introduce evidence to prove the facts in issue
iii. What is an Evidential Hypothesis:
1. The connection b/w evidence and the facts in issue
2. If E, then F. E is true, therefore F is true.
3. The rel’ship b/w E and F is usually not definitive; it’s indefinite b/c it’s fact-based
and depends on the info that provides a connection
iv. The judge decides whether there’s a connection b/w the evidence and the facts in issue
c. Relevance Defined -- FRE 401
i. Evidence having ANY tendency to make the existence of ANY fact of
consequence more or less probable than it would be w/o the evidence
ii. Evidence that makes a fact more or less likely to be true
iii. Any Tendency
1. incorporates both relevance and materiality
2. no specific threshold requirement for the weight of the evidence
3. minimum connection is enough to satisfy relevance
4. Minimal connection
a. A piece of information may have only minimal connection/relevance to a
fact in issue, and have greater connection to facts NOT in issue
b. As a result, admitting such evidence could influence how the jury sees all
of the evidence, even if there’s only a minimal connection to a fact that’s
actually in issue
iv. Fact of Consequence
1. a fact that matters even if it is not a fact in issue, that serves to connect the
evidence to the facts in issue
c. Every time a W testifies, new facts of consequence are put in play
2. Each side will try to undermine/question the other side’s facts of consequence in
order to, in turn, undermine the connection b/w the evidence being offered and
the facts in issue
v. Relevance is measured/evaluated by the facts in consequence that are introduced
1. It’s a contingent, dynamic concept
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2. the relationship b/w evidence and facts in issue changes based on the
introduction of facts of consequence
3. LOW STANDARD
vi. Multiple Relevance
1. Any one thing can be relevant to more than one fact
2. Ex: A student in class is wearing headphones. Lots of inferences can be drawn
from this. Both sides may agree on the facts, but they may disagree on the
inferences the jury should draw to prove different facts.
d. Direct and Circumstantial Evidence
i. FRE make no distinction b/w direct and circ’al evidence
ii. The difference b/w the 2 have to do w/ the relationship b/w the evidence and the facts in
issue
iii. Direct Evidence
1. Evidence that, if accepted as genuine or believed true, necessarily establishes the
point for which it is offered
2. directly establishes the fact in evidence
3. no issue of relevance
4. E = F
iv. Circumstantial Evidence
1. Evidence that, if fully credited, may still fail to support the point in question
simply b/c an alternative explanation seems just as probable or more so
2. the evidence permits an inference about whether F is true or not true
3. E has some tendency to make F more or less true, but does not establish F
directly
4. Relevance b/c’s an issue
5. E ------ > F
e. The Relevance Rule: Relevant Evidence is Admissible – FRE 402
i. All relevant evidence is admissible unless it’s inadmissible
ii. Evidence that is not relevant is inadmissible
iii. A piece of evidence may be relevant but nevertheless inadmissible for some other
reason/under some other rule
f. Prejudice Rule – FRE 403
i. Evidence that’s relevant may nevertheless be excluded if too prejudicial
ii. Test for Excluding
1. Probative value is substantially outweighed by the danger of unfair prejudice, etc.
g. 2 Step Analysis under 403
i. Is it relevant under 401?
ii. If it is relevant under 401, is it admissible under 403?
1. Probative value?
2. Prejudicial value?
a. Look at the evidence in the context of the trial as a whole and whether
there are alternatives that are less prejudicial
3. Balancing Test
a. If evidence is relevant and it had probative value, it will probably come in
b. Courts use 403 when there’s little probative value and the risk of lots of
prejudice … so the scales are weighted somewhat
iii. Case Example: Chapple @ 71
1. Evidence at issue: Graphic autopsy photos of the murder victim
2. Are the photos relevant under FRE 401?
a. Prosecution’s arguments: The photos are relevant to the cause of death,
which must be proved and, therefore, is a fact in issue
b. Holding: The photos are relevant to the prove that the person “Dee” was
involved in the murder
3. Are the photos admissible or too prejudicial under FRE 403?
a. Balancing test: Probative value vs. Prejudicial Value
b. Holding: Inadmissible
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i. Little probative value to the facts in issue
ii. Prejudicial value is great
4. NOTE: Autopsy photos as evidence
a. As-is photos of a dead body are always admissible
b. However, autopsy photos are problematic b/c the medical examiner does
things to the body, so not as-is.
c. They often demonstrate important info, but may also inflame the jury
d. If they’re too contrived, then probably inadmissible
iv. Case Example: Old Chief I & II
1. Evidence at issue: The name of the D’s prior conviction
2. The D’s prior conviction is an element of the instant offense. D is trying to
exclude evidence of his prior conviction, specifically its name, but agrees to
stipulate to the fact of the prior crime. D argues that the name is irrelevant under
401
3. Issue 1: Whether the name of the prior crime is relevant under FRE 401
4. Issue 2: Whether the name of the prior crime, even if it’s relevant, is prejudicial
and should be excluded under 403
5. 2-step Analysis:
a. Is it relevant under 401?
b. If it’s relevant (and admissible), is its probative value substantially
outweighed by prejudice so that it should nevertheless be excluded under
403?
6. Issue 1 Holding: It’s relevant
a. The name is relevant b/c not all previous crimes satisfy the requirement of
the statute
b. The only way the jury can know that the prosecution has satisfied its
burden of proof on the elements of the offense is by knowing of a
qualifying prior conviction
c. It’s relevant, but of limited relevance. Only relevant w/r/t the legal status
of the prior conviction
d. D cannot exclude the evidence by stipulating to the fact of the crime b/c
this would allow D to exert control over the prosecution’s presentation of
its case. Our adversarial system allows each side to present/control its
case
7. Issue 2 Holding: It’s too prejudicial, and inadmissible
a. The name of the crime has little probative value. It’s only relevant on a
technical point; the D doesn’t dispute the conviction. It’s only valuable to
the extent that it lets the prosecution tell its story.
b. There’s a hi degree of prejudicial risk. Substantial risk that the prior
conviction name will lead the jury to view the D as having a bad character.
c. A stip is an adequate alternative that only denies the prosecution the
oppty to present the technical point of the name of the conviction
8. NOTE: This case is unusual in that a stip usually cannot prevail over the govt’s
choice to offer evidence showing D’s guilt
h. Rule of Completeness – FRE 106
i. When a writing or recorded stmt is intro’d, an adverse party may require the introduction
of any other part or writing or recorded stmt which in fairness ought to be considered
contemporaneously w/ it
1. A party cannot mislead the jury by introducing only partial statements/evidence
2. The prosecution cannot edit a statement, but instead must introduce the
complete/full statement
i. Simple Relevance FRE 104(a)
i. When the relevance of the evidence can be determined on the evidence itself, and is not
dependent on other facts for that determination
ii. Judge rules on admissibility since it’s a legal issue
j. Contingent/Conditional Relevance – FRE 104(b)
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i. When evidence is relevant ONLY IF other facts are true, then the other facts must be
proven to the jury not the judge
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Hearsay
I. Background
i. The adversarial system is self-contained and requires that the people who have actual
knowledge that’s relevant to the event at issue to testify
ii. This is intended to allow the jury to get the best information as to what happened in the
event at issue
iii. Hearsay is an exclusionary rule with exceptions
a. Defined
i. An out of court statement offered to prove the truth of the matter asserted
b. 3 Elements to Hearsay:
i. A: Assertive statement
ii. T: Truth – offered for the truth of the statement itself
iii. O: Out of Court statement
c. Why Exclude Hearsay?
i. C – Cross-examination
3. W’s are supposed to be subject to cross-examination, challenged on what they
offer as the truth
4. HS statements mean that the person who made the statement is not in court
testifying
5. *Today, this is the most important concern*
ii. O – Oath
1. our system values the oath-taking process to ensure truthfulness of information
presented
iii. D – Demeanor
1. Juries must be able to evaluate the W’s demeanor in order to assess W’s
credibility
iv. These requirements serve the truth-seeking goals of our system
II. Statement FRE 801(a)
a. A statement is:
i. An oral or written assertion or non-verbal conduct
ii. If it is intended by the person as an assertion
b. Assertive
i. The stmt must be intended to be an assertion
ii. The declarant must intend to communicate the fact
iii. Implied statements are NOT hearsay and may be admitted
1. There’s less risk of deceit b/c the declarant didn’t intend to assert the fact at
issue
2. If the declarant intended to lie, the person would’ve state the fact explicitly
3. If the fact is only implied and wasn’t the intent of the statement, then the person
was probably being truthful
4. NOTE
d. This narrows the scope of the hearsay rule and broadens the universe of
admissible evidence
e. At common law, the courts did not distinguish b/w explicit and implied
statements; all were hearsay
iv. Implied statements -- Case Example: Wright v. Tatham @ 112
1. Dispute over a will and whether the testator was competent to execute
the will. W wants to prove that Marsden was competent. T wants to prove
that Marsden was Incompetent.
2. Evidence at issue: Letters written to M by 3rd parties; the letters are
written as if M is competent. The letters don’t directly state that M is
competent.
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3. W argues that the letters imply M’s competency b/c they reflect a
belief that the letter writers had that M was competent
4. T argues that the letters might have been formally addressed to M,
even knowing that M was incompetent, and w/ the knowledge that another
person would respond on behalf of M
5. Issue: Are the letters hearsay and, therefore, inadmissible?
6. Holding: The letters are hearsay
a. It doesn’t matter whether the letters directly or impliedly assert
M’s competence (this is the common law rule; FRE distinguish b/w
direct and implied assertions)
b. The letters were not made under oath, so they are hearsay and
not admissible.
7. Under the FRE, the letters are not assertive statements and would be
admissible b/c the writers did not INTEND to assert that M was competitive.
v. Silence and Conduct
1. HS includes silence and non-communications
2. Conduct qualifies as hearsay
a. Ex: Prof asks the class who was born in Alaska. By not raising your hand,
you are asserting that you were not born in Alaska. It’s hearsay b/c those
who did not raise their hands intended to assert that they were not born in
Alaska by not raising their hand.
3. Case example: Cain v. George @ 119
a. Evidence at issue: That none of the hotel’s customers had ever before
complained about the gas heater
iii. This is SILENT evidence – the silence of the other guests
iv. Under Tatham, this would be hearsay as an implied assertion by
the other guests that nothing was wrong w/ the heater
b. Held: Evidence is admissible
i. Under FRE, silence is admissible b/c silence can be non-assertive
ii. The other guests did not intend that their silence would assert that
nothing was wrong w/ the heater
iii. Therefore, the silence – on the fact in Q – was not assertive or
intentional
iv. Thus, it’s hearsay
c. Indirect Hearsay
i. Refers to stmt that is not based on direct knowledge
ii. Case Example: United States v. Check
1. Prosecution against Check for drug dealing. Cali was in drug transaction w/
Check. Cali reports back to Spinelli, the police informer.
2. Evidence at issue = Prosecutor wants to get into evidence the conversation b/w
Cali and Check. However, Cali refused to testify. Prosecutor calls Spinelli to
testify. Spinelli’s testimony as to what Check said about his conversation w/ Cali
would be hearsay. So Prosecutor asks Spinelli to testify to his side of the
conversation w/ Cali.
3. Trial court admitted most of Spinelli’s testimony.
4. Held on appeal: The testimony should have been excluded in whole.
a. Spinelli’s testimony was a transparent attempt to incorporate into
Spinelli’s testimony hearsay information supplied by sb who did not testify
at trial.
b. Such a device is improper and cannot miraculously transform inadmissible
