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EVIDENCE

RELEVANCE
1. 401 Definition of Relevant Evidence
a. Relevant evidence means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.

b. Admissibility v. Sufficiency
i. Weight or credibility of evidence does not affect relevance. Statements should
be assumed credible. Ballou v. Henri Studios, Inc (5th Cir. 1981) (judge
reversed because he denied admissibility of nurses testimony that D was not
intoxicated, not believing it over toxicology results).

ii. Evidence having even only a slight tendency to prove a fact is admissible.
1. Union Paint and Varnish (evidence that one can of paint purchased 6
months before the one in question was defective is admissible on a
breach of warranty claim).
2. Compare
a. Knapp v. State (D claimed self defense in killing marshall b/c
had heard of death of man in another arrest. Evidence admitted
that the story was false b/c it made ds claim to have heard the
story less likely) WITH
b. Sherrod v. Berry (Evidence excluded that person was unarmed
b/c it exceeded the info the officer actually had and reasonably
believed at the time)

2. 402 Relevant Evidence Admissible, subject to exceptions, irrelevant evidence inadmissible.

3. 403 Exclusion of Otherwise Relevant Evidence: Balancing Test

a. Relevant evidence may be excluded if its probative value is substantially
outweighed by:
i. the danger of unfair prejudice,
ii. confusion of the issues jury will use evidence for an improper purpose
iii. misleading the jury jury will assign improper probative value
iv. considerations of undue delay, waste of time, or
v. needless presentation of cumulative evidence.

b. Considerations for Balancing between the probative and prejudicial value of

Evidence: Island Comparison Narrative Richness Balancing Test;

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i. View the evidence as an island, estimating its probative value and the danger
of substantial unfair prejudicial risk alone
ii. Expand the analysis to consider the full evidentiary context and whether
substitutes of equal probative value but less prejudice exist (including offered
stipulations).
iii. Consider the richness and narrative integrity of the presenting case
1. There is value in proving the natural sequence of events and
allowing the force of evidence to infer moral guilt / satisfy jurors
expectations
2. Prosecutors evidence will generally survive FRE 403 when a
defendant seeks to substitute an admission for evidence creating a
coherent narrative of his thoughts and actions in perpetrating the
offense.
iv. Old Chief v. U.S. (US 1997) (D convicted of ADW and later charged as a felon
in possession of a deadly weapon. Government rejected Ds stipulation that
he had been convicted of a crime exceeding one year of punishment).

RELEVANCE CHARACTER & HABIT EVIDENCE

Character Evidence

Character evidence, though probative, is generally excluded because it is extremely prejudicial

and there is a danger that a person will be convicted for who they are.

1. Character evidence admissible for reasons other than to show action in conformity therewith.
a. E.g. notice. Cleghorn v New York Central (Ct. of App NY; 1874) (Cant use CE to
prove employee drunk on the day of accident, but can use intemperance to prove
notice to supervisors).
2. Limitations
a. Accuseds Character: 404(a)(1)
i. Accused may offer evidence of a pertinent character trait for the purpose of
showing action in conformity therewith (only through reputation or opinion)
ii. The prosecution may respond by cross-examining the character witnesses on
specific acts to test their qualifications or by introducing rebuttal character
witnesses.
b. Victims Character 404(a)(2)
i. Accused opens the door: If the accused introduces evidence of a victims
violent character (only through reputation or opinion), the prosecution may
respond with evidence of the accuseds violent character.
c. 404(a) exceptions only apply in criminal cases

3. 404(b) Other Crimes, Wrongs, or Acts

a. Not admissible to show character in order to prove action in conformity therewith.

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b. Exception: May be admissible to prove: motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident, existence of a larger
plan, etc.
c. Admissibility
i. 404(b) evidence is relevancy conditioned on fact under 104(b).
ii. Huddleston test: is there enough evidence for a jury to conclude by a
preponderance of the evidence. Totality of the circumstances test including
the evidence that is sought to be offered; there is nothing requiring
independent evidence of the predicate fact.
1. Huddleston v. US (US 1988) (D argued that evidence on TVs should
not be admitted b/c government failed to prove TVs stolen).
iii. No requirement that the other acts be prior in time to the act for which D is on
trial.
iv. Takeaway:
1. Extrinsic act evidence is only admissible if (1) it falls w/in a 404(b)
exception; (2) it is not unfairly prejudicial [but recall narrative
richness]; and (3) it can be proven by a preponderance of the evidence
that (a) the act occurred and (b) D did the act.

d. Modus Operandi / Identity: the acts must be (1) sufficiently similar to the charged
offense and (2) sufficiently unique from the common practice so as to be marked as
the handiwork of the defendant. US v. Carrillo (5th Cir. 1993) (drug distribution on
street corner not enough).

e. Patten Evidence: Patterns of acts may show identity, intent, plan, absence of
mistake, or other grounds for admissibility, but pattern is not itself a reason to admit
evidence of other crimes or wrongs. US v. Beasley (7th Cir. 1987) (drugs for plants).

f. Motive Evidence, is different from pure pattern evidence, and is admissible where
motive is an issue in the case. US v. Cunningham (7th Cir. 1996) (prior acts
consistent with drug addition admissible to show motive for tampering with syringes).

