I.

Relevance
1.) FRE 606 Inquiry into Validity of Verdict or Indictment
a. When theres an Inquiry into Validity of Verdict or Indictment, Juror must not testify about:
i. Statements/Incidents that occurred during jury deliberations
ii. Jurors Thoughts/Emotions that caused juror to agree/disagree w/ verdict/indictment
iii. Jurors Mental Processes in connection w/ agreeing or disagreeing w/ verdict/indictment
b. Exceptions Juror may testify about:
i. Whether Extraneous Prejudicial info was improperly brought to jurys attention
ii. Whether there was any Outside Influence on any juror
iii. Whether there was a mistake in entering the verdict on the verdict form
2.) FRE 401 Probativeness and Materiality
a. Evidence is Relevant if:
i. Probative It has any tendency to make a fact more or less probable than would be w/o
the evidence, and
ii. Material The fact is of consequence in determining the action
1. In deciding whether evidence is Material, look to Substantive law
3.) FRE 402 General Admissibility of Relevant Evidence
a. All Relevant evidence is admissible, unless prohibited by:
i. Constitution, Federal Law, FRE, or SCOTUS Rules
4.) FRE 104
a. FRE 104(a) Preliminary Questions
i. Ct must decide any preliminary question about whether:
1. Witness is qualified/competent,
2. Privilege exists, or
3. Evidence is admissible
ii. In so deciding, Ct is not bound by FRE, except those on Privilege
iii. Standard of Proof Preponderance of Evidence [Huddleston]
b. FRE 104(b) Conditional Relevance
i. When the Relevance of evidence depends on whether a fact exists, proof must be
introduced sufficient to support a finding that the fact exists.
ii. Ct may admit the proposed evidence on condition that proof be introduced later on
iii. Standard of Proof Proponent must produce evidence sufficient to allow a reasonable
jury to conclude that _____ (e.g., D committed the prior acts) [Huddleston]
5.) FRE 403 Probativeness vs. Risk of Unfair Prejudice
a. Relevant evidence may be excluded if its Probative value is substantially outweighed by a
danger of:
i. Unfair Prejudice
ii. Confusion of the Issues
iii. Misleading the Jury
iv. Undue Delay
v. Waste of Time, or
vi. Needless presentation of Cumulative Evidence
6.) FRE 407 Subsequent Remedial Measures
a. Ct must not admit evidence of Subsequent Remedial Measure to prove:
i. Negligence
ii. Culpable Conduct
iii. Defect in Product/Design
iv. Need for Warning/Instructions
b. Exceptions Ct may admit evidence of Subsequent Remedial Measures to prove:
i. Ownership/Control, or
ii. Feasibility of Precautionary Measures
7.) FRE 408 Compromise Offers/Settlements

a. Ct must not admit evidence to prove/disprove:

i. The validity or amount of a disputed claim, or
ii. To impeach by prior inconsistent statements:
1. Furnishing, promising, or offering a valuable consideration in compromising or
attempting to compromise a claim, or
2. Conduct or Statements made during negotiations about the claim (unless offered
in a Criminal case if the negotiations related to a claim by a public office in the
exercise of its investigatory/enforcement authority)
b. Exceptions Ct may admit this evidence for another purpose, such as:
i. Proving a Witness Bias/Prejudice
ii. Negating a contention of undue delay, or
iii. Proving an effort to obstruct a criminal investigation or prosecution
c. McCann P may not produce evidence that Corporate-D settled with some other P
8.) FRE 409 Payment of Medical Expenses
a. Evidence of furnishing, promising to pay, or offering to pay, medical, hospital, or similar
expenses resulting from an injury is not admissible to prove liability
9.) FRE 411 Insurance Against Liability
a. Evidence of a partys liability insurance is not admissible to show that the person acted
negligently or wrongfully
i. FRE 411 does not apply to Life Insurance, only Insurance Against Liability
b. Exception Ct may admit this evidence for another purpose, such as:
i. Proving a Witnesss Bias/Prejudice, or
ii. Proving Agency/Ownership/Control
10.) FRE 410 Pleas in Criminal Cases (only applies against D)
a. In a Civil or Criminal case, evidence of the following is not admissible against D who made the
plea or participated in the plea discussion:
i. Guilty plea that was later withdrawn
ii. Nolo contendere plea
iii. Statement made during a proceeding on either of those pleas under FRCrim 11 or a
comparable State procedure, or
iv. Statement made during plea discussion w/ Prosecutor if the discussion did not result in a
guilty plea or if they resulted in a later-withdrawn guilty plea
b. Exceptions
i. Ct may admit a FRE 410(a)(3) or (4) statement:
1. [Broad] In any proceeding in which another statement made during the same plea
or plea discussion has been introduced, if in fairness the statements ought to be
considered together
2. In a criminal proceeding for perjury or false statement if D made the statement
under oath, on the record, and w/ Counsel
ii. P or D may introduce evidence of rejected-immunity deal because its not being used
against D [Biaggi]
iii. If D makes a statement in plea discussion w/ FBI/DHS/DEA, statement is admissible in
subsequent criminal prosecutions of D
c. Waiver Clauses Prosecutors may use Waiver Clauses that provide that anything said during
plea negotiations are waived under FRE 410, which allows these plea discussions to be
admissible evidence [Mezzanatto]
11.) FRE 406 Habit; Routine Practice
a. Evidence of a Persons Habit, or an Organizations Routine, may be admitted to prove that on a
particular occasion, the Person/Organization acted in accordance w/ that Habit/Routine.
i. The Ct may admit this evidence regardless of whether it is corroborated or whether there
was an eyewitness

b. Halloran To justify introduction of Habit/Routine evidence, the Party must be able to show on
voir dire that he expects to prove a sufficient number of instances of the conduct in question
12.) FRE 404 Character Evidence; Crimes or Other Acts
a. FRE 404(a) Character Evidence
i. Evidence of a persons Character or Character Trait is not admissible to prove that on a
particular occasion the person acted in accordance w/ that Character or Trait
ii. Exceptions for a D or Victim in a Criminal Case
1. D may offer evidence of Ds pertinent trait, and if the evidence is admitted,
Prosecutor may offer evidence to rebut it
2. Subject to the limitations in FRE 412, D may offer evidence of Victims pertinent
trait, and if the evidence is admitted, Prosecutor may:
a. Offer evidence to rebut it, and
b. Offer evidence of Ds same trait
3. In a homicide case, Prosecutor may offer evidence of Victims Trait of
peacefulness to rebut evidence that Victim was the first aggressor
iii. Exceptions for a Witness Evidence of a Witnesss Character may be admitted under
FRE 607, 608, and 609
b. FRE 404(b) Crimes, Wrongs, or Other Acts [104(b) determination]
i. Evidence of a Crime, Wrong, or Other Act is not admissible to prove a persons Character
in order to show that on a particular occasion the person acted in accordance w/ the
Character, but
ii. This evidence may be admissible for another Purpose, such as proving:
1. Motive
2. Intent
3. Preparation
4. Plan
a. Kirsch (SSC) Under FRE 404(b)s common plan/scheme exception, its not
enough to show that each crime was planned in the same way rather, there
must be some overall scheme of which each of the crimes is a part

