Evidence Fall 2007

Traylor-Schaffzin

Why do we have evidence rules? To keep things predictable, so one can predict what evidence can be used/what can’t be used.

What percentage of disputes in this country end up in court – 2%

Dying Declaration (hypo)

- represent Δ charged w/ murder – state offers plea bargain – state case relies primarily on cop testimony, who has statement
from dying victim
- you need to know the rules, because you need to know if the cop testimony is admissible – is there an exception to this?

House v Bell
- House was in jail for 20 years, convicted of murder and sentenced to death, she told her neighbor she was going fishing,
daughter heard a man at the front door, witness saw House in the area, there was semen and blood evidence found connected
to the victim, he was shirtless and shoeless and said he had been in a fight, a man had knocked on victim’s door and said her
husband was in an accident near the creek, her body was found near the creek, she was wearing a nightgown, FBI tests said
the semen was consistent with House’s (DNA not available), there was blood evidence on House’s jeans, blood spatter
evidence, it was linked to the scene because of blood type of the victim,
- He files motion for post-conviction relief, it’s denied
- He files another motion,
- New evidence
o DNA evidence that the semen found on Mrs. Muncey’s nightgown was her husband’s, not House’s
o The testimony of forensic scientist Dr. Blake that the blood on House’s jeans came not from contact with the body,
but from a vial of Muncey’s blood collected post-mortem and spilled near the jeans
o Evidence suggesting that Mr. Muncey killed his wife
- the court said that State precedence said that even though the evidence is interesting, it is not admissible upon appeal
- He goes to Federal Court, they deny as well
- Goes to the Supreme Court – that says there is an innocence exception to the Federal Habeus Corpus guidelines
o Standard was that nor reasonable juror would not be able to find his guilt beyond a reasonable doubt
o There is so much new evidence that conflicts with the old evidence that no juror could’ve convicted him beyond a
reasonable doubt that he was guilty
- The Federal Rules of Evidence govern the outcome of a case, under one set of rules, he was convicted, but under another he
may not have been

U.S. v Beaty
- The judge was getting involved in the questioning of defense witnesses, but not prosecution witnesses
- Makes it appear to the jury that the judge is on the prosecutor’s side of the case
- Judge did rebuke defense counsel in front of the jury
- Did the judge’s activity constitute prejudicial error?
o What is the judge allowed to do?
o What should the judge not do? What is inappropriate for a judge?
- Where did the intrusion occur in the course of the trial? Was there equality in the way the sides were treated?
- The court will look at the ratio of the number of intrusions compared to the length of the trail – this was a long trial, 1600
page transcript, two weeks long – how much could the jurors be impacted?
- The defense counsel did not appear to back down when challenged, he proceeded with his case, his performance was not
chilled by the judge’s actions
- These are all factors that the appeals court looked at in determining if the judge’s actions overstepped his role as a judge
- The role of the judge is to clarify, but not to advocate!
- The ratio of intrusions within the jury’s presence to the length of the trail
- The level of misconduct by an attorney being rebuked
- The equality of substantive treatment afford both sides
- The existence of evidence that counsel was chilled y the judge’s rebukes
- Whether witness questioning conveyed to the jury the judge’s belief in the proper outcome of the trial

Rule 614. Calling and Interrogation of Witnesses by Court

(a) “The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-
examine witnesses thus called.”
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(b) The court may interrogate witnesses, whether called by itself or by a party.”
(c) Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next
available opportunity when the jury is not present.” (note- challenging the court itself is risky, it draws too much
attention to the line of questioning for the jury)

ABA Civil Trial Practice Standard 10(a) & (c)

- “Generally, the court should not question a witness about subject matter not raised by any part with that witness, unless the
court has provided the parties an opportunity, outside the hearing of the jury, to explain the omission. If the court believes
that questioning on the subject is necessary, the court should afford the parties an opportunity to develop the subject on
further examination prior to questioning the witness itself. Except in unusual circumstances, the court should not seek to
impeach or to rehabilitate a witness, nor week to emphasize or de-emphasize the importance of any witness or testimony.”

Crane v Kentucky
- “[E]vidence about the manner in which a confession was secured will often be germane to its probative weight, a matter that
is exclusively for the jury to assess.”
- Questioned him, a minor, for hours without parents and he then confessed to a number of unsolved crimes
- The prosecutor can use the confession, but the defense cannot question how the confession was obtained…no talking about
no parents, about 16 yrs old, about no windows, about how long he was stuck in the room
- Was the confession voluntary? The court determined it was voluntary – it was admissible; the Supreme Court determined
that the circumstances surrounding the “voluntary statement” were very important for the jury to hear
- Legal issues are judge questions
- Fact issues are jury questions
- The circumstances surrounding the confession go to the weight of the evidence, they are factual, the jury needs to know these
facts to properly weigh the evidence
- Weight and Credibility questions are for the jury – the judge cannot take these questions from the jury just because the judge
is finished with them

Judge v Jury
- Legal Questions Factual Questions

Rule 104(e) Weight and credibility.

- “This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.”

Rule 104(a) Questions of admissibility generally.

- “Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the
admissibility of evidence shall be determined by the court. . . . In making its determination, it is not bound by the
rules of evidence except those with respect to privileges.”
- (note – preliminary questions, a question is answered before it goes in front of the jury – if a judge needs to determine
whether a “letter” is admissible, because it may contain hearsay, if it is hearsay, the judge can’t read it, how can he determine
if it is hearsay if he cannot read it?)

U.S. v Zolin
- L. Ron Hubbard, the author of Dianetics – the IRS wants to look at his tax records, they find some tapes that could be
incriminating, but they can’t get their hands on them because…a former member is illegally taping the members of the
Church of Scientology, the church gets mad and sues the former member, the IRS wants the tapes, but they are under seal in a
state court action – under seal by the church of scientology so they can’t get out, they are trapped in state court and the IRS
can’t get them to audit his taxes
- Hubbard argues that the tapes are attorney-client privilege created when he hired the attorney to initiate the suit to put the
tapes under seal, therefore keeping the tapes away from the IRS which is really his only goal
- The court decides they have to look at the tape to determine if they are protected by the attorney-client privilege, but it goes
to the Supremes to decide if the judge can look at the tapes or not
- The Supremes develop a standard that says, exceptions apply if there is a good faith basis for that exception, if the party
challenging the privilege comes forward with a good faith basis then the court can look at the document in camera
- The judge can determine whether the privilege exists at all and if so, are there any exceptions to the privilege
- By claiming privilege, you put the burden on the opposing counsel to show the good faith basis for an exception

The judge decides questions of law, the jury decides questions of fact and the attorney’s job is to preserve the record, getting
everything onto transcripts so that a court on appeal would be able to read everything that happened before that judge. If you
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are in chambers, get a court reporter. If you cannot have one, get it on record when you get back in front of the reporter that
it happened.

FRE 103. Rulings on Evidence.

FRE 103(a)(1) Effect of erroneous ruling. Objections.

- “Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected, and (1) Objection. In case the ruling is one admitting evidence, a timely
objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not
apparent from the context[.]”
- (note- object at the earliest possible moment, before it gets answered!!! Object before the evidence comes out!)
- (If you are not able to ascertain whether a witnesses’ statement is hearsay before it is in the record, you have to object as
hearsay and then move to strike from the record. It will all be in there, but it will be noted that was stricken and is to be
ignored.)
- (The rule of specificity – you cannot just object, you must state why you are objecting – no “Objection, on all grounds ever
heard of.” – without specifying, you are asking the judge to analyze your grounds, you need to do this for the judge)
- (The exception to the rule of specificity is if it is obvious why you are objecting, but you are relying on the appellate court to
make the determination from the record if you don’t make it apparent.)
- (Introductory language of the rule – if no substantial right has been affected, it is harmless error)
- (You need to object to preserve the record!!)

P30
Wilson v Williams
- Wilson is convicted of murdering a cop, he’s in county jail, he gets beat up, says it was unprovoked and he sues the guard
- A Motion in Limine
o “at the threshold” at the trial
o Benefits:
 Out of the hearing of the jury;
 Fewer interruptions of the trial’s pace;
 Clarifying issues that may affect trial strategy
- The evidence for the conviction of the cop is admissible, but Wilson wants it out
- There was no objection at trial to the statement that he said in the infirmary that he had already killed two cops and had no
respect for the law, because of the lack of objection, this was not preserved on appeal
- There was no objection when the phrase “cop-killer” was used…the attorney didn’t because he thought that it was covered by
the pretrial motion that said evidence of the convictions for the murder of the cop was admissible
- The issue for the motion in limine is preserved for appeal
- Because

FRE 103(a) Effect of erroneous ruling.

- “Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a
party need not renew an objection or offer of proof to preserve a claim of error for appeal.”

A conditional ruling would be – if the court had said, “I’m not really sure, I have to see how the facts develop…” You need to keep
objecting until you have a definitive ruling.

FRE 103(d) Plain Error

- “an error that is not only clear in retrospect but also causes a miscarriage of justice.”
- FRE 103(d)
o “Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although
they were not brought to the attention of the court.”

NOTE: what standards apply when determining if an issue has been preserved for appeal, go through 103(a) analysis, then, don’t
forget to do a 103(d) analysis before the court can say they will not consider this issue on appeal

Williams v. State
- Pro Se criminal defendant with a court order allowing him to do so
- He represents himself and then fails to make a specific objection and fails to make it timely

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- He appeals, arguing that the information that was admitted into evidence should not have been
- The court says the issue is not preserved for appeal because it wasn’t timely and it wasn’t specific
- The objection stated on the record, “Objection”
- You have a right to respond on the record, the judge may know what your response to the objection is going to be and sustain
the objection, but, if you are going to appeal you need to get your response on the record and you can request the judge do
that
- The argument on appeal is that he is pro se, he doesn’t know about 103(a), but the court says tough shit, it’s well settled law
and it doesn’t matter if you are licensed or pro se

P42
U.S. v. Adams
- Defendant was convicted in the United States District Court for the District of Kansas, Thomas J. Marten, J., of possession of
a firearm by a felon, and he appealed. The Court of Appeals, Paul J. Kelly, Jr., Circuit Judge, held that: (1) defense counsel's
statement as to what the testimony in examining psychologist's report would be hardly met the baseline requirement for offers
of proof; (2) Court of Appeals would grant appellate counsel's motion to supplement the record with examining
psychologist's report that was not part of the record below; (3) district court justifiably excluded examining psychologist's
report on the basis of its unexplained untimeliness alone; and (4) district court was within its discretion in excluding
examining psychologist's report, proffered to support possibility that incriminating statements defendant gave to police were
false.
Affirmed.
- Error may not be based on a ruling excluding evidence unless the substance of the evidence was made known to the court by
offer of proof or was apparent from the context within which questions were asked.
- Merely telling the court the content of proposed testimony is not an "offer of proof."
- In order to qualify as an adequate "offer of proof," the proponent must, first, describe the evidence and what it tends to show
and, second, identify the grounds for admitting the evidence.

FRE 103(a)(2) Effect of Erroneous Ruling. Offer of Proof.

- “Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected, and (2) Offer of proof. In case the ruling is on excluding evidence, the
substance of the evidence was made known to the court by offer of proof or was apparent from the context within
which questions were asked.”
- (not generally applied on cross examination because you don’t know what the witness is going to say)

Offer of Proof –
1. describe the evidence and what it tends to show and
2. identify the grounds for admitting the evidence
“Specificity and detail are the hallmarks of good offer of proof testimony and conclusory terms, especially when presented in a
confused manner, are poor ones.”

Methods for Making Offer of Proof

1. Proponent examines the witness on the record, and opposing counsel crosses, out of the hearing of the jury
2. statement by counsel describing the anticipated testimony
3. statement written by counsel describing the answers the witness would give if permitted to testify
4. written statement of the witness, signed by the witness and offered into evidence

Purpose of Offer of Proof – It enables the trial judge to make an informed decision based on substance of the evidence

Mark items for identification – even if they are never admitted into court, they become part of the record just by declaring it an exhibit
and having it marked by the court.

P46
Luce v. U.S.
- Defendant appeals decision by court to withhold a ruling until later on concerning the defendant’s testimony
- Defendant has no duty to testify whatsoever as a criminal defendant, until it’s the defense case in chief and it’s absolutely
necessary, you cannot testify on direct without subjecting yourself to cross
- Defendant didn’t want to take the chance
- This is an example of a conditional ruling by the court… “if, …”

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- If the court would consider this on appeal, every defendant could ask to have their prior convictions excluded and then say
that if the court didn’t exclude them, then they would not testify…if a ruling that a conviction can be used against you could
sway your testimony that would be bad

Ohler v. U.S.
- Defendant had a previous conviction for marijuana possession
- She waived her right to appeal the motion because…a defendant who takes the stand on their own behalf cannot then take the
fifth amendment on matters of cross-examination
- “Drawing the Sting” – better to bring out bad facts on your terms than letting opposing counsel do it on their terms…you
can keep it softer, more personable. If you can keep it out, keep it out, even if through objection. If you can’t keep it out,
bring it out on your terms
- The choices that the defendant and prosecutor have is to not say anything and see what happens or choice where she can
decide to bring it up that she lost issue pre-trial…government can bring it up if they choose
- A risk that the government takes when bringing up prior convictions – it’s really hard for the judge, there are many reversals
on these situations, the judge and government don’t want a reversal
- “Opening the Door” – you are opening the door to invisible testimony. If something is irrelevant and bad for you opposing
counsel will use it against you and you cannot object because you opened the door

Carbo v. U.S.
- He was a strong-arm guy associated with the underworld
- Impermissible character evidence
- The government says the evidence is being offered to show the affect of the belief of that on the witness, it doesn’t matter if
he really was, the victims believed he was and that instilled fear, an element of extortion
- Two concepts here – limited admissibility and
- “Limited Admissibility” – “Where an evidentiary fact is offered for one purpose, and becomes admissible by satisfying all
the rules applicable to it in that capacity, it is not inadmissible because it does not satisfy the rules applicable to it in some
other capacity, and because the jury might improperly consider it in the latter capacity.”