4. 405 Methods of Proving Character

a. (a) Reputation or Opinion. proof of an admissible character trait may only be made
by a certain type of evidencetestimony as to reputation or opinion.
i. Except: On cross-examination, inquiry is allowable into relevant specific
instances of conduct.
1. Must be a good-faith belief that the instance of conduct occurred
before inquiring into on cross. Michelson v. US (US 1948) (watches).
2. No extrinsic evidence. Bound by witnesss response.
3. Hearsay exception803(21)for testimony.
b. (b) Specific Instances of Conduct. proof of specific instances of a persons conduct
may be made where character is an essential element of a charge, claim, or defense,
i. E.g. defamation or other ultimate issue

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5. 406 Habit; Routine Practice

a. Evidence of the habit (of a person or organization) is relevant and admissible to show
action in a particular instance was in conformity with.
b. Elements:
i. Must be specific, routine, regular, continuous, and predictablea single or
few instances may be insufficient to show habit. Perrin v. Anderson (10th Cir.
1986) (attacking officers).
c. Limit:
i. Cannot be use where response depends on more than one person or controlled
instrumentalities. Halloran v. VA Chem. (NY 1977) (defective Freon cans).
ii. Limiting instruction useful so evidence is not used in inferring a character
trait.

6. Similar Happenings
a. No specific rule. Conditions of inanimate objects. Analyze under 401 and 403.
b. Does the repetition of incidents have any tendency to prove a matter of consequence,
and if it does, would admitting such evidence be unfairly prejudicial to the other side?
i. Simon v. Kennebunkport (ME 1980) (others fell in similar manner on sidewalk
probative on the issue of notice and existing defect).

7. 407 Subsequent Remedial Measures

a. After an injury or harm, evidence of subsequent remedial measures not admissible to
prove negligence, culpable conduct, a defect in a product, a defect in a products
design, or a need for a warning or instruction.
b. Exception: no exclusion to prove ownership, control, or feasibility of
precautionary measures, if controverted, or impeachment
i. E.g. landlord shoveled sidewalknot to show neg.but ownership.
ii. Tuer v. McDonald (evidence of anticoagulant administration procedure
excluded for either feasibility or impeachment purposes).

c. Using Exceptions
i. Feasibility
1. Narrow: capable of being done.
2. Broad: feasibility includes concepts of value, effectiveness, and
overall utility a judgment call as to comparative value.
ii. Impeachment
1. Focus on timing. Impeachment can only be used to confront claims
about the situation at the time it was made.
2. Also, must cast doubt on the credibility of the witness, not just be a
direct contradiction.

8. 408 Compromise and Offers to Compromise

a. Not admissible to prove liability or the invalidity of a claim or its amount including
statements made during the course of settlement negotiations.

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i. Offers to compromise must show that the discussions in question were made
in compromise negotiations. Davidson v. Prince (UT 1991) (P wrote
informational demand letter with no invitation to compromise).
b. Exception
i. Admissibility allowed for other purposes: e.g. proving bias, prejudice,
negation a contention of undue delay.

9. 410 Inadmissibility of Pleas, Plea Discussions, and Related Statements

ARTICLE VI WITNESSES / IMPEACHMENT

1. 601: Competency: every person is competent to be a witness unless
i. Infant, insane, or intoxication: do they (1) comprehend the obligation to tell
the truth and (2) have the capacity for observation, comm., an recollection.
1. ISSUE: child abuse cases but competency presumed.
ii. Hypnotically refreshed/recalled testimony may render incompetent.
1. Exception Absent clear evidence repudiating validity of posthypnosis
recollections, per se rule preventing a defendant from testifying on his
own behalf violates the 14th Amend. Due Process and the 6th Amend.
right to call witnesses in his favor. Rock v. Arkansas (US 1987).
iii. A juror is incompetent under 606(b) to testify and impeach a jurys verdict
except for extraneous, prejudicial information. Tanner v. US (US 1987) (D
convicted then received info. about drug an alcohol use by the jury).

b. 602: Lack of Personal Knowledge

c. 603: Failure to Take an Oath or Affirmation

2. Minor Rules
a. 604: Interpreters: required to make true (literal) translations
b. 605/606: Competency of judge/juror as witness: incompetent to be witnesses in
cases in which they serve.

3. 610: Religious beliefs or opinions: not admissible to impair or enhance the witnesses
credibility
a. Title, uniform, etc. may raise a 403 problem.

4. 611: Mode and Order of Interrogation and Presentation

a. (a) Control by court: Judges have the power to control what happens in the
courtroom
b. (b) Scope of cross: Limited to subject matter (i) testified to on direct and (ii)
affecting the credibility of the witness
i. The court has the discretion to permit inquiry into additional matters as if on
direct (i.e. no leading questions). Issues though:

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1. May waive opportunity to motion for directed judgment b/c implies

that defense needs to present evidence.
c. (c) Leading questions: prohibited on direct except to develop testimony. Permitted
on cross as well as where a party calls (i) a hostile witness, (ii) the adverse party, or
(iii) a witness identified with an adverse party.
i. Just because you can impeach a witness doesnt mean that you can use leading
questions.

5. Minor Rules
a. 612: Writings used to refresh memory
b. 614: Calling and Interrogation of Witness by the Court
i. Court may call its own witnesses or interrogate any witness called by another
party
c. 615: Exclusion of Witnesses
i. At request of party or sua sponte, court shall exclude witnesses so that they
cannot hear other testimony
ii. Exception: party (i.e. P or D) who is a natural person, representative officer
of non-natural person, person whose presence is essential to partys cause,
person authorized by statute to be present.