hearsay into admissible evidence.
d. Rationale for why sth has to be assertive
a. The lack of cross-exam is important only if the D intended to assert a fact
i. If the person intended to assert a fact as true, then the stmt must be cross-
examined
ii. If person did NOT intend to asset a fact as true, then there’s less risk of insincerity
or falsity
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III. Truth
a. When the statement is offered to prove the truth of what’s said, it’s hearsay
b. If a statement is not offered to prove the truth of what’s said, then there’s no need to cross
exam, thus it’s not hearsay
i. Example: Opera singer slip and fall
1. Opera singer slipped at the supermarket, lost her voice and sues the
supermarket. At trial, defense W testifies that he witnessed a car accident
and heard the Opera Singer yell at the drive that the light was red.
2. The statement by the Opera Singer is not offered to prove that the light was
red; offered to prove she still had her voice for purposes of damages. Thus,
the statement was not offered to prove the truth of the matter asserted.
c. Who controls the purpose?
i. The lawyer controls purpose for which a statement is offered
1. Look to the lawyer offering the evidence to determine the purpose of why the
statement is being offered
ii. If the L offered the statement to prove what’s being said, then it’s hearsay and not
admissible
1. Ex: If the L offered the witness’s testimony about the opera singer’s statement
that the light was red in order to prove that the light was red --- > hearsay
and not admissible
2. Ex: If the L offered the statement to prove something OTHER than the fact
that the light was red, e.g., that the opera singer sill had her voice --- > then
it’s NOT hearsay and admissible
iii. Grounds required
1. If there is a valid ground for offering the statement, then the statement will
come in, in its raw form – unless prejudicial under 403
d. 6 Categories of evidence offered for reasons OTHER THAN the truth of the
asserted statement … thus making statements in these categories NOT hearsay.
i. I - V - E - V - SOM - M B
ii. The 6 categories are:
1. Impeachment
2. Verbal Acts
3. Effect on speaker
4. Verbal Object
5. State of Mind
6. Memory or Belief
iii. Impeachment
1. When a statement is offered to show inconsistency for the purpose of
undermining the witness’s credibility
2. Example:
a. W’s 1st Statement = the blue car had a green light
b. W’s 2nd Testimony at trial = the blue car had a red light
c. Objection: Hearsay
d. Argument: It’s not being offered to prove whether the blue car had a
red or green light. Instead, it’s being offered to impeach W’s credibility. It
shows inconsistency b/w W’s statements and undermines W’s credibility.
e. See Problem 3-C.
3. NOTE: Scope of cross-examination always allows for questions going to the
credibility of witnesses
iv. Verbal Acts
1. When words = conduct, such that speaking the words has legal significance
2. When the force of one’s words constitute an act
3. When the words of the statement are instrumentalities or constitute verbal
acts, such as when the words are essential to proving a crime at issue
4. Criminal Example (3-D):
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a. Debra makes a statement to an undercover cop in a massage parlor
that “You can have it any way you like it.”
b. What she says – the words themselves – matter b/c it seems that she
made an offer soliciting sex
c. Her words are instrumentalities/verbal acts that in and of themselves
solicit sex; they are essential to proving the crime at issue
d. Her words = criminal conduct
e. Testimony as to her statement is admissible if the lawyer offers it to
prove the elements of solicitation, and not to prove the truth of whether the
cop can actually “have it any way he likes it”
5. Civil example (3-E):
a. Landlord leases part of his farm to Farmer, who will grow corn in order
to pay the lease. Farmer uses the corn as collateral for a loan. Farmer
defaults on the loan, and bank repossesses the corn and sold it to Prager.
Landlord claims that some of the corn is his and that the bank and Prager
must return L’s share.
b. Key Q: Whose corn is it?
c. Landlord offers testimony that he and Farmer went into the field and
Farmers told Landlord that the crib of double corn was the Landlord’s share
and belongs to the Landlord.
i. Objection: Hearsay
ii. It’s NOT hearsay. The statement by Farmer was a verbal act
that made the corn the Landlord’s. Farmer’s statement operated as
a transfer of ownership, as a contract b/w L and Farmer.
iii. Saying those words was an element of the claim to be proven.
Thus, the words had independent legal significance.
d. In order to show that all of the corn was collateral for the loan, the
bank offers a statement made by Farmer to the bank’s loan officer prior to
the repossession in which the Farmer pointed to the corn and said that the
corn in the double crib was his own.
i. Objection: Hearsay
ii. It IS hearsay. This statement by Farmer to the bank officer was
not an operative legal act. By saying that the corn was his didn’t
make it so.
v. Effect on Listener (3-F):
1. The statement is being used to show its effect on the listener, rather than the
truth of the content asserted – such as whether the listener behaved reasonably
based on what was conveyed
2. Example:
a. P sues Interstate for negligence of I’s employee, who lit up a cigarette
near a gas leak, causing an explosion that hurt P. P has to show that I’s
employee was responsible for the damage. I raises contributory negligence
claim.
b. Evidence at issue: To defeat contributory negligence claim, P offers
testimony of a statement by I’s employee in which the employee id’d
himself as with I, asked P where the leak was.
c. Held: NOT hearsay. The statement was offered to show that it was
reasonable for P to believe that the guy was an agent of I and knew what he
was doing. It’s not being used to prove the truth of the literal statement
that the guy was an employee of I.
vi. Verbal Objects (telltale objects)
1. Words that are verbal objects … statement that is treated as an object, even
though it’s in verbal form.
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2. When such statements are used as an identifying mark, it’s not treated like a
verbal statement, it’s instead treated like an object so that it’s admissible.
3. Example:
a. Book label: “This book belongs to John.”
i. The statement is assertive to the fact that it belongs to John.
However, courts treat this as an object -- even though it’s in verbal
form -- because it’s an identifying object.
4. Example (3-G):
a. #1, 2 = verbal objects identifying the thing with the place. Not
hearsay, therefore admissible.
b. #3 = NOT a verbal object. It’s testimony of prior ID that is being
offered for the truth of the identification – that the barmaid saw Nichols in
the bar.
vii. State of Mind
1. Statement is offered to show state of mind of the declarant
2. declarant’s state of mind is revealed/reflected in the statement
3. Example: Anna Sofer’s Will (3-H)
a. Anna died from injuries suffered when she was hit by a bus. Her
husband sued the bus co in a wrongful death action.
b. The Transit Authority sought to introduce into evidence a passage from
Anna’s will in which she expresses her contempt for her husband, saying
that he is worth only $1.
c. Objection: Hearsay
d. It’s NOT hearsay. The TA is not offered to prove that her husband in
worth only $1 nor to prove what her husband did to her, how he treated her.
Instead, it’s being offered to prove the likelihood that Anna would have
distributed only $1 to him, and her feelings toward him. Her statements
are a reflection of her state of mind, what she thought/felt toward her
husband. Therefore, it’s not hearsay, and is admissible as long as her state
of mind is relevant to the issues in the case.
viii. Memory or Belief
1. When a statement is being offered to prove the declarant’s memory or belief,
what the declarant remembered or believed.
2. Example: Papier Maiche Man (3-I)
a. D is prosecuted for sexually assaulting an 8 year old girl eight months
prior. The prosecutor offers 2 statements: 1) the testimony of the Police
Officer 1 as to the description the girl gave him about the room where she
was taken by her assailant, including mention of a papier maiche man
sitting in a wooden rocking chair; 2) independent testimony of the Police
Officer 2 as to the room in which the D resided, including that the same
details that the girl gave re: the room and the papier maiche man.
b. Objection: Hearsay
c. NOT hearsay if offered to prove that she had a memory and image in
her head of a papier maiche man – not whether a papier maiche man
actually existed in the room. Her testimony can be connected to the D’s
apartment thru the officer’s independent testimony to show she was in the
D’s apartment. Thus, her testimony can be used to show that she has
information/knowledge/memory that’s unique and can circumstantially be
attributed to her having been in the D’s apartment. She has info in her head
re: a particular image that can be connected, thru other evidence, to D’s
apartment.
IV. Out of Court
a. Out of court stmt is any stmt except one that is made by witnesses during the trial
while testifying during the trial
i. Out of court = out of this court, where the current proceeding is occurring
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ii. Statements made in other courts are still hearsay, b/c not subject to COD by the
current jury
b. A witness may not testify to his OWN out of court statements
i. Ex: A witness cannot testify to what the witness himself told some 3rd party, even
though the witness would be testifying to the witness’s own statements
ii. Also, a witness cannot testify to what someone else told him
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Non-Hearsay: Statements that are NOT Hearsay (Exemptions)
I. Prior Statements by a Witness/Declarant– Rule 801(d)(1)
a. Declarant is testifying as a witness at trial and testifies to W’s OWN prior statements:
i. Declarant is a W
ii. Declarant/W testifies on the stand, under oath
iii. Declarant/W is subject to cross exam
b. 3 Types of Statements that are deemed not hearsay:
i. Prior Inconsistent Statement – 801(d)(1)(A)
ii. Prior Consistent Statement – 801(d)(1)(B)
iii. Prior Identification Statement -- – 801(d)(1)(C)
c. In each of these situations, the declarant is testifying to W’s own stmts!
d. These statements are admitted for their truth b/c the declarant himself is subject to COD
regarding what the W said out of court
i. NOTE: These are the only statements that the W will be able to testify about
regarding W’s prior statements; not EVERYthing the W says will be admissible
ii. WHY? B/c the W/Declarant is subject to cross-x about what the declarant/W said out
of court
1. The jury is permitted to consider these earlier stmts for whatever truth the
jury attributes to them
2. After all, aren’t earlier stmts, made closer to the incident, more reliable?
3. BUT – the prior stmts that will be allowed are restricted to certain stmts based
on the requirements outlined in the rule
e. Prior Inconsistent Statement – 801(d)(1)(A)
i. 3 Requirements:
1. Inconsistent = the prior stmt must be Inconsistent to W/Declarant’s current
testimony
2. Oath = the prior stmt must have been made under oath, under penalty of
perjury
3. Proceeding = the prior stmt must have been made at another proceeding
4. NOTE: most prior inconsistent stmts will come in for impeachment purposes,
below
ii. Inconsistent – low standard
1. Doesn’t have to directly contradict the W/Declarant’s current testimony
2. Only needs to be in some way inconsistent
iii. Under Oath – The prior stmt was made under oath, in sworn testimony
iv. Proceeding
1. Must have been made at a “trial, hearing, deposition, or other proceeding”
2. NARROW INTERPRETATION of “other proceeding”
3. Judicial, quasi-judicial proceedings, incl. admin hearings
4. Stmts given at a police station would NOT satisfy the rule
v. NOTE: Cross-ex of the prior stmt not required
f. Prior Consistent Statement – 801(d)(1)(B)
i. This is used to rehabilitate a W who was impeached on cross-ex
ii. 3 requirements:
1. Consistent = the prior stmt must be consistent w/ the present testimony
2. Cross-Ex = the W is subject to cross-ex regarding the stmts
3. Rebut fabrication / improper influence = the prior stmt must be offered
to rebut a charge that the prior stmt was fabricated or made due to improper
influence or motive
iii. It must rebut charge of fabrication / improper influence
1. Prior consistent stmts are admissible when the prior stmt was made BEFORE
the alleged improper influence / motive arose
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2. If the stmt was made before the influence/motive arose, then it rebuts the
charge that the prior stmt was made as a result of that alleged improper
influence/motive
Event Prior Stmt #1 Alleged Prior Stmt #2 Trial Testimony