5. Knowledge
6. Identity
7. Absence of Mistake, or
8. Lack of Accident
13.) FRE 405 Methods of Proving Character
a. FRE 405(a) By Reputation or Character
i. When evidence of a Persons Character or Trait is admissible, it may be proved by
testimony about the persons (1) Reputation, or (2) Opinion
ii. On cross-examination of the Character-Witness, the Ct may allow an inquiry into relevant
specific instances of the persons conduct [Michelson]
1. Michelson When D introduces C.E., Prosecutor may cross-examine Ds
Character-Witness and ask very specific questions about D (e.g., whether D was
arrested before) BUT, Prosecutor may only impeach the integrity, or impair the
credibility, of a Character-Witness by asking whether Character-Witness has been
convicted of any crimes (BUT not if Character-Witness has ever been arrested)
2. Exception FRE 413, 414, 415 Character-Witness may testify about Specific Acts

b. FRE 405(b) By Specific Instances of Conduct

i. When persons Character or Trait is an essential element of the crime, claim or defense,
the Character or Trait may be proved by relevant Specific Instances of persons conduct
1. 3 Cases Entrapment defense, Libel/Slander, Parental Custody disputes
14.) FRE 412 Rape Shield Law: Victims Sexual Behavior or Predisposition
a. FRE 412(a) Prohibited Uses

i. The following evidence is not admissible in Civil or Criminal proceedings involving

alleged sexual misconduct
1. Evidence offered to prove V engaged in other sexual behavior [including
fantasies/dreams], and
2. Evidence offered to prove Vs sexual predisposition
b. FRE 412(b) Exceptions
i. Criminal Cases Ct my admit the following evidence:
1. Evidence of Specific Instances of Vs sexual behavior, if offered to prove that
someone other than D was the source of semen, injury, or other physical evidence,
2. Evidence of Specific Instances of Vs sexual behavior w/ respect to D, if offered
by D to prove consent, or offered by Prosecutor, or
3. Evidence whose exclusion would violate Ds Constitutional rights
ii. Civil Cases
1. Ct may admit evidence offered to prove:
a. Vs sexual behavior or predisposition if its Probative value substantially
outweighs the danger of harm to V and of unfair prejudice to any party
2. Ct may admit evidence of a Vs reputation ONLY IF V raised it
a. If V raises her reputation, D may specific instances of behavior/predisposition

c. FRE 404(b)-Style Uses of Evidence of Past Sexual Behavior

i. State v. Smith (SSC) Evidence offered to prove allegedly false prior claims by V is not
barred by FRE 412
ii. Olden Ds 6th Amendment right to Cross-examine his accuser is violated if D is
prevented from impeaching Vs testimony by introducing evidence to show Vs
Untruthfulness/Bias, so long as D is not attacking Vs sexual predisposition/behavior
15.) FRE 413 Similar Crimes in Sexual-Assault Criminal Cases
a. In a Criminal case in which D is accused of Sexual Assault, Ct may admit evidence that D
committed another sexual assault
i. The evidence may be considered on any matter to which it is relevant
16.) FRE 414 Similar Crimes in Child Molestation Criminal Cases
a. In a Criminal case in which D is accused of Child Molestation, Ct may admit evidence that D
committed another Child Molestation
i. The evidence may be considered on any matter to which it is relevant
17.) FRE 415 Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
a. In a Civil case involving a claim for relief based on a Partys alleged Sexual Assault, or Child
Molestation, Ct may admit evidence that the Party committed another Sexual Assault or Child
Molestation
18.) Burden of Proof and Presumptions
a. Burden of Proof and Burden of Presumptions
i. Burden of Production Whoever has Burden of Persuasion has Burden of Production
1. Civil If P doesnt have sufficient evidence, directed verdict for D
2. Criminal If Govt doesnt establish all elements of crime, D entitled to acquittal
3. Mullaney v. Wilbur (1975) If allocating burden of proof to D involves an
element of the crime charged, its unconstitutional bc Govt must always have
burden of proving the element of the crime
4. Patterson v. NY (1977) As long as D isnt required to prove an element of the
crime in his defense, its acceptable to make D prove his defense w/ evidence
ii. Burden of Persuasion Who must convince the trier-of-fact of a particular issue
1. Martin v. OH (1987) If self-defense issue is raised by D, and self-defense
doesnt deal w/ element of the crime charged, its not unconstitutional to place the
burden of persuasion on D (e.g., D has burden to prove insanity)
iii. Presumptions Party seeking to use Presumption must offer evidence to sufficient to
meet a burden of production as to each foundational fact.

1. Ct determines whether Party met this burden, then Jury decides whether the
foundational facts are true
2. Mandatory presumptions are unconstitutional in Criminal cases against D
3. Conclusive Presumptions are not allowed in Criminal cases (violates DP)
b. FRE 301 Presumptions in Civil Cases Generally
i. In a civil case, unless a Federal law or FRE provides otherwise, the party against whom a
presumption is directed has the burden of producing evidence to rebut the presumption,
but this rule does not shift the burden of persuasion, which remains on the party who
originally had it [Thayer View]
1. Thayer Rule If letter mailed, its presumed to be received, but if person claims he
didnt receive letter, presumption is removed and jury can decide for P or D
2. Morgan Rule If D claims not to receive letter, D must prove he didnt receive it
c. FRE 302 Applying State Law to Presumptions in Civil Cases
i. In a civil case, if State law decides the case, presumption rule of State applies in Fed Ct
d. Presumptions in Criminal Cases (No FRE for presumptions in Criminal cases)
i. Francis v. Franklin (1985) Cts scrutinize presumptions in criminal cases where the
impact on D can be almost a conviction w/o any proof by Govt
II.