Impeachment

1. 607: Impeachment: the credibility of any witnesses may be attacked by any party,
including the party calling the witness.
d. Chambers v. Mississippi (US 1973) (witness voucher rule violation of due process)
e. Exception: cannot call a witness under the guise of impeachment for the primary
purpose of placing substantive evidence before the jury which is otherwise
inadmissible. US v. Hogan (5th Cir. 1985).

2. Limitations to Impeachment
a. Cannot impeach a witness on collateral matters. State v. Oswalt (WA 1963) (403
issue of waste of courts time impeach on whether D was in Seattle prior to robbery)
b. Cannot ask questions implying the existence of unestablished facts. US v. Drake.

3. 608(a) Reputation and Opinion for Truthful or Untruthful Character

a. The credibility of a witness may be attacked or supported by evidence in the form of
opinion or reputation, but subject to these limitations:
b. Limitation
i. Evidence may refer only to character for truthfulness or untruthfulness;
and may not be proved out by extrinsic evidence;
c. This rule is a third exception to 404(a)s general ban on character evidence

4. 608(b) Prior Acts for Truthful or Untruthful Character

a. Specific instances of conduct of a witness may not be inquired into on direct
examination in order to attack or support character for truthfulness, but they may, in
the discretion of the court, be inquired into on cross, if probative of truthfulness of W

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b. Limits
i. Prior acts must be probative of the witnesss character for truthfulness or
untruthfulness
ii. Probative value must outweigh the danger of unfair prejudicerequires a
careful 403 analysis.
1. US v. Owens (US Mil.App. 1985) (P allowed to inquire into lies (i.e.
specific acts) on application but could not identify battery victim as
Ds second wife).
iii. A good faith basis for the inquiry must exist
iv. Acts can only be inquired into on cross-examination and cannot be proved
out by extrinsic evidence to prove action in conformity with character for
truthfulness. (i.e. must take the witnesss answer).

5. 609 Prior Convictions for Untruthful Character

a. Prior convictions admissible for the purpose of attacking the character for truthfulness
i. (a)(1): Felonies (> 1 year imprisonment or death)
1. Witness, other than accused, subject to a 403 analysis
2. Accused, does the probative value outweighs the prejudicial effect
ii. (a)(2): Look at Elements of the Crime Shall be admitted
1. 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 statements by the witness.
iii. (b): 10 Year Limit
1. Evidence of convictions greater than 10 years not admissible unless
the probative value substantially outweighs the danger of unfair
prejudice.
a. Reverse of 403 test
b. Facts and circumstances must make it make it more likely that
the witness is being untruthful now.
iv. (c): Witness not pardoned, if pardon based on innocence or rehabilitation.
v. (d): Juvenile convictions generally not admissible, unless necessary
vi. (e): Pendency of an appeal can be shown

b. Application
i. Similar offense evidence is highly prejudicial to the accused and rarely will
be more probative than prejudicialeven with a limiting instruction. US v.
Sanders (4th Cir. 1992) (prior assault an shank contraband convictions).
1. But similarity cuts toward admissibility under 404(b) modus operandi.
2. Ask: what is the permitted purpose credibility and trustworthiness?
ii. Courts have no discretion, even 403 balancing, to exclude 609(a)(2)
evidence. US v. Wong (3rd Cir. 1983) (mail fraud charges).
iii. 609 permits entry of the prior conviction, not facts or details (e.g. convicted
of bank robbery, not convicted of robbing a bank with a machine gun).

c. Appellate Review

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i. To raise and preserve for review a claim of improper impeachment with a

prior conviction, a defendant must testify. Luce v. US (US 1984)
ii. If D chooses to testify about a conviction on directafter the court has ruled
that it will not exclude the conviction from impeachmentD still forfeits the
right to appeal the judges prior decision. Ohler v. US (US).

6. 613: Prior Inconsistent Statements for Untruthfulness

a. (a): Statement need not be shown nor contents disclosed to the witness except on the
request of opposing counsel. Minimal foundation requirements
i. Note that inconsistent is broader than direct contradiction
b. (b): Extrinsic Evidence of prior inconsistent statement
i. Not admissible unless the witness is afforded an opportunity to deny or
explain the statement at some time during the trial and the other side is given
an opportunity to interrogate the witness.
ii. Exception
1. Unless the interests of justice otherwise require
2. Provision does not apply to 801(d)(2) statements

7. Bias
a. Extrinsic evidence of bias admissible under 404(b).
b. The relationship between a party a witness potentially leading to bias can be used for
impeachment. US v. Abel (US 1984) (group membership and characteristics of the
group admissible to show bias part of 6th Amend. Confrontation Clause).

8. Sensory (Perception) or Mental Defects

a. May be proved by extrinsic evidence or cross examination. US v. Lindstrom (11th
Cir. 1983) (inquiry into psychiatric condition allowednot for 404(a) character
evidence or collateral issuebut on ability to perceive). Ask, is cond. relevant?

9. 806: Attacking the Credibility of the Declarant

a. Allows impeachment of an out-of-court delarant by evidence as if the declarant had
testified at trial.
b. Limit: rule does not modify 608(b) ban on extrinsic evidence for proving out specific
act of character for untruthfulness. US v. Saada (3rd Cir. 2000). Requires cross.

EXPERT WITNESSES

1. 701 Lay Witness Opinion Testimony

a. Testimony in the form of opinions or inferences must be (a) rationally based on
perception; (b) helpful to the determination of a fact in issue; and (c) not based on
specialized knowledge within 702.
i. For 701(c), if there is a field of expertise, the witness must qualify as an
expert.