Sherman v Burke Contracting, Inc. (p59)

- Sherman worked for Burke, left work with Burk and started employment with Palmer; He alleges Burke, in retaliation for
Sherman’s complaining to the EEOC, convinced Palmer to fire him. Sherman seeks recovery for two acts of racial
discrimination
- Sherman introduces into evidence a tape recording of a conversation between himself and Palmer in which palmer states
Burke had urged him to fire Sherman because of his complaints to the EEOC about Burke
- Burke contends admission of the tapes was error because they were inaudible and hearsay
- Burke brought motion in limine but the trial court reserved decision on the matter until trial, at which time Burke could
renew his objection
- The recording was introduced for purposes of impeachment; Burke then objected to it being inaudible
- When Palmer was on the stand, he was asked about the conversation and stated non took place
- Sherman then requested that the tape be admissible for purposes of impeachment of Palmer’s testimony
- The defense raised no objection on hearsay grounds; nor did they request a limiting instruction to inform the jury it was to be
used for impeachment purposes only
- The appellate court agrees that the recording is hearsay, but can be used for impeachment 801(c)
- Burke asks the appellate court to hold that there was no duty to request the limiting instruction and that the trial court had the
duty to give the instruction on its own; appellate court does not agree
- Under Rule 105, with no duty to give the limiting instruction, the only way the appellate court can reverse is to find
plain error
- In order to find plain error here, the court must conclude that, as a matter of law, counsel’s strategic choice resulted in a
manifest miscarriage of justice, it did not

FRE 105 Limited Admissibility.

- “When evidence which is admissible as to one party or for one purpose [LIMITED PURPOSE] but not admissible as
to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper
scope and instruct the jury accordingly.”
- Under this the court had a duty to instruct only upon request

Clark v. U.S.
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- Clark was a juror who was evasive in her answers during voir dire and subsequently was found to be in contempt when she
was the only holdout in rendering a verdict after one week of deliberation. She did not disclose that she had a prior working
relationship with the accused
- Any contempt committed by juror on voir dire by giving false and evasive answers to questions, obstructing administration of
justice, constituted "constructive contempt" rather than "direct contempt."
- Juror's misconduct in jury room may be shown by other jurors' testimony for purpose of punishment whether such
misconduct consists of acts or utterances.
- Testimony of other jurors respecting conduct of certain juror in jury room held admissible as bearing on question of falsity of
her answers on voir dire examination.
- Any error in admitting testimony of other jurors in criminal contempt proceeding against juror held not to require reversal,
where record was sufficient to sustain conviction even if objectionable evidence were deleted
- How do you keep the judge from hearing evidence that may not be admissible in front of a jury – the 8th circuit says they
have the ability to distinguish and to not use the inadmissible information when actually making their finding
- Is it realistic to think you can unring a bell?

BURDEN OF PROOF

Burden of Going Forward – establishing your prima facie case – you have to put forth some evidence establishing each element of
your prima facie case
- One must produce “evidence sufficient to enable a jury, acting reasonably, to find the existence or non-existence of a
particular element.”
- Legal question
- Punishable by a directed verdict or involuntary nonsuit
Burden of Persuasion
- One must persuade the trier of fact that the existence or nonexistence of a particular element:
1. is more probable than not
2. is much more probable than not, or
3. exists or does not exist beyond a reasonable doubt
- Question of fact
- May be enforced with jury instruction

Preponderance of the Evidence

- Applies in many civil cases
- More probable than not probable
- The scale must tip only slightly

Clear and Convincing Evidence Standard

- Applies in fewer civil cases and in some affirmative defenses in criminal cases
- Much more probable than not

Beyond a Reasonable Doubt

- Applies to the prosecution in criminal cases
- Freedom from the kin of doubt that would make a person hesitate to act in the more serious and important affairs of his own
life

Sanctions for Failing to Go Forward

- Directed Verdict – asks the court to direct the trier of fact to return a verdict in favor of one party (would ask this before
even putting on a defense, defense should not be necessary if plaintiff’s case in chief wasn’t enough – move for directed
verdict at close of plaintiff’s case in chief)
- Judgment Notwithstanding the Verdict – Judgment n.o.v – asks the court to set aside the jury’s verdict and enter judgment
for the other party
- Judgment as a Matter of Law – federal law name for both directed verdict and judgment n.o.v.
Direct Evidence

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- “evidence that directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively
establishes that fact.” (California Evidence Code § 410.)
- Eye-witness testimony
- Documentary evidence, photograph, video

Scott v Hanson (p119) (Direct Evidence)

- Defendant was driver of vehicle that struck a cow, plaintiff sued as a passenger of the vehicle alleging driver was reckless in
operating the vehicle
- At the conclusion of the evidence, def moved for directed verdict
- The evidence that def relied upon for directed verdict motion was all introduced by the plaintiff in either his own testimony
or upon his quite extended direct examination of the witnesses he provided
- Issue – whether the court should eliminate from any consideration on our part, as plaintiff says, certain unfavorable portions
of the showing plaintiff himself made as a part of his case?
- The witnesses provided detailed testimony concerning speeds and application of the brakes, there was testimony that
conflicted with the physical evidence of the accident scene (i.e., skidmarks – direct evidence)
- “We are of the opinion that such testimony of said witnesses was so lacking in probative force or effect that a jury finding
that the car’ speed as it approached the cattle was not reduced, would be unwarranted”
- NOTE: “It is generally agreed by all courts that the jury will not be permitted to believe testimony that is
contradicted by physical facts. Were a witness to testify that the sun rose at midnight in Chicago, no one would argue
that the jury might believe him. This is the sort of “physical fact” that is within the realm of judicial notice. The
difficult questions arise when the physical facts must be established in some other way.”

Circumstantial Evidence
- “Circumstantial evidence is not necessarily less probative than direct evidence…[S]ince under some conditions,
circumstantial evidence may be equally or more reliable than direct evidence, it would be wholly irrational to impose an
absolute bar upon the use of circumstantial evidence to prove any fact, including a fact from which another fact is to be
inferred.”
- Based on inferences and jurors are perfectly capable of interpreting and judging inferences

Motion for Judgment of Acquittal

- “Since it’s the jury’s duty to acquit unless guilt is established beyond a reasonable doubt, the reviewing court may properly
inquire whether the evidence, considered most favorably to the government, was such as to permit a rational conclusion by
the jury that the accused was guilty beyond a reasonable doubt.”

Reasonable Hypothesis Standard

- whether reasonable minds could find that the evidence excludes every hypothesis but that of guilt

U.S. v. Nelson (p122) (Circumstantial Evidence)

- Nelson was found guilty as an accomplice in a bank robbery
- The government offered direct evidence that Brewton, the robber, stole $627 from the bank, got into a car that sped away,
was located by police within 20 minutes, ran from the police when they attempted stop, Newton was driving and was found
to have $125 in his pocket while Brewton had $502 in his.
- Def argued it was all based on the inference that he was the one driving the get away car
- The court has rejected the notion that it is improper to infer a fact at issue from other facts which have been established by
circumstantial evidence
- “circumstantial evidence is not inherently less probative than direct evidence”
- “since under some conditions circumstantial evidence may be equally or more reliable than direct evidence, it would be
wholly irrational to impose an absolute bar upon the use of circumstantial evidence to prove any fact, including a fact from
which another fact is to be inferred.”
- Upon appeal, the evidence must be taken in the light most favorable to the verdict, that is the exclusive function of the jury to
determine the credibility of witnesses, resolve evidentiary conflict, and draw reasonable inferences from proven facts
- The function is to determine whether the jury in arriving at the verdict has acted within the bounds of its authority
- In applying the test, the question is not whether the court itself would find that every reasonable hypothesis of innocence had
bee excluded, but rather whether the jurors could reasonably arrive at the conclusion.
- The required degree of probability is reached if the jury is free of “the kind of doubt that would make a person hesitate to act”
in the more serious and important affairs of his own life.

Smith v. Bell Tel. Co. of Pennsylvania

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- Smith buys house, Bel Tel installed a line of telephone conduit 6 inches above the sewer line to Smith’s house, his sewer
starts to back up and he tunnels to discover the conduit has fallen and crushed the sewer line
- He sues
- Judge says that the circumstantial evidence only showed inferences and it was not enough to support Smith’s burden of going
forward
- The appellate court says there is no higher standard for circumstantial evidence, the plaintiff does not have to meet a higher
burden of persuasion just because it’s circumstantial
- (direct evidence might be an eye witness who installed the conduit that can state that it crushed the line; a study that could
show exactly when the conduit fell…)

Standard for Directed Verdict

- “[W]hen a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deducible
therefrom, such evidence, in order to prevail, must be adequate to establish the conclusion sought and must so preponderate
in favor of that conclusion as to outweigh I the mind of the fact-finder any other evidence and reasonable inferences
therefrom which are inconsistent with the truth.”

Colthurst v. Lake View State Bank

- Directed verdict in favor of plaintiff because defendant did not put on any evidence
- Defendant on appeal is saying it should’ve at least gone to the jury to determine if the jury believed the plaintiff’s witnesses

BURDEN OF PERSUASION

Delaware Coach Co. v. Savage

- The is a motion for re-argument
- Directed verdict is upheld, it was an unavoidable accident but no party could show negligence of the other party
- Plaintiff had burden of persuasion in this case
- Defendant had no burden of persuasion in this case
- The court ruled in favor of the defendant because the evidence was equal, the scale was not tipped for the plaintiff
- There was no reasonable juror that could find it was more likely than not that the defendant caused the accident
- Some witnesses say the light was green for the truck, some say it was green for the trolley- the P had the burden of
persuasion

Riley Hill General Contractor, Inc. v. Tandy Corp.

- Construction company buys computers from Radio Shack and they are dissatisfied so they sue
- Hill alleged
- Clear and convincing evidence standard because it was a fraud case
- Can the court apply differing burdens of persuasion for different elements of the case? Yes

In Re Winship (p146)
- Juvenile administrative hearing to determine if a child stole some money from a purse
- The trial court applies preponderance of evidence standard, even though if the child were an adult, it would be beyond a
reasonable doubt because it is a criminal charge
- Court was deciding on appeal if the beyond a reasonable doubt was necessary or if the preponderance of the evidence was ok
for juveniles.
- Court says you must apply reasonable doubt because it is a criminal case
- It is far worse to convict an innocent man than it is to let a guilty man go free

Ginsburg’s Instruction – p 154 N4

PRESUMPTIONS

McNulty v. Cusack (p157)

- An appeal from a final judgment in a negligence action, entered into after a directed verdict for plaintiff as to liability.
- Cusack sued McNulty after McNulty’s vehicle drove into the back of her vehicle while she was stopped at a red light;
plaintiff presented her case and rested, defense presented no explanation and rested
- Issue – “Whether the showing of a rear-end collision and the circumstances under which it occurred, in the absence of
explanation, gives rise to a presumption of negligence so as to authorize a directed verdict, or whether it only gives rise to an
inference of negligence sufficient for presentation to the jury?”
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- There was no explanation on the part of the defendant of his actions of crashing his car into the rear-end of plaintiff’s car
- Judicial Notice – duty of both to stop at the red light, duty of a driver to keep their vehicle under control
- Holding: “If the defendant had a justifiable reason for not observing traffic rules, then it was his duty to go forward with the
evidence to show that he was not negligent and thus, permit the case to go to a jury for the jury’s determination on conflicting
theories or facts.”
- The presumption caused the burden of going forward to shift to the defendant to show he was not negligent in the accident,
because he presented no evidence and did not meet the burden of going forward, the presumption’s second action then
satisfied the burden of persuasion
- Mandatory Presumption – satisfies the burden of production and shifts it to the other side, the other side then has to come
forward with sufficient evidence, if they do, it’s a Rebuttable Presumption

Mandatory Presumption – a mandatory presumption (or presumption at law or “real” presumptions) requires that the jury find a
specific element as a matter of law if the opponent fails to offer contrary evidence to “rebut the presumption”
- Absent a mandatory presumption, the burden of production will not shift to an adversary
- Real Presumption – “[I]t must be kept in mind that the peculiar effect of a presumption ‘of law’ (that is, the real
presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion in the absence of evidence to the
contrary from the opponent.”

Permissive Presumptions – A permissive presumption (or presumption f fact or inference) requires the judge to determine that a
party has met its burden of going forward with respect to a particular element, but it does not require that the jury find that element to
be true as a matter of law
- It guarantees the party’s right to have that element considered by the jury

O’Brien v. Equitable Life Assur. Soc’y (p161)

- Action to recover double indemnity insurance for the alleged accidental death of plaintiff’s husband. From a directed verdict
for the defendant insurance company at the close of all the evidence
- P offered in evidence the policy, made proof of death by gunshot wounds inflicted by another, and rested. Motion for
directed verdict made and denied
- D offered evidence showing that death occurred while the insured was committing an assault or felony or both
- P then offered evidence tending to create the inference that robbery might have been the motive
- D motioned for directed verdict, granted
- $10,000 already paid – additional $10,000 for accidental death not paid
- P insists D has burden of proving “affirmative defense” that the insured was engaged in the commission of a felony at the
time of his death
- It is fundamental that in cases involving double indemnity benefits the burden of proving accidental death rests firmly upon
the plaintiff seeking recovery
- The presumption of accidental death, while accomplishing the function of evidence in so far as the plaintiff’s initial burden of
going forward is concerned, nevertheless is not evidence of the fact presumed and is merely a rule of procedure or
“rebuttable legal presumption”
- The significance of the procedural presumption relates then only to the burden of going forward with testimony, not to the
burden of proof. Though the burden of going forward may frequently shift during the course of a trial, the burden of proof
remains upon the plaintiff to establish his substantive case
- Unless the plaintiff produces some substantial evidence negativing the excepted misconduct and thereby brings the death
within the coverage of the policy, a directed verdict will be proper
- Thayer Doctrine – once a presumption is rebutted p 166 N 1
Model Code of Evidence, Rule 704 (1942) – (1) Shifts the burden to the defendant, gives the defendant the chance to rebut, if they
don’t, the fact is established and the burden of persuasion is meet
(2) defining the Thayer doctrine

Uniform Rule of Evidence 14 (1953). Effect of Presumptions

(a) Shift the burden of production from plaintiff to defendant, the burden of persuasion shifts as well
(b) Thayer Doctrine in the last clause – if the presumption is rebutted it no longer has any effect, does not shift the burden of
persuasion

FRE 301

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- Presumptions in General in Civil Actions and Proceedings. In all civil actions and proceedings not otherwise provided
for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden
of going forward with the evidence to rebut or meet the presumption, but does not shift to such party the burden of
proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party upon whom it was
originally cast
- It does not address either the Thayer or Morgan Doctrines as far as what happens to the presumption after it is
rebutted; does it stay? Or does it go?

Uniform Rule of Evidence 302(a) (1999)

- both burdens shift
- courts have not chosen to adopt this once

California Evidence Code

§603. Presumption affecting the burden of producing evidence defined.
- Just to make proof in a particular case easier for everyone

§604. Effect of presumption affecting burden of producing evidence.

- Wow
- Thayer Doctrine in play

§605. Presumption affecting the burden of proof defined.

- If a woman gives birth during the course of her marriage, the husband is presumed to be the father
- Example of a public policy being behind a presumption – promotes families

§606. Effect of presumption affecting burden of proof.