Reliability
1.) Competency of Witness
a. FRE 601 Competency to Testify in General
i. Every person is competent to be a Witness unless FRE provides otherwise
ii. In a Civil case, State law governs the Witnesss competency regarding a claim or defense
for which State law supplies the rule of decision
iii. Competent Witness has personal knowledge of the event and can recollect it
b. FRE 602 Need for Personal Knowledge [104(b) determination]
i. Witness may testify to a matter ONLY IF evidence is introduced sufficient to prove that
Witness has personal knowledge (i.e., Witness must see it See = Knowledge)
ii. Evidence to prove personal knowledge may consist of Witnesss own testimony
iii. Experts [FRE 703] need not have Personal Knowledge
c. FRE 603 Oath or Affirmation to Testify Truthfully
i. Before testifying, Witness must give Oath or Affirmation to Testify Truthfully. It must be
in a form designed to impress that duty on the Witnesss conscience
d. FRE 604 Judges Competency as Witness
i. Presiding-Judge may not testify as Witness.
e. FRE 610 Religious Beliefs or Opinions
i. Evidence of Witnesss Religious Beliefs/Opinions not admissible to Attack or Support the
Witnesss Credibility
2.) Impeachment and Character for Truthfulness
a. FRE 607 Who May Impeach a Witness
i. Any Party may attack the Witnesss Credibility by showing:
1. Bias
2. Sensory/Mental Incapacity
3. Prior Inconsistent Statement made by that Witness under FRE 613
4. Contradiction by Another Fact, OR
5. Impeachment for Untruthfulness under FRE 608 or 609
ii. May not call W solely to impeach if purpose is to offer otherwise inadmissible evidence
b. FRE 608 Witnesss Character for Truthfulness/Untruthfulness [Impeachment]
i. FRE 608(a) Reputation or Opinion
1. Witnesss Credibility may be Attacked or Supported by:
a. Testimony about Witnesss Reputation, or by Opinion, of Witnesss
Character for Truthfulness/Untruthfulness BUT, evidence of Truthful

Character is admissible ONLY after the Witnesss Character for

Truthfulness has been Attacked
b. Direct- or Cross-Examination = Impeach Witness by Reputation/Opinion
ii. FRE 608(b) Specific Instances of Conduct
1. Except for a Criminal conviction under FRE 609, Extrinsic evidence is not
admissible to prove Specific Instances of a Witnesss conduct in order to Attack or
Support the Witnesss Character for Truthfulness
2. BUT, on Cross-Examination the Ct may allow Specific Instances to be inquired
into if it is Probative of the Character for Truthfulness/Untruthfulness of (1) the
Witness, or (2) Another Witness
a. If Witness denies having done (or heard) of the specific act, the Lawyer
may present no other evidence about it
i. However, Extrinsic evidence of specific conduct is admissible on
cross-examination to show Bias/Prejudice (Not to attack character)
3. Cross-Examination = Impeach Witness by Specific Instances IF:
a. Probative for Truthfulness/Untruthfulness, AND
b. Not proved by Extrinsic Evidence (i.e., Lawyer must accept Witnesss
answer to the question), and
c.

May not Impeach W by contradiction on a Collateral matter using extrinsic evidence

4. Limitations on FRE 608(b)

a. Whitmore In order to Attack the Credibility of a Witness by crossexamining him on Specific Instances of Conduct, Counsel must possess
some fact that supports the genuine belief that Witness engaged in the Act
b. If evidence inadmissible under FRE 609, cant use FRE 608(b) to admit it
c. FRE 611 Dont harass/unduly embarrass the Witness
c. FRE 609 Impeachment by Evidence of Criminal Conviction [Applies to D as Witness or Witnesses]
i. FRE 609(a) Attacking Witnesss Character by Evidence of Criminal Conviction
1. For a Crime that was punishable by Death or Imprisonment for more than 1-year
in the convicting jx, the evidence:
a. FRE 403 Civil or Criminal, Witness is not D
b. Reverse 403 [Prob value substantially outweigh prejudice to D] Criminal, Witness is D
i. Factors [Brewer]:
1. Nature of Crime
2. Time of Conviction, and Witnesss Subsequent History
3. Similarity Between Past and Charged Crime
4. Importance of Ds Testimony
5. Centrality of the Credibility Issue

2. For any Crime, regardless of the punishment, evidence must be admitted if the Ct
can readily determine that establishing the elements of the Crime required proving
(or Witness admitting) a Dishonest act or False statement
a. Only FRE that escapes FRE 403 balancing
b. Perjury, Fraud, Embezzlement, False Pretense (NOT theft, robbery, larceny)
c. FRE 609(b), (c), and (d) apply to FRE 609(a)(2) Crimes

ii. FRE 609(b) Limit on Using Evidence After 10 Years

1. If More than 10 years have passed since Witnesss Conviction or release from
confinement (whichever is later), Evidence is admissible only if:
a. Reverse 403 Probative Value, supported by specific facts and
circumstances, substantially outweighs its Prejudicial Effect, and
b. Notice Proponent gives an Adverse Party reasonable written notice of
his intent to use it so that the Party has a fair opportunity to contest its use
iii. FRE 609(c) Effect of Pardon, Annulment, or Rehabilitation
1. Evidence of a Conviction is NOT admissible if:

a. Pardon, Annulment, Rehabilitation Certificate, Finding of Innocence, or

Other Equivalent Procedure, AND
b. Person hasnt been convicted of another crime punishable by death or 1-yr
iv. FRE 609(d) Juvenile Adjudications
1. Evidence of a Juvenile Adjudication is admissible under this rule only if:
a. Offered in a Criminal case,
b. Adjudication of the Witness was not the current-D
c. Adults conviction for that offense would be admissible to attack the
Adults Credibility, and
d. Admitting the Evidence is necessary to determine Guilt or Innocence
v. FRE 609(e) Pendency of an Appeal
1. Convictions that satisfy this Rule are admissible even if an appeal is pending
vi. Limitations on FRE 609
1. Ohler If Judge disregards FRE 609 safeguards and wrongly admits evidence of
past convictions to impeach D, D may not appeal unless:
a. D testified at trial + Prosecutor introduced evidence of the contested conviction