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2. 702 Expert Testimony

a. Testimony must be based (1) on sufficient facts or data, (2) reliable principles or
methods, which (3) were reliably applied to the facts of the case.
b. Limit
i. Testimonial relevance: testimony must be limited to the field/expertise of
the witness.

c. Qualification for Testimony

i. Admissibility is based on 403 / 104(a), which is a question for the judge.
(i.e. preponderance of evidence for admissibility).

ii. Must be a field of expertise: Dauber v. Merrel Dow Pharm. (US 1993).
1. Has the scientific theory and technique been:
a. tested,
b. subject to peer review and publication,
c. is the potential error rate is known, and
d. finally, has reached widespread and general acceptance.
2. This standard also applies to technical or other specialized
knowledge and other reasonable measures of reliability can be
weighed by the judge. Kumho Tire v. Carmichael. (US 1999).
3. Reconsidering Old Fields
a. Hand writing may lack testing, controlling standards,
reliability. US v. Saelee (D. Ala. 2001).
b. Reconsider rule of per se inadmissibility of polygraphs.
US v. Piccinonna (11th Cir. 1989) (but this may be a
specific instance of character for truthfulness608(b)
which can only be proved by opinion, not extrinsic
evidence).

iii. Must demonstrate that the witness is qualified in that field

iv. Must demonstrate that the expertise has been reliably applied

v. Standard of Review is abuse of discretion. GE v. Joiner (US 1997).

d. Other Procedural Aspects

i. Always need to get a 403 ruling with expert testimony
ii. No specific ruling that an expert is qualified is required.

3. 703 Bases of Experts Opinion Testimony

a. Predicate evidence need not be admitted nor even be admissible to allow an
expert to render an opinion. (i.e. hearsay may be okay).
b. Evidence need only be the type reasonably relied upon by experts in the
particular field.
i. Alternatively, can testify as to (1) firsthand knowledge of expert or (2)
assumed facts in the record (i.e. hypothetical question).

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4. 704 Opinion on Ultimate Issue

a. Witnesses testify as to opinion on an ultimate issue of fact to be decided by the
jury, except on the issue of mental state or condition.
b. Limits on Testimony
i. Opinion shouldnt be phrased in statutory language. Could be a 403
problem. State v. Odom (okay officer testified as to intention to distribute
crack).
ii. Experts cannot base their testimony on the credibility of other witnesses
would take away a jury function.
iii. Cannot testify as to what someone was thinking, only the underlying
facts/opinion. Commonwealth v. Holden (winking was non-verbal cue
to fabricate).

5. 705 Disclosure of Facts Underlying Expert Testimony

a. Disclosure not required unless (i) court requires or (ii) cross-examination
b. Can testify to hypothetical questions..

6. 706 Court may appoint its own Experts

HEARSAY
Hearsay Rule

1. 801 Definition
a. Hearsay is a statement made by an out-of-court declarant offered to prove the truth of
the matter asserted. 801(c)
b. Statement is: oral, written, or conduct if it is intended to be assertive 801(a)
c. Declarant must be a person 801(b)
i. The rule thus does not apply to devices, such as radar, or to tracking dogs

2. 802 Hearsay is not admissible except as provided

3. Non-Hearsay Statement.
a. place money on funny sides US v. Zenni
b. Suicideby cohort admissible as evidence of Ds guilt, unless conduct was intended
to be assertive. Commonwealth v. Knapp (MA 1830)
c. Absence of statement if occurring under the same circumstances as the assertion to be
proved. Silver v. N.Y. Central R.R. (cold temperatures).

d. Not Offered for the Truth of the Matter Asserted

i. Show effect on the hearer
1. Subramaniam v. Public Prosecutor (Malaysia) (D sought to give
evidence of what the terrorists told him to prove duress).

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ii. Knowledge / Notice / Awareness

1. Vinyard v. Vinyard Funeral Homes (statements from other people
complaining they slipped and fell to show awareness on the part of D).
2. Johnson v. Miscericordia Community Hosp. (Reports that Ds privilege
reduced at another hospital to show information available).
3. Ries Biological Inc. v. Bank of Santa Fe (10 Cir. 1986) (statement from
the bank promising to paynot to show guarantee of payment, but to
show that it had a reason to resume shipment).
iii. Legally Operative
1. E.g., contractual words I accept, gift/sale/bailment, alleged to be
defamatory/deceitful, marriage.
2. Fun-Damental Too v. Gemmy Ind. (statements not to show that P was
selling at a lower price but to show confusion on trade infringement).
iv. To show the other character
1. US v. Jaramillo-Suarez (ledgers not to show quantities).

e. Cannot introduce out-of-court statements for one purpose but then rely on them for
the truth of the matter asserted.
i. US v. Hernandez (motivation for investigationD possible drug dealerused
for truth of matter asserted).

f. Machines cannot make hearsay statements, instead the government must authenticate
the instruments.
i. City of Webster Groves v. Quick (reading from the radar gun not hearsay).

Hearsay Exceptions
1. Limitations
a. Once hearsay is found admissible then the precise statement that has been found
admissible in chambers must be admitted, not a summary or interpretation of the
witness to the statement. State v. Jones (CB Radio case).
b. In cases of multiple hearsay [where additional hearsay statements separate the
declarant from the witness], you must supply an exception to hearsay for each link in
the chain. 805.

801(d)(1) Non-hearsay Statements: Prior Statements by Witness

The declarant testifies at trial or hearing and is subject to cross-examination concerning

the statement, and the statement is

1. 801(d)(1)(A): inconsistent
2. 801(d)(1) (B): consistent
a. Timing: prior consistent statement must have been made before the charged
recent fabrication or improper influence or motive, not just before trial. Tome v.