Pre-Motive Motive Post-Motive
o If the statement occurs at point #1, then it predates the alleged

motive for making the statement -- > PRE-MOTIVE = rebuts
o If the stmt occurs at #2, then it was made AFTER the motive to lie
arose, and doesn’t rebut the charge -- > POST-MOTIVE = does not
rebut
3. Such statements are only admissible under this rule if they were made
BEFORE the motive arose
g. Prior Statements of Identification – 801(d)(1)(C)
i. A prior stmt of identification of a person made by the W after perceiving the person
ii. Requirements:
1. Identification
o A mere description is NOT an ID
i. The W must see the person at an earlier time and makes a stmt
identifying the person
o Ex: Robbery victim gave cops a description of the assailant, and a
police artist did a sketch based on the v’s description. V then identified
the assailant in a photo array. W later id’d the assailant during a
prelim hearing and at trial.
i. Evidence at issue: The composite sketch.
ii. Admissible. The sketch is hearsay – it’s like a verbal stmt of the
assailant’s physical characteristics and is being used to prove
what the assailant looked like. However, it may still me
admitted if the declarant testifies at trial, is subject to cross-ex
regarding the subject matter of the stmt (sketch) and the stmt
is one which identifies a person after the declarant perceived
the person.
2. Cross ex = the W must be subject to cross-ex at the trial regarding W’s prior
stmt of identification
o This is broadly interpreted, so that it is satisfied as long as the party
opponent has the ability to ask questions of the declarant re: the prior
ID
o Thus, a declarant/W who testifies that he has NO memory of the event
that gave rise to the ID may still be permitted to testify to the prior ID
iii. NO Requirement that the earlier ID stmt was made under oath or during a proceeding
II. Admissions by Party Opponent: Generally – 801(d)(2)
a. 5 Types of Admissions will come in for their truth:
i. Personal / Individual Admission (party’s own out of court stmt)
ii. Adoptive Admission (personal admission via adoption)
iii. Vicarious Admission: Authorized
1. the party against whom the stmt is used authorized the declarant to make the
stmt
iv. Vicarious Admission: Agent
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1. the stmt was made by an employee of the party to the litigation, against
whom it’s used
v. Vicarious Admission: Co-Conspirator
1. the stmt was made by a co-conspirator of the party to the litigation, against
whom it’s used; the stmt is about the conspiracy
b. Threshold requirements that apply to all 5 circs:
i. Stmt by a party to the litigation (party = declarant)
ii. That stmt is offered against the party/declarant
c. A stmt made by a party to the litigation is admissible when offered against that party
i. A party to the litigation is the declarant of the stmt in question
ii. The stmt of the party/declarant is offered against the party/declarant
iii. WHY? A party’s words or acts may be offered as evidence against him
1. The party will have the oppty on cross to explain his own words
2. if words can be attributed to a party, he can’t complain about them coming in
against him b/c he has a chance to explain
d. Admission = a stmt made by the party that is offered against the party
i. They key Q is whether the stmt concedes anything at the time of trial (i.e., when
offered), when the stmt is used against the party/declarant
ii. Admission does not mean “Confession”
1. Admission has nothing to do w/ the intention of the party/declarant at the time
it was made
iii. Do NOT confuse w/ declarations against interest
1. an admission under this rule need not be a stmt against the party/declarant’s
interest
o even stmts that are neutral or self-serving when made may be intro’d
against the party who made them
2. Declaration against interest only applies when the declarant is unavailable;
admission by a party is admissible even when the party is available
3. admissions must be made BY A PARTY (or rep) and must be admitted AGAINST
The PARTY; declarations against interest apply only to stmts offered in
evidence by the party who made them, as well as stmts made by 3d persons
iv. Testimony about a party/declarant’s admission does not need to be based on
personal, first-hand knowledge; it doesn’t matter that the stmt/admission would be
inadmissible in ct due to a lack of the declarant’s personal knowledge
v. Special circs:
1. Party/Declarant made the stmt when drunk: Doesn’t matter; still admissible
against the party/declarant – they’re his own words, and he’ll get to explain
them
2. Party/Declarant was hospitalized; doesn’t matter; his words will still come in
and he’ll have a chance to explain
e. Repetitions vs. Adoptions
i. Most courts don’t distinguish b/w repetitions of the stmt and direct adoptions of the
stmts
ii. “The wolf bit the child” – declarant adopts the stmt as his own
iii. “My son said that the wolf bit the child” – declarant repeats what has been reported
f. Analysis: AGAINST WHOM is the stmt being offered?
i. it must be offered against the declarant who is a party to the litigation
ii. Against = adverse
iii. Party = the declarant must be a party opponent, and the stmt must be offered
against that declarant/party opponent
III. Personal / Individual Admissions – 801(d)(2)(A)
a. A party’s own stmt may be offered against him
b. Prior Guilty Pleas
i. Admissions by a criminal D are admissible against him
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ii. In a criminal case, the D pleads guilty to assault. Later, Plaintiff brings a civil suit
against D, based on the same incident. D’s prior guilty plea may be used against him
EXCEPT if it was a guilty plea made in petty circs
iii. WHY? If a plea is to sth petty, those pleas are not admissible at a later proceeding
regarding the same incident.
1. A plea in petty circs is a practical, easier solution than fighting the
charge/violation. We want people to settle petty violations (e.g., traffic tix)
and we don’t want people to litigate such violations. So the law privileges
petty pleas to encourage quick resolution
c. Conduct as admission
i. Conduct that constitutes hearsay is admissible under this rule
ii. Manifestation of guilt – conduct by a party outside the courtroom may justify the
inference that he has a guilty conscience or believes he has a weak case (e.g., crim
D’s flight from a crime or attempt to obstruct justice)
iii. Failure to testify or produce in a civil case
1. A D’s failure to testify in a civil case or failure to produce a witness/evidence
w/in his control, refusal to undergo physical exam on a relevant issue, all
justify the factfinder in inferring that the un-proffered evidence would have
been unfavorable
IV. Adoptive Admissions – 801(d)(2)(B)
a. A stmt offered against a party is admissible when the party has manifested his adoption or
belief in its truth. Adoption may be explicit or implicit.
b. Explicit Adoption
i. When the party/alleged declarant affirmatively expresses his adoption of the stmt by
his words or response
1. Ex: John says “It’s 10am.” Mike says “Yes, it is.” Mike has affirmatively
expressed his adoption of John’s stmt that it’s 10am.
c. Implied or Silent Adoption
i. Key Q: whether, taking into account all circumstances, the declarant’s (who allegedly
adopted the stmt, and against whom it’s offered) conduct or silence justifies the
conclusion that he knowingly agreed w/ another person’s statement
ii. Silent adoption – when conduct, not words, constitutes an adoption of the stmt
1. The mere fact of a person remaining silent does not by itself constitute
adoption. The entire factual setting must be considered in determining
whether the silence constituted a manifestation of adoption.
2. Key Q: Would a reasonable person have denied the stmt under the circs?
o By not denying something, the party/declarant may acknowledge the
thing such that it’s an adoption
3. Factors to consider in determining whether silence = adoption:
o Stmt must have been heard by the party
o The stmts must have been understood by the party
o The subject matter must have been within his knowledge
o There must have been no impediments to response (e.g., confusion,
injury after accident, in custody/Miranda warning)
i. Ex: If D was in custody and knew that anything he said could be
used against him, his silence will not be taken as adoption
o The stmt must itself be one that would, if untrue, call for a denial under
the circs
iii. US v. Hoosier: Silence = Adoption
1. D is charged w/ bank robbery. W testifies that prior to the robbery, D told him
he was going to rob a bank. 3 weeks after the robbery, W saw D with money
and jewelry. In D’s presence, D’s girlfriend explained D’s sudden affluence to
W by saying “That ain’t nothin’ – you should have seen the money we had in
the hotel room.” The prosecution offers the girlfriend’s out of court stmt as an
admission by D, on the theory that D adopted it by remaining silent.
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2. Admissible. Under the total circs, probable human behavior would have been
for D to promptly deny his girlfriend’s stmt if it had not been true, esp when it
was said to a person to whom the D had previously related a plan to rob the
bank.
iv. Letter or other writing as stmt allegedly adopted
1. Should a recipient’s non-response constitute adoption so that the letter or
writing may be admitted?
2. More likely to be an adoption if the recipient wrote back, but didn’t deny the
stmt, or wrote back but failed to contradict the stmt at issue
3. Were the circs or relationship such that the recipient would be unlikely to
remain silent in the face of an incorrect stmt?
V. Authorized Agents – 801(d)(2)(C)
a. Stmts made by a 3rd person are admissible against a party to the litigation when the party
authorized the 3rd person to speak on his behalf
i. Occurs when the party to the litigation had authorized someone to speak on his
behalf, and the person made a stmt that’s now being offered against the party to the
litigation
ii. Explicit authorization by the party against whom it’s offered
iii. Rationale: Agency principles provide that agents can do things that bind the
principal.
b. Agency requirement
i. The stmt is only admissible if the person who made the stmt is an AGENT of the party
against whom the stmt is offered
ii. the fact of whether an agency relationship existed CANNOT be made solely by means
of the contents of the stmt itself, though the contents of the stmt may be considered
as one piece of evidence that the agency relationship existed.
c. Lawyers
i. Lawyers are authorized to speak on behalf of their clients, so whatever a L says may
constitute an admission under this rule, and come back to haunt the client
d. Corporations
i. Corps designate employees to speak on behalf of the corp. Ex: Corp’s factory
explodes and Corp appoints Employee to furnish the police w/ details about what
caused the accident, anything Employee says will be admissible against Corp.
e. Statements authorized to be made to the principal only
i. When the principal has authorized the agent to speak only to the principal,
statements the agent makes to persons other than the principal are still admissible
against the principal -- even when the agent makes stmts to persons other than the
principal, beyond the scope of the authorization.
VI. Vicarious Admissions: Employees – 801(d)(2)(D)
a. Vicarious liability principles apply: The relationship b/w an employee (agent) and employer
(principal) is such that when an inferior makes a stmt, the superior should be held to answer
for it
i. Rationale: Reliability; the employee (agent) is well informed about the transactions
he is commenting on, since they occur w/in his work for the employer (principal)
b. 4 Requirements
i. Offered against party to litigation
ii. Agency rel’ship exists
iii. Scope of emp’mt
iv. Pendency (24/7)
c. Offered against a party to the litigation
i. The stmt must be offered against a party to the litigation to satisfy the pre-req. of
801(d)(2)
d. Agency
i. only admissible if the person who made the stmt is an AGENT of the party against
whom the stmt is offered
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ii. the fact of whether an agency relationship existed CANNOT be made solely by means
of the contents of the stmt itself, though the contents of the stmt may be considered
as one piece of evidence that the agency relationship existed.
e. Scope
i. The stmt is regarding a matter w/in the scope of the agency/employment rel’ship
ii. Ex: Corp receptionist told investigators that the stock traders at the company relied
on insider information. Can the investigator testify to her statement? Depends on
whether her stmt was about a matter within the scope of her employment.
f. Pendency
i. Pendency exists 24/7 while the agent was employed
ii. The stmt was made during the existence of the agency rel’ship
iii. What’s important is that the STATEMENT was made during that time.
1. It is not relevant that the matter about which the stmt was made occurred
during the duration of the employment
2. It also does not matter that the stmt was made ON The JOB -- > 24/7
pendency
iv. If the declarant was not employed when the stmt was made, then the stmt doesn’t
satisfy the pendency element and is inadmissible
v. The moment a person is no longer an employee, they cease to be an agent, and any
stmts they make are no longer admissible as admissions under this rule
vi. However, if a person gets a new job w/in the same firm, she can still make a stmt
w/in the scope of her prior job at the same firm
g. Emails
i. No personal knowledge is required for a stmt to satisfy this rule
ii. So … emp’ee emails can come in against the corp employer event if the emp’ee had
no knowledge about the stmts in the email – as long as the scope rule is satisfied
h. Govt admissions
i. Respondeat superior does not extend to govt employees
ii. Govt agents are NOT agents under this rule
iii. BUT – courts have expanded the rule to allow stmts against the govt that would be
permitted against private parties
i. Independent Contractors
i. Under conventional agency law, IC’s differ from agents/employees b/c the principal
exercises less control over what they do
ii. Thus, if sb is an IC, it’s likely that their stmts cannot be admitted against the hiring
party
iii. However, the stmts of the IC may still be admissible against the hiring party if the
IC’s actions constitute adoption under 801(d)(2)(B)
j. Case Example: Mahlandt Case
i. The trial court excluded 3 stmts that were offered against the corporate D, a Zoo,
and an employee defendant. 1) Note written by employee of the Zoo stating that the
wolf had bitten a child; 2) Verbal stmt by the employee to President of the Zoo that
the wolf had bit a child; 3) minutes from the Zoo’s board mtg in which the incident of
the wolf biting the child was discussed. Each stmt reported as fact that the wolf had
bit the child
ii. Trial ct excluded b/c the declarants in each case lacked personal knowledge about
whether the wolf had bit the child. P claims error in excluding them.
iii. Held: There’s no personal knowledge requirement under the rule.
iv. Admissibility under 801(d)(2)(C):
1. The employee’s stmts #1, 2 come in against the employee b/c they are his
own stmts and he must answer for them.
2. The employee’s Stmts #1, 2 come in against the Zoo employer based on
vicarious admission under this rule.
3. Stmt #3 – board minutes:
o Against employee? NO. NOT admissible against the employee b/c it’s
not his own stmt. The principle of respondeat superior does not work
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in reverse so that an agent may be held responsible for the principal’s
stmts (unless a conspiracy exists b/w emp’ee and emp’er, see below).
o Against the Zoo/Employer? YES. The minutes come in against the
employer/Zoo as authorized admissions under 801(d)(2)(C) since the
board of the zoo was authorized to speak on behalf of the zoo. Thus,
zoo itself was making the stmts.
v. Admissibility under 403: Probative Value
1. Employee’s stmts, #1, 2? Admissible. Their probative value is not outweighed
by any prejudice.
2. Board minutes, #3? NOT Admissible. Lo probative value b/c repetitive, limited
admissibility of them.
VII. Vicarious Admissions: Co-Conspirators – 801(d)(2)(E)
a. 3 requirements
i. Stmt was made by a Co-Conspirator (Agency requirement)
1. Agency principles control – Co-conspirators are bonded w/ ea. Other as mutual
agents
2. MUTUAL – 2-way street; there are no principals, only mutual agents
3. Thus, superiors can make stmts that are used against inferiors if the 2 parties
are co-c’s
4. Even stmts by a previously acquitted co-c will be admissible against another
co-c if the elements of the rule are satisfied
ii. In furtherance (Scope requirement)
1. Stmt must have been made in furtherance of the SAME conspiracy
2. BROAD interpretation of this element
3. Not limited to only those stmts that actually advance or move the conspiracy
forward
iii. During the course of the conspiracy (Pendency requirement)
1. Must have been made while the conspiracy was still in force
2. Stmts made after the conspiracy ended area admissible only against the
declarant, but are not admissible against other members of the conspiracy
b. Co-Conspirator Stmts as Verbal Acts
i. Stmts by co-c’s are often admissible as non-hearsay independent of this rule b/c they
are verbal acts which constitute a conspiracy, in and of themselves and by their
very utterance
ii. That is, by making the stmts, a conspiracy arises
iii. Stmts that are verbal acts are offered for a reason other than to prove the truth of
the matter asserted, and thus are not hearsay -- > admissible
c. Civil AND Criminal Context
i. Stmts by one co-c against another may be admitted even if NOT CONSPIRACY crime
is charged, whether in a criminal or civil context
ii. This rule applies in both criminal and civil cases
iii. Even if the indictment does not include a charge/count of conspiracy, there may still
be a conspiracy for purposes of this rule
iv. The declarant need not be charged as a co-conspirator for his stmts to be admissible
against him under this rule
v. Thus, this evidentiary rule can reach beyond the criminal charges
d. Legal Std for Determining Admissibility of Co-C stmt
i. Bourjaily Rule:
1. the contents of the stmt shall be considered, but are not alone sufficient, to
establish the existence of the conspiracy
ii. Dilemma of determining admissibility:
1. When a co-c stmt is offered, the judge has to decide if there’s an agency
relationship. By deciding this, the judge will in effect be deciding whether
there’s a conspiracy.
2. But the jury is the ultimate factfinder and has to decide if the D’s are guilty of
the conspiracy that was the basis for the co-c admission coming
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iii. The Problem:
1. The judge decides the foundation evidentiary issue – whether the stmt is
admissible – based on a preponderance of the evidence
2. But the judge, by determining whether the evidence is admissible, is
effectively deciding whether a conspiracy exists, and this influences the
ultimate outcome
3. Jury, in contrast, has to make the ultimate determination BRD
4. Judge finds that a conspiracy exists for purposes of admissible on a lower std,
making it more likely that the jury will ultimately find a conspiracy
iv. Old Rule (Glassman Rule):
1. The judge must have evidence of a conspiracy independent of the stmt that
itself is offered. Under this rule, the judge could not admit the stmt if there
was no independent evidence that a conspiracy rel’ship existed.
2. “No Bootstrapping Rule” – stmt cannot bootstrap its own foundation
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Hearsay Exceptions (Unrestricted)
I. Hearsay Exceptions Generally – FRE 803
a. All of these stms are admissible for the TRUTH of what they assert
i. These exceptions are unrestricted; they’re admissible whether or not the declarant is
available to testify
ii. No independent evidence is required to determine admissibility
b. WHY? There is something about the context in which these stmts are made that makes
them inherently reliable
c. In evaluating these stmts, look at the point in time when the stmts were made, not when
they are offered in court/testimony
d. The first 3 exceptions share a requirement that the stmt be spontaneous/present
sense/contemporaneous
i. Present Sense, Excited Utterance, Then-Existing Condition
e. The other stmts do not have a spontaneous or contemporaneous requirement
II. Present Sense Impression – 803(1)
a. Subject matter:
i. A stmts describing or explaining an (external) event or condition made while the
declarant was perceiving the event or condition or immediately thereafter
ii. ANY Event or condition
1. (does not have to be a startling event – see below)
2. If it’s an event or condition INTERNAL to the declarant, then 803(3) Then-
Existing Condition applies
b. Type of stmt:
i. Descriptive or Explanatory Statement
ii. The declarant must have perceived the event him/herself
iii. Opinions are allowed as long as it’s an attempt to explain sth the declarant is
perceiving
c. Timing:
i. While or immediately after perceiving the event/condition
ii. No material time may pass b/w the event being perceived and the declarant’s stmt
about it
III. Excited Utterance – 803(2)
a. Subject matter:
i. Startling event/condition
ii. Can’t be a stmt about ANY event
iii. The stmt must be about a startling event – it must be a stmt about the thing that just
startled you and produced the stmt itself
iv. Is the event sufficiently startling that the ct believes a normal person would probably
have spoken before thinking?
v. Most courts allow the stmt itself to be used to determine whether the event was
startling
b. Type of stmt:
i. ANY stmt Relating to the event/condition
1. broader than Present Sense Impression
ii. Can relate to state of mind of declarant’s excitement; doesn’t need to be a
description
iii. can be a stmt about anything related to the event
iv. The declaration need not explain or refer to the startling event – it’s enough that the
utterance merely relates to the event
c. Timing:
i. While under stress
1. Stress is still in effect -- Pendency requirement
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2. Stmt must be made while the declarant is still be under the influence of the
stress of the event/condition
ii. The stress must be caused by the startling event or condition
iii. Time Delays
1. Sometimes, the event produces shock, memory loss, coma, or some other
medical condition that delays the time for reflection
2. In such situations, the court will generally apply the excited utterance
exception despite the long time interval, thus admitting the stmt even if much
time has passed
Table: Comparing Present Sense Impression & Excited Utterances

Present Sense Impression Excited Utterance
Subject matter ANYTHING Startling event/condition
Type Describes or explains Any type of stmt, as long as it
relates to the startling event
Timing - While the event is occurring or - Can be made at any time, as
immediately after long as the stress from the
- Strict time requirement! event/condition is still in effect
- Contemporaneous - The stress may last a long time;
any stmts made while the stress
still exists qualify as excited
utterances
- there can be no intermediate
stage b/w the stress and the stmt
- the exception applies only
during the original, initial period
of excitement
d. Case Example: Iron Shell –

