Griffin - Evidence Outline

Evidence 245.
02 Course Outline
Professor Lisa Griffin Fall 2016
Table of Contents
Introduction to Evidence ....................................................................................................................................................... 2
I. Purpose and Policies of the Federal Rules of Evidence – FRE 102 .............................................................2
II. Function of the Federal Rules of Evidence – FREs 606(b), 103, 104, 105, 611 ....................................2
III. Analyzing Admissibility..........................................................................................................................................3
Relevance .....................................................................................................................................................................................3
I. Definition of Relevance – FREs 401, 402 .............................................................................................................3
II. Conditional Relevance – FRE 104(b) ...................................................................................................................4
III. Narrative Relevance – Old Chief...........................................................................................................................4
IV. Excluding Relevant Evidence – FREs 403, 407, 408, 409, 410, 411 ........................................................4
Character and Habit .................................................................................................................................................................7
I. Propensity Evidence – FRE 404(a) .........................................................................................................................7
II. Other Acts Evidence – FRE 404(b) ........................................................................................................................8
III. Habit Evidence – FRE 406 ......................................................................................................................................9
IV. Propensity Evidence in Sexual Assault Cases – FREs 413, 414, 415 .................................................... 10
V. Rape Shield – FRE 412 ............................................................................................................................................ 10
VI. Character for Truthfulness – FREs 404(a)(3), 607, 608, 609 ................................................................. 11
Hearsay ...................................................................................................................................................................................... 12
I. Introduction to Hearsay – FREs 801, 802, 805 ............................................................................................... 12
II. Exemptions – FRE 801(d) ..................................................................................................................................... 14
III. Exceptions – FRE 803, 804, 807 ........................................................................................................................ 16
IV. Confrontation Clause ............................................................................................................................................ 19
Impeachment ........................................................................................................................................................................... 22
I. Manners of Impeachment ...................................................................................................................................... 22
II. Evidence Used for Impeachment ....................................................................................................................... 23
III. Rehabilitation ......................................................................................................................................................... 23
Constitutional Issues ............................................................................................................................................................. 24
I. Confrontation Clause ............................................................................................................................................... 24
II. Bruton Doctrine........................................................................................................................................................ 24
III. Compulsory Process ............................................................................................................................................. 24
Opinion and Expert Testimony ......................................................................................................................................... 25
I. Lay Opinion Testimony – FREs 701, 704, 704 ................................................................................................. 25
II. Expert Testimony – FREs 702, 703, 704, 705 ................................................................................................ 25
Authentication ......................................................................................................................................................................... 28
I. Authenticating Documents – FREs 901, 902 ................................................................................................... 28
Best Evidence ........................................................................................................................................................................... 29
I. Rationale and Application – FREs 1001, 1002 ................................................................................................ 29
II. Requirements – FREs 1001, 1003, 1004 ......................................................................................................... 30
Privileges ................................................................................................................................................................................... 30
I. Elements of a Privileged Relationship .............................................................................................................. 30
II. Sources of Privilege Law – FRE 501 .................................................................................................................. 31
III. Conflicting Privileges/Compulsory Process ................................................................................................ 31
IV. Recognized Privileges .......................................................................................................................................... 31
V. Rejected Privileges .................................................................................................................................................. 33
VI. Waiver – FRE 502 ................................................................................................................................................... 33
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Evidence 245.02 Course Outline
Introduction to Evidence
I. Purpose and Policies of the Federal Rules of Evidence – FRE 102
A. FRE 102 Purpose
1. Accuracy: “to the end of ascertaining the truth”
2. Fairness: “administer every proceeding fairly”
3. Efficiency: “eliminate unjustifiable expense and delay”
4. Legitimacy: “promote the development of evidence law”
5. Justice: “securing a just determination”
6. Consistency
7. Precision
II. Function of the Federal Rules of Evidence – FREs 606(b), 103, 104, 105, 611
A. FRE 606(b) – jurors cannot testify about their deliberations; jurors can testify about
extraneous information or outside influences that improperly affect the jury
1. Distinguish between internal “mental processes” of the jury and external influences
a. Not a physical distinction (i.e. in or out of jury room)
b. Drug and alcohol use is not an external influence (Tanner v. United States)
c. Newspaper article about the case or extra-judicial evidence slipped to the jury is
an external influence
d. Past experiences are internal influences that a juror brings to the jury room and
testimony about a juror lying about those experiences during voir dire is not
permitted (Warger v. Shauers)
e. Juror’s racial bias may implicate constitutional right to an impartial jury (Peña-
Rodriguez v. Colorado)
f. Third parties (ex. bailiff, lawyers, bystanders) can testify about what they saw the
jury doing
2. Rationale
a. Freedom of deliberation
b. Finality of the verdict
3. Consequence
a. Control inputs (evidence offered at trial) not outputs (verdicts)
B. FRE 103 Rulings on Evidence – objections; rules of evidence are not self-executing
C. FRE 104 Preliminary Questions – judge decides what information will be heard
(admissibility); jury decides what weight to give that information (weight)
1. 104(a) – court decides whether a witness is qualified, a privilege exists, or evidence is
admissible by sufficient evidence (preponderance of the evidence)
a. Court can consider all evidence, even evidence that is not admissible except for
privileges
2. 104(b) Conditional Relevance – court decides whether a reasonable jury could find
the existence of a condition by sufficient evidence (preponderance of the evidence)
a. Huddleston standard: sufficient evidence = preponderance of the evidence
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b. Artificial, but is different from the judge finding the existence of the condition
c. Court can only consider admissible evidence (that the jury will ultimately hear)
D. FRE 105 – limiting instructions to limit evidence to its proper scope/purpose
E. FRE 602 Personal Knowledge
1. A witness may testify only if sufficient evidence is introduced to support a finding
that the witness has personal knowledge of the matter
a. 104(b) determination for the jury
b. A witness’s own testimony can be the evidence that proves personal knowledge
4. FRE 611 Mode and Order of Examining Witnesses and Presenting Evidence
1. 611(a) – court exercises “reasonable control” over the mode of questioning and the
order of the witnesses
2. 611(b) – cross-examination is limited to the subject matter of direct examination and
matters affecting credibility of the witness
3. 611(c) – leading questions are generally not allowed on direct examination, but are
allowed on cross-examination
III. Analyzing Admissibility
A. Know the factual and legal context
B. Identify the piece of evidence in question
C. Articulate what the evidence is being offered to prove
D. Is the probative value substantially outweighed by unfair prejudice (FRE 403)
Relevance
I. Definition of Relevance – FREs 401, 402
A. FRE 401 Test for Relevant Evidence
1. Permissive standard
2. 401(a) – probative requirement (“it has any tendency to make a fact more or less
probable than it would be without the evidence”)
a. Probative value = relationship between evidence and a provable fact
b. Show the chain of inferences that connects the evidence to the case
3. 401(b) – materiality requirement (“the fact is of consequence in determining the
action”)
a. Fact does not have to be disputed, though probative value may be decreased if the
fact is not at issue (State v. Bocharski)
b. Whether evidence is material depends on the substantive law governing the action
4. FRE 402 (admissibility) – “Relevant evidence is admissible unless any of the following
provides otherwise: the U.S. Constitution; a federal statute; these rules; or other rules
prescribed by the Supreme Court [ex. FRCP]. Irrelevant evidence is not admissible.”
a. Permissive rule
b. Rest of the FRE catalogue exceptions to this rule
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II. Conditional Relevance – FRE 104(b)