- Both shift

North Carolina Rule of Evidence 301(a)

- a lot like FRE 301
- has mandatory presumption, gives defense chance to rebut, if no rebuttal, the presumption meets both, the presumption does
not disappear, the court must instruct the jury they can still consider the presumption, but do not have to
- Morgan Doctrine – opposite of Thayer, the presumption does not disappear once rebutted
State of Maryland v. Baltimore Transit Co. (p171)
- P’s intestate was killed at a street corner in the city of Baltimore when struck by a bus owned by the defendant Transit
Company and driven by the individual defendant. Judgment was entered for the defendants upon a general verdict
- The presumption of due care by the man killed walking across the street – it is presumed that one entering the street would
exercise due care (unlike University Drive) to preserve their life
- Jury instruction says that the presumption cannot be considered because it was rebutted and under Thayer it disappeared. The
jury was told all about how the presumption worked and then told to ignore it
- Diversity case where Maryland Law applied because there was nothing in the Federal Rules of Civ Pro to the contrary – the
presumption is substantive
- The Federal Courts are going to apply state law when considering presumptions
- Even if it is procedural and affects a substantive right, state law will govern, not federal
- The court discusses the Morgan Doctrine, but applies Thayer
- DISSENT: Notes there are two presumptions, the due care of the walker and the due care of the driver of the bus
FRE 302 Applicability of State Law in Civil Actions and Proceedings.
- “In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or
defense as to which State law supplies the rule of decision is determined in accordance with State law.”

County Court of Ulster County v. Allen (p179)

- Appeal from affirmance of issuance of habeas corpus
- Allen (D) claimed his criminal conviction was obtained by use of an unconstitutional statutory presumption making the
presence of a firearm in an automobile presumptive evidence of its illegal possession by all persons then occupying the
vehicle.
- NY law made the presence of a firearm in an auto presumptive evidence of its illegal possession by all occupants

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- Issue: Does the constitutionality of a permissible presumption depend on there being a rational connection between the basic
facts which the prosecution proved and the ultimate fact presumed and on the latter being more likely than not to flow from
the former?
- Holding: Yes. For a permissible presumption to be Constitutional, there must be a rational connection.
- Basically, three grown men, one 16 year old girl in a car, guns in her purse, pulled over, all found guilty of possessing the
guns
- In such a case it is surely rational to infer that each of the respondents was fully aware of the presence of the guns and had
both the ability and the intent to exercise dominion and control over the weapons
- DISSENT: This presumption violates due process because it does not fairly reflect what common sense and experience tell
us about passengers in automobiles and the possession of handguns – to infer that respondents possessed the weapons found
in the automobile “upon proof of the presence of the machine gun and the handgun” and proof that the respondents “occupied
the automobile at the time such instruments were found”

THE ORDER OF PROOF

Order of Trial
- Opening Statements (Plaintiff cannot reserve; Defense can reserve until they open their case-in-chief or not do one at all)
(You cannot argue in an opening statement)
- Plaintiff’s Case-In-Chief
- Defense Case-In-Chief
- Plaintiff’s Rebuttal (Not a chance to put on new evidence, only to rebut the Defense’s Case-In-Chief)
- Defense Surrebuttal
- Plaintiff’s Closing-Argument
- Defense Closing Argument
- Plaintiff’s Rebuttal Argument (Plaintiff gets the last word because they have the burden of proof)
Liptak v. Security Benefit Ass’n (p 195)
- Suit on a benefit certificate issued to Liptak on Nov 26, 1921 in the amount of $1,000
- Trial by jury, verdict for plaintiff in the sum of $1,000
- Facts show that the coverage had lapsed when a payment was not made, it was then made late and could not be reinstated
because it was late – either way, it could not be reinstated anyway because of his health after it lapsed.
- Def agrees that all of the elements of the Plaintiff’s burden of proof are plain to see, but that the policy was suspended at
which time the insured died…at this point, the burden of proving that fell on the defendant
- The Defendant said that since the burden of proof had shifted before the start of the case, the Def should be allowed to open
- Whenever the plaintiff has anything to prove in order to secure a verdict, the right to open and close belongs to him
- If appellee was, under the pleadings and admissions of appellant, entitled to judgment, in the absence of proof supporting the
special plea, appellant carried the burden to go forward in the offer of proof and was entitled to open and close the evidence
and arguments. No plea of general issue was on file. The only controversy in the case was that raised on the affirmative
special plea. This threw the burden of proof upon appellant.
- “The right to open and close is a substantial right in the person who must introduce proof to prevent judgment against him.
The party who asserts the affirmative of an issue is entitled to being and reply.”
- The right of appellant to open and close was a substantial right

Seguin v. Berg (p196)

- Car accident, two claims of negligence
- The only reason the P is the P is because they made it to the courthouse first to file their claim. They both have affirmative
claims against each other.
- P offered his own testimony and that of mechanic, then rested. D put on evidence. P then called 3 witnesses to rebut D’s
evidence. D objected that it was not proper rebuttal and won
- “No rule for the conduct of trials is more familiar than that a plaintiff must put in all his evidence before he rests. He must
exhaust all of his testimony in support of the issue on his side before the proof of his adversary is heard.”
- “Evidence which would have been proper as part of P’s affirmative case, and which he has no right to introduce as
affirmative evidence after the Ds had rested, may still be offered by the P if it tends to impeach or discredit the testimony of
Ds.”
- Rebutting Evidence – “means, not merely evidence which contradicts the witnesses on the opposite side and corroborates
those of the party who began, but evidence in denial of sole affirmative fact which the answering party has endeavored to
prove.”
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- Evidence was admissible, reversed new trial granted.

Duran v. Neff (p198)

- P wants expert witness, asks for short recess at 5:10 pm; court recessed until next day, expert could not testify, directed
verdict against P
- P appeals and urges error on trial judge’s refusal to take her expert’s testimony late on the first day
- We find no abuse of discretion. It is elementary that a trial judge must be given broad latitude in the control of causes before
him
- The judge gets the discretion of running a trial because they are looking out for the best interests of the system, no more for
one side or the other
- “It is elementary that a trial judge must be given broad latitude in the control

FRE 611(a) Mode and Order of Interrogation and Presentation

- “(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses
and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the
truth, (2) avoid needless consumption for time, and (3) protect witnesses from harassment or undue embarrassment.”

Atkinson v. Smith (p198)

- D charged with trespass when obliged to remove part of a mill dam blocking a public navigable river for driving logs and
lumber
- D counsel attempted to ask questions on cross which entered into an area not inquired by the P counsel on direct; judge ruled
D had to present evidence after their case opened
- Trial court says this is the Plaintiff’s turn to present their case
- If you are D, this is where you make an argument under 611(a) to save the time of the court and the witness
- You can always address issues of credibility on cross, credibility is always an issue
- New trial granted on the ground of the improper rejection of evidence

Boller v. Confrances (p201)

- Can a party cross examine a witness on any issue?
- If it’s relevant, you can cross on it. It was proper to ask if the P if she was aware that her husband was having an affair with
the passenger of the vehicle

FRE 611(b) Mode and Order of Interrogation and Presentation

- “(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination
and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into
additional matters as if on direct examination.”
- All within the discretion of the court

Leading questions may be asked on cross – but not on direct examination.

US v. Lara (p206)
- Prosecutor asks numerous questions on cross concerning multiple crimes after the Defense only covered one crime on direct
- Prosecutor made argument that the one specific crime made the motive for the rest of the crimes, that it was part of the
conspiracy in which the Latin Kings worked
- Court backs up the trial judge, finally saying it’s the trial judge’s discretion to make that decision

Bommer v Stedelin (p209)

- Plaintiff rests with showing no evidence that the realty company owned the parking garage; also presented two contradictory
statements as to what the manager said about ownership of the parking garage
- Defense moves for directed verdict
- Court says, you’re right, the only evidence was two contradictory witnesses, we’re going to enter directed verdict; plaintiff
then says wait, we can present more evidence, court says no

THE CONCEPT OF RELEVANCY

You have to think about the best argument you can make to tie a particular piece of evidence into your case.

FRE 401 – Relevance

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- Definition of Relevant Evidence. ‘Relevant Evidence’ means evidence having any tendency to make the existence of
any fact that is of consequence [“material”] to the determination of the action more probable or less probable than it
would be without the evidence.

Materiality – ‘[P]ropositions of ultimate fact properly provable in a case under the pleadings and substantive law.”

FRE 402
- Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible. All relevant evidence is admissible,
except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other
rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not
admissible.
FRE 403
- Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. Although relevant evidence
may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusions of the
issues or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.

Cleveland v. Peter Keiwit Sons’

- just because it makes one party look bad, does not make it relevant

Plum v. Curtis
- relevant to an essential element of the claim, would have never given him material on credit if he was not the agent
- they would have had nothing to go after if they needed to

State v. Mathis
- was the unemployment of the criminal defendant relevant? Just because you have few assets does not mean you have motive
to steal
- if you don’t have a lot of money, you may have a motive to steal, but we do not allow that assumption to be made
- if you are poor one day and rich the next, may be relevant then, but being poor everyday is not
Motive to Steal
- “Undoubtedly a lack of money is logically connected with a crime involving financial gain. The trouble is that it would
prove too much against too many.”

Hall v. Montgomery Ward

- is relevant because of different circumstances
- the jury was asked to set an amount for punitive damages, not allowed for liability or compensatory damages – but ok if used
to punish the defendant

Reid v. General Motors

- generally, the existence of liability insurance is not admissible to prove liability

FRE 411
- “Liability Insurance. Evidence that a person was or was not insured against liability is not admissible upon the issue
whether the person acted negligently or other wrongfully. This rule does not require the exclusion of evidence of
insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or
prejudice of a witness.”

Unfair Prejudice – “Unfair Prejudice’ within the context of FRE 403 means an undue tendency to suggest decision on an improper
basis, commonly though not necessarily an emotional one.

FRE 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.
- Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.

Balancing Test (p 240-241)

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- “On objection, the court would decide whether a particular item of evidence raised a danger of unfair prejudice. If it did, the
judge would go on to evaluate the degrees of probative value and unfair prejudice not only for the item in question but for
any actually available substitutes as well. If an alternative were found to have substantially the same or greater probative
value but a lower danger of unfair prejudice, sound judicial discretion would discount the value of the item first offered and
exclude it if its discounted probative value were substantially outweighed by unfairly prejudicial risk.”

Concession = Equivalent Evidence?

- “A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be
used to prove it. People who hear a story interrupted by gaps of abstraction may be puzzled at the missing chapters, and
jurors asked to rest a momentous decision on the story’s truth can feel put opon at being asked to take responsibility knowing
that more could be said than they have heard. A convincing tale can be told with economy, but when economy becomes a
break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than
second best.”

City of Bloomington v. Legg (p250)

- Was the city on notice that the dangerous equipment was in place? That others had been injured by the accidents before?
- If you are introducing evidence in similar accidents, the conditions must be similar in prior accidents to make it relevant to
the current accident

Evidence of Dangerous Condition

- “Where an issue is made as to the safety of any machinery or work of man’s construction which is for practical use, the
manner in which it has served that purpose, when put to that use, would be a matter material to the issue, and ordinary
experience of that practical use, and the effect of such use, bear directly upon such issue.”

Evidence of Notice
- “The frequency of such accidents would create a presumption of knowledge, and would be material to the question of
diligence used to obviate the cause of injury.”

Changed Condition
- “The rule is clear, that to render evidence of similar accidents, resulting form the same cause, competent, it must appear, or
the evidence must reasonably tend to show that the instrument or agency which caused the injury was in substantially the
same condition at the time such other accidents occurred, as at the time the accident was complained of.”

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes
FRE 404(b)
- “(b) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,
provided that upon request by the accused.” This part applies to both criminal and civil cases, ANY person
- “the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at
trial.” This part applies to criminal cases only!

My Other Inkling Precludes Proceeding Knowingly Into A Morass

- Motive
- Opportunity
- Intent
- Preparation
- Plan
- Knowledge
- Identity
- Absence of Mistake

Jones v Pak-Mor Manufacturing Co. (p 253)

- If you allow evidence of a negative, you make it hard to disprove a negative
- We don’t know if there have been previous injuries that were less severe or that were not brought to the attention of the
manufacturer
- Are we wasting time telling about prior incidents where there were no accidents?
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FRE 403 Analysis of Safety History
- “Thus, the proponent of the evidence must establish that if there had been prior accidents, the witness probably would have
known about them.”

Redfield v. Iowa State Highway Comm’n (p 261)

- Appealing a statement that was stricken from the record
- Iowa has a rule that you can’t use values of similar properties in court…why? The court’s always worried about having a
collateral issue that is going to waste time; market value can differ; land is unique, no two pieces are truly the same
- The court got rid of the Iowa rule for the Majority rule which allowed evidence for sales of similar property; looked at size,
use, location, character of land, and time of sale

Similarity
- “[E]vidence of the sale price of other real property is admissible upon the issue of the value of other real property where the
conditions with respect to the other land and the sale thereof are similar to those involved in the case at bar.”

Carpenter v. Kurn (p264)

- There were recognized differences between the accident and the re-creation of the accident
- They got as close as they could, pointed out the differences, and then had witnesses say the differences would not have a
negative affect
- As long as they are sufficiently similar to be relevant, the court will allow them
- Court says, point out the differences to the jury, point them out on cross as well, and let the jury decide how credible the
evidence is

Foster v. Agri-Chem (p267)

- did not use the proper amount of fertilizer as they had been instructed
- the scientists performing the experiment were not being paid, it was independent of the litigation and was a neutral
experiment
- Court allowed the evidence, plaintiff’s objected
- Scientific experiments can be somewhat of an exception

PERSONALITY TRAITS AND BEHAVIOR PATTERNS – CIVIL CASES

Rumbaugh v. McCormick (p270)

- Here we have a dog that likes to attack sheep so it’s relevant that this dog is the one that may have attacked the sheep
- Propensity evidence about animals will always be allowed – they have no free will to choose

Beach v. Richtmyer (p272)

- character evidence is not allowed because everyone has the ability to choose to act against what their character may say

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes
FRE 404(a)
- “(a) Character evidence generally. –Evidence of a person’ character or a trait of character is not admissible for the
purpose of proving action in conformity therewith on a particular occasion, except.”

FRE 404(a)(3)
- (3) Character of Witness. Evidence of the character of a witness, as provided in Rules 607, 608, 609

Schafer v. Time, Inc. (p276)

- Trial for libel
- Time introduces evidence that he doesn’t pay child support and hasn’t paid his taxes
- If character is essential to the case, character evidence will be allowed…if he was alleging defamation, Time is allowed to
show his character
- Court affirms to allow the evidence
- 401, 402 – this is relevant
- Turn to 403-404-405
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Rule 405. Methods of Proving Character
FRE 405(b)
- (b) Specific Instances of conduct. In cases in which character or trait of character of a person is an essential element
of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.”