i. D pled guilty to assault, but not to rape re: assault on a little girl. The prosecution
called a police officer to the stand to testify about statements the little girl made
regarding what happened, specifically that D pulled her pants down and tried to
touch her; she made the stmt at the police station 45-60 minutes AFTER the assault.
ii. Is it a present sense impression? NO – b/c was not made contemporaneous to the
attack or immediately after
iii. Is it an excited utterance? YES.
1. She was still under stress. Due to her age, it was more likely that she was still
under stress from the attack; an adult’s stress might not last as long. Thus,
the lapse of time did not defeat admissibility here.
IV. State of Mind: Then-Existing Mental, Emotional, Physical Condition – 803(3)
a. Then-existing
i. Stmt must be contemporaneous or spontaneous w/ the condition, a present sense
impression of internal condition at the moment the stmt is made
b. Internal
i. Stmt must relate to an internal condition of the declarant
ii. What’s taking place internally, how the declarant FEELS
c. Declarant’s own SOM/Condition
i. Stmt must be about the declarant’s OWN condition, not about sb else’s
d. Not belief or memory of external fact
i. Stmt cannot be about a memory or belief of something external – unless the
declarant is testator
ii. A stmt of memory or belief is not permitted to prove the fact remembered or
believed
iii. Can’t use this rule to prove a past fact that is resident (remembered, believed) in the
declarant’s mind
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iv. EXCEPTION: The rule CAN be used to admit a past fact relating to the declarant’s will
1. Thus, stmts of testator can come in even if they are stmts of belief or memory
of external fact
e. Then-Existing Mental or Emotional Condition
i. When the mental/emotional state is directly in issue
1. the stmt is admissible if it is about a present state at the time the stmt made –
even if the state of mind/emotion at issue in the case is one that pre-dates or
post-dates the stmt
2. Remember: When evaluating the stmt, look at the stmt at the time it was
made, NOT at the time it is testified to in court.
ii. When the mental/emotional state is NOT directly in issue, but is circ’al of some other
fact in issue
1. The issue arises when the mental/emotional state is offered as evidence of
intent
2. The stmt is admissible!
3. Generally, out of court stmts that tend to prove a plan, design, or intention of
the declarant are admissible to prove that the plan, design, or intention of the
declarant was carried out by the declarant
a. A stmt of an intention to engage in some action w/ another is
admissible in supporting the inference that the action was done with
the other person, and – since the 2 are not separable – to support the
inference that the other did the action w/ the declarant.
4. Limitation: Relevance
a. A’s stmt that he plans to kill B tomorrow might be held by the trial
judge to be probative of whether A did in fact kill B the very next day.
The same stmt would probably be held to be irrelevant to whether B’s
unexplained death 3 years later was caused by A, because the
remoteness in time is simply too great.
iii. Example: Hillmon
1. Mrs H sued insurance co to get money from Mr H’s death. But there was no
proof that the body recovered was Mr H. D’s claimed the body belonged to W.
The D’s sought to introduce letters written by W to his sister and fiancée, in
which he said that he planned to accompany Mr H to Colorado.
2. Admissible. There was an issue of whether W went to CO w/ Mr H. The letters
were not direct evidence of whether W went on the trip. But the letters were
the best available proof of W’s intention to go, and to go w/ H. That intention,
in turn, made it more probably both that 1) W went to CO; and 2) W went to
CO w/ Mr H, than if there had been no proof of such intention.
iv. Example: Pheaster
1. Larry told Francine that he intended to meet Angelo in a parking lot to pick up
some marijuana. Larry disappeared. Pheaster, the crim D, is identified as
“Angelo” and is on trial for L’s murder.
2. Stmt at issue: L’s stmt that he intended to meet Angelo in the parking lot is
offered as evidence that L met Angelo in the parking lot
3. Issue: Whether L’s stmt is admissible to prove that Angelo was in the parking
lot w/ L.
4. Held: The stmt is admissible for 2 purposes:
a. prove what L did
b. prove what Angelo did
f. Then-Existing Physical Condition
i. If a stmt about then-existing pain is made to a layperson (non-Dr), then it probably
comes in under this rule. But it only comes in if it relates to present bodily conditions
or symptoms.
1. if made to Dr or sb for purpose of medical treatment, see 803(4).
ii. Example: Declarant says to Friend “I’m feeling terrible chest pains.” The stmt comes
w/in the bodily-condition exception and is admissible in testimony by Friend about
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D’s stmt. Either party would be permitted to prove at trial that Declarant actually
had chest pains by putting on Friend’s testimony that X made the stmt. But if
Declarant says, “I had terrible chest pains yesterday,” the stmt does NOT come in b/c
it was not made regarding a then-existing condition – the contemporaneous element
is missing.
iii. BUT – If Declarant tells Friend “My leg must be broken,” the stmt will NOT come b/c
it’s an opinion and the declarant lacks the firsthand knowledge.
V. Stmts for Purpose of Medical Diagnosis – 803(4)
a. For Purpose of
i. The stmt only needs to be made for the purpose of getting medical
treatment/diagnosis
1. does not have to be made to a doctor or medical personnel
2. Thus, even stmts made to family members are admissible if satisfies the
purpose requirement
ii. No distinction b/w physicians consulted for treatment and those consulted only for
testimonial purposes. Thus, the rule covers stmts made to a physician whose
examination is made solely in order to enable him to testify at a trial.
b. Medical Diagnosis or Treatment
i. The stmt must be reasonably pertinent to diagnosis/treatment
c. Description
d. Subject matter can include:
i. Medical history
ii. Past or present symptoms
iii. Pain
iv. Sensations
v. Inception or general character of the cause/source of the condition
e. Who can make the stmt
i. The stmt may be made by a 3rd person, not just the patient, as long as it is made for
the purpose of getting medical treatment for the patient. This would allow for stmts
by friends, relatives, and good Samaritans.
f. Limitation: Fault
i. Statements ascribing fault are NOT admissible b/c they are not relevant – not
reasonably pertinent to – medical diagnosis or treatment
ii. The Dr does not need to know who was at fault in order to treat or diagnose
iii. Example: Blake @ 258
1. Victim tells the Dr that her stepfather raped her. The V does not testify in the
Father’s criminal trial. The prosecutor wants to offer Dr’s testimony about V’s
statement that her father raped her.
2. Admissible – b/c the V was a child and the issue of WHO raped the child was
pertinent to the Dr’s diagnosis. The Dr testified that she needed to know who
raped the child in order to provide proper treatment.
3. What’s pertinent for treatment of adults may differ from what’s pertinent for
treatment of children.
VI. Past Recollection Recorded – 803(5)
a. Pre-Requisite – Before evidence can come in under this rule, Rules 602 (W must testify from
own memory) and 612 (Refreshing Recollection) must be unsatisfied; if these rules fail, then
use this one!
b. A memo or record is admissible if:
i. W had personal knowledge about the subject matter
ii. W cannot remember, so can’t testify from memory – 602
iii. Made or adopted by the W
1. Created by W
2. Sb else created the stmt and W adopted it
iv. Correctly reflects the W’s knowledge
c. How it works:
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i. At the time of the event/incident, the W writes down a stmt
ii. Later, the W cannot remember what W wrote down – 602
iii. The W’s memory cannot be refreshed under 612
1. Under 612, the lawyer would establish that W cannot remember (602 not
satisfied). Then, W would be able to look at the stmt per 612 to refresh W’s
memory so that W can testify from memory according to 602.
2. If looking at the stmt per 612 does not succeed in refreshing W’s memory,
then the lawyer would introduce the stmt as evidence under 803(5). The W
then reads from the stmt. (The W can only read from sth that has been
admitted into evidence).
3. But if admitted, the written stmt may only be read into evidence. The writing
itself cannot be received as an exhibit unless offered by the adverse party.
iv. The earlier stmt will be admissible as a substitute for W’s testimony if the elements
of the rule are met:
1. W testifies that W cannot remember (602).
2. W attempts to have memory refreshed but this fails (612).
3. W reads from the stmt if stmt satisfies requirements of 803(5):
a. W had personal knowledge about the matter; cannot remember or
testify from memory; the stmt was made or adopted by W; the stmt
correctly reflects W’s knowledge.
v. Must go through 602 and 612 before invoking 803(5)!!
d. Case Example: Ohio v. Scott @ 266
i. D is on trial for shooting a police officer. Girlfriend is on the stand as a W, and
testifies that D told her he shot someone following the incident. She can testify to
D’s stmt b/c it is a Personal Admission – 801(d)(2)(A). However, the girlfriend cannot
remember his exact words. Therefore, she cannot testify under 602 (from memory).
The prosecutor wants to allow her to read from a written statement she gave to the
police on the day of the shooting in which she states what the D told her. Per 803(5).
ii. Not admissible until the prosecutor tries to refresh her recollection! He must lay the
foundation by going thru 602 and 612.
iii. If her recollection cannot be refreshed, then is her written stmt admissible under
803(5) so that girlfriend can read from it? YES.
1. It’s her stmt, created by her. She wrote it down and signed it. (If police had
written it down and made it part of his report w/o her signature, then it could
not qualify as her stmt under 803(5)).
VII. Business Records – 803(6)
a. Business activity
i. Must be a business activity or related to the business itself
ii. Activity must be one that is regularly
iii. VERY BROAD!
iv. Includes schools, hospitals, churches
b. In any form
i. The record may be in any form
c. Time
i. The record must have been made at or near the time of the event which is the
subject matter of the record
d. Persons & Knowledge
i. Record must be made or transmitted by sb w/ personal knowledge
ii. The scope is based on the collective knowledge of those within the business, so it’s
broader than just an individual
iii. People covered:
1. The rule covers everyone in the business and thus information that’s recorded
by anyone in the business
2. A person in the business may record what others in the business report
3. The records must reflect people within the business recording information for
the business
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4. The person must be acting on behalf of the business
5.
iv. Information covered:
1. information related to the business or that comes from within the business
v. Limitation: Must be someone w/in the business
1. Must be based on information obtained by people within the business
2. it cannot be based on information from a person who is not a member of the
business
3. Stmts w/in the offered record that are made by sb outside of the business
would be redacted unless it qualifies under another exception
vi. The person who records the info need not have personal knowledge of the original
information
vii. However, the person who has original knowledge should have first-hand knowledge
and be a member of the business
e. Made in regular course of business
i. Making the business record must be a regular activity of the business, or occur in the
regular course of the business’s conduct
ii. However, there is no frequency or routine requirement
f. Example – Personal Knowledge Required: Petrocelli @ 273
i. P sued Dr Gallison to recover for injuries sustained during an operation.
ii. Stmts at issue: 1) Dr Swartz’s report stating that P’s nerve had been severed during
an operation at another hospital; 2) Dr X report stating that a nerve had been
severed.
iii. They are NOT admissible under 803(6) b/c of the absence of any indication as to the
source of the information that the nerve had been severed and when/how. The
records do not satisfy the personal knowledge requirement of 803(6). Ct found that it
was unclear from the record whether the reporting doctors themselves determined
from ascertainable symptoms or observations that the nerve had been severed, or
whether the doctors were simply recording what the patient told them.
iv. Admissible under 803(4) as stmts made for purpose of obtaining medical
treatment/diagnosis (i.e., past medical history)? Would only be admissible under this
rule if P or his wife were the sources of the information contained in the records. No,
defer to dist ct determination. The P’s lawyers could have argued for admissibility on
these grounds, but did not – perhaps for strategic reasons, hoping to get the
evidence admitted under business records so that the jury would think that the
doctor’s wrote and determined the info in the entries.
VIII. Public Records – 803(8)
a. Public records are treated even more liberally than business records
b. Internal administrative records of a public agency – 803(8)(A)
i. Corresponds to the business records rule, as applied to agency activities
c. Observations/outward looking records of an agency – 803(8)(B)
i. Typical examples are police reports regarding on-duty police officer reports
ii. Observations by police and other law enforcement personnel are expressly NOT
admissible against a D in criminal trial
1. Other law enforcement personnel =
a. Lab technicians who work for law enforcement agencies doing
substance analysis
b. BUT medical examiners found NOT to be law enf’mt b/c don’t have
responsibility for collecting evidence or identifying the perpetrator in
homicides, thus more like treating physicians
iii. Probably has to be written
d. Factual Findings Resulting from Investigation – 803(8)(C) – IF:
i. Factual findings of a public agency’s investigation are only admissible IF:
1. the investigation was made pursuant to authority granted by law
2. in civil actions – very broad admissibility
3. in criminal actions:
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a. ONLY against the govt in criminal cases – very narrow scope of
admissibility
b. CANNOT be used against Crim D
c. Literal language of the rule precludes use not only by prosecution
against D, but also by D
4. But not admissible if the source/circs indicate a lack of trustworthiness
5. Generally, “factual findings” are broadly interpreted
ii. Civil Case: Hearsay w/in Hearsay in Public Record -- Baker v. Elcona @ 285
1. Stmt at issue: Police report of an accident that included: 1) PO’s observations
about the conditions at the scene; 2) PO’s opinion that Plaintiff went thru the
red light; 3) Defendant stated that he could not see the light due to sun. PO
testified at the trial, but was not asked about the report. Later, D offered the
report into evidence. Trial ct admitted the report as past recollection
recorded. This was the wrong rule since PO was no longer on the stand. Past
recollection recorded can only be used when the W who wrote the stmt is on
the stand, forgets, and his recollection cannot be refreshed.
2. PO’s observations: Admissible under 803(8)(B) – no real issue
3. PO’s opinion that P ran the light: Admissible as a finding of fact under 803(8)
(C). It’s a civil action. The opinion constitutes a finding of fact since agency
emp’ees are prof’al factfinders. This reflects the broad approach to “factual
findings.”
4. D’s stmts that he couldn’t see the traffic light: NOT admissible under 803(8)
b/c the stmt was not a factual finding by the PO or an opinion of the PO.
a. NOTE: the ct went on to hold that the D’s stmt was admissible as prior
consistent stmt because D’s prior testimony included inconsistencies
w/ the stmt in the report. This is an error!! In order to be a prior
consistent stmt, there has to be a charge that the D’s testimony was a
recent fabrication. There are no such facts in the record. Also, it can’t
be an admission b/c the D himself is offering the stmt, and in order to
qualify under 801(d)(2) as an admission, the stmt must be offered by
the adverse party. D cannot introduce his own admission.
iii. Criminal Case: Oates
1. Lab technician who did substance analysis for law enf’mt agency was
considered law enf’mt officer and therefore lab report not admissible
iv. Implications: Police Reports are treated differently depending on civil or criminal
context – 803(8)(C)
IX. Hearsay Within Hearsay (Within Hearsay) -- 805
a. This occurs when person A’s hearsay stmt is included w/in person B’s hearsay stmt
Stmt X ---------- >> Stmts/Record Y --------- >> Y offered at trial

Hearsay includes stmt X Can Y come in?
Y is HS also If Y comes in, can X come in (w/in Y)?
b. There must be an independent HS exception supporting admissibility for EACH included stmt
c. If each HS stmt is independently admissible, then they all come in. Otherwise, the only stmts
that come in are those that have an independent basis for admissibility.
d. Example:
i. A stmt of Present sense impression is included in an excited utterance, which is
recorded in a business record
ii. ALL can come in b/c each is independently supported by a HS exception
iii. In Petrocelli, Dr’s report (HS exception - business record) contains P’s own stmt (HS).
If P’s stmt falls w/in a HS exception, then it comes in w/in Dr’s report. If P’s stmt is not
covered by a HS exception, then the Dr report comes in but without P’s stmt.
e. Multiple Hearsay: Norcon v. Kotowski @ 278
Evidence
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EXXON
VECO
Purcell Security Norcon