2. Loper If D did not have Lawyer at prior conviction, Govt may not use prior
conviction for impeachment
d. FRE 613 Witnesss Prior Statements [Impeachment Rule Cf. 613 w/ 801(d)(1)]
i. FRE 613(a) Showing or Disclosing the Statement During Examination
1. When examining a Witness about Witnesss prior statement, a Party need not
show it or disclose its content to the Witness, but the Party must (on request) show
it or disclose its contents to an adverse-Partys Attorney
ii. FRE 613(b) Extrinsic Evidence of a Prior Inconsistent Statement
1. Extrinsic Evidence of a Witnesss Prior Inconsistent Statement is admissible if the
Witness is given an opportunity to explain or deny the statement [Available] and
the adverse-Party is given an opportunity to examine the Witness about it
a. Barrett (1st Cir)
i. Permitted under 613 Using statement to impeach Witness Credibility
ii. Not Permitted under 613 Using statement to prove guilt/innocence

3.) Judicial Notice; Refreshing Recollection; Past Recollection Recorded

a. FRE 201 Judicial Notice of Adjudicative Facts
i. FRE 201(a) Scope
1. Cts may take Judicial Notice of both Adjudicative and Legislative Facts
a. Adjudicative Fact Historical, Geographic, Physical, Statistic, Scientific
b. Carey Ct took Judicial Notice that sexual activity among minors is high
c. Fenner (SSC) If opposing-Party does not have access to same info, Ct
will not take Judicial Notice of the fact
ii. FRE 201(b) Kinds of Facts that may be Judicially noticed
1. Ct may Judicially Notice a Fact that is not subject to reasonable dispute bc it:
a. Is generally known within the Trial Cts jx, or
b. Can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned
iii. FRE (c) Ct may take Judicial notice sua sponte, or by request of a Party
iv. FRE (d) Timing
1. Ct may take Judicial Notice at any stage of the proceeding (Trial or Appellate)
v. FRE (f) Instructing the Jury
1. Civil Ct must instruct jury to accept Fact as conclusive
2. Criminal Ct must instruct jury it may or may not accept Fact as conclusive
a. Ct may not take Judicial Notice of an Adjudicative Fact in Criminal Proceedings

vi. Vejvoda (SSC) In Criminal cases, Ct may not take Judicial Notice of a Fact if it relates
to an element of the Crime

b. FRE 803(5) Past Recollection Recorded [Hearsay Exception]

i. A Record that:
1. Is on a matter the Witness once knew about but now cannot recall,
2. Was made or adopted by the Witness when the matter was fresh in the Witnesss
memory, and
3. Accurately reflects the Witnesss knowledge
ii. If admitted, may be read into evidence but may be received as an exhibit only if offered
by an Adverse Party
iii. Johnson (SSC) Witness must adopt PRR in order for it to be admissible (4 Elements):
1. Witness must have had 1st hand knowledge of the event
2. Written statement must be a memo made at or near the time of the event while
Witness had a clear and accurate memory of it
3. Witness must lack present recollection of the event, and
4. Witness must vouch for the accuracy of the written memo
a. Witness may testify she presently remembers recording the fact correctly
b. Remembers recognizing the writing as accurate,
c. Knows memo is correct bc of habit of recording matters accurately, or
d. Recognizes her signature on the statement and believes it correct bc she
wouldnt have signed it if she hadnt believe it to be true at the time
c. FRE 612 Refreshing Recollection
i. Adverse Party is entitled to have the writing produced at the hearing, to inspect it, to
cross-examine the Witness about it, and to introduce in evidence any portion that relates
to the Witnesss testimony Witnesss Testimony becomes the evidence
1. If the producing-Party claims that the writing includes unrelated matter, Ct must
examine it in camera, delete any unrelated portion, and order the rest to be
delivered to the adverse party
ii. Baker v. MD (SSC) Memory aid used in connection w/ RR may be anything
1. When the writing in question is utilized to RR of the Witness, the writing may be
a memo made by someone other than the Witness, even if never before read by
the Witness or vouched for by him
2. When the writing in question is utilized to RR of the Witness, the writing may be
a memo made by the Witness himself even if:
a. It was not made immediately after the event
b. It was not made of 1st hand knowledge, and
c. Witness cannot vouch for the fact that it was accurate when made
iii. Before offering evidence under 803(5), use 612
4.) Hearsay
a. Intro
i. Hearsay concerns the reliability of evidence the jury hears
ii. 4 Testimonial Capacities that may lead to Unreliability:
1. Perception
2. Memory
3. Narration
4. Sincerity
iii. Witness may testify about Facts they observed [Personal Knowledge] bc it is tested by:
1. Under Oath
2. Cross-Examination, and
3. Demeanor
b. FRE 801 Definitions; Exclusions from Hearsay
i. Statement Persons oral or written assertion, or non-verbal conduct if the person
intended it as an assertion
1. Assertion Must be intended to communicate info to others

ii. Declarant Person who made the statement

iii. Hearsay Out-of-Court statement offered for the truth of the matter asserted
iv. Statements that are not Hearsay [May be Offered Substantively]:
1. Declarant-Witnesss Prior Statement
a. Declarant Testifies and is subject to Cross-Examination about a prior
statement, and the statement:
i. Is Inconsistent w/ Declarants own testimony and was given Under
Oath at Trial, Deposition, or Other Proceeding
ii. Is Consistent w/ Declarants Testimony and is offered [see Tome]:
1. To rebut an Express or Implied charge that Declarant
recently fabricated it, or
2. Acted from a recent improper influence/motive in testifying
iii. Identifies a person as someone the Declarant perceived earlier
[Prior Identification]
2. Opposing Partys Statement [No Personal Knowledge Required]
a. Statement is offered against an opposing-Party, and
b. Was made by the Party in an Individual or Representative capacity, or
i. Includes guilty pleas
c. Is one the Party manifested that it Adopted or Believed to be true, or
i. Beckham (DC Cir.) 4 Components of Adopted Admission:
1. Person must have heard and understood the statement
2. Person was at liberty to respond (but acted instead)
3. Circumstances naturally call for a response
4. Fails to affirmatively rebut/challenge what was said to him
d. Was made by a person whom the Party Authorized to make the statement,
on the subject, or
e. Was made by the Partys Agent/Employee on a matter within the scope of
that relationship while it existed, or
i. Watergate Volunteers are Agents
f. Was made by the Partys Co-Conspirator during and in furtherance of the
conspiracy
i. Bourjaily If Co-conspirator makes statement after arrest, his
statement is not in furtherance of the conspiracy
1.