Character as an Essential Element

- “Character evidence does not constitute an ‘essential element’ of claim or charge unless it alters the rights and liabilities of
the parties under the substantive law.”
- Defamation, libel or slander
- Negligent entrustment
- Damages in wrongful death
- Child custody and adoption
- Criminal seduction

FRE 405 Methods of Proving Character

FRE 405(a)
- (a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible,
proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination,
inquiry is allowable into relevant specific instances of conduct.
- Only applies if character evidence is admissible under FRE 404
- For it to be reputation – the community needs to be able to know about it, not the secrets of his life like missing a payment or
not paying his taxes

Missouri-Kansas-Texas R.R. v. McFerrin (p280)

- Man killed crossing tracks, widow wants to admit testimony that her husband always stopped at the tracks, one witness says
the decedent failed to stop and merely slowed down before driving onto the crossing
- Whether evidence of habit and custom is admissible to prove care or negligence on a particular occasion?
- Courts at this time said if no eye-witness, bring it in; if eye-witness then can’t bring it in

FRE 406 – Habit

- “Habit; Routine Practice. Evidence of the habit of a person or of the routine practice of an organization, whether
corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person
or organization on a particular occasion was in conformity with the habit or routine practice.”

Reyes v. Missouri Pacific R.R. (283)

- Appellant was on train tracks and was hit by the train. He sues and says that the RR should’ve seen him because he was
knocked out by an unknown assailant when crossing the tracks. RR wants to introduce four prior convictions for alcohol
offenses to show he was drunk
- If these are character evidence, not coming in
- RR alleges they are habit evidence and admissible
- We simply find that four prior convictions for public intoxication spanning a three and one-half year period are of insufficient
regularity to rise to the level of “habit” evidence.

Character v. Habit
- Character and habit are close akin. ‘Character’ is a generalized description of one’s disposition, or one’s disposition in
respect to a general trait, such as honesty, temperance, or peacefulness, ‘Habit,’ in modern usage, both lay and psychological,
is more specific It describes one’s regular response to a repeated specific situation.”

CHARACTER HABIT
- High risk of prejudice

- Low probative value - Greater probative value

- Precluded by FRE 404 - Admissible under FRE 406

Eaton v. Bass (286)

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- Defendant charged with operating truck with faulty breaks; foreman testified that all trucks go through lengthy inspection
phase, even though there was no record of this specific truck
- Appellants contend evidence of custom or usage are not admissible to prove the exercise of due care
- Risk of prejudice is lower in protecting a business than the habit of an individual

Mailings are a great show of routine business practice.

State v. Renneberg (p288)

- Two were charged with crimes of stealing from a cash register at a restaurant
- Court indicated that testimony as to drug addiction would be inadmissible in the state’s case, but this was on rebuttal
- The defendant wife voluntarily put her character before the jury by testifying about her good character
- “The state was entitled to complete the tapestry with his admitted drug addiction.”
- The defendant cannot paint a picture of their character if they do not include all of their character, the state may rebut to show
the whole of the character
- It is up to the defendant if they choose to “Open the Door” – you generally cannot trick the defendant on cross into opening
the door

Credibility
- [E]vidence of drug addiction is necessarily prejudicial in the minds of the average juror. Additionally, there is no proof
before the court connecting addiction to a lack of veracity.”

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes.
(a) Character evidence generally.
FRE 404(a)(1)
- (1) Character of accused. – In a criminal case, evidence of a pertinent trait of character offered by an accused, or by
the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by
an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the
prosecution.”

Edgington v. United States (p292)

- Accused of making false deposition statements in aid of a fraudulent pension claim on behalf of his mother
- Whether or not you have the character of veracity is just going to waste the court’s time
- Is the defendant’s character for truth helpful here? Yes, he accused of perjury
- This is an example of a pertinent trait under FRE 404(a)(1)
FRE 405. Methods of Proving Character.
FRE 405(a)
- “(a) Reputation or opinion. In all cases in which evidence of a character or a trait of character of a person is
admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-
examination, inquiry is allowable into relevant specific instances of conduct.”

REPUTATION CHARACTER
- This is the testimony of one witness as to the opinion - This is a personal assessment of an individual’s
of a community on an individual’s character; character;

- The witness must demonstrate familiarity with the - The witness must demonstrate some familiarity with
community within which the individual exists the individual on which to base the opinion

Broyles v. Commonwealth (p295)

- Appeals from life sentence for murder on grounds improper cross-examination of defense witnesses
- Appellant contends the questions were improper because they related to a trait of character not involved in the crime with
which he was charged
- Peace and quietude signify obedience to law, public quiet, good order and tranquility.
- On cross, was rebutted with evidence of DUI
- “It seems to us that a conviction for a drunken driving, or reckless driving, or disorderly conduct has some reasonable
connection with a man’s reputation for peace and quietude.”
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- “It should be kept in mind that such evidence is never competent unless the defendant himself puts his reputation in issue;
and even then it is competent only for the purpose of testing the witness’ credibility, and not as substantive evidence.”

You always have to have a good faith basis for your questions.

Evans v. United States (p298)

- Evans convicted of second-degree murder
- Witnesses testify that she was accompanied by other people at the time she was approached and the victim was stabbed; the
witnesses are not those that were accompanying her
- She testifies that she was alone and it was self-defense
- Evidence was testimony of the victim’s wife saying that her husband might act in this manner
- Court does not allow it
- Defendant wants to show that the victim was the aggressor
- “Any evidence showing what kind of man the decedent was would be highly relevant in helping the jury to determine
whether appellant’s story of a sexual assault was truthful, and would therefore serve the interests of justice.”

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes.
(a) Character evidence generally.
FRE 404(a)(2)
- (2) Character of alleged victim. – In criminal case, and subject to the limitations imposed by Rule 412, evidence of a
pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the
same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide
case to rebut evidence that the alleged victim was the first aggressor;”
- Defense must open the door, prosecution may rebut

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes
FRE 404(b)
- “(b) Other Crimes, Wrongs, or Acts. – Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable
notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general
nature of any such evidence it intends to introduce at trial.

Non-Exhaustive List
- “The categories that appear

U.S. v. Robinson
Test for 404(b)
1) Evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged
2) E
3) E
4) E

U.S. v. Hernandez
Test for 404(b)
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1) Relevant to an issue other than character
2) Necessary
3) Reliable; and
4) Probative value outweighs danger of undue prejudice

In Re

FRE 407
- “Subsequent remedial measures. When, after an injury or harm allegedly caused by an event, measures are taken
that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measure
is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need
for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when
offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if
controverted, or impeachment.”

Settlement Discussions –
FRE 408 Compromise and Offers to Compensate
- (a) Prohibited uses. – Evidence of the following is not admissible on behalf of any part, when offered to prove liability
for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior
inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable
consideration in compromising or attempting to compromise the claim ; and
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a
criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory,
investigative, or enforcement authority.
- (b) Permitted uses. – This rule does not require exclusion if the evidence is offered for purposes not prohibited by
subdivision (a). Examples of permissible purposes include proving a witness’s bias or prejudice; negating a
contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.”

AMI
Dispute – clear difference of opinion between parties

FRE 409 Payment of Medical and Similar Expenses

- Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury
is not admissible to prove liability for the injury.

FRE 410 Inadmissibility of Pleas, Plea Discussions, and Related Statements.

Inadmissibility of Withdrawn Plea Agreements
- Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding,
admissible against the defendant who made the plea or was a participant in the plea discussions.
(1) a plea of guilty which was later withdrawn
(2) a plea of nolo contendere
(3) any statement made in the course of any proceedings under or comparable state
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do
not result in a plea of guilty or which result in a plea of guilty later withdrawn.
Admissibility of Plea Agreements
- However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the
same plea or plea discussions has been introduced and the statement ought in fairness be considered
contemporaneously with it or (ii) in a criminal proceeding for perjury or false statement if the statement was made by
the defendant under oath, on the record and in the presence of counsel

Chapter 9 – Judicial Notice

State v. Mann (p374)

- Jury Notice – all the things a juror brings with them to court, their knowledge, education, experience, what’s in their head,
what they know. You can bring this with you as a juror.
- The evidence is given to them, their jury notice is brought with them

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Sufficiency of Information Supporting Judicial Notice
- The court should test “the sufficiency of the data by determining whether the fact put forth for judicial notice is one not
subject to reasonable dispute in that it is either (1) generally knowing within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”

FRE 201 – Judicial Notice

(a) Scope of rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned.
(c) When discretionary. A court may take judicial notice, whether requested to or not
(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary
information.
(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of
taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be
made after judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
FRE 201(g) Judicial Notice in Criminal Cases
(g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact
judicially noticed. In a criminal case, the court shall instruct the jury that it may, but it is not required to

Adjudicative Facts
- “A fact is adjudicative if the fact affects the determination of a controverted issue in litigation, or , as one author has
characterized adjudicative facts: [w]hen a court or an agency finds facts concerning the immediate parties – who did what,
where, when, how and with what motive or intent – the court or agency is performing an adjudicative functions, and the facts
so determined are conveniently called adjudicative facts.”

Real Evidence
- “involves the production of some object which had a direct part in the incident”
- Gun, knife, mask, LV bag, candy box

Demonstrative Evidence
- “is distinguished form real evidence in that it has no probative value in itself, but merely as a visual aid to the jury in
comprehending the verbal testimony of a witness
- Diagram, chart, map, skeleton

Foundation for Real Evidence

- Relevance
- Authenticity
- Same or substantially the same condition

Foundation for Demonstrative Evidence

- Relevance
- Authenticity
- Must aid the witness in presenting testimony to the trier-of-fact

Chain of Custody
- “it is ordinarily sufficient for the witness having knowledge of the object to identify it.”

How to Establish Chain of Custody

- “This is usually accomplished by showing the original apperception of the object and then its care and custody under
circumstances which would reasonably exclude any tampering with or matieral alteration in it so as to render the exhibit
misleading…It is enough if the object offered in evidence has been reasonable identified as that sough to be proved, by
someone who can testify of his own knowledge that the object proffered is the one claimed to have caused the result.”

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Photographic Evidence
- “A photograph must be verified either by the testimony of the person who took it or by another person with sufficient
knowledge to state that it fairly and accurately represents the object or place reproduced as it existed at the time of the
accident, or if there is a difference or change, the difference or change is specifically pointed out and I readily capable of
being clearly understood and appreciated by the jury.”

WRITINGS AND RELATED MATTERS - Authentication

Why must evidence be authenticated? Cross-examination

United States v Skipper (p438)

- Skipper arrested for cocaine possession and intent to distribute
- It an error to admit his deferred adjudication order of two prior convictions?
- The prosecutor did not authenticate one of the previous certifications; the other had his name and fingerprints on it

Buckingham Corp. v. Ewing Liquors Co. (p440)

- Existence of a fair trade agreement under Illinois law
- Need to prove Buckingham signed the agreement
- “yeah that’s his signature, I recognize it”
- This is acceptable authentication because he was familiar with the signature, any witness my testify to authentic a signature if
they demonstrate familiarity with the signature

Lay Handwriting Identification

- “[H]andwriting may be proved by a witness’s show of familiarity with it. This familiarity may be gained from having seen
the party actually write, or from having been acquainted with the handwriting in the course of business dealings…The extent
of the knowledge o the witness goes to the

Rule 901. Requirement of Authentication or Identification

- (b) Illustrations.
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity
not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which
have been authenticated
(4) Distinctive characteristics of the like. Appearance, contents, substance, internal patterns, or other distinctive
characteristics, take in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic
transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it
with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidene that a call was made to the number assigned at the
time by the telephone company to a particular person or business, if (A0 in the case
(7) Public Records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or
filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the
public office where items of this nature are kept.
(8) Ancient documents or date compilation. Evidence that a document or data compilation, in any form, (A) is in such
condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely
be, and (C) has been in existence 20 years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or
system produces an accurate result.
(10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress
or by other rules prescribed by the Supreme Court pursuant to statutory authority.

Rule 902. Self-authentication

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Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States,
or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the
Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a
signature purporting to be an attestation or execution.
(2) Domestic public documents not under seal. A document purporting to bear the signature in the official
capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer
having a seal and having official duties in the district or political subdivision of the officer or employee certifies under
seal that the signer has the official capacity and that the signature is genuine.
(3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a
person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final
certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B)
of any foreign official whose certificate of genuineness of signature and official position relates to the execution or
attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or
attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice
consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or
accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity
and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively
authentic without final certification or permit them to be evidenced by an attested summary with or without final
certification.
(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document
authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations
in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate
complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the
Supreme Court pursuant to statutory authority.
(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.
(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.
(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the
course of business and indicating ownership, control, or origin.
(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the
manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating
thereto to the extent provided by general commercial law.
(10) Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be
presumptively or prima facie genuine or authentic.
(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of
regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of
its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the
Supreme Court pursuant to statutory authority, certifying that the record:
(a) was made at or near the time of the occurrence of the matters set forth by, or from information
transmitted by, a person with knowledge of those matters;
(b) was kept in the course of the regularly conducted activity; and
(c) was made by the regularly conducted activity as a regular practice.
(d) A party intending to offer a record into evidence under this paragraph must provide written notice
of that intention to all adverse parties, and must make the record and declaration available for inspection
sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to
challenge them.
(12) Certified foreign records of regularly conducted activity. In a civil case, the original or a duplicate of a foreign
record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written
declaration by its custodian or other qualified person certifying that the record:
(a) was made at or near the time of the occurrence of the matters set forth by, or from information
transmitted by, a person with knowledge of those matters;
(b) was kept in the course of the regularly conducted activity; and
(c) was made by the regularly conducted activity as a regular practice.
(d) The declaration must be signed in a manner that, if falsely made, would subject the maker to
criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a
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record into evidence under this paragraph must provide written notice of that intention to all adverse parties,
and must make the record and declaration available for inspection sufficiently in advance of their offer into
evidence to provide an adverse party with a fair opportunity to challenge them.

United States v. American Radiator & Standard Sanitary Corp. (p444)

- 6 exhibits at trial that prosecutor said belongs to the appellants
- 4 authenticated by a secretary because of handwriting
- Other 2 were authenticated by the jury comparing the signature to the 4 authenticated ones

Jury Handwriting Comparison

- “Where documents are admitted for purposes other than handwriting comparison, they may be used by the jury as a standard
for handwriting comparison if the handwriting is admitted or proved to be that of the alleged author…The vast weight of
authority requires that the trial judge determine whether the genuineness of the handwriting on the documents to be used as
the standard is sufficiently proved.”

FRE 901 Requirement of Authentication or Identification

FRE 901(b) Illustrations
- “(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens
which have been authenticated.”