- Ford - Plaintiff K
- Informants
i. K claims she was sexually harassed by her supervisor, and sued her employer
Norcon. Purcell’s employee Ford conducted an investigation and wrote up a report.
The report contained stmts by informant employees of Norcon to the effect that K’s
supervisor often had parties w alcohol in order to initiate sexual conduct w/ females
under his supervision. Also reported that a Purcell employee spoke w/ a Norcon
supervisor, who said that K’s supervisor would do favors for his female employees in
exchange for sexual activity. K sought to admit the memo/report. Norcon argued
that it should be excluded b/c it consisted of double and triple hearsay.
ii. Stmts at issue: 1) Purcell’s report regarding their investigation into the matter; 2)
stmts by Norcon employees made to investigators and contained in the report.
iii. Admissible. The report is a business record under 803(6), so it’s admissible. The
stmts by Norcon employees that are contained w/in the report are not admissible
under 803(6) b/c the declarants are not w/in Purcell’s business. Therefore, in order to
come in, they must be admissible on other, independent grounds. The employee
stmts contained within in are admissible under 801(d)(2)(D) – admissions against
party opponent (Norcon) by virtue of the fact that the employees were agents of
Norcon. As safety and supervisor employees of Norcon, alcohol use and sexual
harassment were w/in the scope of their employment, esp in response to an emp’ee
initiated investigation. Therefore, the stmts were made w/in the scope of their
employment and are admissible.
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Hearsay Exceptions (Declarant Unavailable)
I. Introduction
a. Under the FRE, there are exceptions to HS that can only be invoked when the declarant is
unavailable as a witness
b. Former Testimony
i. Testimony given in a prior proceeding is admissible when the declarant is unavailable
as a witness in the current proceeding
c. Dying Declaration
i. Statements made while the declarant believed his death was impending are
admissible when the declarant is unavailable as a witness
d. Statements Against Interest
i. Stmts that were against the declarant’s interest when made are admissible if the
declarant is unavailable as a witness
II. Threshold Requirement: “Unavailable”
a. As a threshold matter, the declarant’s testimony must be deemed ‘unavailable’ in order for
one of these exceptions to apply and allow admission of a stmt that otherwise is HS
i. Thus, any analysis of whether an 804 exception applies must begin w/ determination
of whether the declarant’s testimony is unavailable under the rule
b. Testimony, not person, must be unavailable
i. The declarant’s physical presence is IRRELEVANT
ii. For example, a declarant might be physically present, but his testimony may be
‘unavailable’ due to a privilege exemption
c. A declarant’s testimony is “unavailable” in these circs:
i. Privilege exemption
ii. Refuses to testify despite court order
iii. Lack of memory of the subject matter of the stmt (testifies to this)
iv. Inability due to death or then-existing mental, physical illness
v. Beyond court’s J/D
d. Available
i. The W is NOT deemed unavailable (thus, available) if exemption, refusal, claim of
lack of memory, inability, or absence are due to the procurement or wrongdoing of
the proponent of the stmt for the purpose of preventing the W from attending or
testifying
ii. If this is the case, then the declarant is available and these HS exceptions cannot be
used to admit evidence
e. Privilege
i. The declarant’s testimony is unavailable when a court rules on a privilege that
precludes the declarant from testifying
ii. Requirements
1. Declarant must invoke the privilege
2. The Judge must then actually rule that the privilege applies, thus precluding
the declarant from giving testimony
f. Refusal to Testify
i. The declarant must refuse to testify in court
ii. The court must issue an order for the declarant to testify
iii. The declarant must still refuse to testify, in contravention of the court order—thus
placing himself in contempt
g. Lack of Memory
i. Declarant has to testify that he does not recall, under penalty of perjury
h. Inability
i. The declarant must be dead or suffering from a long-term mental/physical incapacity
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i. Beyond Court’s Jurisdiction
i. Proponent unsuccessful in procuring declarant’s attendance by process or other
reasonable means
ii. In a criminal case, mere absence from the j/d is not sufficient. The proponent of the
stmt must make a good faith effort to get the declarant into court to testify, or into a
deposition
iii. Requirements for unavailability in criminal context:
1. Declarant is beyond the state’s own process
2. The proponent made a good-faith effort to procure the W’s presence by
means other than process OR such efforts would have been very unlikely to
succeed
iv. Case Example: Barber v. Page @ 306
1. The W was out of reach of the j/d of the court trying a criminal case, so the
court could not compel the W to testify. S Ct held that this form of unavailable
is permissible in civil, BUT NOT CRIMINAL, cases b/c of 6th A issues
2. Where declarant was in fed prison in another state, he was deemed ‘available’
b/c the fed prison system had a policy of allowing prisoners to testify in out of
state court proceedings
III. Former Testimony – 804(b)(1)
a. Requirements for Former Testimony to be Admissible:
i. (Current) Testimony Unavailable (threshold requirement!)
ii. Under Oath
iii. Prior proceeding
1. In a hearing (a trial, prelim hearing, grand jury) or deposition
iv. Cross-examination
1. The party against whom the stmt is now being offered must have had an
oppty to examine (i.e., cross examine) the declarant in the prior
proceeding/depo
v. Similar motive
1. The party against whom the stmt is now being offered must have had a
similar motive to develop the testimony in the prior proceeding by direct,
cross, or redirect exam
b. Under Oath
i. for a stmt to qualify as former testimony, it must be made under oath
ii. Testimony, by definition, means stmts given under oath; ALL testimony is under oath
iii. If it wasn’t given under oath, then it’s not testimony
c. Prior Proceeding
i. Broad interpretation of hearing or proceeding
ii. Hearing = any setting in which sworn testimony by a W is taken
iii. Proceeding = any official inquiry conducted in a manner authorized by law – judicial,
admin, legislative, investigative, or inquisitorial
iv. Proceedings that would be included:
1. prior trial, prelim hearing in crim case, grand jury investigation, suppression
hearing, depo
v. What’s NOT a proceeding:
1. affidavits, stmts made to police or law enf’mt officials during investigations
d. Cross-examination
i. The party against whom the stmt/evidence is now offered must have had a
reasonable oppty to cross-examine the declarant at the time of the former testimony
ii. ACTUAL examination not required; all that’s required is that the opponent had a
reasonable oppty to do so
1. As long as there was a reasonable oppty to conduct a cross-exam, it doesn’t
matter that the party chose not to take it as a tactical matter in the previous
proceeding
e. Similar Motive
Evidence
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i. The party against whom the evidence is now offered must have had a similar motive
to develop the testimony in the prior proceeding
1. In a civil case, the party involved in the prior proceeding is referred to as the
current opposing party’s predecessor in interest
2. A crim D has NO predecessor in interest
ii. 3 components:
1. Same issues
2. Same stakes
3. Same parties
4. If all 3 are similar/identical b/w the prior and current proceeding, then the
similar motive requirement is satisfied; if one or more is missing, then the
party opposing the evidence will have at least a colorable chance of est’ing
that this element is not satisfied
iii. Similar Issues
1. Same or similar issues were involved in the prior and current proceeding
2. The key Q is whether the issue to which the particular piece of testimony now
sought to be used is the same/similar as the issue on which the proponent
now seeks to introduce the testimony
3. Is the former and current testimony relevant on the same points of the case?
a. If the former testimony was relevant to issues that are not
present/disputed in the current case, then it’s less likely that this
element is satisfied
b. If the main points on which the declarant’s former testimony now
seems to be relevant did not seem to be in issue at the prior
proceeding, then the opposing party in the prior proceeding had
no/little incentive to cross-examine the declarant on those points and
it’s not fair to introduce the declarant’s now uncross-examinable
testimony at the present trial
iv. Similar stakes
1. If the stakes were much smaller in the first proceeding than they are at the
current trial, then the opponent of the prior testimony has a good chance of
convincing the court that the prior testimony should be excluded because of a
lack of a similar motive
2. HOWEVER, if the prior proceeding was a prelim hearing or grand jury
investigation, the court is less likely to find that the stakes were smaller and
will tend to allow the former testimony
v. Same parties
1. The party against whom the former testimony is offered must have been
present in the earlier proceeding (predecessor in interest, in civil context)
a. The party against whom the former testimony is now offered must
have had an oppty (and similar motive) to cross-ex in the earlier
proceeding
OR
b. In civil cases, the present opponent’s predecessor in interest must
have had such an oppty
2. Civil cases
a. Predecessor in interest is satisfied if a person with a like motive to
develop the same testimony about the same material facts cross-ex’d
the testimony
3. Criminal cases
a. The ‘same parties’ requirement is strictly construed
b. Thus, if the D was not an actual party to the earlier proceeding, the
presence of a person w/ even an extremely similar motive to cross-ex
will not be sufficient to allow the testimony to be used against the D
IV. Dying Declarations – 804(b)(2)
a. Testimony Unavailable (Threshold requirement)
b. Awareness of impending death
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i. Stmt must have been made while the declarant subjectively believed that death was
imminent
ii. Actual death is not required
iii. The person must believe he is about to die, no matter what the injury is
iv. If the person does not actually believe he’s about to doe, then the stmt is not a dying
declaration
c. Type of action
i. Only admissible in a homicide prosecution or civil action
ii. If the stmt is offered in a criminal, non-homicide case -- > NOT admissible
d. Scope
i. Identification of the cause or circs of the impending death or killer
ii. Narrative of circs leading to death; can span a period of time as long as it relates to
death
e. Personal, first-hand knowledge
i. The DD is only admissible if it appears to come from the declarant’s own first-hand
knowledge
f. Who may offer a DD
i. DD may be admitted on behalf of the accused, even though most of the time they
are admitted against him
g. Opinions
i. Usually, an opinion is not admissible
ii. However, if the DD includes an opinion, it will usually be admitted anyway
iii. BUT if the judge finds that the opinion or speculation portion of the stmt outweighs
its factual portion, he can exclude the evidence on grounds that it’s prejudicial or
unhelpful
V. Declarations Against Interest – 804(b)(3)
a. Testimony Unavailable (Threshold requirement)
b. Against interest
i. Stmt was against declarant’s pecuniary, proprietary, or penal interest of
declarant
1. Pecuniary = Stmt affects the declarant’s financial well-being
a. Includes stmts that give rise to, or extinguish, tort liability
2. Property = The stmt concerns declarant’s property, has the effect of limiting
his property rights in some way
3. Penal Interest = exposes the declarant to criminal liability; see requirements if
offered to exculpate or inculpate the accused
ii. Offered as exculpatory stmt
1. A stmt offered to exculpate the accused must meet these 2 requirements:
a. must be corroborated by independent evidence
AND
b. the corroborating evidence must clearly indicate its trustworthiness
2. What constitutes adequate Corroborating Evidence?
a. Look for evidence that would clearly permit a reasonable person to
believe that the stmt might have been made in good faith and could be
true
b. Did the declarant have a motive to lie or falsify the stmt?
c. Does the general character of the declarant suggest that his
confession is untrustworthy?
d. Did one or more persons hear the stmt? The more who testify that they
heard it, the more likely that the stmt was at least made
e. Was it made spontaneously?
f. What was the timing of the stmt?
g. What was the rel’ship b/w the declarant and the witness?
h. Is there other, external evidence linking the declarant to the crime?
iii. Offered as Inculpatory stmt
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1. If offered to inculpate the accused, it must be supported by particularized
guarantees of trustworthiness
c. Declarant’s Awareness vs. Ignorance
i. Reasonable Person Standard
1. the rule requires that the stmt was so far contrary to the declarant’s interest
that a reasonable person in the declarant’s position (w/ declarant’s degree of
awareness, below) would not have made the stmt unless believing it to be
true
2. The reasonable person is one who has the degree of awareness that the
declarant had in making the stmt
ii. Key Q: What did the person understand his interest to be at the point at which he
made the stmt?
iii. The declarant must have been aware, at the time he made the stmt, that the stmt
was against his interest – based on a reasonable person standard, above
1. If a reasonable person in declarant’s position would not have realized that the
stmt could expose him to criminal/other liability, the stmt would not be
against interest
iv. Ignorance / Lack of Awareness
1. If there is evidence that the declarant did not realize, at the time he made the
stmt, that it was against his interest, then it should be excluded
2. Lack of awareness of the danger of the stmt removes the guarantee of
reliability that provides the whole basis for admissibility
d. At the time the stmt was made
i. The stmt must have been against the declarant’s interest at the time it was made
1. That later developments have turned what was an innocent-seeming stmt into
one that now harms the declarant is NOT ENOUGH to satisfy the requirement
2. Look at the time it was made, not at the time the stmt is being proffered
e. CAUTION: Don’t confuse this exception w/ Admissions!
i. The exception for admissions only applies where the declarant is a party to the
action and the opponent is offering it against the declarant/party
ii. Admissions do not have to satisfy the requirements of declarations against interest –
1. the party/declarant does not have to be unavailable
2. the admission does not have to be against the party/declarant’s interest
3. the declarant/party does not have to have had firsthand knowledge
iii. Declarations Against Interest are stmts made by sb OTHER THAN THE ACCUSED
iv. How to Use:
1. In practice, the declaration against interest rule will be used when you want to
introduce a stmt by someone who is NOT a party to the action
2. If you represent a party to the action and want to get a declaration against
interest into evidence, treat it as an admission, not a declaration against
interest
3. Declarations Against Interest Rule is a prosecutor’s rule – prosecutors are
trying to introduce evidence against the D
f. Self-Serving or Neutral Stmts Made in Proximity to Stmts Against Interest
i. Sometimes a statement includes a part that is clearly against the declarant’s interest
and another part that is either neutral or self-serving (collateral)
1. Ex: “I robbed a bank w/ John last night.” The stmt appears to be against the
declarant’s interest. But it also appears to implicate John, and possibly make
the declarant somewhat less culpable, which serves declarant’s interest. On
the other hand, if John committed other crimes later the same night, these
stmts might implicate the declarant in the other crimes, so would be
inculpatory
ii. The neutral or self-serving portions of the stmt are NOT ADMISSIBLE
1. The S Ct has held that 804(b)(3) does not allow admission of non-self-
inculpatory stmts, even if they are made w/in a broader narrative that is
generally self-inculpatory. See Williamson v. United States
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iii. Rationale
1. The fact that the collateral (neutral or self-serving) statement is made in close
proximity to the stmt against interest (inculpatory) does not increase the
likelihood that the neutral/self-serving stmts are true
2. Indeed, one of the most effective ways to lie is to mix falsehood w/ truth, esp
truth that seems particularly persuasive b/c of its self-inculpatory nature
3. Thus, the fact that a stmt is collateral to a self-inculpatory stmt says nothing
at all about the collateral stmt’s reliability
iv. Williamson v. United States
1. Harris was stopped on the hi-way and found w/ 19 kilos of cocaine in 2
suitcases in his trunk. During 2 in-custody interrogations, he made the
following stmts:
a. he knew the suitcases contained cocaine (exculpatory)
b. he was transporting the cocaine on behalf of D (self-serving)
c. D was traveling in another car ahead of him and saw the police stop
Harris (neutral)
2. There was evidence that Harris was trying to minimize his own role and
characterize D as being the ringleader.
3. At D’s trial, the officer who interrogated Harris was permitted to repeat
Harris’s entire confession, on the theory that it constituted a single
‘statement’ that was against Harris’s penal interest
4. Held: Only those individual declarations that were specifically against Harris’s
interest can be admitted
v. Curry Favor problem:
1. In Williamson, there was evidence that much of what Harris said – incl. most if
not all of the parts that implicated D – may have been said for the purpose of
making D out to be the ringleader. Harris was already caught w/ the cocaine,
so his stmt that he knew there was cocaine in the suitcase didn’t worsen his
legal position.
2. Blame-shifting stmts can never be admitted under the Declaration Against
Interest rule b/c they are deemed not to be declarations against interest
vi. Analytical issues:
1. Analyze EACH STMT individually to determine whether each is against the
declarant’s interest