Whether statement was made by a member of a conspiracy should be

decided by preponderance of evidence under 104(a)

g. Bourjaily Bootstrap: When preliminary facts relevant to FRE 801 [Opposing Party] are
disputed, offering party must prove them by preponderance of evidence under 104(a)

v. Miranda and Silence

1. FRE 801(d)(2)(B) Adopted Admissions
a.

Ds silence in the face of an accusation of guilt (You robbed the bank), may serve as an
adoptive admission of guilt and because silence may be inconsistent with a later claim
of innocence, evidence of silence may also serve to impeach

2. Defendant Not in Custody

a. Salinas v. TX (2013) If a D is not in custody, silence is deemed an
adopted admission under FRE 801(d)(2)(B), so Govt may use Ds
silence at trial
b. Jenkins v. Anderson (1980) If a D is not in custody, silence may be used
to impeach his credibility under FRE 613
3. Defendant in Custody, but Pre-Miranda Circuit Split
a. US v. Frazier (8th Cir. 2005) If a D is in custody (but pre-Miranda),
silence is not deemed an adopted admission under FRE 801(d)(2)(B)
b. US v. Flecha (2nd Cir. 1976) If a D is in custody (but pre-Miranda),
silence is deemed an adopted admission under FRE 801(d)(2)(B)

4. D in Custody, Post-Miranda
a. Harris v. NY (1971) If a D is in custody (post-Miranda), silence is not
deemed an adopted admission under FRE 801(d)(2)(B)
b. Doyle v. Ohio (1976) If a D is in custody (post-Miranda), silence cannot
be used to impeach his credibility under FRE 613
5. Fletcher v. Weir (1982) In the absence of the sort of affirmative assurances
embodied in the Miranda warnings, it does not violate DP for a State to permit
cross-examination as to a Ds post-arrest silence when D chooses to take the stand
c. FRE 802 Rule Against Hearsay
i. Hearsay is not admissible unless Federal Law, FRE, or SCOTUS provides otherwise
ii. Owens FRE 802 does not bar Testimony concerning a prior Out-of-Court [Hearsay]
identification when the identifying-Witness is unable to explain the basis for the
identification because of memory loss
d. FRE 805 Hearsay within Hearsay
i. Hearsay within hearsay is admissible only if each part of the statement conforms w/ an
exception to the Rule Against Hearsay
e. FRE 806 Attacking or Supporting Declarants Credibility [Impeachment]
i. If Hearsay or FRE 801 [Opposing Party Statement Authorized, Agent, or Co-Conspirator] has
been admitted into evidence, Opposing-Party may Attack Declarants Credibility, even if
Declarant is Unavailable, by:
1. Proof of Bias
2. Inconsistent Statements
3. Contradiction (of Fact or Prior Inconsistent Statement)
4. Evidence of Untruthful Character (Opinion/Reputation/Criminal Convictions)
5.) Hearsay Exceptions
a. FRE 804 Exceptions to the Rule Against Hearsay [Declarant Unavailable]
i. FRE 804(a) Criteria for Being Unavailable
1. Declarant is Unavailable as a Witness if Declarant [May raise CC issues]:
a. Ct determines that Privilege applies
b. Refuses to testify despite a Ct order to do so [5th Amendment]
c. Testifies to not remembering the subject matter [see RR and PRR]
d. Death or a Then-existing Infirmity, or physical or mental illness, or
e. Is absent from the trial or hearing and the statements Proponent has not
been able, by process or other reasonable means (e.g., subpoena), to procure:
i. Declarants attendance, or Declarants Testimony
2. Determinations of Unavailability are FRE 104(a) determinations
ii. FRE 804(b) Exceptions Applicable Only When Declarant is Unavailable:
1. Former Testimony Testimony that:
a. Was given as a Witness at trial, hearing, or lawful deposition, and
b. Is now offered against a Party who had (or in a Civil case, whose
Predecessor in Interest had) an opportunity and similar motive to develop
it by direct, cross-, or redirect-examination
i. Predecessor only applies if current Trial is Civil (not Criminal)
ii. No Grand Jury No opportunity for Crossiii. Witness should be Under Oath
2. Dying Declaration In a Prosecution for Homicide, or in a Civil case, a statement
that the Declarant, while believing Declarants death to be imminent w/o hope of
recovery, made about its cause or circumstances [requires personal knowledge]
3. Statements Against Interest Statement that:
a. A Reasonable person in Declarants position [Subjective] wouldve made
only if he believed it to be true because it was so contrary to the
Declarants Ownership, Monetary, or Penal interest, or had so great a

tendency to invalidate Declarants claim against someone else, or to

expose Declarant to civil or criminal liability, and
b. Is supported by corroborating circumstances clearly indicating its truth if
offered in a Criminal case that may expose Declarant to Criminal liability
c. Williamson In Criminal proceeding, if confession implicates another
person, it is not admissible
4. Statement of Personal or Family History Statement about:
a. Declarants own birth, adoption, legitimacy, ancestry, marriage, divorce,
relationship by blood, or similar facts, even though Declarant had no way
of acquiring personal knowledge about that fact, or
b. Another person concerning any of these facts, as well as death, if
Declarant was related to the person by blood, adoption, marriage, or was
intimately associated w/ Persons family
5. Forfeiture by Wrongdoing Statement offered against a Party that wrongfully
caused (or acquiesced in wrongfully causing) Declarants unavailability as a
Witness, and did so intentionally
b. FRE 803 Exceptions to Hearsay [Declarants Availability Immaterial 104(a) determination]
i. FRE 803(1) Present Sense Impressions
1. Statements describing or explaining an event or condition made while, or
immediately after, the Declarant perceived it
ii. FRE 803(2) Excited Utterance
1. Statement relating to a startling event or condition made while Declarant was
under the stress of excitement that caused it
iii. FRE 803(3) Statements of Then-Existing Mental, Emotional or Physical Condition
1. Statement of the Declarants then-existing state of mind (such as motive, intent, or
plan) or emotional, sensory or physical condition (such as mental feeling, pain, or
bodily health) BUT NOT including a statement of memory or belief to prove the
fact remembered/believed unless it relates to the validity of the Declarants Will
2. Hillmon Only Declarants (not a 3rd persons eavesdropping of Declarant)
statement of future intent (not his intent to do something in the past) is admissible
3. Shepard Only Declarants future intent, not a 3rd Persons future intent
iv. FRE 803(4) Medical Diagnosis or Treatment
1. Statement that is (1) made for, and is reasonably pertinent to, medical diagnosis or
treatment, and (2) describes medical history; past or present symptoms/sensations;
their inception; or their general cause
a. Parts of Statement offered to prove liability will be stricken
v. FRE 803(6) Records of Regularly Conducted Activity (Business Records)
1. A record of an act, event, condition, opinion, or diagnosis if:
a. The record was made at or near the time (or from info transmitted by)
someone w/ knowledge
b. The record was kept in the course of a regularly conducted activity of a
business, organization, or occupation, whether for-profit or non-profit
c. Making the record was a regular practice of that activity
d. No lack of Untrustworthiness either in the source of info or in the
method/circumstances of preparation of the info contained in the record
2. Palmer If record is created for the purpose of litigation, and not for the purpose
of conducting business, then it relates to liability, so inadmissible
vi. FRE 803(8) Public Records
1. A record or statement of a Public Office if it sets out:
a. The Offices activities
b. A matter observed while under a legal duty to report, but not including (in
a Criminal case) a matter observed by Law enforcement personnel, or