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US (US 1995) (statements supporting child abuse made after custody proceeding
initiated).
b. Limit
i. Statements are only admissible for the truth of the matter asserted to rebut
a specific type of impeachment

3. 801(d)(1)(C): identification
a. Purpose to ensure that lineup, photographic, and other identifications are not
hearsay and are admissible in court.
b. Subject to Cross only requires that the witness be available, not that the witness
be able to contribute. US v. Owens (US 1988) (witness had memory injury/loss).

801(d)(2) Non-hearsay Statements: Admission by a Party-Opponent

If the statement is offered against a party and is:

1. 801(d)(2)(A): the partys own statement

a. Merely repeating what one heard is not admissible, but plain admissions of facts
and circumstances can always be used against a party. Reed v. McCord (NY
1899) (D had previously stated that an accident occurred in a certain way, despite
his lack of personal knowledge).

2. 801(d)(2)(B): a statement which the party has manifested an adoption or belief in its truth
(i.e. adoptive admission)

a. Adoption by Silence US v. Hoosier (6th Cir. 1976) (D said nothing while g/f
spoke of bags of $ in room).
b. Adoption by Conduct can occur if there was conduct indicating adoption.
i. State v. Carlson (OR 1991) (state failed to prove by a preponderance,
104(a), that Ds head shake was an adoption).

3. 801(d)(2)(C): a statement by a person authorized by the party to make statement concerning

the subject

4. 801(d)(2)(D): a statement by the partys agent or servant concerning a matter w/in the scope
of the agency or employment, made during the existence of the relationship

a. Agency Relationship
i. If both an employer and an agent are on trial, the statement by the agent
may be admissible as non-hearsay against the agent, but may be
inadmissible hearsay against the employer, if the statement was made
outside of the scope of agency. Mahlandt v. Wild Canid S & Re. Center.
1. No personal knowledge requirement

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ii. Determining if an Agency Relationship Exists look for (1) power of

agent to alter principles legal relationship; (2) existence of fiduciary
relationship/duty; and (3) right of principle to control agent.
1. Sable v. Mead Johnson & Co (D. Mass. 1990) (report by
independent consultants lacked exception).

5. 801(d)(2)(E): A statement is not hearsay if the statement is offered against a party and is a
statement by a co-conspirator of a party during the course and in furtherance of the
conspiracy.
a. Admissibility: Conspiracy must be demonstrated by a preponderance of the
evidence, to be determined by the judge, and statement shall be considered, but it
cannot be the only evidence. Bourjaily v. US (bootstrapping rule overruled by
FRE).

803

1. 803(1): Present Sense Impression Exception

a. The identity of the declarant need not be known so long as there is sufficient
indication from the statement itself that it is a present sense impression. State v. Jones
(admitting trucker CB radio statements).

2. 803(2): Excited Utterances

a. The excitement requirement has been defeated in cases where:

i. The victim did not demonstrate excitement because he had the cognitive sense
to do some activity, even though apparently in shock at the time. Truck
Insurance Company (cognitive sense to drive home), or
ii. When training (such as medical training) is expected to serve as a firewall
between emotion and observation. Albert Einstein Medical.

3. 803(3): Then existing mental, emotional, or physical condition:

a. Statements in this exception cannot be used to prove the truth of the matter asserted,
only the truth that the belief existed.
i. Limiting instruction should be given & Weight and Credibility
ii. Adkins v. Brett (CA 1920) (statements that wifes affections had gone
elsewhere admissible to prove belief, but not truth of Ds actions).

b. State of mind to prove future conduct: Hillman Doctrine

i. Statements of present state of mind are admissible to prove that the declarant
subsequently acted in accordance with that state of mind.
ii. Mutual Life Ins. Co. of NY v. Hillman (US 1892) (letters from man indicating
an intention to go to crooked creek admissible as corroborating evidence that
he did what he intended to do).
1. Doctrine continues after the adoption of the FRE, and when
performance of a particular act by an individual is an issue in a case,

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his intention (state of mind) to perform the act may be shown. US v.

Pheaster (9th Cir. 1976) (palm springs boy intending to get marij.)
iii. LIMITATION
1. All that is admitted is the state of mind, not the truth of the matter
asserted. Need to focus on the relevancy of the intention.
c. The rule excludes statements of memory or belief to prove a fact remembered or
believed (i.e. past conduct), except in cases involving the declarants will.
i. Shepard v. US (US 1933) (Wifes statement Dr. Shepard has poisoned me
not admissible to prove D the killeronly a potential dying declarationbut
may prove a belief inconsistent with suicide).
d. Surveys may be admissible because the answers are expressions of presently existing
state of mind, attitude, or belief. Zippo Manf. v. Rogers (SDNY 1963).

4. 803(4) : Statements for purposes of medical diagnosis or treatment:

5. 803(5): Recorded Recollection:

a. If admitted, the memorandum or record may be read into evidence but may not itself
be received into exhibit unless offered by an adverse party.
b. *Distinguish between past recollections recorded and present recollections
revived.*
c. Foundation [written or adopted, when fresh, correct reflection of knowledge] must be
laid.

d. Distinguish from Rule 612 Writing to Refresh Memory A writing may be used
to refresh Ws memory, and the writing need not have been prepared or adopted by W
(it doesnt even need to be a writing it can be a whisp of hickory smoke), but the
writing cant be shown to the jury.