United States v. Sutton (p447)

- Whether four writings, three purportedly authored by appellant, were sufficiently authenticated by their interrelated contents,
the circumstances under which they were discovered, and a connecting note found on appellant’s person to qualify them for
admission into evidence at his trial?
- Writings contained addresses and phone numbers that coincided with relatives of the defendant; the contents of the letters
discussed items of an estate that happened to match the defendant’s estate, including debts that people owed the author and
those people worked at the same location as the defendant
- Defendant would not identify these as his writings – If the defendant wrote them and never sent them, who can authenticate
them?
- Circumstantial Evidence can

Circumstantial Proof of Authentication

- “[W]e recognize the general propositions that authorship of writings may be shown by circumstantial evidence, among the
components of which the contents of the writing may play a significant role. Circumstances beyond the four corners of a
document may point with sufficient certitude to the person whose pen created it. Moreover, ‘in special circumstances, where
the contents reveal a knowledge or other trait peculiarly referable to a single person, the contents alone may suffice,’ and
where a document, purported that of a particular person, makes reference to facts peculiarly known to hi, the ‘manifest
probabilities’ that the document is his permit a logical conclusion that in actuality he is in fact the composer.”

FRE 901 Requirement of Authentication or Identification

FRE 901(b) Illustrations
- “(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.”

People v. Lynes (p453)

- The admissibility at trial of a telephone conversation between a police detective and a caller who identified himself as the
defendant.
- It was an incoming phone call, the cop had no familiarity with the defendant, argued that the cop could not properly identify
the caller as the defendant
- The court allowed the voice id to come in based on the surrounding facts and circumstances
- The call was made after the cop left his card, defendant asked what the cop was looking for him for, he stated his name and
his nickname, he was very defensive when told about the knife

FRE 901 Requirement of Authentication or Identification

FRE 901(b) Illustrations
(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic
transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it
with the alleged speaker.
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(6) Telephone conversations. Telephone conversations, buy evidence that a call was made to the number assigned at
the time by the telephone company to a particular person or business, if (a) in the case of a person, circumstances,
including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call
was made to a place of business and the conversation related to business reasonably transacted over the telephone.

United States v. Siddiqui (p457)

- Authentication of email
- Was asking people to perjure themselves to the US Gov’t

Stipulation – a negotiation with opposing counsel before trial to avoid having to authenticate each and every item in evidence, unless
there’s a real argument as to the authenticity, it is beneficial to stipulate to the authenticity of the evidence
Proof of Contents “The Best Evidence Rule”

United States v Duffy (p462)

Best Evidence Rule

- Applies only to a writing
- The terms of which are material to the case
- Requires production of the original writing
- Unless it is unavailable due to the serious fault of the proponent of the evidence

Public Policy
1) The exact words of the writing are of more than average importance;
2) The risk of inaccuracy in the human process of making a handwritten or typewritten copy of the original; and
3) The risk of inaccuracy in the human process of orally testifying as to the contents of the writing

FRE 1002. Requirement of Original.

- To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is
required, except as otherwise provided in these Rules or by Act of Congress.

Meyers v. United States (p466)

- Meyers allegedly awarded military contracts to a company that he personally owned
- Lamarre testified that he was the sole owner of the company
- Facts showed otherwise
- Whether or not the oral testimony should be admitted when a transcript of the testimony existed.

Rule 1004. Admissibility of Other Evidence of Contents

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if--
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them
in bad faith; or
(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or
(3) Original in possession of opponent. At a time when an original was under the control of the party against whom
offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at
the hearing, and that party does not produce the original at the hearing; or
(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

Duplicates are admissible in evidence to the same extent as the original unless a genuine issue is raised as to the authenticity of the
original, or under the circumstances existing it would be unfair to admit the duplicate as an original.

FRE 1003 – Admissibility of Duplicates

- A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity
of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

FRE 1006 – Summaries

- “The contents of columinous writings, recordings, or photographs which cannot conveniently be examined in court
may be present in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available

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for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be
produced in court.

FRE 1008 – Functions of Court and Jury

- When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules
depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily
for the court to determine in accordance with the provisions of rule 1004. However, when an issue is raised (a)
whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the
trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of
fact to determine as in the case of other issues of fact.

Witness Competency – Chapter 12

Rule 601. General Rule of Competency

- Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and
proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the
competency of a witness shall be determined in accordance with State law.

Rule 603. Oath or Affirmation

- Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or
affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with
the duty to do so.
Advisory Committee Note to FRE 603
- “The rule is designed to afford the flexibility required in dealing with religious adults, atheists, conscientious objectors,
mental defectives, and children. Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is
required”

Child Witnesss – “A child is competent to testify if he or she is able to receive just impressions and relate them truthfully”
- Analyze on a case by case basis Evans
Child Competency
(1) The child’s ability to receive and communicate information;
(2) The spontaneity of the child’s statements
(3) Indications of coaching and rehearsing
(4) The child’s ability to remember
(5) 1ability to distinguish between truth
(6) 1
(7)

Child Competency Examinations – 18 USC 3509(c)

1 thru 9

Closed Circuit Television – “Testimony by cctv is a procedure now authorized by statute. Before involving such a procedure, the
district court must find

19USC 3509(b) – CCTV

Videotaped Deposition – 18 USC 3509(b)(2)(A)

Byndom v. State -
Ability to Communicate – the focus in such a case is on the witness’s ability to communicate thoughts, impressions, feelings, and
beliefs.”

Rule 604. Interpreters

- An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration
of an oath or affirmation to make a true translation.
- True and accurate translation

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US v. Heinlein – not incompetent
- Chronic alcoholism does not make one incompetent
- Up to jury

Mental Competence
Charlie Manson – defense said Linda was mentally incompetent because of her drug use over many years – still up to the jury
to decide – LSD 50+ times does not make you incompetent, as long as you can take the oath and communicate

Dead Man’s Statutes (p514) – exist – but vary from jurisdictions – generally prevents an interested party from testifying in a matter
of a will or contract where one party to that has died
- If one side cannot present evidence because the other side’s witness is dead, does it impede the case? Somewhat, can often
cut out good, truthful evidence

Eliciting testimony

FRE 615 – Exclusion of Witnesses

- “At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other
witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a
natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative
by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party’s
cause, or (4) a person authorize by statute to be present.”

Sequestration – (p516) Requires that witnesses not discuss the case among themselves or anyone else…
- To smoke out liars
Exceptions – p521-23

Exceptions to Sequestration
1) Attorneys
2) Parties
3) Designated representatives
4) Essential persons (experts)
5) As otherwise provided by statute

Northern Pac. R.R. v. Charless (p523)

- Narrative testimony

FRE 611(a)
- (a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses
and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the
truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.”

NOTE – Narrative questions do not really help anyone – you need back and forth dialogue for the jury – guided testimony…

US v. Clinical Leasing Serv., Inc. (p525)

- Under direct – def’s counsel repeatedly asked leading questions, counsel was warned to cease these questions numerous
times
- The court halted the testimony
- The appeal is that the testimony being halted then affected the def’s case

FRE 611(c) – Leading Questions (Hostile Witnesses)

- Leading questions should not be used on the direct examination of a witnesss except as may be necessary to develop
the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a
hostile witness, an adverse party, or a witness identified with an adverse party, or a witness identified with an adverse
party, interrogation may be by leading questions.”
- This is an objection to the form that the question takes – you just need to rephrase your question
Leading v. Non-Leading

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“So, information that was available from the clinic on the things that the other witnesses have talked about were available to you at
your own-“

“Was information available to you at your own home?”

Leading Questions suggest one answer, there is no choice for the witness in their answer if the question is leading

Examples
Leading v. Non-Leading
- “You arrived to class on time didn’t you?” – “Did you arrive to class on time?”
- “You were prepared for today’s class, weren’t you?” – “Were you prepared for today’s class?”
- “The assailant wore a blue hat?” – “What color hat did the assailant wear?”

US v. Brown (p528)
- Two guys intercept a delivery of birds between the airport and the pet store, in order to steal the birds and profit themselves
- The issue is the testimony of a hostile witness – a man who was there when they stole the birds, but did not steal the birds
himself

Ward v Morr Transfer & Storage Co. (p531)

- Refreshing recollection
- P had stored items at the Def’s company, accused D of conversion
- P testified from notes she had jotted down to refresh her recollection of what she had stored
- The paper is not admissible, they are hearsay, an out of court statement
- She is referring to inadmissible evidence to refresh her memory – this is ok though, because it is her own memory she is
trying to refresh
- When a witness cannot remember, you can use anything that will help them remember

You give the witness the items to refresh their memory, take it back, and then ask the question – it can be used to jog the memory, but
must then be put away – they may not read from it.
- You need to get an I don’t remember, or I forget from them, not an I don’t know
- The witness must demonstrate that their memory is exhausted before they may refer to items to jog their memory

Exhausted Memory
I don’t know – I don’t recall

FRE 612 – Writing Used to Refresh Memory

- Except as otherwise provided in criminal proceedings by Section 3500 of Title 18 USC, if a witness uses a writing to
refresh memory for the purpose of testifying, either –
- (1) while testifying, or
- (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party
is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to
introduce in evidence those portions which relate to the testimony of the witness.

Borawick v. Shay (p535)

- Using hypnosis to recall memories of child sexual abuse
- She recalled numerous memories of sexual abuse by numerous people, aunt and uncle, father, the Masons – over 20 years
had passed

FRE 602 – Lack of Personal Knowledge

- “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’
own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.”

Parker v. Hoefer (p553)

- Alienation of affection claim against mistress
- P claims physically affected by her husband’s affair with D
- Lay witness opinion –
o General rule that lay persons normally not allowed to give opinions
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o Exception – “where the facts are of such a character as to be incapable of being presented with their proper force to
anyone but the observer himself so as to enable the triers to draw a correct or intelligent conclusion from them
without the aid of the judgment or opinion of the witness who had the benefit of personal observation, he is allowed
to a certain extent, to add his conclusion, judgment or opinion.”

FRE 701 – Opinions by Lay Witnesses

- If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to
those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.

Krueger v. State Farm Mut. Auto. Ins. Co. (p555)

- Wife and husband driving down road, customer in their driveway, they pull off to opposite side of the road
- There is oncoming traffic, Krueger crosses the street into this traffic; driver saw him, but struck him with the vehicle and
killed him
- Witness testified as to whether he felt the driver had enough time to apply her brakes and stop before she struck Krueger;
Court says not allowed
- Ultimately, this opinion was for the jury to determine, not for the witness to give – the jury could look at the facts of distance
and speed and determine on their own if there was enough time to stop

Rupert v. People (p559)

- Rupert accused of kidnapping, pleads not guilty by reason of insanity
- Jury found that he was insane
- A lay witness testified that he was insane, not an expert witness

Expert Testimony

Toy v. Mackintosah (p561)

- Sues dentist for dropping tooth down patient’s throat and causing illness
- D provides expert witnesses who testify that the illness could be caused by other medical problems
- P offers no evidence that the tooth caused the symptoms – no dental or medical experts testified
- Court finds that P needed some medical evidence, burden on him to prove his allegations – required expert testimony to
demonstrate the causation alleged; D did not need to produce expert testimony as to the appropriate standard of care

People v. Kelly (p564)

Frye Test
- “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to
define. Somewhere in this twilight ozone the evidential force of the principle must be recognized, and while courts will go a
long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from
which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in
which it belongs.”
Ditched in 1993 by the Federal Courts

Daubert v. Merrell Dow Pharmaceuticals, Inc. (p571)

- Claim that Bendectin causes birth defects – it is a morning sickness medication, FDA approved

FRE 702 – Testimony by Experts

- If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Scientific Knowledge (p574)

- “[I]n order to qualify, as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method. Proposed
testimony must be supported by appropriate validation – i.e., ‘good grounds,’ based on what is known. In short, the
requirement that an expert’s testimony pertain to ‘scientific knowledge’ establishes a standard of evidentiary reliability.”

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Helpfulness
- “Rule 702’s ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to
admissibility.”

Rule 702 Screening

- “This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically
valid and or whether that reasoning or methodology properly can be applied to the facts in issue.”

If you have an expert you WILL have a DAUBERT HEARING to determine the expert’s qualifications.

Factors in Determining Evidentiary Reliability

1) Can the theory or technique be tested?
2) Has the theory or technique been subjected to peer review and publication?
3) What is the known or potential rate of error of the theory or technique?
4) Do standards controlling the technique’s operation exist?
5) Has the theory or technique gained general acceptance?

Additional Factors in Advisory Committee Notes

1) Research conducted independent of litigation;
2) Unjustifiable extrapolation from accepted premise to unfounded conclusion;
3) Adequate accounting for obvious alternative explanations;
4) Whether expert was as careful as she would have been in professional practice;
5) Whether the field of expertise is known to reach reliable results

US v. Hines (p594)
- Handwriting expert cannot say, “therefore, Hines wrote the note at the bank”
- Cross-racial identification – wants to say that the degree of accuracy involved in cross-racial eye witness identification is
unreliable
- Court finds sufficient reliability in this testimony allowing the jury to make a more informed determination

Under Frye – evidence not admissible

- DNA
- Battered Woman’s Syndrome
- Polygraph
Probably admissible under Daubert

U.S. v. Veysey (p607)

- Charged with starting four serious house fires at his residences
- Actuary – statistical analysis to determine when one might die
- Wants an actuary to testify that the odds of having four serious house fires by one person is very unlikely – one in 1.7 trillion
- Argue that the prejudice introduced by the number 1.7 trillion outweighs the probative value of the statistic
- Court disagrees
- When the jury is faced with statistical evidence, they tend to think that it is a certainty – juries hear this and think that the
testimony is saying it could not happen to anyone, when they are in fact saying it could only happen to one person, they just
can’t say who that one person may be

ND Supreme Court does not adopt Daubert fully, but it does incorporate some of the factors

Qualification Requirement
- “Before an expert witness may offer an opinion pursuant to rule 702, he must first be qualified by virtue of specialized
expertise…[A]t a minimum, a proffered expert witness…must possess skill of knowledge greater than the average layman.”

N. 6 after Alcott – stipulations – you should be given the opportunity to refute stipulations – this also shows the jury how credible
your witness is

State v Coldwell – a party must not be forced to accept a stipulation that qualifies an expert

Wheeling – court focused that expert can only render an opinion in the area of expertise that the witness is qualified
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Pretrial – reliability of the method
Trial – qualification of expert and the basis of the opinion

FRE 705 – Disclosures of Facts or Data Underlying Expert Opinion

- “The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the
underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the
underlying facts or data on cross-examination.”

Hypothetical Questions
- “The question need not include all facts when by the evidence or pertinent to the ultimate issue (p632), but it should be in
such a form as not ….