i. Oates Police reports always inadmissible against Ds in Criminal cases

ii. Weilan Non-traditional Crime investigation reports are admissible

c. In a Civil case, or against the Govt in a Criminal case, factual findings

from a legally authorized investigation, and
d. Neither source of info or circumstances indicate a lack of Trustworthiness
vii. FRE 803(16) Ancient Documents
1. Statement in a document that is atleast 20 years old and authenticity is established
c. FRE 807 Residual Exception
i. Evidence that is Necessary + Trustworthy + Relevant + Material [Dallas]
6.) Confrontation Clause [Hearsay in Criminal Context Govt must overcome both CC + Hearsay]
a. 6th Amendment In all Criminal trials, D shall be confronted w/ Witness against him
b. Incorporated 6th Amendment CC applies to States [Pointer]
c. Hearsay
i. CA v. Green In order for Out-of-Court Statement [Hearsay] to be used against a
criminal-D, and not violate the CC, requires:
1. Out-of-Court Declarant testifies at trial, so D may cross-examine him, or
2. If Declarant is not now present, but D had an opportunity to cross-examine
Declarant at some earlier proceeding
ii. OH v. Roberts* Under 104(a), Ct may admit Out-of-Court statement [Hearsay] made
by a Declarant that criminal-D cannot cross examine if:
1. It is Necessary for the jury to hear that info, and
2. The info/testimony is Reliable
iii. Coy v. Iowa CC guarantees a face-to-face meeting w/ Witness
iv. Crawford Testimonial statements of Witness absent from trial may be admitted only if:
1. Declarant is Unavailable, and
2. D had a Prior Opportunity to Cross-examine the Witness
d. Testimonial
i. Hammock Primary Purpose Test for Testimony
1. Testimonial If Statement is made primarily to assist a criminal investigation
2. Non-Testimonial If Statement is primarily made to resolve ongoing emergency
ii. Michigan v. Bryant Objective Primary Purpose Test
1. To determine whether the Primary Purpose is to assist a criminal investigation or
to resolve an ongoing emergency, Cts Objectively assess the circumstances
iii. Whorton Non-Testimonial statement, even if unreliable, is admissible against crim-D
iv. Giles Ds Wrongful Conduct forfeits his CC right only if:
1. Ds conduct made the Witness unavailable, and
2. D intended Witness to be unavailable
v. Bullcoming Lab reports fulfilling an element of Ds crime are Testimonial, so D must
have the opportunity to cross-examine the particular Lab technician that made the report
1. No Surrogates Govt may not use a Lab Technician that did not make the report
vi. Williams v. IL Expert Testimony about DNA tests performed by a non-testifying
analyst do not violate CC, and are therefore admissible
vii. OH v. Clark If an Unavailable Declarant with Diminished Capacity makes an Out-ofCourt statement, the testimony is admissible because, objectively, persons with
diminished capacity do not form intent to make Testimonial statements, so CC is not
implicated at all w/ respect to persons w/ diminished capacity
e. Bruton Doctrine
i. Bruton Non-testifying Co-Ds confession offered against D in same trial violates CC
1. FRE 105 Insufficient to safeguard Constitutional protections
ii. Cruz In joint trial, non-testifying co-Ds confession implicating D violates Ds CC right
even if Ds confession against himself is admitted

iii. Gray If a Redaction replaces Ds name with an obvious indication of deletion, such as
a blank space, nickname, the word deleted, or a similar symbol, then Bruton applies
and the redacted-report is inadmissible (FRE 105 is Insufficient)
iv. Marsh If jury cannot figure out from confession/redacted report that D is implicated,
then FRE 105 Limiting Instructions are permissible
v. Edwards A confession that redacts all names and replaces them w/ pronouns is
admissible and does not violate Ds CC rights only if there are numerous Ds because if
there are numerous Ds, it is unlikely the jury can determine which pronoun is who
7.) Compulsory Process
a. 6th Amendment In all Criminal trials, D shall have compulsory process for obtaining
Witnesses in his favor
b. Chambers Ds Compulsory Process right has been violated if a States hearsay rules:
i. Deny D the opportunity for cross-examination
ii. The excluded hearsay was critical for Ds defense, and
iii. The excluded hearsay had considerable assurances of reliability and trustworthiness
c. Crane US Constitution guarantees criminal-D a meaningful opportunity to present a
complete defense
d. Holmes If a State only considers the Probative value of Ds evidence by exclusively examining
the Prosecutions evidence, it violates Ds right to a fair trial
8.) Lay and Expert Opinion Testimony
a. FRE 701 Lay Opinions [Must Testify from Personalized Knowledge]
i. A Witness who is not qualified as an Expert by Knowledge, Skill, Experience, Training,
or Education, may testify in the form of an Opinion or otherwise if:
1. Rationally based on the Witnesss perception
2. Helpful to clearly understanding the Witnesss testimony or determining a fact in
issue, and
3. Not based on Scientific, Technical, or Other Specialized Knowledge under 702
ii. Lay Witness may not bring evidence onto the stand and talk about it
b. FRE 702 Expert Testimony [Need Not Testify from Personalized Knowledge]
i. Witness who is qualified as an Expert by Knowledge, Skill, Experience, Training, or
Education may testify in the form of an Opinion or otherwise if:
1. Experts Scientific, Technical, or Other Specialized Knowledge will help the trierof-fact understand the evidence or to determine a fact in issue
2. Testimony is based on sufficient facts or data
3. Testimony is the product of reliable principles and methods, and
4. Expert has reliably applied the principles and methods to the facts of the case
ii. Expert Witness may bring 803(18) evidence onto the stand and talk about it
c. FRE 704 Improper Topics of Expert Testimony
i. An Opinion is not automatically objectionable just bc it embraces an ultimate issue
ii. Exception In a Criminal case, an Expert Witness must not state an opinion about
whether D had the culpable mental state of the crime charged, or of a defense
1. Batangan Expert may not testify about whether a Witness is telling the truth
2. Guilbert Expert testimony about reliability of eyewitness testimony admissible
d. FRE 703 Bases of an Experts Opinion Testimony [Experts can rely on Hearsay]
i. Expert may rely on facts or data:
1. He personally observed
2. He was made aware of at the hearing/trial, or
3. He was made aware of before the hearing
e. FRE 803(18) Learned Treatise & Medical Statements
i. Experts reliance on inadmissible hearsay actually makes that hearsay admissible as
substantive evidence