6. 803(6): Records of Regular Conducted Activity

a. Records containing extraneous hearsay

i. Police reports are the classic business record, and factual observations are
admissible if it is the officers duty to make such observations. Third-party
hearsay in the record is inadmissible unless there is an exception. Johnson v.
Lutz (NY 1930) (police report with statements regarding a motorcycle crash
excluded from evidence).
ii. Insurance records containing medical records may be admissible (1) business
record w/in a business record or (2) medical provider 801(d)(2)(C) agent of
the patient. US v. Duncan. Would need a second custodian.
iii. Look at whether the extraneous hearsay has its own exception, is relevant,
prejudicial, and trustworthy. Williams v. Alexander (NY 1955) (hospital
record of with P stating that he rear-ended D).
b. Lack of trustworthiness
i. Portions of business records containing statements made by one who is not
part of the businesswithout a guarantee of trustworthinessare not

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admissible. US v. Vigneau (1st Cir. 1999) (unverified return addresses on

Western Union slips).
ii. The fact that the business records of one party are sought to be introduced by
an adverse party is an indication that they are trustworthy. Part of the analysis
is who is offering the records. Yates v. Bair Trans. (self-serving doctors
reports).
iii. Reports prepared in a self-serving manner may indicate a lack of
trustworthiness. Palmer v. Hoffman (US 1943) (self-reporting train accident).
c. The means and functioning of a computer program which stores records does not
need to be testified to, but computer generated records requires a foundation
witness. Computer records may still be denied if there are indications of
untrustworthiness. Potamkin Cadillac.
d. Business versus non business records
i. Not all records made by the business are made as part of the regular practice
of that business activity. Palmer v. Hoffman (reports for litigating, not R&R)
ii. But, where there is a law that makes it a business duty to keep a type of
record, it will be admissible. Lewis v. Baker (2nd Cir. 1975).

e. Absence of Entry in Business Record (803(7)):

7. 803(8): Public records and reports:

a. Conclusions and opinions in investigatory reports are admissible under 803(8)(C)
provided they are (i) based on factual findings and (ii) satisfy the trustworthiness of
803(8). Beech Aircraft v. Rainey (US 1988) (civil case for products liability suit).
i. Autopsy reports are another good example.
b. 803(8)(B)
i. Law enforcement reports cannot be admitted under 803(6) if they fail under
803(8). US v. Oates (2nd Cir. 1977).
ii. Other law enforcement personal under 803(8)(B) can include any
governmental agent having law enforcement responsibilities (i.e. customs).
iii. Facts, as opposed to observations, in police reports are admissible under
803(8)(B). US v. Grady (2nd Cir. 1976) (serial numbers from guns).

8. 803(22): Judgment of previous convictions:

a. FRE 803(22) only provides exception for felony convictions (Stroud v. Cook )
i. Some circuits admit misdemeanor convictions under the public record
exception because a judgment does set forth the activities of the court.
ii. Others construe 803(22) as implicitly prohibiting admission of these
convictions

804

1. Unavailability 804(a)

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2. 804(b)(1): Former Testimony:

a. Similar Motive to Examine Determined by 1) the substantial identity of the

issue, and 2) the partys interest regarding that issue
i. Identity of parties is not required.
b. Grand Jury testimony is usually inadmissible as former testimony b/c
prosecutor does not have same motive to develop testimony in grand jury
proceeding as he does at trial lower standard of proof required at the former
proceeding. US v. Salerno (D gave prior testimony about concrete ind. Antitrust).

3. 804(b)(2): Impending Death Exception:

a. Consciousness of Impending Death: preliminary fact question for the judge to
determine under 104(a). Soles v. State (FL 1929) (Deceased shot in back while
driving away. Statement that Carlos Soles shot me with a .22 rifle. I have got to
die. properly admitted).
i. The jury can determine the credibility and weight of the evidence aside
from the issue of admissibility (can challenge weight and credibility under
104(e)).

4. 804(b)(3): Statements against interest

a. Types of Interest: pecuniary (money, civil liability), proprietary (ownership), or
penal (criminal)
b. Statements must truly be against interest. G.M. McKelvey Co. v. General
Casualty Co. (OH 1957) (employees signed embezzlement statements, potentially
against pecuniary and penal interest, but employer gave up claim, so statements
were not against their interest).
c. Exculpatory Statements: corroborating the accuracy of a statement is
insufficient, must corroborate the circumstances that make it reliable or
trustworthy (i.e. the circumstances to prove that the statement is against interest)
i. US v. Barrett (1st Cir. 1976) (detail in Buckys statement demonstrated an
insiders knowledge which tended to guarantee that it was against
interest).
d. Collateral Statements which are not directly against the declarants interest:
Rule 804(b)(3) does not allow non-self-inculpatory statements, even if made
within a broader narrative that is generally self inculpatory.
i. Williamson v. US (US 1994) (Government witness implicated D while
implicating himself in the heroin crime).
ii. Approaches
1. OConnor: remand for fact inquiry
2. Ginsburg: stmts too intertwined w/ self-serving declarations to be
admissible
3. Kennedy: would admit collateral but integral stmts, but exclude
self-serving collateral stmts

The Confrontation Clause and Hearsay

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1. (6th Amend.): In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.
a. This is an individual trial right and doesnt give the government any rights or
benefits

2. Old Confrontation rule: Ohio v. Roberts

a. Confrontation Clause normally requires:
i. (1) that the declarant be unavailable for cross-examination at trial AND
ii. (2) that the statement bear adequate indicia of reliability
1. However, reliability is inferred if the evidence falls within a
firmly rooted hearsay exception.