2. What is the Factual Background?
3. What is the proposition for which the declaration is being offered?
a. A stmt may be against the declarant’s interest when used to support
one inference, but NOT against his interest when used to support a
different inference
4. What is the function of the stmt?
a. Does it shift blame to sb else? Then it’s self-serving and not against
interest
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Character Evidence
VI. Character Evidence Summary & General Rules
a. Basic Rule: Ch Evidence to prove a person’s action in conformity w/ that ch is usually
prohibited
i. Info about a person’s ch may not be intro’d to suggest that the person did sth b/c of a
propensity to do such things
ii. This is called the ‘propensity inference’ and such inferences – that a person did sth
b/c he is the type of person who would likely have done it – are generally forbidden.
See FRE 404(a)
b. Summary of Exceptions: When Ch evidence is admissible to prove conduct on a particular
occasion
i. Criminal Cases -- D holds the key to Ch evidence being admitted
1. D must go 1st in presenting Ch evidence and controls whether ch evidence
comes in at all
a. This applies to ch evidence relating to both the D AND the Victim
2. But once the crim D places D’s ch in issue, he opens the door for the
prosecution to intro Ch evidence to rebut D’s assertions about ch
3. By crim D, in order to show that he did not commit the charged crime:
a. To prove his own good ch as to a pertinent trait
b. To prove V’s violent ch
c. To show that the murder V was the 1st aggressor
4. By prosecution = REBUTTAL ONLY and SAME TRAIT
a. To prove D’s bad ch, as rebuttal to D’s evidence of D’s ch
b. To prove D’s aggressive ch, as rebuttal to D’s evidence of V’s
aggressive ch
c. To prove murder V’s peaceable ch, as rebuttal to D’s claim/evidence
that V was 1st aggressor
5. Pertinent Traits
a. The ch evidence introduced by either the D or the Prosecution must be
pertinent to the ch issues involved in the case, implicated by the
charges
b. “Pertinent” = depends on the nature of the charges
c. Example: In a prosecution of D for battery, a court would not allow the
D to introduce evidence of his honesty b/c honesty is not pertinent to
battery. The court would allow D to intro evidence that he is peaceable
or non-violent. In a drug trial in which D is charged w/ conspiracy for
dealing drugs, evidence of D’s reputation for truth and honesty would
not be admissible b/c truthfulness is not pertinent to the crim charge of
conspiracy to distribute or possess drugs.
ii. Element of claim or offense
iii. Non-propensity use
iv. Sex offenses
v. Impeachment of a W’s truthfulness – See other rules, below.
1. If the crim D takes the stand, he automatically places his ch in issue, and the
prosecution may attack him w/ impeachment evidence … Prosecution doesn’t
have to wait and can go first! D opens the door by the mere fact of taking the
stand
c. Civil Context
i. Ch evidence is NOT ADMISSIBLE in civil cases
ii. Exception: it’s a sex offense action
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iii. Thus, in civil cases, Ch evidence is only allowed for purposes of impeachment (non-
Ch purpose)
1. though some courts might allow it if the underlying conduct is criminal in
nature
d. Summary: Methods for proving Ch when it’s permitted
i. Reputation and opinion testimony (ALWAYS)
ii. In addition to rep and opinion testimony, evidence of specific instances of prior
conduct is allowed when ch is element of claim/charge/offense/defense
VII. Character Evidence to Show Propensity/Conduct on a Particular Occasion
CHARACTER ---- Prove ---- > CONDUCT
Generally, not permitted
a. Ch evidence to prove a person’s action in conformity w/ that ch – the propensity inference --
is allowed only in certain situations
i. D’s Character:
1. A crim D is allowed to intro evidence about his own good ch to support an
inference that he did not commit the crime charged
a. Rebuttal: Once the crim D does this, he opens the door so that the
prosecution can introduce rebuttal evidence about the D’s ch to
suggest that the D is guilty
2. Prosecution can also intro Ch evidence about the D’s ch on rebuttal of:
a. D introducing ch evidence of D’s own ch
OR
b. D introducing ch evidence about the V
3. Must be a pertinent trait to the crime/offense charged
4. FRE 404(a)(1)
ii. Victim’s Character:
1. V’s ch generally
a. Crim D may introduce evidence of a pertinent Ch trait of the V
b. Prosecution may rebut by introducing evidence of V’s ch on the same
trait
2. Murder V’s ch as 1st aggressor
a. A crim D may show that the MURDER victim was the aggressor by
introducing evidence of the v’s ch for violence; FRE 404(a)(2)
i. i.e., D can introduce ch evidence showing that V had a violent
or aggressive ch
b. D can also intro ch evidence to support D’s self-defense claim by
persuading the jury that the D could reasonably have feared the victim
b/c the D knew the V had a rep for violence
c. Prosecution may then rebut by introducing Ch evidence of V’s
peacefulness
iii. W’s Character
1. Governed by rules on Impeachment, below
iv. Summary -- When can the prosecution introduce Ch evidence?
1. D’s ch:
a. Prosecution can introduce ch evidence about the D in response to the
D introducing ch evidence of D’s own ch
i. Must be the same trait
b. Prosecution can introduce ch evidence about the D in response to the
D introducing ch evidence of the V’s ch
2. V’s ch:
a. The prosecution may introduce ch evidence about the V in response to
the D introducing ch evidence of the V
b. The prosecution may introduce ch evidence about a MURDER V in
order to rebut a claim made by the D that the V was the first aggressor
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v. Sex offenses
1. Prosecution may, in some circs, introduce evidence of crim D’s sexual
propensities in a sex offense criminal trial
vi. Impeachment
1. Evidence of a W’s ch (propensity inference) is permitted as impeachment
evidence under another rule
2. When an issue at trial is whether a WITNESS has testified truthfully, evidence
about the W’s ch for truth-telling is permitted to support an inference that the
W acted in conformity for the W’s usual respect/disrespect for the truth
3. Every person who testifies as a W is open to ch attacks re: truthfulness
VIII. Methods for proving ch evidence – FRE 405
a. When ch evidence is permitted acc to the above rules, how can it be introduced?
b. Reputation & Opinion testimony = ALWAYS permitted; FRE 405(a)
i. When either the D or prosecution calls ch witnesses, those W’s can only provide rep
or opinion testimony. On direct exam, the W may NOT testify to specific instances of
past conduct.
ii. Thus, the D, in calling Ch witnesses or introducing Ch evidence, is NOT permitted to
ask about specific instances of past conduct; the D can only elicit rep and opinion
evidence
c. Specific past conduct/instances testimony = SOMETIMES permitted; FRE 405(b)
i. The D or pros can ask about specific instances of conduct only on CROSS-EXAM of the
other party’s ch W
1. Thus the D and Pros are NOT allowed to intro evidence of specific instances of
conduct to support inferences about his ch
2. However, inquiry is limited to the W’s answers – the questioner cannot offer
independent proof of the specific instances of conduct; the questioner must
accept whatever answer the ch W provides
3. When a party is permitted to prove propensity using ch evidence, that party
cannot use past conduct ch evidence; can only use rep or opinion
ii. When ch is an essential element of a charge, claim or defense, evidence of specific
instances of conduct may be elicited
d. These restrictions on method of proof only apply to evidence intro’d for purposes of proving
character; they do not apply if the evidence is intro’d for another reason under 404(b), or
Habit (406).
IX. Element of a claim or defense: Ch in “Issue”
a. This only applies in the civil context
b. Ch is always allowed when a person’s ch is an element of a claim or defense; FRE 405(b)
i. An element of a claim or defense may explicitly involve the issue of sb’s ch
ii. In such cases, ch evidence is permitted to prove the element and may be proved by
evidence of rep, opinion, or specific instances of conduct
iii. WHY? In such cases, Ch evidence is used to prove Ch only, but is not used to prove
conduct in conformity w/ ch
c. Method of proof
i. Introduction of Ch evidence in this context is not limited by 405
ii. Therefore, the ch can be proven through testimony of reputation, opinion, or specific
instances of prior conduct
d. 4 situations in which this will arise:
i. Defamation
ii. Negligent Entrustment
iii. Child Custody
iv. Wrongful Death
e. Defamation Example
i. A D in a defamation case who is accused of falsely describing the plaintiff as evil
would be permitted to prove that the plaintiff is, in fact evil (has an evil ch).
Evidence intended to show the nature of the person’s ch is allowed in such circs.
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f. Negligent Entrustment Example:
i. P alleges that the D was culpably careless in letting a particular individual operate a
car or machine. To show that D was negligent, P could introduce evidence about the
ch of the operator to show not that the person drove badly on a specific occasion, but
to show that based on what D should have known about the operator, the D should
not have let him or her be in control of the car/machine. Proof that the operator
really did do a poor job of driving or operating the machine would have to be made in
some NON-propensity way, such as thru eyewitness testimony of the actual incident.
ii. Negligent Hiring cases also fit this model
X. Non-Propensity Use of Ch Evidence
a. Evidence that might support inferences about a D’s ch, but that’s relevant to a reason other
than/independent from a propensity inference is admissible
i. Evidence that seems like ch evidence is allowed IF its relevance does NOT depend on
an inference involving a conclusion about the person’s ch; FRE 404(b)
ii. Thus, evidence that could support a conclusion about a person’s ch may have
relevance on another issue, independent of its relevance to a ch/propensity inference
1. List of examples in 404(b); not an exclusive list
2. These things can be proven by evidence of the person’s bad acts and by any
method, including evidence of specific instances of past conduct
b. Relevance will be of particular concern to the judge in deciding whether to admit the
evidence
i. Is it relevant to the asserted non-propensity purpose?
ii. If relevant for a reason other than to show ch, what is the relationship b/w its
probative value and risk of unfair prejudice?
1. Probative value = consider the party’s need for the evidence; if there are
other, less prejudicial ways to prove the issue, then the ct is likely to exclude
the evidence; where other evidence is not available for the asserted purpose,
then the prior bad act evidence is likely to be admitted
c. Method of proof
i. Method of proof: Does not need to confirm to 405 methods (rep, opinion, specific
instances) since evidence admitted under this rule is used for non-propensity
purpose
ii. Therefore, the ch can be proven through testimony of reputation, opinion, or specific
instances of prior conduct
d. Example: Evidence that sb charged w/ a crime has committed similar crimes in the past
could lead a jury to think that the D is a criminally inclined person (supporting propensity
inference)
i. If this were the prosecution’s only justification for offering the inference, it would NOT
be admissible b/c it represents propensity evidence
ii. However, if the prosecution offered the evidence to show sth else – for example, that
the D’s participation in a past crime gave the D the skills that were specially needed
in the offense for which the D is charged in the current trial – then it may be
admissible
iii. In that situation, the jury would be instructed not to use the evidence to make a
determination about the D’s ch, but only to use the info to determine whether the D
possessed a specific skill that made it more likely that he was the perpetrator of the
charged offense
XI. Habit Evidence
a. Evidence of habit is considered relevant to how a person acted on a specific occasion in a
way that does not involve consideration of the person’s general Ch
b. Therefore, habit evidence is admissible as NON-CH evidence
c. Under FRE 406, evidence of habit or routine practice is relevant and permissible:
i. To prove that that conduct of a person on a particular occasion was in conformity w/
the habit/routine practice -- > Habit evidence proves behavioral habit
ii. Such evidence of habits does not involve consideration of the person’s general ch
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iii. Whatever the person’s general ch, he has a habit of stopping at stop signs -- >
permissible to infer that the person stopped at the stop sign on the occasion at issue
in the lawsuit
d. “Habit”
i. Automatic -- The conduct is virtually automatic
ii. Repeated – the conduct has been repeated many times in the past
iii. Same situation – the conduct is automatic and repeated in the same situation at
issue
e. Method of proof: Not limited to rep, opinion, specific instances rule of 405 since habit
evidence is not intro’d to prove ch
XII. Use of Ch evidence in context of Sexual Offenses
a. Admissibility of Victim’s Prior Sexual Conduct – FRE 412
i. General rule
1. A total prohibition on any reputation or opinion evidence w/r/t a victim of a
sexual offense
2. Thus, under 412, ch evidence that might otherwise be admissible under 404,
405 is not admissible
3. This applies in both a civil and criminal context
ii. Admissible Evidence in Criminal Cases:
1. Specific instances of V’s sexual behavior if offered to prove that a person
other than D was the source of semen, injury, or other physical evidence
2. Specific instances of sexual behavior b/w the V and D if:
a. Offered by the D to prove that V consented
i. D can intro evidence to show that D believed V consented to
the sexual activity
ii. This includes reputation evidence about the V to show what the
D knew about V
b. Offered by prosecution
3. Thus, reputation and opinion evidence is not admissible!
4. Evidence that, if excluded, would violate D’s const’al rights
a. Sometimes, V’s prior sexual behavior is relevant to V’s credibility
b. If such evidence has a bearing on V’s credibility as a W, then the D has
a 6th A right to confront V about it and cross-examine V about the
relevant behavior
c. In particular, this arises when D wants to prove that V is falsely
accusing D of sexual assault, and her motive is related to her prior
sexual conduct
d. If V’s prior sexual conduct goes to the veracity of her accusations, then
D has right to cross-examine her about the prior behavior
iii. Admissible Evidence in Civil Cases:
1. probative value of the evidence must substantially outweigh …
a. the danger of harm to any V
b. unfair prejudice to any party
2. Reputation evidence is admissible only if it has been placed in controversy by
the Victim
a. D cannot offer reputation evidence first; can only do so after the V has
opened the door
b. Admissibility of Defendant’s Prior Sexual Conduct – FRE 413, 414, 415
i. These rules govern the admissibility of evidence regarding D’s prior sexual conduct
ii. General Rule– 413(a), 414(a), 415(a):
1. Evidence of D’s commission of other sexual offenses is admissible in a
criminal or civil case for any matter to which it’s relevant
a. As long as it’s relevant to the conduct presently at issue, evidence of
D’s prior sexual behavior is admissible
b. This applies in the case of sexual offenses and child molestation cases
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c. WHY? Rape is a deep, ch illogical flaw pointing to sexual predation
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Direct and Cross Examination
I. Personal Knowledge – FRE 602
a. A W may only testify based on personal knowledge
i. Evidence on W’s personal knowledge regarding the matter to which W is testifying
can consist of the W’s testimony that W is testifying based on personal knowledge
II. Refreshing Recollection – FRE 612
a. If a W’s memory fails, so that W cannot testify from memory under 602, the W may have his
recollection refreshed
b. W’s recollection is refreshed by being shown any WRITING while W is on the stand
i. The writing used to refresh the recollection is not shown to the jury and the jury
never sees it
ii. The writing does not come in as evidence and does not have to be admissible under
the rules of evidence
c. What can be used to refresh
i. ANY WRITING
ii. It must be a writing
iii. But it can be any type of writing
d. Requirements for Refreshing a W’s Recollection:
i. Prior to Testimony
1. Discoverable –
a. Any writing shown to the W before W’s testimony and shown to the W
out of court may be discoverable by the opposing party
b. ONLY discoverable IF the judge decides in his discretion it’s necessary
in the interests of justice for the preparing party to disclose/produce
the writing
c. This is NOT an affirmative duty placed on the calling party
i. The opposing party must REQUEST to see any writings used
during pre-trial preparation; the calling party does not have an
affirmative duty to produce the writing used
2. Avoid the opposing party getting a hold of the writing: Don’t call the witness
ii. During Testimony
1. Right to inspect the writing
2. Right to cross-examine the W about the writing
3. Right to introduce the writing as evidence
a. The opposing party has the option to try to admit the writing as
evidence upon cross-examination of the W
b. The only portions of the writing that are eligible for admission are
those that relate to the W’s testimony
c. The admission of the writing is subject to the rules of evidence
i. If the opposing party is admitting the writing for the truth of the
matter asserted, then it is HS and subject to the HS
rules/exceptions
ii. If the opposing party is admitting the writing for a purpose
other than to prove the truth of the matter asserted (e.g., to
impeach the W, etc.), then it’s not HS and won’t be excluded by
the HS rules
4. If admitted, the jury would see what the calling party used to refresh the W’s
recollection
e. Distinguished from Past Recollection Recorded
i. Past Recollection recorded must be a writing that the W himself created or adopted;
refreshing recollection does not require this
f. Case Example: Pre-Trial Preparation -- Raytheon @ 485
i. Writing at issue: P’s attorney prepared a binder of selected documents that were
then used to help the Witnesses in preparing for their testimony
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ii. It’s Admissible.