ii. Experts reliance on Learned Treatise during direct-examination, or her acknowledgement

of its authority on cross-examination, dissolves any hearsay objection to pertinent parts of
the document
f. FRE 705 Disclosing the Facts or Data Underlying an Experts Opinion
i. Unless the Ct orders otherwise, an Expert may state an Opinion and give the reasons for
it without first testifying to the underlying facts or data but the Expert may be required
to disclose those facts or data on cross-examination
g. Daubert Doctrine
i. Frye (DC Cir. 1923) Expert Testimony about Scientific testimony or evidence is
admissible only if it has been Generally Accepted in the Scientific Community
1. Many States still use Frye, but Federal Cts apply Daubert
ii. Daubert (1993) Pursuant to FRE 104(a), Cts must ensure that any and all Scientific
Testimony or evidence admitted is both: (1) Relevant, and (2) Reliable
1. Factors
a.
b.
c.
d.
e.

Whether the theory/technique has been tested?

Whether the theory/technique has been subject to peer-review and publication?
What is the known or potential rate of error?
Are there standards that the Scientific Community uses in evaluating this info?
Is it Generally Accepted in the Community?

iii. Kumho Daubert applies to all Expert Testimony

iv. Joiner Appellate Cts must review lower-Ct rulings on the admissibility of Expert
Testimony for Abuse of Discretion
9.) Authentication and Best Evidence Rule
a. Authentication
i. FRE 901 Authenticating or Identifying Evidence
1. To satisfy the requirement of Authenticating or identifying an item of Evidence,
the Proponent must produce evidence sufficient to support a finding that the item
is what the Proponent claims it is
2. Examples
a. Testimony of a Witness w/ Knowledge
i. Photographs If someone is showing a photo of GULC Library,
anyone thats been to GULC Library may authenticate the photo
b. Non-Expert Opinion About Handwriting
i. Non-Expert Only if handwriting made before litigation ensued
c. Comparison by an Expert Witness or the Trier-of-Fact
i. Expert If handwriting made for the purpose of litigation
d. Distinctive Characteristics
i. Caller may be identified because only he could utter the speech
under the circumstances
e. Opinion about Voice [Incoming Call]
f. Evidence about a Phone Conversation [Outgoing Call]
i. Call was made to the number the phone company assigned at that
time to a particular person, and that person answered the phone
g. Evidence about Public Records
i. Proof of Custody (may includes data stored on Computer)
h. Evidence about Ancient Documents or Data Compilations
i. Condition is non-suspicious + in a place it likely be + 20years+
i. Evidence about a Process or System [Wagner]
i. Anyone familiar w/ the process that produced a photo, video, or
other process/system, may testify about how the system works
3. Proof of Chain of Custody Fungible items [blood, white powder, etc.] require
testimony by each person who had custody of item from moment it seized from D

a. Unique items [knife, gun, etc.] still must be Authenticated via FRE 901
b. Best Evidence Rule [Applies only to Writings, Recordings, and Photographs]
i. FRE 1001 Definitions
1. Writing Consists of letters, words, numbers, or their equivalent in any form
2. Recording Consists of letters, word, numbers, or their equivalent in any manner
3. Photo Photographic image or its equivalent stored in any form
ii. FRE 1002 and FRE 1003 Originals and Duplicates [Originals = Duplicates]
1. Original or Duplicate Writing/Recording/Photo is Required to prove its Content
a. Jury decides whether a writing is an Original under FRE 104(b) [1008(b)]
b. Where CONTENT is CRITICAL BER Applies
i. If Content not critical, have someone testify about it (if not hearsay)
2. Duplicate Must be mechanically preserved (no potential for human error allowed)
iii. FRE 1004 Secondary Evidence Rule
1. An Original is not required and other evidence of the content of a Writing,
Recording, or Photo is admissible if:
a. All Originals were lost/destroyed, & not by Proponent acting in bad faith
b. Originals cannot be obtained by any judicial process
c. Party against whom the Original would be offered had control of the
Original; was at that time put on notice, by pleadings or otherwise that the
Original would be a subject of proof at the Trial or Hearing, and fails to
produce it at the Trial or Hearing, or
d. The Writing, Recording, or Photo not closely related to a controlling issue
III.

Privileges
1.) Privileges Generally
a. FRE 501 Privilege Analysis
i. Is it a Criminal or Civil case?
1. If Criminal, see if Federal CL Privilege applies
a. If Federal CL Privilege does NOT apply, Judge may create one under FRE
501 Reason and Experience language
2. If Civil, and State Law is Rule of Decision, Judge must use State Law Privilege
a. If State Law is not Rule of Decision, Judge must use Federal CL Privilege
i. If No Federal CL Privilege, Judge can either make it up using
Reason and Experience, or apply State Law Privilege
b. 3 Types of Privilege
i. Psychotherapist-Patient Privilege [504 + Jaffee]
ii. Clergy-Penitent [506 + Trammel]
iii. Lawyer-Client [FRE 502 + Upjohn]
1. Togstadt In determining whether Attorney-Client Privilege exists, Ct must look
at it from the Clients POV (Would a reasonable client believe AC Privilege exists?)
2. Inadvertent Disclosure
a. Williams v. DC (DDC 2011) Inadvertent Disclosure of Info covered by
Attorney-Client Privilege (or WP Doctrine) is not a Waiver if:
i. Disclosure is Inadvertent
ii. Holder of Privilege took reasonable steps to prevent disclosure, &
iii. Holder of Privilege took reasonable steps to rectify the error
3. Corporate Setting
a. Upjohn Subject Matter Test
i. In order to determine whether the AC Privilege applies in the
Corporate Setting, balance the following factors:
1.
2.
3.