3. New Confrontation Clause Rule After Crawford v. Washington

a. The Confrontation Clause:
i. Only applies to testimony hearsay such as ex parte examinations which
are offered as evidence against the accused.
1. Where non-testimonial statements such as off-hand remarks,
business records, etc. are at issue, states can develop their own
evidence rules. [or the FRE applies].
2. Testimony does not need to be sworn testimony. Therefore,
confessions to police officers are testimony.
ii. Where testimony is at issue, the Sixth Amendment requires:
1. The declarant be unavailable AND
2. That the defendant have had a prior opportunity for cross-
examination.
b. Crawford v. Wash. (2004) (Ds wife was barred from testifying because of a
marital privilege. She had previously told police that she did not see the victim
reaching for a knife. The statement was allowed as a statement against penal
interest).
i. Scalias analysis:
1. The Sixth Amendment is only concerned about statements from
witnesses and hence testimony of a witness when made.
2. Focuses on common law understanding at 1791

c. What is Testimonial?
i. ex parte in-court testimony or its functional equivalentthat is materials
such as affidavits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pretrial statements that
defendants would reasonable expect to be used prosecutorially
ii. extrajudicial statements . . . contained in formalized testimony materials
such as affidavits, depositions, prior testimony, or confessions
iii. statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be
available for use at a later trial
1. e.g. custodial interrogations,

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d. Testimonial Hearsay During an Emergency

i. 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.
ii. Statements are testimonial when [1] circumstances objectively indicate
that there is no such ongoing emergency AND [2] the primary purpose of
the interrogation is to establish or prove past events potentially relevant to
criminal prosecution.

e. Washington v. Davis Factors:

i. Summary: objective purpose of the statements was enable police to meet
an ongoing emergency, not testify as a witness.
f. Hammon v. Indiana Factors
i. There was no emergency in progress. The interrogation was to investigate
a possible past crime

g. Effect: when the government offers testimonial hearsay against an accused, it is

absolutely inadmissible unless (1) the declarant is unavailable and (2) the accused
had an opportunity to cross-examine
i. Distinguish cross-examination from prior direct examination by the
accused.
ii. Business records subject to Crawford?
1. Courts have begun parsing out facts observed in the ordinary
course of business from opinions such as in analyst reports
h. Other
i. Crawford violations are subject to the higher constitutional harmless
error standard.
ii. To waive a Sixth Amendment right it must be knowing, voluntary, and
intentional
i. Forfeiture: rights cannot be taken away but they can be forfeited.
i. One who procures the absent of a witness by wrongdoing forfeits their
right to be confronted by that witness.
ii. May apply even where the defendant is on trial for killing the declarant in
the first place because the accused makes the witness unavailable. State v.
Meeks (KA 2004).

PRIVILEGES
1. 501 Except as otherwise required . . ., [privileges] shall be governed by the principles of the
common law as they may be interpreted in light of reason and experience. However, [in civil
proceedings using a state law rule of decision, the states privilege law applies]
2. Privileges are absolute and may not be weighed with evidentiary need
3. Rationale for privileges
a. Utilitarian: confidentiality is imperative in order to get the other party to speak to you

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b. Notions of privacy

Attorney-Client Privilege

1. Definition
a. Communication (oral, written, or otherwise)
b. Between an attorney and his client
c. For the purpose of securing legal advice
d. Which is kept confidential
2. The privilege is revealing the communication, not the substance of the communication.
Hence, third-party overhearing, even if illegally heard, is not prevented from disclosure.

3. Procedural
a. The party opposing privilege may use any nonprivileged evidence in support of its
request for in camera review, even if it is not independent of the contested
communication. Before engaging, the judge should require a showing of a factual
basis adequate to support a good faith belief by a reasonable person that in camera
review of the material may reveal evidence to establish the claim that the crime-fraud
exception applies. US v. Zolin (US 1989) (IRS tapes of scientology meeting).
b. The privilege survives the death of the holder.

4. Communication
a. Privilege does not apply to non-legal, ministerial communications. US v. Woodruff
(no privilege as to whether attorney notified client as to the time of trial).
b. Communications by any form of agency are privileged. San Francisco v. Superior
Court (CA 1951) (doctors report prepared solely for the purpose of aiding Ps
attorney in litigation is privileged as doctor was a mere messenger).
i. Look at specificity of purpose, even contract, to establish agency relationship.
c. Third-Party communications made in the presence or overheard by strangers are not
privileged. Clark v. State (TX App 1953) (operator eavesdropped on D).

5. Waiver
a. Crime-Fraud Exception: Privilege does not apply to communications for the purpose,
later accomplished, of engaging in crime or fraud.
b. Malpractice of ineffectiveness of counsel waives the privilege.
c. Putting a privileged fact in issue

6. Corporate Client
a. Statements made by corporate employees to general counsel, for the purpose of
conducting a factual investigation for the purposes of giving the company legal
advice, fall within attorney-client privilege. Upjohn Co. v. US (US 1981)

7. Attorney Work-Product Doctrine Fed. R. Civ. P. 26(b)(3)

a. (i) broader than attorney-client privilege, which only protects confidential
communications; but (ii) unlike attorney-client privilege, can be vitated by an

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opponents showing of special need; (iii) only applies to information gathered in

anticipation of litigation.