1. Such a binder is usually the type of documentation that’s protected by the
Work Product Doctrine
2. But b/c the P attorney used it in preparing W’s before their testimony, the
privilege is broken and the binder is discoverable under FRE 612
3. The opposing party must request the binder
4. Then, the judge must determine that it’s necessary for the calling party to
produce the binder in the interests of justice
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Impeachment
I. Introduction to Impeachment
a. Impeachment =
i. A specific part of cross-examination that is apart from the rest of the cross-
examination
ii. Purpose is to attack the credibility of a witness / destroy the witness’s credibility
b. Who is subject to impeachment?
i. Anyone who is a Witness giving testimony
ii. Therefore, these rules apply to testifying witnesses
c. Who may impeach a W?
i. The credibility of a W may be attacked by ANY party, including the calling party;
FRE 607
d. Scope of cross-examination:
i. Scope of direct – the scope of direct exam determines the scope and subject matter
on cross-ex
ii. Credibility -- > impeachment
e. Collateral vs. Non-Collateral
i. NON-COLLATERAL =
1. Matters that bear directly on subject matter and legal/factual issues of the
action including matters relating to Witness competency
a. Witness Competency (from the common law):
i. Bias
ii. Prior Convictions
iii. Mental Incapacity
iv. Although these issues technically bear on the W’s credibility,
and not on the legal/factual issues of the action, they are
treated as Non-Collateral b/c they are rooted in issue of
Competency of the common law
b. Distinguish: Competency from Credibility
c. COERCION constitutes a non-collateral matter related to the W’s
trustworthiness, so can be proved by extrinsic evidence
2. Proof:
a. Extrinsic evidence may be used to prove any non-collateral matters,
including bias, prior convictions, mental incapacity
3. Inquiry:
a. May be addressed on direct AND cross-exam (as long as the
questioning complies w/ scope of direct rule)
ii. COLLATERAL =
1. Matters that do NOT bear directly on the subject matter and legal/factual
issues of the action
2. Includes credibility
3. Proof:
a. Extrinsic evidence cannot be offered to prove collateral matters
b. Collateral matters may only be proven through cross-examination
c. The examining party is limited to the proof that comes out on cross-ex
4. Inquiry:
a. The opposing party may inquire on cross-examination, but must accept
the W’s answer, and may NOT introduce extrinsic evidence to prove
that the collateral matter exists
iii. Example: Plaintiff sues Defendant in a slip and fall action
1. Non-Collateral Matters = > Use extrinsic evidence to prove these matters
a. Whether the W was drinking at the time of the fall
b. Whether W was wearing his prescription glasses
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c. These matters bear directly on whether P can make his case against D
in the subject matter of the action
2. Collateral Matters = > Cannot use extrinsic evidence to prove these matters
a. Whether W lied on his bar application
b. Whether W has a drug abuse problem
c. Whether W has used a fake ID
d. These matters have nothing to do w/ the facts/legal issues arising from
the slip and fall incident; they only bear on W’s credibility
e. Therefore, if the W denies these facts, the cross-examining party may
not introduce extrinsic evidence to prove them. The cross-ex’ing party
is restricted to the W’s response and cannot go into further inquiry.
II. Four Methods of Impeachment (well, technically 5- but we only go over 4)
a. Bias- general lack of credibility
b. Mental or sensory incapacity- general lack of capability
c. Character of untruthfulness- general
d. Prior inconsistent statements- specific lack of capability
III. Bias (no FRE)
a. What is Bias?
i. A W is biased whenever his emotions or feelings towards the parties or towards some
aspect of the case make the W desire one outcome rather than another
ii. Possible Types/Sources: Friendly, hostile, self-interest, membership in a group
b. Non-Collateral -- > Extrinsic Evidence allowed to prove W’s bias
i. governed by common law; there’s no FRE on bias
c. Example: United States v. Abel @ 503
i. Abel is on trial for robbing a bank. Co-D agreed to testify against Abel. Prosecution
calls Co-D to testify, and Co-D fingers Abel. Abel planned to cross-examine Co-D
regarding his bias as a cooperating govt W. Abel calls Mills to testify that Co-D’s plan
in testifying against Abel is to get favorable treatment for himself.
ii. Sequence of testimony:
1. Prosecution calls Co-D to testify against Abel regarding Abel’s involvement in
the bank robbery.
2. Abel calls Mills to testify that Co-D testified in order to get favorable
treatment, to show Co-D’s bias of self-interest.
3. Prosecution recalls Co-D to testify that Mills is a member of the Aryan
Brotherhood, which requires that its members lie to protect one another. Abel
is also a member. Thus Co-D’s testimony that Mills is a member of the group
shows bias on the part of Mills: Mills had a motive to lie to protect Abel.
iii. In this case, neither Co-D or Mills testified regarding the bank robbery. Their
testimony was about bias, which is deemed non-collateral. Therefore, bias can be
shown by extrinsic evidence. Their testimony was admissible.
IV. Mental or sensory incapacity (no FRE)
a. Incapacity refers to a W’s capacity to observe, remember, or narrate events correctly
b. Non-Collateral -- > Extrinsic Evidence allowed to prove that W’s capacity has been impaired
c. Limitations:
i. A W can be cross-ex’d using extrinsic evidence of mental incapacity BUT ONLY IF the
mental incapacity has a real bearing on the W’s reliability and ability to testify
ii. Discretion of the court
1. Judges may require that the party offering extrinsic evidence of mental
incapacity has the burden of showing that the evidence has a bearing on W’s
ability to testify
V. Character of untruthfulness / lack of veracity – FRE 404(a)(3)
a. The ONLY Ch trait at issue is W’s truthfulness/untruthfulness
i. Compare: Accused/Victim’s ch traits at issue can go beyond just
truthfulness/untruthfulness, FRE 404(a), to ANYTHING PERTINENT to subject matter
b. Applies to ALL WITNESSES
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i. FRE 607, 608, 609 govern the admissibility of character evidence of a WITNESS
ii. Thus, the ch of a defendant or victim is subject to attack on two fronts:
1. If they take the stand, they may also be impeached according to 608, 609
a. 404(a)(3) – Character of W -- > governed by FRE 607, 608, 609
2. If they do not take the stand, they are nevertheless subject to Ch attacks
under 404, 405 just by virtue of their status as an accused or victim
3. FRE 404-405 govern the admissibility of character evidence of an ACCUSED or
a VICTIM regardless of whether they take the stand
c. Evidence of the Character of a W is admissible for impeachment purposes only
d. 3 Methods for Impeaching a W’s Ch:
i. Prior Bad Acts (PBA) – FRE 608(b)
ii. Prior Convictions (PC) – FRE 609
iii. Reputation and Opinion Evidence – 608(a)
e. Prior bad acts – FRE 608(b)
i. Prior Bad Acts – Defined:
1. NOT CONVICTIONS; misconduct by the W that has NOT led to conviction
ii. PBA’s are COLLATERAL -- > extrinsic evidence NOT ALLOWED to prove a W’s prior
bad acts
1. Even if the opposing/cross-examining party can prove the lies thru
independent evidence of the prior bad acts, he cannot do so
iii. Limitations/Restrictions on use of PBA evidence:
1. No extrinsic evidence may be used -- > Can only be proved based on what
comes out during questioning on cross-examination
2. PBA must be probative of truthfulness
a. A PBA of manslaughter or armed robbery that did not lead to
conviction CANNOT be raised because the fact that the W has
committed that deed does not show truthfulness/untruthfulness of Ch
b. Generally, cts hold that PBAs of violence do not bear on a W’s
truthfulness
c. The cts generally define only a narrow category of PBA’s that bear on
truthfulness
d. But when threats of violence are directed at W’s in a proceeding – so
that they’ll misrepresent the truth – it could be argued that they DO
bear on the truthful ch of the person who made the threats
3. Discretion of Judge
a. The judge has discretion to preclude even questions that DO bear on
the W’s un-truthfulness
b. All inquiries into specific instances of conduct are explicitly left to the
judge
c. The court will weigh the probative value of the evidence against the
prejudice that will result to the opposing party
d. The exercise of discretion is rarely reversed on appeal
4. Good faith basis
a. The questioner must have a good faith basis for asking the question
about the PBA
b. This prevents the opposing L from asking a W about a ‘fake’ PBA just to
make the W look bad
f. Prior convictions – 609
i. PC’s are deemed NON-COLLATERAL -- > Extrinsic evidence ALLOWED to prove that a
W has a prior conviction. Evidence that’s independent of the W’s own testimony is
admissible.
ii. Convictions do NOT automatically come in
iii. 2 Types of Convictions under the FRE
1. Felonies (punishable by 1+ years in prison
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2. Crimes that involve dishonesty and false statements – these bear directly on a
W’s credibility
iv. Extrinsic and Intrinsic evidence allowed
v. Requirements for admissibility – 609(a)(1), (2):
1. Convictions must be less than 10 years old – 609(b)
2. Convictions of crimes involving dishonesty or false statement are
ALWAYS admissible
a. Admissible against any W including Accused
b. Admissible regardless of punishment received or category of the crime
c. No matter how prejudicial the admission of the evidence will be: NO
Balancing test!
3. Convictions NOT involving dishonesty or false statement come in under these
circs:
a. Must be a FELONY!! (threshold issue)
i. Felony: Punishable by prison term of 1+ years
b. W is not the accused -- > admissible only if
i. FELONY or punishable by death; (608(a)(1)
AND
ii. If the prejudicial value substantially outweighs probative value,
the judge has discretion to preclude; 403
1. balancing test favors admissibility
c. W is the accused -- > admissible only if:
i. FELONY
AND
ii. the judge determines that the probative value outweighs
prejudicial effect (608(a)(1)
iii. Balancing test favors exclusion
vi. Which Convictions that Involve Dishonesty & False Statements?
1. Crimes of falsehood include:
a. Perjury; Fraud; Embezzlement; False Pretenses
2. Theft Crimes (e.g., shoplifting, robbery, receiving stolen goods)
a. Generally, theft crimes are NOT considered crimes involving
dishonesty & false statements UNLESS the person relied on fraudulent
means to complete the theft, such as Larceny by Fraud
3. Violent Crimes –
a. NOT crimes of dishonesty, so would be admissible acc to requirements
in 609(a)(1)
b. See Manske – the W threatened Witnesses to try to influence their
testimony. His threats were crimes of violence, so did not implicate
truthfulness. Trial ct excluded the evidence for that reason. On appeal,
the ct stated that in SOME cases, violent crimes may implicate
truthfulness
4. Deciding this issue:
a. Look to the underlying facts of the crime
i. Did the D behave in a dishonest or deceitful manner in
committing the crime? If yes, then the ct may treat the
conviction as one involving dishonesty, falsity
vii. Issues on Appeal
1. If the judge decides to admit PC evidence against a crim D and the D does
NOT testify, the D cannot claim error on appeal
2. Can the D introduce the evidence of the PC on direct to steal prosecutor’s
thunder?
a. NO.
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b. In Ohler, the ct held that if D is the first one to introduce the evidence
of his PC, he opened the door, and cannot later claim error on appeal
for the admission of that evidence
c. Before Ohler, the D on direct exam could testify to PC’s in anticipating
of the prosecutor offering the evidence
viii. Mere Fact
1. the name of the crime and date of conviction are almost always allowed into
evidence; the sentence received and the place may not be admitted; most
courts prohibit a detailed description of the underlying crime
ix. Lie about prior conviction
1. If the prior conviction is not admissible for some reason, but the W lied about
the prior conviction, then you can try to introduce the LIE about the conviction
as a prior bad act
a. Because the LIE, not the fact of the prior conviction, that is the PBA
2. Thus, the information about the conviction would be heard by the jury anyway
x. Mere arrest
1. A questioner may not ask a W about an ARREST
2. Arrests, as well as charges filed or indictments, are not proper subjects for
impeachment b/c they’re frequently unreliable
3. So the cross-examiner would be limited to asking about the underlying
conduct that led to the arrest, but not the arrest itself
4. Arrests do not impeach the credibility of W’s b/c arrests happen to innocent as
well as guilty persons
g. Relationship b/w 608 and 609:
i. If no conviction is involved -- > It’s a PRIOR BAD ACT under 608
1. 608 determines whether the evidence comes in
2. Collateral - -> NO extrinsic evidence can be used; restricted to the W’s
testimony
ii. If the conduct resulted in conviction -- > It’s a PRIOR CONVICTION under 609
1. 609 determines whether the evidence comes in
2. Non-Collateral -- > Extrinsic evidence can be used; not limited only to what
the W says, can bring in other, independent evidence of the conviction
iii. Implications:
1. A conviction might protect a Defendant more than a prior bad act that did not
result in a conviction because convictions are non-collateral
h. Interplay b/w 608-09 AND 404 --
i. 608-09 only apply to impeachment of a W
1. They does NOT govern admissibility of ch evidence w/r/t pertinent ch traits
2.
ii. If the D is on the stand as a Witness:
1. Only his ch for truthfulness will be subject to attack, using 608-609, for
impeachment purposes
2. Evidence of his other ch traits – not related to his truthfulness (e.g., violence,
etc.) – will not be admissible by the mere fact that he took the stand. Evidence
of those other ch traits are only admissible acc to 404 -- > The D must open
the door to them under 404!
iii. If the D does not testify:
1. PBA’s and PC’s only come in against a Defendant if he testifies as a W and can
only come in for purposes of impeachment. If the D does not testify, his ch
can only be attacked acc. to 404, 405, which require him to open the door.
2. So if a D does not testify at his trial, and the prosecution wants to introduce
evidence of his prior convictions, it must make his record as directly relevant
to the current case for another purpose than to prove his ch / propensity -- >
Use 404(b):
a. Ex: Mimic Rule – Show a pattern or signature among his crimes; 404(b)
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b. Otherwise, the prosecution cannot introduce evidence of the D’s
PC/PBA’s since D is not on the stand, and if D has not opened the door
by 1st attacking the ch of the victim.
i. Reputation and opinion – FRE 404(a)(3) -- > 608(a):
i. Reputation and Opinion evidence may be used to prove W’s ch for
truthfulness/untruthfulness
1. Applies to ALL Witnesses in any case
ii. Two Requirements:
1. May only refer to Truthfulness/Untruthfulness of the W
a. Testimony about the Target W (who’s being impeached) may not relate
to the Target W’s general character
b. If the testimony is about the Target W’s general character, then it is
character evidence subject to 404, 405 rules
2. Adverse party holds the key!
a. Evidence of Truthful ch is only admissible after the W’s truthfulness
has been attacked
b. The opposing party holds the key to a W’s ch for
truthfulness/untruthfulness
c. Therefore, the calling party may not introduce evidence of a W’s
(good) ch for truthfulness/untruthfulness … UNTIL the opposing party
has attacked the W’s ch on that matter through opinion, rep, or other
evidence
d. The OPPOSING party holds the KEY to a W’s ch for
truthfulness/untruthfulness!
e. The calling party cannot introduce evidence of its own W’s ch for
truth/untruth
iii. On Cross-Examination of the W that is testifying to another W’s truth/untruthfulness,
the cross-examining party may inquire into relevant specific instances of conduct
under 405(a)
VI. Prior Inconsistent Statements – FRE 613(b)
a. Generally, a W’s PI statement is admissible to impeach the W’s credibility
b. Witness Statement
i. This rule only applies when the W is NOT a party to the action
ii. If the W is a party to the action, then PI stmt is only admissible as an Admission by
Party Opponent, governed by 801(d)(1)(A)
c. W’s own statement
i. The PI stmt must have been made by the Witness – b/c it’s being used to impeach
the W’s credibility
ii. However, there is NO requirement that the stmt was made under oath during a prior
proceeding (contrast: 801(d)(1)(A) – PI Stmt as Admission by Party Opponent, below)
d. Inconsistent
i. BROAD interpretation
ii. the rule doesn’t require direct conflict b/w the prior and present stmts
iii. as long as what was said earlier had a different import to any degree compared to
the present testimony, it will be deemed ‘inconsistent’
e. Foundation
i. The attacking party does not need to confront the W w/ a PI stmt before being
permitted to prove the PI stmt through extrinsic evidence
ii. Thus, the W does not have to be given an oppty to deny the PI stmt before it’s intro’d
iii. The attacking party can cross-examine the W, not mention the PI stmt, then – after
the W leaves the stand – can call W2 to testify that W made a PI stmt
f. Explain or Deny
i. The W against whom the stmt is offered must be given the chance to explain or deny
the stmt
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ii. However, the rules do not specify WHEN the W has to be given the chance to explain
or deny
iii. As long as the W is still available to be recalled for the purpose of explaining/denying
the stmt, this requirement is satisfied
iv. In practice, most adverse parties confront the W w/ the PI stmt while s/he is still on
the stand
g. Use of Extrinsic Evidence
i. FRE do not specify whether extrinsic evidence may be used to prove PI stmts
pertaining to collateral matters
ii. The trial judge can use 403 to preclude the evidence: Conduct balancing test and
determine whether the probative value of the PI stmt is substantially outweighed by
the prejudicial effect of the PI stmt
h. Good Faith
i. The attacking/adverse party must have a good faith basis for believing that the W
made the PI stmt
ii. The adverse party cannot call a W to the stand just for the purpose of eliciting only