Preparation Materials
- “It is common practice for a prospective witness, in preparing himself to express an expert opinion, to pursue pretrial studies
and investigations of one kind or another. Frequently, the information so gained is hearsay or double hearsay, insofar as the
trier of the facts is concerned. This however does not necessarily stand in the way of receiving such experts opinion

FRE 703 – Basis of Opinion Testimony by Experts

- “The facts or data in the particular case upon which an expert basis an opinion or inference may be those perceived
by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in
evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not
be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative
value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.”

Thomas – expert relying on deposition statements

Voir Dire
- “Ordinarily, it is within the sound discretion of the trial court whether voir dire of a witness will be allowed, or whether
counsel must wait until cross-examination to attack the credibility of an expert witness.”

Carr case – common law, expert not allow to testify their opinion on the ultimate issue

The ultimate issue is the question that the jury has to decide.

FRE 704 – Opinion on Ultimate Issue

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state
an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an
element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Ake v. Oklahoma
- The Supreme Court held “that when a defendant has made a preliminary showing that his sanity at the time of the offense is
likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on
this issue, if the defendant cannot otherwise afford one.”

Credibility
- The bolstering of a witness’s credibility on direct
- The impeachment of witness’s credibility on cross
- The rehabilitation of witness’s credibility on re-direct
Generally a party cannot bolster a witness’ credibility through evidence character for truthfulness or evidence of prior consistent
statements – Only two methods of Bolstering Prohibited

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US. v. Thornton (p648)
- Gov’t’s case in chief – gov’t introduces proffer statements that list three references to truthful testimony
- This is bolstering, before the opportunity to impeach – because it goes to the character for truthfulness, it is inadmissible
bolstering, but the court allows it
- Court allows it because – what the court has heard is that the defense has already affirmatively stated their intention to
impeach these witnesses, because the court is convinced that the defense will impeach, the court is allowing the gov’t to do
on direct what it would nonetheless be permitted to do on re-direct as rehabilitation

State v. Green (p653)

- At trial, one of the two admitting to burglary, said that the defendant did not participate in the burglary
- State impeached him (their own witness) because his testimony was conflicting with an earlier statement - The state claimed
surprise and unexpected hostility
- Witness must seek the truth
- State can impeach their own witness – even though the state did not interview his witness before trial, the court said that it
was ok because the state had relied on a previous written statement by the witness
- Normally, without the written statement, the court would not allow a side to claim surprise from their own witness

The Voucher Rule

- “Having called the witness to testify and thereby vouching for his truthfulness – although he may present other evidence of a
contradictory nature through other witnesses – a party may not impeach his own witness unless without warning the
witness….

FRE 607 – Who May Impeach

- The credibility of a witness may be attacked by any party, including the party calling the witness

US v. Webster (p657)
- Webster convicted of aiding and abetting the robbery of a federally insured bank and receiving stolen bank funds,
- Co-defendant was tried in separate trial and sent to jail, he has nothing to lose
- The gov’t calls him as a witness, knowing he will testify that the defendant had nothing to do with the crime
- He testifies to such
- Then they bring in statements made to the FBI that said the defendant was involved
- Defense is arguing that this was a pretest brought in by the government and the only reason they called him was so he would
lie and then they could introduce the inadmissible FBI statements just through impeachment

Subterfuge
- “[I]mpeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the
jury evidence not otherwise admissible.”

Voir Dire
- “Ordinarily, it is within the sound discretion of the trial court whether voir dire of a witness will be allowed, or whether
counsel must wait until cross-examination to attack the credibility of an expert witness.”

Alford v. U.S. (p659)

- Mail fraud case
- The prosecutor asked every witness he called where do you live, except for this one
- So defense counsel asked, but he can’t really tell the court why it’s relevant – he’s on a hunch
- The court says establishing a community where the witness is associated, you can better assess their credibility – talking
about when we get opinions from members of the community as to the witness’ reputation for truthfulness, we need to know
where they are from
- Court says even without bias the attorney should be able to ask the question
- The bias here is that the witness is in federal custody and they have many reasons to want to lie

Ede v. Atrium South OB-GYN, Inc. (p664)

- The doctor being called to testify could have his insurance premiums go up if the other doctor is found liable
- Evidence is to show the bias of the witness doctor
- It doesn’t stop the testimony, it just shows more information for the jury to consider

FRE 610 – Religious Beliefs of Opinions

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- “Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing
that by reason of their nature the witness’ credibility is impaired or enhanced.”

US v. Heinlein (p667)
- Witness chronic alcoholic and saw murder
- Court allowed the evidence of chronic alcoholism and the doctor who determined it caused memory lapses
- Sensory impairment is relevant for impeachment purposes

State v. Baker (p668)

Reputation for Veracity

- “[A] foundation for the reception of such evidence was properly laid by showing that the witnesses based their conclusions
upon their knowledge of defendant’s general reputation among those with whom he resided.”

FRE 608(a) – Evidence of Character or Conduct of Witness

- (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to
character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

FRE 609(a) – Impeachment by Evidence of Prior Conviction

- (a) General Rule. For the purpose of attacking the character for truthfulness of a witness.
o (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to
Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under
which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be
admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial
effect to the accused; and,
o Evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it
readily can be determined that establishing the elements of the crime required proof or admission of an act of
dishonesty or false statement by the witness
 Crimen Falsi crimes

FRE 609(b) –
- (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has
elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that
conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value
of the conviction supported by specific facts and circumstances substantially….

FRE 609(c)
- (c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this
rule if (a) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent
procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a
subsequent…

FRE 609(d)
- (d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The occur
may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if
conviction of the offense would be admissible to attack the credibility of an adult and the court

FRE(e)
- (e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible.
Evidence of the pendency of an appeal is admissible.

US v. Alexander (p671)
(1) impeachment value of prior crime
(2) the point in time of conviction and the defendant’s subsequent history;
(3) the similarity between the past crime and the charged crime;
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(4) the importance of the defendant’s testimony;
(5) the centrality of the defendant’s credibility

Cook Burden
- “The government bears the burden of showing, based on these factors, that the proffered evidence’s probative value
substantially outweighs its prejudicial effect.”

Altobello v. Borden Confectionary Products, Inc. (p676)

- Used his past criminal record at trial to impeach him.
State v. Morgen (p680)
- Defendant claiming self defense at the trial level, he admits he killed someone
- Issue is on re-cross prosecutor brought up a specific instance of conduct

FRE 608 Evidence of Character and Witness Conduct

- (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or
supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be
proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for
truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness
as to which character the witness being cross-examined has testified.
- The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's
or the witness' privilege against self-incrimination when examined with respect to matters that relate only to
character for truthfulness.
- Specific instances of conduct
- You may not use extrinsic evidence

US v. Opager (p684)
- It could’ve been proved with the pay stubs, that they did not work together in 1974 where he claims he saw her doing illegal
drugs
- She is not allowed to introduce them at trial, they are extrinsic evidence
- The appellate court says, no, they are not extrinsic evidence – they were not offered for that purpose
- They are relevant to show that the witness is lying (but that would be extrinsic evidence to prove a specific instance of
conduct) – but they are also relevant to disprove a specific fact material to Opager’s defense

Impeachment: Prior Inconsistent Statement

Prior Inconsistent statement

- The theory of attack by prior inconsistent statements is not based on the assumption that the present testimony is false and the
former statement true but rather upon the notion that talking one way on the stand and another way previously is blowing hot
and cold, and raises a doubt as to the truthfulness of both statements.

Can impeach for an omission

- Where you ask a witness in a prior statement in a question and they did not include it in the answer. So omission can
contradict a prior statement and you have had to answer the question.

Central Mut. Ins. Co. v. Newman

U.S. v. Hudson

Rule 613. Prior Statements of Witnesses

(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made
by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at
that time, but on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent
statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and

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the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise
require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).
- This is in Hudson. Not admissible unless the witness can explain or deny the same and the opposite party can interrogate the
witness for the interest of justice.

Advisory committee note

- The traditional inconsistence that the attention of the witness be directed to the statement on cross examination is relaxed in
favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine the
statement, with no specifications of any particular time or sequence.

Impeachment: Learned Treatise

Broun, 695-699

Freshwater v. Scheidt
- Testifying as an expert witness
- Permissible rehabilitation of a witness is a function of the type of impeachment to which that witness has been subjected.

Bolstering
- The first derritative of the proposition that rehabilitation is a function of impeachment is the universal rule that the credibility
of an unimpeached witness cannot be supported.
- The text is authoritative in the field, that experts rely on it. You don’t have to get the witness that it’s the explicit text that
they rely on. As long as they imply that it’s the kind of text people will rely on it’s a learned treatise.

Rehabilitation
- It is a well established rule of law that where a witness has been cross examined respecting his former statements with a view
of impairing his credit, the counsel who called him has the right to reexamine his, so as to afford him an opportunity of
explaining such statements.
- Other side gets to fix their witness.

Redirect examination
- The proper function and scope of re-direct examination is to rebut, explain or avoid the effect of new matter brought out on
cross-examination… if the cross-examination has fallen short of the mark in reaching any material part of the story on direct,
most skilled lawyers will waive re-direct, and seek to take care of his witness in summation if counsels opposite try to turn
the spotlight on these immaterial contradictions or fallacies.

Rodriguez v. State
- Contradictory evidence so it would be bolstering.
- It is allowed because they attacked her reputation of truthfulness. Allowed for rehabilitation.
- Not bolstering once this has been attacked.

U.S. v. Plante

How to rehabilitate with prior conviction

- The details of the conviction are collateral to the actual fact of conviction. If you get the fact of conviction in, or through the
admission of a certificate of conviction, then the details of the conviction are collateral and not important.
- Can't go into them for rehab or impeachment.

Bradford v. State
- Should have an opportunity to provide an explanation after you've been impeached. Allow re examination for an explanation
of his statements.
- Can use a prior consistent statement to recharge.

Prior Inconsistent Statements

- The theory of attack by prior inconsistent statements is not based on the assumption that the present testimony is false and the
former statement true by rather upon the notion that talking one way on the stand and another way previously is blowing hot
and cold, and raises a doubt as to the truthfulness of both statements.”

FRE 613 – Prior Statements of Witnesses

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(a) Examining witness concerning prior statement.
(b) Extrinsic evidence of prior inconsistent statement of witness.

Advisory Committee Notes

- “[T]he traditional insistence that the attention of the witness be directed to the statement on cross examination is relaxed in
favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine the
statement, with no specification of any particular time or sequence.”

Redirect Examination
- “[T]he proper function and scope of re-direct examination is to rebut, explain or avoid the effect of new matter brought out
on cross-examination…. If the cross-examination has fallen short of the mark in reaching any material part of the story on
direct, most skilled lawyers will waive re-direct, and seek to take care of his witness in summation if counsel opposite to try
to turn the spotlight on these immaterial contradictions or fallacies.”

CHAPTER 13

FRE 802 – Hearsay Rule

- Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court
pursuant to statutory authority or by Act of Congress.

Moor v. US (708)
- Informant used
- Police Officer repeated the statement of the CI who was not on the stand
- The statement of the CI was that the Def lived at the residence where the drugs were found
- The Declarant is an informant who isn’t on the stand and cannot be cross-examined

Silver v. New York Cent. R.R. (p712)

- Train, layover, Silver gets stuck in Cleveland and she has an ailment that causes her to suffer ill affects because of the cold –
the car she was in was as low as 10 degrees
- Train guy allowed to testify as to how cold the car was but was not allowed to testify that the other passengers made no
complaint (at the trial level)
- If the Porter is the likely person to make a complaint to and the other passengers had the same ability to make a complaint,
then they would allow the silence
- Silence can be hearsay when it’s considered non-verbal conduct

Hearsay
FRE 801 – Definitions: The following definitions apply under this article:
(a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by
the person as an assertion
(b) Declarant. A “declarant” is a person who makes a statement.
Player v Thompson (p716)
- Testimony was a statement that was not allowed was that the car did not pass inspection because of tires that were slick
- Carder was present when this statement was made, but she was not allowed to testify to this because it was hearsay – she did
not have personal knowledge that the tires were too slick
- P’s point in introducing the statement of the Inspection Agent is that Carder knew the tires were bald before she drove in the
car
- The statement was not offered as to the truth of the matter
- Against Carder, it is not hearsay, it is not offered to show that the tires were in fact bald, it is only offered to show that Carter
was made aware by the Inspector
- P could admit this against Carder, but the Thompson’s are Defendant’s as well and it is hearsay against them
- If hearsay is admissible against one party and not against another, it is admissible (the Thompson’s need to ask for a limiting
instruction to the jury) it is admissible to show that Carder had notice, but not the Thompson’s

FRE 801(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.

Limiting Instructions
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- “[W]hen a statement is admissible against one defendant and not against others, that the trial judge must admit the statement
against the defendant and instruct the jury to disregard it as to the other defendants.”

Effect on the Listener

- It doesn’t matter that the truth of the statement is false, it would not matter if the Inspector lied about the tires being bald, the
statement still puts Carder on notice to have the tires checked

US v Gibson (p719)
- Gibson was selling franchises that really didn’t exist
- Investors are repeating, on the stand, out of court statements made by those who worked for Gibson
- They were not being offered to prove that the individual statements were true, but the fact that the statements were made
- The simple existence of the statements demonstrates fraud, the statements are not hearsay

Threats – it’s not about the truth of the threat, it’s about the fact that the threatening statement was made

Categories of Non-Hearsay (because not offered for the truth of the matter asserted)
- Effect on the listener
- Verbal acts
- Prior consistent/inconsistent statements

Loetsch v. New York City Omnibus Corp. (p723)

- The husband is suing for the wrongful death of the wife
- The defense says even if they are liable, they owe nothing because the plaintiff’s wife hated him anyway
- Seek to introduce a statement from a will about cruelty and indifference
- The trial court did not allow
- The appellate court said it was relevant to show the relations between the husband and the wife
- It was not offered for the truth of the matter, it is offered to show the relationship between the husband and the wife – it
doesn’t matter if her statement is true, the point of her writing it and leaving him $1 shows that she did not like him

Wright v. Doe Dem. Tatham (p725)

- Issue – whether the decedent was considered competent when he made his will?
- They attempted to introduce letters written by three individuals that were in English and it was assumed that the decedent was
competent because people wrote him letters
- The argument was that if he could not understand the letters, they would not have written the letters
- The court says they imply that they he is competent and (at common law) an implied assertion is hearsay because they were
being offered to prove the truth of the matter that he was competent

US v. Zenni (p729)
- FBI is in the Def’s residence carrying out a search warrant for bookkeeping
- The phone rings multiple times, they answer and the caller gives instructions on how to place bets – the phone calls are being
repeated by agents on the stand, the callers are unknown
- They are considered non-assertive statements
- Having your umbrella up just to keep dry, not for the purpose of telling others that it is raining is non-assertive
- The Truck driver moving forward to keep going, not to show others that the light is green is non-assertive

Risk of Insincerity with Non-Assertive Conduct

- “A man does not lie to himself. Put otherwise, if in doing what he does a man has no intention of asserting the existence or
non-existence of a fact, it would appear that the trustworthiness of evidence of this conduct is the same whether he is an
egregious liar or a paragon of veracity. Accordingly, the lack of opportunity for cross-examination in relation to his veracity
or lack of it, would seem to be of no substantial importance.”