Physician-Patient Privilege (NOT ON EXAM)

Privilege not generally recognized in federal courts.

1. Overview
a. Must have an actual doctor-patient relationship
i. May not cover nurse practitioner or EMT
b. Scope: whatever is necessary for diagnosis; if unnecessary, may not be covered
c. Exceptions:
i. Related to criminal activity
ii. If party puts his own mental/physical condition affirmatively in issue (Prink v.
Rockefeller Ctr.)
iii. Child abuse (disclosure generally mandated)
2. Psychotherapist-patient Privilege
a. Confidential communications between a licensed psychiatrist, psychologist, or social
worker and his patient in the course of diagnosis or treatment are protected from
disclosure. Jaffee v. Redmond (US 1996) (police officer saw social worker after
shooting; majority need for confidential advice; dissent status).
b. Waiver
i. May be dangerous patient exception when the psychoanalyst has
reasonable cause to believe (i) in the dangerousness of the patient and (ii) the
necessity of disclosure, whether or not actually made, and whether or not
against the doctor. Menendez v. Superior Court (CA 1992) (California rule
only).

Marital Privilege

1. Two forms of spousal privilege

a. Testimonial Privilege applies only in criminal cases, and gives the witness spouse
alone has the privilege to testify adverselycannot be compelled or foreclosed.
Trammel v. US (US 1980) (wife was an unindicted co-conspirator under immunity).
b. Confidential Communications applies in all cases to cover confidential
communications which are intended to be confidentialthe privilege is held by both
spouses.

Newspersons Privilege

1. Most states have statutory shield laws

a. State statutes cannot impinge on an accuseds Sixth Amendment right to have
compulsory process for obtaining a witness in his favor. In re Farber (NJ 1978)
(Farber and NY Times held in contemptinfo disclosed to county prosecutor but
cannot is being withheld from the defendant).

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2. No Constitutional First Amendment privilege protecting newspersons from compulsory

disclosure. Branzburg v. Hayes (US 1972) (All of the reporters had witnessed criminal
activity or contemplated criminal activity).
a. Some courts have found a qualified privilege if the judge is satisfied by a fair
preponderance of the evidence that the evidence sought:
i. Is (i) material and (ii) relevant to the defense;
ii. Cannot be secured by any less intrusive means (absolutely no alternative);
iii. The defendant has a legitimate need to see and otherwise use the information.
b. Modern application: bloggers are they the lonely pamphleteer that need
protection.

Miscellaneous Privileges

1. Fifth Amendment against self-incrimination: (1) compulsion to provide (2) testimonial

evidence (3) that would subject the person to criminal liability.
2. There is a priest-parishioner privilege which protects against disclosing confessions made to
the priest (i) in confidence and (ii) in his professional capacity.
3. No accountant-client privilege
4. No parent-child privilege to limit the parent from testifying against the child or the child
against the parent. In re Grand Jury (3rd Cir. 1997)

AUTHENTICATION
1. 901(a): Physical evidence must be identified as a prerequisite to admissibility by evidence
sufficient to support a finding that the matter is what its proponent claims.
a. Computer Evidence requires proof of two chains of custody
i. Physical Chain what happened to the computer and hard drive
ii. Logical Chain what happened to the data on the computer.
2. 902 provides documents that self-authenticate
a. E.g. documents under seal, newspapers, etc.
b. Under 902(11) business records can be authenticated w/o putting a witness on.

BEST EVIDENCE RULE

1. 1002: Requirement of Original: To prove the content of a writing, recording, or
photograph, the original is required, except as otherwise provided.
a. Note that all business records must satisfy the best evidence rule.
b. Limit: The rule does not apply to limit oral testimony about, e.g., describing an
object or something that also happens to be documented in writing.
i. Herzig v. Swift & Co. (2nd Cir. 1945) (partnership earnings).
c. Examples
i. Sirico v. Cotto (oral testimony interpreting X-rays is secondary evidence
for the X-ray itself. P needed to explain failure to produce original).

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ii. The best evidence rule also applies to films (i.e. moving photographic
pictures) People v. Enskat (CA App. 1971).
iii. Meyers v. US (DC Cir. 1948) (allowing Senate recorded testimony to be
orally recounted).

2. 1003: Admissibility of Duplicates: Duplicate admissible as original unless (i) genuine

question as to authenticity or (ii) unfair under circumstances.

3. 1004: Admissibility of Other Evidence by Contents

a. The original is not required and other evidence of the content of a writing,
recording, or photograph is admissible if
i. (1) Originals lost or destroyed (and not done by proponent in bad faith)
ii. (2) Originals not obtainable (by judicial process)
iii. (3) Original in possession of Opponent (and the party was put on notice)
iv. (4) Collateral matters (not closely related to the controlling issue)

4. Minor Rule
a. 1005: Public Recordscontents may be proved by a certified copy.
b. 1006: Summaries of Voluminous materials
c. 1007: Contents may be proven by testimony or deposition of the party opponent
or by that partys written admission.

JUDICIAL NOTICE
1. 201 Judicial Notice
a. Covers facts generally known within the territorial jurisdiction OR capable of
accurate and ready determination.
i. 201(d): if requested and supplied with the necessary information, the
court shall take notice. May also take sua sponta.
b. Any courtincluding an appeal courtmay take judicial notice of a fact to fill
out a record.
c. Jury
i. Judicial notice binds the jury as conclusive in civil cases but only requires
that the jury may accept as conclusive in criminal cases. See 201(g).
d. Limit: if there is any dispute, the fact needs to be proven out.

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