information that is not admissible for its truth
1. Except: the adverse party doesn’t know, in good faith, what the W will say and
the calling party didn’t let the adverse party question the witness in advance
i. Compare to Prior Inconsistent Statements as Admissions Against Party Opponent – 801(d)(1)
(A)
i. Whose statements
1. Against party opponent – 801(d)(1)(A)
2. Against a Witness – 613(b)
ii. Why it’s offered/Purpose:
1. For the truth of the matter asserted  Admission by the party opponent –
801(d)(1)(A)
2. To impeach a Witness – 613(b); NOT offered to prove the truth of the stmt
iii. Requirements
1. PIC as admission against party opponent: PI must have been made under oath
and prior proceeding
2. As Impeachment against Witness: No such requirement
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Lay Opinion & Expert Testimony
I. Overview of the Rules
a. Opinion by Lay Witnesses – FRE 701
b. Foundation (qualifications) for Admission of Expert Testimony – FRE 702
i. Acts as gateway to admission of expert testimony under subsequent rules
c. [permissible] Bases for Expert Testimony – FRE 703
d. Ultimate Issues Rule – 704
e. The Form of Expert Testimony – FRE 705
II. Opinion by Lay Witnesses – 701
a. Lay persons may testify as to their opinions if:
i. The opinion is rationally based on the W’s own perception
1. Requires first-hand knowledge
ii. The opinion will be helpful to the jury in understanding the W’s testimony or
determining a fact in issue
iii. The opinion may not be based on scientific, technical, other specialized knowledge
1. If it, then the witness is an expert and the testimony is governed by 702 et
seq
2.
b. Opinion v. Speculation
i. The requirement that the lay opinion testimony be rationally based serves to
separate opinion testimony (rationally based) from speculation (not rationally based)
c. Lay v. Expert Testimony: Mutually Exclusive
i. To get around the foundation requirements for expert testimony that cannot be
satisfied, a lawyer may try to get the testimony admitted as lay opinion
ii. This is not permitted under 701(c), which states that lay opinion cannot include
testimony based on scientific, tech, specialized knowledge … thus, the lay opinion
must be based on W’s rationally based perception and cannot be based on W’s
expert knowledge
iii. Thus, expert and lay testimony are mutually exclusive
III. Steps for admitting expert testimony:
a. Qualify the witness as an expert – 702
b. Elicit the bases for the expert’s testimony and ultimate conclusions/opinions – 703
c. Ask for the expert’s opinion / conclusion – subject to 704, 705
d. If these steps are satisfied, then the Expert Witness can testify w/o first explaining all of the
information on which the Expert is relying in providing conclusions/opinions
IV. Who is an Expert? Qualifying Witnesses as Experts Under 702
a. Wide, broad rule
b. Requirements:
i. Specialized knowledge
ii. Helpful to the jury
iii. Qualified as an expert
iv. Testimony based on sufficient facts or data
v. Testimony is the product of reliable principles and methods
vi. W applied those principles and methods reliably to the facts of the case
c. Specialized Knowledge
i. A person is an expert if s/he possesses specialized knowledge, not limited just to
scientific or technical knowledge
ii. Kumbo Tires – a W may be qualified as an expert even if that W is not offering
testimony on scientific matters
d. Helpful to the jury
i. Will be helpful if the subject is not w/in the ken of the jury, or which the jury is not
equipped to evaluate
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ii. That is, involves interpretation of facts that lay persons are not usually called upon to
evaluate
iii. It’s a kind of relevance requirement
e. Qualified as an expert
i. The W must have knowledge and / or skill in a particular area that distinguishes her
from an ordinary person
ii. Source of expertise may be training, education OR experience
f. Daubert Requirements
i. Frye Case:
1. Required that scientific evidence be generally accepted in order for it to be
admissible
ii. Daubert Rule:
1. Rejected Frye Standard
2. 2 Key requirements before scientific evidence can be admitted:
a. The evidence must be shown to be scientifically valid
b. The evidence must ‘fit’ at least one issue in the case; i.e., be relevant
iii. As a result of Daubert, 3 requirements were added to FRE 702
g. Based on sufficient facts or data
i. This is meant to keep out ‘junk science’
ii. Facts or data =
1. W may rely on the facts of the case (incl. hypothetical questions based on the
facts of the case)
2. May also rely on the reliable opinions of other experts
h. Reliable principles and methods
i. The testimony must be based on “good science”
ii. This also applies to non-scientific subject matter
iii. The reasoning or methodology used must be scientifically valid and reliable
i. Reliable application to the case
j. Factors to Consider in Determining Scientific Reliability
i. Reliably tested?
ii. Peer Review and Publication?
1. submission to scrutiny of scientific community is a component of good science
iii. Known or potential rates of error
iv. Are there well-maintained standards for controlling the technique’s operations
v. Independent of the litigation
1. Did the technique grow naturally out of work that the testifying expert was
conducting independent of the litigation, or was it developed specifically for
the present litigation
k. Syndrome Evidence
i. Refers to evidence that is based on symptoms exhibited, such as a unique set of
symptoms that are associated w/ a specific condition
ii. Certain types of conditions are assoc’d w/ symptomatic markers - > Syndrome
iii. Admissibility of this type of evidence is usually governed by what the evidence is
used for
iv. Battered Women’s Syndrome (BWS)
1. Usually not permitted to prove the fact that a woman was battered
a. Cannot introduce an opinion to that effect
2. But BWS evidence may be allowed as background info in the case, to explain
why the woman didn’t leave the battererer, what was reasonable from her
point of view
3. The purpose is often to show what was reasonable conduct under the circs
v. Rape Trauma Syndrome (RTS)
1. Secondary characteristics of a woman who says that she was raped
2. Also, like BWS, it can be used as background info, e.g., to explain why the V’s
conduct following a rape such as why she didn’t report the attack right away
l. Expert Testimony for Credibility Purposes
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i. NOT PERMITTED b/c this steals the jury’s role, which is to determine the credibility of
the various W’s
V. Permissible Bases of Expert Testimony – FRE 703
a. The underlying basis on which the expert relies in providing an opinion or conclusion does
NOT have to be admissible itself
b. The Expert W can therefore testify based on things that are not admissible in evidence,
including otherwise inadmissible hearsay
c. 2 Problems:
i. Opens to the door for the parties to let the jury hear evidence not otherwise
admissible
ii. Expert can rely on inadmissible evidence in forming opinion, but the jury cannot rely
on that same evidence
d. Solution in 703:
i. The underlying facts and data on which the expert relies is NOT admissible UNLESS
its probative value substantially outweighs its prejudicial effect
ii. This leans in favor of excluding the evidence
e. When the expert is relying on admissible evidence -- > FRE 705
VI. Ultimate Issue Rule – FRE 704
a. The jury’s role at trial is to make ultimate findings of fact to decide ultimate issues
b. An expert may testify to his/her opinion even when that opinion is about an ultimate issue
that the jury must decide
c. EXCEPTION: The Ex W may not testify as to D’s Mental State or a condition constituting an
element of the crime charged/defense
i. Expert W cannot testify to the mental state of a D in a criminal trial
1. The EW is limited to stating that the D “could have” done something
VII. Form of Expert Testimony: Disclosure of Facts, Data Relied On – FRE 705
a. THe Ex W may testify DIRECTLY to his/her opinion w/o the need to establish all the bases on
which the expert relied in reaching that conclusion
b. This means that the Expert can give his opinion up front w/o first having to explain all the
underlying facts and data
c. The expert can explain/disclose the underlying bases for his opinion AFTER providing his
opinion
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Attorney-Client Privilege
I. Elements of A-C Privilege
II. When does the relationship arise?
a. C must reasonably believe that the person is a L
i. all comm’ns fall w/in A-C Privilege if the client reasonably believes the person is a
lawyer
b. No formality required to create the A-C rel’ship
c. Client has reasonable expectation of confidentiality and representation
III. Communications b/w Attorney and Client
a. Communication is for the purpose of soliciting legal advice
i. mere solicitation gives rise to the relationship
ii. only applies to the provision of LEGAL services
iii. If the conversation is a mix of legal/non-legal topics, the ACP may not apply
b. Non-verbal communication
i. When the client communicates orally or in writing to the L, this is obviously covered
ii. Non-verbal comm’s are also treated as conf’al (and therefore privileged), as long as
the non-verbal comm’n is intended as disclosure and was intended to remain secret
c. Who is an Attorney?
i. A person who is admitted to practice law in any state
ii. One who the client reasonably believes is a L and who provides legal advice
iii. Intermediaries
1. Intermediaries who work w/ client on behalf of the L are w/in the AC rel’ship or
who work w/ L on behalf of client (interpreter)
a. The 3rd party facilitates the L’s provision of legal services to client
2. BUT – the client must first speak w/ the L, then the L must refer/direct the
client to the 3rd party for assistance in providing legal services to the client
a. If the client goes to the 3rd party for business advice, those comm’s
won’t be protected
3. The 3rd party is an agent of the L, so may communicate w/ the client and be
protected by ACP
4. Client may also designate an agent to communicate w/ the L
5. Also, comm’ns b/w the agents of the L and C are privileged
d. Who is a Client? Corporate context
i. Westinghouse – Control Group Test
1. Corp emp’ees who are in a position to control or take substantial part in a
decision re: corporate action upon the advice of an attorney; narrow!
2. Upjohn Rejects this: prevents atty from getting the information they need to
represent the corp from lower-level employees
ii. Harper Row Test
1. Anyone w/in the corp who has information regarding a subject matter related
to the legal advice is a corp client and comm’s are privileged
2. BROAD
iii. Upjohn Test
1. Anyone w/in the corp who has information regarding a subject matter related
to the legal advice
2. the comm’n is w/in the scope of the employee’s duties as a corp employee
3. the comm’n is for the primary purpose of obtaining legal services for the corp
a. thus, routine reports generated in the ordinary course of the business
are not privileged
4. Who initiates?
a. Open Q – in Upjohn, the corp president initiated the comm’ns b/w the
emp’ees and lawyer
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iv. Upjohn in practice:
1. Corp HQ should send a message to everyone in the company stating that a L
has been retained regarding a particular subject and direct emp’ees to
provide info w/in the scope of their emp’ment for the purpose of helping the
corp obtain legal advice
IV. Incidental to the A-C Rel’ship
a. The comm’ns must have transpired as part of the A-C relationship and for the purpose of
obtaining legal advice
b. Comm’ns that pre-existed the A-C rel’ship, that were created prior to the A-C rel’ship coming
into existence, are not privileged
c. Pre-existing info that the C turns over to the L is not privileged
i. This includes items that the client hands over which were stolen
ii. Example: Client kept records of his business prior to seeking L’s advice and gives
them to his L
1. NOT privileged b/c they were created outside of the A-C rel’ship and therefore
are not incidental to the rel’ship
iii. Example: Client creates a document to facilitate A-C comm’s, then it is incidental to
the rel’ship and privileged
d. L’s Observations
i. L’s observations of evidence flowing from AC comm’s that do not change the status
quo of the evidence are privileged so that the L cannot be compelled to disclose info
about the evidence L observed
ii. Atty can LOOK AT, but cannot touch or move pre-existing evidence and still maintain
the privilege
iii. But anything that alters the status quo of the evidence breaks the ACP b/c it alters or
destroys evidence that the state is entitled to receive
1. See People v. Meredith – Scott (D) revealed to L1 that he was involved in a
murder. Scott said he had taken the V’s wallet and disposed of it near the
murder scene. This comm’n is privileged b/c Scott can tell the L anything
about his involvement. -- > serves the purpose of the ACP. Scott also told the
L where the wallet was located.
a. If the L had gone to that location to verify the wallet’s location, his
observations flowing from / relating to the AC comm’s are protected by
the ACP
b. However, the L removed the evidence. This broke the privilege.
e. L’s Investigation per AC Comm’s
i. U.S. v. Belge:
ii. Client sought L’s advice to defend him against murder charges. Client drew a map
for the L, showing where bodies of victims were buried. This is privileged – even
though it’s pictorial – b/c it was created w/in the AC rel’ship and for the purpose of
the legal advice.
iii. THe L’s then followed the map, verified the bodies’ location, took pictures of the
bodies where they were located. One L moved one part of the body to get it into the
picture. These actions did not break the ACP because they did not alter the posture
of the evidence from its natural state.
f. In re Ryder
i. Client robbed a bank and then placed stolen money and a gun in a safety-deposit
box. Then he sought a L’s advice. The L went to retrieve the items. The contents of
the box are not privileged b/c they were physical objects that existed separately from
the A-C rel’ship. Also, the atty ‘tampered’ with them by removing them.
ii. If the comm’n relates to the C’s fraudulent concealment or destruction of evidence,
or other obstruction of justice, then the comm’ns involve perpetration of a new future
crime or fraud and will be deemed unprivileged
V. Intended as Confidential
a. To be privileged, the comm’n must be intended to be confidential
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b. Confidential = the client intends that it not be disclosed to persons other than the lawyer
and those working w/ the lawyer.
c. INTENT of the parties is critical
d. Reasonable expectation of privacy
i. The client need not state expressly that he intends the comm’s to be confidential; it’s
enough if, under the circs, he could reasonably assume that there would not be
disclosure to others
ii. Suburban Sew: A person has no reasonably expectation of privacy in one’s garbage
e. Precautions may preserve the privilege
i. Did the parties have the ability to protect against the disclosure?
ii. What would be the effect on AC comm’s if the ACP is not recognized?
f. Intentional eavesdroppers and inadvertent interlopers
i. They do not destroy the privilege
ii. Their presence does not defeat the parties’ intention that the comm’n remain
privileged
VI. Claimed by or on behalf of the Client
a. The privilege belongs to the client, not the L, and may only be invoked by the C or by the L
on behalf of C
b. ACP shields comm’ns originting on both sides of the rel’ship
c. Only client can INVOKE the privilege
d. BUT … Both the client and the lawyer may WAIVE the privilege
i. When L makes disclosures of privileged info, the law presumes that the L did so on
authority from the client
VII. Policy Exceptions
a. Identity of Client
i. Generally, the fact that the L has been hired or the identity of the client are not
privileged
1. The ACP is intended to protect the substance of the AC Comm’s, not the fact
of the comm’n, or the fact that the AC rel’ship existed
2. It is also intended to encourage AC rel’ships, encourage clients in seeking
legal advice
ii. Exceptions:
1. the ID of the client is essential to the comm’n or the essence of the formation
of the AC rel’ship, then the client’s ID is protected by ACP
2. Client’s ID is privileged when the client’s ID is an essential part of the
confidential comm’s
a. I.e., in the case of a client as whistleblower
3. The party seeking to invoke the ACP has the burden
4. Must show a strong possibility that disclosure of the info would implicate the
client in the very matter for which legal advice is sought
iii. Durant
1. L rep’d client on a few different matters. C is suspected of using stolen checks
to pay the L. FBI asks L who paid with those checks. L argues that the ID of
the client was essential to the L’s representation of the client and that the
client intended the rep to remain confidential. Here, the ct is not convinced
that C sought L’s legal advice relating to the checks that C is accused of
stealing.
b. Future Crime or Wrongdoing
i. The ACP is intended to encourage C’s to seek legal advice for legitimate purposes
1. When the C seeks the L’s advice for representation related to past crimes or
wrongs, already committed, then the privilege applies.
2. However, when C asks for assistance in carrying out or defending against
future crimes, the privilege does NOT apply
3. This would undermine the ACP’s main goal
4. A L may reveal comm’s re: intention of a client to commit a crime
ii. Perjury
Evidence
Page 58 of 59
1. Comm’ns regarding a C’s intent to commit perjury are NOT privileged b/c
perjury is a crime
Evidence
Page 59 of 59

Evidence Outline Fall 2009 Professor Cerruti

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Evidence Outline Fall 2009 Professor Cerruti

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EVIDENCE OUTLINE

Fall 2009 – Professor Cerruti1

Introduction & Background.....................................................................................................................................2

III. Purpose and Construction of the Rules – Rule 102

Event Prior Stmt #1 Alleged Prior Stmt #2 Trial Testimony

o If the statement occurs at point #1, then it predates the alleged

Table: Comparing Present Sense Impression & Excited Utterances

d. Case Example: Iron Shell –

Stmt X ---------- >> Stmts/Record Y --------- >> Y offered at trial

Purcell Security Norcon

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