Advisory Committee Note to 803(c)

- “The definition of ‘statement’ assumes importance because the term is used in the definition of hearsay in subdivision (c).
The effect of the definition of ‘statement’ is to exclude from the operation of the hearsay rule all evidence of conduct, verbal
or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless it intended to be
one.”

First, find out if it meets the definition of Hearsay under 803(c)

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Second, is it being offered for the truth of the matter asserted

Headley v. Tilghman (p734)

- Police officer answers phone at Headley’s place, caller asks, are you up? can I come by? are you ready?
- Expert testifies that drug dealers often use code when discussing transactions
- The court allows it, and on appeal it is still held to not be hearsay

US v. Summers (p735)
- Says to the cops, how did you get here so fast?
- Cops say it is an assertion and it is governed by the rules of hearsay and is not admissible
- The party that is challenging the admission of the statement bears the burden of proving that it was intended as an assertion

US v. Muscato (p739)
- Conspiracy to manufacture firearms
- One co-conspirator brought a pen-type gun and showed it to some of the other conspirators who were police officers
- They brought it to the defendant who began making prototypes of the weapon
- They arranged to have the guns purchased by (unknown to them) ATF Agents
- Two statements were made, one describing the gun
- After describing the gun that has the markings on it, the FBI agent shows the gun to the declarent and he confirms that this is
in fact the gun he had possession of earlier
- What is being offered for the truth of the matter is that the declarant’s second statement is showing that he could describe the
gun before he even saw it in the FBI’s possession
- This is not hearsay, one because it is circumstantial evidence and two it was offered to prove that the declarent had previous
knowledge of the details of the gun, it doesn’t prove the truth of the matter that yes this is the gun I described
- Court cautions that admitting circumstantial evidence to show something other than the truth of the matter asserted there may
be other purposes to admit the evidence at the same time
- Consider the reliability of the statement and the ability of the fact finder to evaluate the evidence
- The court does not care that the declarant is a witness in this trial – it does not matter that the declarent wants to enter their
own out of court statement

Rule 801. Definitions

The following definitions apply under this article:
(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by
the person as an assertion.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.
(d) Statements which are not hearsay.
A statement is not hearsay if--
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is
(a) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a
trial, hearing, or other proceeding, or in a deposition, or
(b) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive, or
(c) one of identification of a person made after perceiving the person; or
(2) Admission by party-opponent. The statement is offered against a party and is
(a) the party's own statement, in either an individual or a representative capacity or
(b) a statement of which the party has manifested an adoption or belief in its truth, or
(c) a statement by a person authorized by the party to make a statement concerning the subject, or
(d) a statement by the party's agent or servant concerning a matter within the scope of the agency or
employment, made during the existence of the relationship, or
(e) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
- The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority
under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the
existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is
offered under subdivision (E).
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Don’t read
US v. mckeon
Mahlandt v Wild Canad
US v Terronova

Move Confrontation to the end of the syllabus

Hearsay,

Commonwealth v. Daye (p748)

- Witness denied making pretrial id of the gunman in the grand jury proceedings, under oath
- Can the grand jury statement be used not to impeach the witness but to show the truth of the witness’ identification of D

The Modern Approach

- The approach adopted by FRE 801(d)(1)(A) “accepts at probative value only those prior inconsistent statements given under
oath in instances where a record of the statement is likely to be available…[A]t least where the witness at trial does not
disclaim memory of the circumstances under which the prior statement was made, the reliability of the statement can be
tested notwithstanding the witness’ recantation.
- To this is added “the pragmatic argument that juries cannot, and perhaps should not, be expected to discriminate between
impeachment and probative use of a prior inconsistent statement, and that formally conferring probative status to such
statements does no more than legitimize current practice.”

The Orthodox Approach

- “Partisans of the orthodox view retort that prior inconsistent statements, if admitted for probative purposes, are endowed with
an ‘indestructible’ quality superior to that of testimony at trial…. A fact finder’s disbelief of a witness’ contradiction of a
prior statement at trial, it is argued, ‘sheds no direct light on the accuracy of [the] pretrial statement,’ and does not, therefore,
adequately ensure the reliability of the extrajudicial statement’s factual content.”

Tome v US (p756)
- All the statements happened very closely, before the claim was made, but they all happened after the father had custody and
after the child had a motive to make up the story about the abuse
- Can you bring in a prior consistent statement that was made after the motive exists to fabricate the statement?
- Common Law – if the statements are made after motive, they can’t rebut that there was a fabrication – you have to show that
the statement was made before the motive to fabricate, otherwise it has no relevancy

Prior Consistent Statement

- “The prevailing common law rule for more than a century before the adoption of the FRE was that a prior consistent
statement introduced to rebut a charge of recent fabrication or improper influence or motive was admissible if the statement
had been made before the alleged fabrication, influence, or motive came into being, but is was inadmissible if made
afterwards.

FRE 801(d)(1)(B)
- A statement is not hearsay if—
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is (B) consistent with the declarant’s testimony and is offered to rebut an
express or implied charge against the declarant of recent fabrication or improper influence or motive.

US v Lewis (p765)

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- The value of the out of court ID is more credible than the in court ID

FRE 801(d)(1)(C)
- A statement is not hearsay if –
- (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is (C) one of identification of a person made after perceiving the person;

Value of Identification
- “Congress has recognized, as do most trial judges, that identification in the courtroom is a formality that offers little in the
way of reliability and much in the way of suggestibility. The experienced trial judge gives much greater credence to the out-
of-court identification…. The purpose of the rule was to permit the introduction of identifications made by a witness when
memory was fresher and there had been less opportunity for influence to be exerted upon him.”

Admission of a Party-Opponent
- Must be inconsistent with the party’s position at trial and
- Must be offered by the opponent

Oslon v Hodges (p770)

- Inconsistent w/ the opposing parties general theory at trial
- Theory was that D was driving recklessly, this was not the case
- Can it be offered by the party who made the statement? NO
- Must be offered by the opposing party

FRE 801(d) Statements which are not hearsay

- A statement is not hearsay if—
- (2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in
either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or
belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject,
or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment,
made during the existence of the relationship, or (E) a statement by coconspirator of a party during the course and in
furtherance of the conspiracy. The contents of the statement shall be considered by are not alone sufficient to
establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof
under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party
against whom the statement is offered under subdivision (E)

Wilson v City of Pine Bluff (p788)

- If a reasonable person under the circumstances would respond to the statement if untrue, it can be considered an admission

Silence as an Admission
1) The statement must have been heard by the party against whom it is offered;
2) It must have been understood;
3) The subject matter must have been within his personal knowledge;
4) He must have been physically and psychologically able to speak;
5) The speaker or his relationship to the party or even must be such as to reasonably expect a denial; and
6) The statement itself must be such that, if untrue, under the circumstances, it would have been denied

US v Cornett (p793)

FRE 801(d)(2)(E) – Co-conspirators

Co-Conspirators
- “The proponent of admittance must prove by a preponderance of the evidence (1) the existence of the conspiracy, (2) the
statement was made by a co-conspirator of the party, (3) the statement was made during the course of the conspiracy, and (4)
the statement was made in furtherance of the conspiracy.”

Blecha v. People (p800)

- The rules allow the statements of your co-conspirators to be used against you as if you made them yourself
- Once the conspiracy ends, this also ends
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- If the conspiracy has to objects, murder and cover-up, the conspiracy doesn’t end until both goals are achieved

Guarantee of Trustworthiness

Chapter 14 – Exceptions to the Hearsay Rule

US v Cain (p857)

FRE 803. Hearsay Exceptions; Availability of Declarant Immaterial:

- The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately thereafter.
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under
the stress of excitement cause by the event or condition.

Keating – p863 elements of an excited utterance

Vignette 80

Elements of an Excited Utterance

1) A startling event;
2) A statement relating to the circumstances of the startling event;
3) A declarant who has had the opportunity to personally observe the startling event; and
4) A statement made before there has been time to reflect and fabricate

An Exception to the Hearsay Rule IS Hearsay, it’s just allowed for some reason under the rules. Non-Hearsay is NOT Hearsay under
any circumstances (not usually offered for the truth of the matter).

Wilkinson v. Service (p868)

- When he wrote the will, he intended to leave her out of it
- If they had a good relationship, he wouldn’t have left her out of the will
- It’s showing that the letter written by the son-in-law is used to show the testator’s state of mind (which would not be allowed
under the rules today)
- It doesn’t matter of the statement is false, it is not being use to show that the statement is true, it being used to show their
state of mind

State of Mind
- “Whatever is material to prove the state of a person’s mind or what is passing in it, and what were his intentions, may be
shown by his declarations and statements. The truth or falsity of such statements is of no consequence. They are to be used
only as showing the condition of his mind.”

Mutual Life Ins. Co. v. Hillmon (p870)

- It’s plausible to say he’s in the area we think he’s in because the letters show his intent to go to that area.

Intention of Future Action

- “A man’s state of mind or feeling can only be manifested to others by countenance, attitude or gesture, or by sounds or
words, spoken or written…. The existence of a particular intention in a certain person at a certain time being a material fact to
be proved, evidence that he expressed that intention at that time is as direct evidence of the fact, as his own testimony that he
then had that intention would be.”

US v. Day (p873)
- Williams died from a shotgun wound in a car
- Williams had said on a piece of paper, that if he wasn’t back in three days something bad had happened
- A statement of a present sense of mind as long as it does not require relying on memory

FRE 803. Hearsay Exceptions; Availability of Declarant Immaterial:

- The following are not excluded by the hearsay rule, even though the declarant is available as a witness;

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(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of
mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and
bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless
it relates to the execution, revocation, identification, or terms of declarant’s will.

State of Mind
- “The state of mind exception to the hearsay rule allows the admission of extrajudicial statements to show the state of mind of
the declarant at that time if that is the issue in the case. It also allows such statements to show a future intent o the declarant
to perform an act if the occurrence of that act is at issue.”

US v. Iron Shell (p890)

- If you want your doctor to make you healthy, you don’t lie to your doctor

FRE 803(4)
- (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or
general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Two-part Test
- “[F]irst, is the declarant’s motive consistent with the purpose of the rule; and second, is it reasonable for the physician to rely
on the information in diagnosis or treatment.”

US v. Booz (p898)
- Neighbor told the officer the license plate number, the officer wrote it down
- The trial was years later
- Could the FBI agent use his own notes to refresh his memory of what the license plate number was? Yes, provided that both
can testify as to their part in the statement (hearsay within hearsay)

Two-Party Record
- “[W]here a record is the joint productivity of two individuals, one who makes an oral statement and one who embodies it in a
writing, if both parties are available to testify at trial as to the accuracy with which each performed his role, the recollection
may be admitted.”

US v. Felix-Jerez (p901)
- Did not establish that he had adequate recollection before making a determination on the evidence

FRE 803(5)
(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge by
now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or
adopted by the witness and to reflect that knowledge correctly. If admitted, the memorandum or record may be read
into evidence but may not itself be received as an exhibit unless offered by and adverse party.

Memory Loss Required

- “[B]efore a prior hearsay statement of a witness who is testifying can be admitted into evidence under this exception, it must
first be shown that the witness does not now have sufficient recollection as to the matters contained in the statement to enable
him to testify fully and accurately regarding them.”

Olson v. Henningsen (p910)

- There is a motivation for businesses to keep accurate records so they may function successfully

US v. De Georgia (p916)
- The absence of a business record is allowed
- The guarantee of trustworthiness is the same as in Olson – companies have a motivation to keep accurate records, if
something is not in the record, that is probably accurate

Potamkin Cadillac Corp. v B.R.I Coverage Corp. (p920)

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- How can it be created in the regular course of business if it was clearly created only in anticipation of litigation? It was
originally marked as attorney client privilege.

FRE 803(6)
- (6) Records of Regularly Conducted Activity. – A memorandum, report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnosis, made at or near the time by or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business
activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other
qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification
unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term
‘business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every
kind, whether or not conducted for profit.
- Some states use this

Yates v. Bair Transport, Inc. (p925)

- Witnesses must have firsthand knowledge in order to testify
- The court is trying to determining if the person making the records has firsthand knowledge or not,
- Does the person making the business record need to have firsthand knowledge? No, just the person who provided the
information to the recorder
- The police blotter is excluded because the officer did not have firsthand knowledge, the witnesses had it, but we don’t know
who they are because their names are not recorded
- The police officer has the duty to make the record, but he doesn’t have firsthand knowledge
- Under the business records exception, a police report will not be allowed into evidence
- A CEO has firsthand knowledge, dictates to his secretary, her duty is to type the dictation, she has no firsthand knowledge –
this is all ok because one person with the duty to make the record had the firsthand knowledge
NOTES REGARDING HEARSAY W/I HEARSAY

FRE 805. Hearsay within Hearsay

- Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements
conforms with an exception to the hearsay rule provided in these rules.

Section F.

Public Records
- “Thus, their character as public records required by law to be kept, the official character of their contents, entered under the
sanction of public duty, the ….. p935

FRE 803(8)(A)
- (8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or
agencies, setting forth (A) the activities of the office or agency.

US v. Quezada (p936)
- Deportation case – Def was deported 25 Apr 1982 and then 7 months later arrested in El Paso jail
- Agent testified as the INS Form I-205, the warrant of deportation and INS Form I-294, letter to Def in his native language
explaining consequences of returning
- Def challenges these documents that they do not establish “arrest” under 8 USC § 1326(illegally reentering the country after
having been previously arrested and deported)
- 5 elements of “arrest”
o That defendant was an alien
o That he was “arrested” and
o “Deported” as those terms are contemplated by the statute
o That he was subsequently found within this country and
o That he did not have consent from the Attorney General to reapply for admission
- Conclude “Arrest” under the statute is accomplished by service on the alien of the warrant of deportation
- FRE 803(8)(B) (law enforcement exception)
- This circuit has recognized that Rule 803(8) is designed to permit the admission into evidence of public records prepared for
purposes independent of specific litigation

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- “Due to the lack of any motivation on the part of the recording official to do other than mechanically register an
unambiguous factual matter (here, appellant’s departure from the county), such records are, like other public documents,
inherently reliable.”
- Given (the sheer numbers of deportations processed) it is unlikely that testimony by an INS officer as to the deportation of a
particular individual could be based on anything other than recorded observations
- This was ministerial not adversarial

Law Enforcement Exclusion

- “Ostensibly, the reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension
of the defendant were not as reliable as observations by public officials in other cases because of the adversarial nature of the
confrontation between the police and the defendant in criminal cases.”