Communications were made by Corporate Employees to Corporate Counsel at the

direction of Corporate Superiors
The purpose of the Communication was to secure legal advice for the Corporation
Upper-echelon Management did not possess all the info necessary to obtain the advice

4.
5.
6.

The Communications concerned matters within the scope of the Employees duties
Employees knew the purpose of the Communications was to obtain legal advice
Employees were instructed that the Communications were to be kept confidential

4. Sources of Fees and Clients Identity

a. Ousterhoudt Neither manner of payment, or Clients Identity is
privileged, unless disclosure effectively discloses confidential commun.
5. Duration of attorney-Client Privilege
a. Swidler Attorney-Client Privilege survives the death of the Client
6. Crime-Fraud Exception [See FRE 503 for additional Proposed Exceptions]
a. Proposed FRE 503 If the services of the Lawyer were sought or
obtained to enable, or to aid anyone to commit, or plan to commit, what
the Client knew or reasonably should have known to be a crime or fraud,
then there is no AC Privilege bc the Crime-Fraud Exception applies
b. Zolin In determining whether Crime-Fraud Exception applies, Cts apply
FRE 104(a) and may use in camera review to determine whether the
allegedly privileged AC Communications fall within the CF Exception
i. To obtain in camera review, opposing-Party must produce some
evidence sufficient to support a reasonable belief that CF applies
1. Party seeking to apply CF to AC Privilege has burden of proof

7. Government Lawyers
a. Rowland AC privilege applies to Govt Attorney Communications
c. 4 Elements of Professional Privileges
i. Privilege is the Clients
1. Only Client (or Professional on Clients behalf) may assert or waive the Privilege
ii. Privilege protects only those confidential communications made to facilitate
professional services
1. Friendly chats do not qualify, nor do communications made to a Lawyer acting as
a lobbyist/business agent (i.e., not as a Law advisor) [Gionis]
iii. Privilege protects only Confidential Communications
1. Communication is Confidential if Client intended it to be Confidential and that it
stay Confidential
2. No Privilege attaches if, at the time of communication, Client plans to disclose it
to persons outside the Privilege, or knows her Lawyer plans to do so
3. Client waives Privilege if he voluntarily discloses or consents to disclosure of any
significant part of the communication to person outside the Privileged relationship
iv. Privilege Protects only Confidential Communications
1. Only the Communication, not the facts communicated, is privileged
2.) 5th Amendment Privileges
a. 5th Amendment No person shall be compelled in any Criminal proceeding to be a Witness against himself
b. Hubbell 5th Amendment Privilege is violated only when:
i. Compulsion + Testimonial evidence + Self-Incrimination
c. Testimonial Test Ds evidence is Testimonial only if he can lie about it, but if he is physically
unable to lie about it, then it is NOT Testimonial
i. Testimonial May not be compelled
ii. Not Testimonial May be compelled (e.g., blood, DNA) does not violate 5th
d. Couch Only if (a) the Clients 5th Amendment Privilege would have protected documents
against disclosure while in the Clients possession, and (b) Client has transferred the documents
to his Lawyer in confidence to obtain legal advice, then the Attorney-Client Privilege protects
the documents against compelled production while the Lawyer has possession
e. Use Immunity
i. Doe (D) If the evidence is Testimonial and Self-Incriminating, it may not be Compelled
unless Govt grants Use Immunity (e.g., Prosecutor may not use any Testimonial aspects
of the act of production)

1. Prosecutor is barred from offering evidence that D produced the documents, but
Prosecutor may offer the documents themselves if Govt has independent proof
of the 3 Testimonial Aspects of the act of production:
a. Document Existed,
b. D possessed the Item, and
c. The Documents produced are the ones Govt demanded
ii. Hubbell (W) Govt may compel a Witness to disclose the existence of incriminating
documents only if the Govt is able to describe the documents w/ reasonable particularity
1. If Witness produces those incriminating documents pursuant to Use Immunity, the
Govt is unable to use them to prepare criminal charges against Witness
3.) Family Privileges
a. Spousal Testimonial Privilege and Confidential Communication Privilege
i. Spousal Testimonial Privilege:
1. Applies ONLY in Criminal cases
2. Crime-Fraud Exception applicable
3. Trammel Testifying-Spouse has the choice to testify against D or not
a. Only Witness-Spouse has the Privilege
4. Facts and Communication are covered
5. Marriage goes backward Covers statements made before marriage
6. Does not survive the marriage
7. Email/Phone calls apply (but see Waiver)
8. Waiver If 3rd person hears/sees communication
ii. Marital Communication Privilege
1. Applies in Criminal and Civil cases
2. Crime-Fraud Exception applicable [Wolfe]
a. Snapshot In determining whether Marital Communication Privilege
applies, take a snapshot of when the Communication was made [Montgomery]
3. Etkin Both Spouses have the Privilege
4. Only Communications (not Facts) are covered [Rakes]
5. Marriage goes forward Statements made before marriage NOT covered
6. Survives the Marriage (unless its a Sham Marriage)
a. Anything said during the Marriage will survive even Death and Divorce
b. Anything said after the marriage (e.g., Divorce) is not privileged
7. Emails/Phone Calls apply (but see Waiver)
8. Waiver If 3rd person hears/sees the communication
a. Key Factor Does the person asserting Privilege have Notice that a 3rd
Person will hear/see the communication? [Etkin]
b. Parent-Child Privilege NO Parent Child Privilege [In re Grand Jury Proceedings]
4.) Governmental and Other Privileges
a. Informant Privilege If Govt uses an Informant in crime-fighting, Govt can prevent the
Disclosure of that Informants Identity [Roviaro]
i. Only Govt (Not Informant) has Privilege
b. State Secrets Privilege Govt has Privilege against revealing Military Secrets [Reynolds]
i. Only Govt (Not Private parties) has Privilege
c. Executive Privilege NO Absolute Executive Privilege [Nixon; Clinton]
i. Public Right to Info trumps Executives right to have Confidential Communications
ii. Executive Privilege may apply when oversight of Executive would impair Executive
Branchs National Security concerns