The only time a police report will be admissible in Federal Court is where a police officer is recording personal observations.

FRE 803(8)(B)
- (8) Public Records and reports. (B) matters observed pursuant to duty imposed by law as to which matters there was
a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement
personnel.

Bridgeway Corp. v. Citibank (p942)

- Bridgeway, Liberian Co – appeals motion from district court denying summary judgment and granting , sua sponte, SJ for
nonmoving party
o “that the evidence in the record established, as a matter of law, that the Liberian judicial system was not ‘a system
that * * * provide[s] impartial tribunals or procedures compatible with the requirements of due process.”
- Bridgeway seeks enforcement of 1995 money judgment against Citibank entered by the Supreme Court of Liberia, July 28,
1995.
- This was during a time of Civil War and disarray in Liberia, especially for the judicial system
- 1997 – leaders of various factions acknowledged the integrity of the Liberian Supreme Court had been compromised by
factional loyalties since 1992 – the members were dismissed and new members were appointed
- Citibank filed, IAW Liberian Law, to remove their business from Liberia, Bridgeway wanted its money in American Dollars,
trial court said no, supreme court reversed
- Burden – if Citibank had both production and persuasion – it was met by US State Department Country Reports and
Citibank’s Liberian counsel, Sherman.
o These were challenged
- FRE 803(8)(C) – allows “factual findings resulting from an investigation made pursuant to authority granted by law, unless
the course of information or other circumstances indicate lack of trustworthiness”
o Factual finding – includes not only what happened, but how it happened, why it happened, and who caused it
(1) Contain factual findings
(2) Be based upon an investigation made pursuant to legal authority
- Once the introducing party satisfies – the burden to show “a lack of trustworthiness” then shifts to the party opposing
admission
o Factors in determining trustworthiness
 The timeliness of the investigation
 The special skills or experience of the official
 Whether a hearing was held and the level at which it was conducted, and
 Possible motivation problems
- Court also took judicial notice of historic facts concerning the state of Liberia and its civil war
- Affirmed

FRE 803(8)(C)
- (C) In civil actions and proceedings and against the Gov’t in criminal cases, factual findings resulting from an
investigation made pursuant to authority…….

Section G. Unavailability (Federal Rule 804(a))

US v. MacCloskey (p949)
- And others charged as coconspirators to obstruct the administration of justice by blowing up a potential government witness
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- D alleges failure to admit prior testimony of a key defense witness (Edwards – at a voir dire hearing)
- She testified outside of the jury’s presence – contradictory to the key Prosecution witness – but at trial, when D wanted to call
her, she had been advised not to testify and to invoke her 5th Amen right – D asked her prior testimony be admitted
- She testified, but did use the 5th on some question which she had answered at voir dire – she then said she wasn’t afraid of
incriminating herself, but that the State’s Attorney had called her attorney and said she had “better remember the privilege of
the Fifth Amendment” – she was afraid her dismissed charges would not be dismissed
- FRE 804 – Unavailability (situations where the declarant)
o Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of
his statement; or
o Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to
do so
- She needed to invoke her 5th Amen right from the beginning, then ordered by the court to testify and then refused that order in
order to not be considered unavailable –
- Reversible error – her testimony needed to be admitted

FRE 804 – Declarant Unavailable

- (a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant
- (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the
declarant’s statement; or
- (2) persists in refusing to testify
- (3)
- (4)
- (5)
- (6)
The witness himself does not have to be unavailable – the testimony is unavailable

Campbell v. Coleman (p954)

- Lantern case – injured children
- Witness (Hayes) not available when subpoenaed but had given a deposition
- Def had statements of three witnesses as to out of court statements made by Hayes admitted
- Hayes was absent from trial but his testimony was available from the deposition
- Court rules reversible error – these statements allowed the jury to consider evidence that was improper and therefore
prejudiced the plaintiff’s
- If the deposition had been read, the jury would have heard Hayes flatly denying that he caused plaintiffs’ injuries

H. Former Testimony

US v. Feldman (p959)
- Whether a deposition from a civil trial may be admitted for use as testimony in a criminal trial if the person deposed is
deceased at the time of the criminal trial?
- Feldman and Martenson worked with precious metals along with Sanburg.
- Sanburg left the company first, then the company went bankrupt and they were sued by customers
- Sanburg gave a deposition, prior to his deposition, he entered into an agreement with Federal Prosecutors to testify against
Feldman and Martenson in a criminal trial (of which no one was aware was going to occur)
- Sanburg died before the criminal trial – the government knew he was terminally ill at the time of his deposition
- Feldman’s and Martenson’s counsel had no notice of the pending criminal investigation or of the agreement
o They did not appear for Sanburg’s deposition, believing he was a defendant just as they were and there was no need
to cross-examine him
- Trial court erred in admitting this deposition
- FRE 804(b)(1)
o The testimony or deposition of a witness taken in another proceeding is admissible if the party against whom the
testimony is now offered had “an opportunity and similar motive” to examine the witness
- Convictions overturned and thrown out
Similar Motive Factors – p 963

FRE 804(b)

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- (1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a
deposition taken in compliance with law in the course of the same or another proceeding…..
Similar Motive
(1) the type of proceeding in which the testimony is given
(2) trial strategy
(3) the potential penalties or financial stakes, and
(4) the number of issues (p 963)

I. Dying Declarations

Shepard v US (p973)
- Shepard, military man, convicted of murdering his wife by poisoning her
- Alleged he was having an affair and wanted to make his mistress his wife
- She tells her nurse to have a bottle of liquor tested for poison, it didn’t taste right to her before she became sick. She also
says, “Dr. Shepard had poisoned me.”
- “The voice of the wife was heard in accusation of her husband, and the accusation was accepted as evidence of guilt.”
- “To make out a dying declaration, the declarant must have spoken without hope of recovery and in the shadow of impending
death.”
- “There was no warning to her in the circumstances that her words would be repeated and accepted as those of a dying wife,
charging murder to her husband, and charging it deliberately and solemnly as a fact within her knowledge.”
- To let the declaration in, the inference must be permissible that there was knowledge or the opportunity for knowledge as to
the acts that are declared.
- The declaration is kept out if the setting of the occasion satisfies the judge, or in reason ought to satisfy him, that the speaker
is giving expression to suspicion or conjecture, and not to known facts.

FRE 804(b) Hearsay exceptions.

- (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a
statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause of
circumstances of what the declarant believed to be impending death.

J. Statements Against Interest

Haskell v Siegmund (p978)

- Haskell recovered judgment against Siegmund for $35k for an auto accident, Siegmund was driving Peterson’s car
- Haskell attempted to recover the money from Peterson’s liability insurance
- Peterson wrote statements admitting he gave Siegmund permission to drive his car
- Peterson died before trial his statements were admissible at trial as declarations against his pecuniary interest
o The declarant must be dead
o The declaration must have been against the pecuniary interest of the declarant at the time it was made
o The declaration must be of a fact in relation to a matter concerning which the declarant was immediately and
personally cognizable; and
o The court should be satisfied that the declarant had no probable motive to falsify the fact declared
- Admissible

FRE 804(b)(3)
- (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s
pecuniary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim
by the declarant against another, that a reasonable person in the declarant’s position would not have made the
statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered
to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of
the statement.

FRE 804(b)(6)
- (6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that
was intended to, and did, procure the unavailability of the declarant as a witness.
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L. Catchall or Residual Exception

Dallas County v. Commercial Union Assur. Co. (p1003)

- Selma, Alabama – clock tower of the Dallas County Courthouse collapses in 1957. The remains of the tower reveal charcoal
and charred timbers
- Some witnesses say they saw lightning strike the tower causing an internal fire and the collapse
- The insurance company says no, it was architectural damage and construction error that caused the collapse and they are not
liable for that
- The jury believed the insurance co
- Insurance Company introduced a newspaper from 1901 showing there had been a previous fire in the clock tower and
insinuating that is where the charcoal and charred timbers are from
- Dallas County says the paper is not admissible because “you cannot cross-examine a newspaper”
- Two requisites for admission
o Necessity – unless it is admitted, the facts it brings out may otherwise be lost, either because the person whose
assertion is offered may be dead or unavailable, or because the assertion is of such a nature that one could not expect
to obtain evidence of the same value from the same person or from other sources
o Trustworthiness – “Where the circumstances are such that a sincere and accurate statement would naturally be
uttered, and no plan of falsification be formed; where, even though a desire to falsify might present itself, other
considerations, such as the danger of easy detection or the fear of punishment, would probably counteract its force;
where the statement was made under such conditions of publicity that an error, if it had occurred, would probably
have been detected and corrected.”
- Admissible because it is necessary and trustworthy, relevant and material, and its admission is within the trial judge’s
exercise of discretion

Bohler-Uddeholm America, Inc. v. Ellwood Group, Inc. (p1008)

- Uddeholm sues Ellwood on a number of issues and questions of law
- The District Court admits portions of an affidavit of Jonsson, the former President of Uddeholm who is now deceased
- FRE Rule 807
o It was offered as evidence on a material fact
o Was more probative on the point for which it is offered than any other evidence which the proponent could procure
through other reasonable efforts
o Fairness and the administration of justice would be served
o Sufficient notice that it would be used was given to Ellwood
o Ellwood had ways to rebut it with witnesses
o The affidavit was trustworthy
- It was the only way Uddeholm could rebut claims made by Ellwood concerning the directors’ meetings
- Admissible

FRE 807. Residual Exception

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

Chapter 15 – Privilege

B. Husband-Wife

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Trammel v. US (p1021)
- Husband and wife smuggling heroin.
- She gets caught
- Trades her voluntary testimony against her husband and others for immunity
- FRE Rule 501
- Court reworks the Hawkins rule (prohibiting any adverse testimony against a spouse) to say “the witness spouse alone has a
privilege to refuse to testify adversely, the witness may be neither compelled to testify nor foreclosed from testifying.”

US v. Estes (p1030)
- Husband works for an armored car company and steals $55k one day
- His wife testifies at the grand jury hearing that he came home with a motorcycle bag of money and said he took it from work
- She helped him count it, hide it, and launder some of it
- He contends her testimony was privileged and not admissible
- Court says, “confidential marital communications concerning ongoing criminal activity are not protected by the privilege.”
- His admission to stealing when he came home is privileged, the crime was not ongoing, he had already committed it
- The rest was properly admitted

C. Attorney-Client and “Work Product”

Swidler & Berlin v. US (p1039)

Upjohn Co. v. US (p1049)

Upjohn counsel was conducting investigation of possible bribes given to foreign gov’t officials.
- Counsel conducted the investigation, by writing mid management instructing them that the info was highly confidential and
was to be sent to the atty directly. The IRS subpoenaed the investigative work done by the counsel and all lower courts found
that the privilege does not apply here because only high level employees are covered by the privilege.
- S. Ct Held – that the privilege did apply to the lower management as well because the nature of the case and the information
that the attorney was trying to obtain. Case by case basis was decided and here the communication went directly to counsel
for the purpose of seeking information only obtained by mid level management so it should extend to the lower management
as well.
- Concurrence sets forth these standards: (Subject Matter Test)
(can’t be imputed to the organization if it is not corp. wrongdoing but just internal wrongdoing)
Control Group Subject Matter
Privilege limited to communications w/ persons who have Privilege extended to communications with any employee
authority to make organization’s policy or to take action of agent so long as related to subject matter of
in accordance with lawyer’s advice representation.
- This case went to the Supremes and they created what test?? A case by case analysis to see if client-attorney privilege
applied. – Rehnquist
- Communications
- By corporation’s employees
- To corporation’s counsel, in that capacity
- At direction of corporate superiors
- To secure legal advice from counsel
Upjohn argued – control group test rejected
- Need to cover communications both directions
- Encourage compliance with the law
- Control group test difficult to apply
Burger concurred and thought there could be a better test devised.
 Whether lower employee was communicating with higher
 Whether the conduct was within scope of duties
 Whether attorney is seeking info to see if corp bounded
 Determine legal consequences of conduct
 Or devise appropriate legal plan for conduct
o Devised into the subject control test
 Privilege limited to communications with persons who have authority to make organization’s policy or take
action in accordance with lawyer’s advice

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 Privilege extended to communications with any employee or agent so long as related to subject matter of
representation.

Jaffee v. Redmond (p1098)

- Redmond, cop, shoots Allen
- Jaffee sues for wrongful death and wants to discover Redmond’s notes from her counseling sessions
- She and her counselor refuse to release them or testify about them
- She loses, Court of Appeals reverses, SC says there should be a privilege under FRE 501 for psychotherapists-patients

Chapter 13. Foundations of the Rule: Confrontation

Constitution law argument

By admitting hearsay against me, a def, you are denying my right to confront the declarant against the constitutional right to
confrontation

California v. Green (p806)

Purposes of Confrontation
- (1) insures that the witness will give his statements under oath – thus impressing him with the seriousness of the matter and
guarding against the lie by the possibility of a penalty for perjury.
- (2) forces the witness to submit to cross-examination;
- (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus
aiding the jury in assessing his credibility
P 807 “it is of course true that the out-of-court statement…..

A prior out of court statement introduced in a current trial where the declarant is present and subject to cross examination satisfies the
confrontation clause

Us v Owens in notes – a witness need only be available for cross-examination to satisfy the confrontation clause (different from
unavailability), not necessary to have a meaningful cross examination

P810
Ohio v Roberts
There must be some indicia of reliability for a hearsay exception to apply, so if you have satisfied a hearsay exception you have
satisfied the confrontation clause

Sixth Amendment - “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”

Necessity/Unavailability
- “The ultimate question is whether the witness is unavailable despite good faith efforts undertaken prior to trial to locate and
present the witness. As with other evidentiary proponents, the prosecution bears the burden of establishing this predicate.

Reliability
- “Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In
other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.”

Crawford
Testimonial
- Prior to testimony at a preliminary hearing,
- Before a grand jury
- At a former trial or
- Police interrogation

Davis and another case similar to Davis maybe Hammond

- Def was beating his wife, she called 911, he left and then he objected to having the 911 tape admitted into evidence
- The two were separated by police, def kept trying to hear what she was saying, victims did not testify
- Davis ruled 911 tape was nontestimonial, confrontation clause does not apply
- Hammond, was testimonial so we need an unavailable declarant and an opportunity to cross-examine at trial
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Testimonial
- “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating
that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are
testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecutions.”

Exam – check Blackboard on Friday, READ the instructions!!! How many questions, the value of the questions, time allotted, FRE
applies to everything (no state laws)

You can bring – textbook, a personally created outline, WIKI will be provided as it exists on 9 Dec at 4 pm

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