A. FRE 104(b) – judge makes the initial determination that the evidence is sufficient for a
reasonable jury to find the existence of the fact on which relevancy depends
1. Huddleston standard: sufficient evidence = preponderance of the evidence; judge
must find that a reasonable jury could find the existence of the condition by a
“preponderance of the evidence”
III. Narrative Relevance – Old Chief
A. Old Chief – opposing party cannot stipulate away the case; evidence can be important
because it “has force beyond any linear scheme of reasoning” such as:
1. Descriptive richness
2. Satisfying expectations
3. Narrative relevance
4. Morally reasonable verdicts
IV. Excluding Relevant Evidence – FREs 403, 407, 408, 409, 410, 411
A. FRE 403 – “The court may [permissive standard] exclude relevant evidence if its
probative value is substantially outweighed by a danger of” certain concerns
1. “Probative value” may be decreased if the fact is not at issue
a. Establish probative value by showing with confidence the inferences that will be
drawn if the evidence is admitted
b. Example: Flight evidence (United States v. Myers)
i. From ∆’s behavior to flight
ii. From the flight to consciousness of guilt
iii. From consciousness of guilt generally to consciousness of guilt concerning
this particular crime
iv. From consciousness of guilt concerning this particular crime to actual guilt
2. Concerns that must substantially outweigh probative value:
a. Unfair prejudice
i. Will the evidence lead to decision-making on an improper (e.g. emotional)
basis?
ii. Will a limiting instruction counteract the effect of the evidence?
iii. Can the jury effectively weigh the evidence? (e.g. evidence of a lesser crime
like marijuana use v. charged crime like murder; sarcasm; statistics)
iv. Persuasive force of the evidence is not a factor to be considered in
determining unfair prejudice; all evidence is prejudicial, but this rule only
concerns “unfair prejudice” (Commonwealth v. Serge)
v. Can the cost of producing/creating evidence be a source of unfair prejudice?
(Commonwealth v. Serge – judges disagree about this with regard to
computer-generated animation presented by the prosecution)
vi. Be wary of evidence that is about the ∆ in particular, rather than evidence that
is about the perpetrator of the charged crime
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vii. A party that loses an admissibility argument on “unfair prejudice” grounds

can offer to alter the evidence to decrease the prejudice (e.g. change pictures
to black and white, introduce a transcript instead of audio)
b. Confusing the issues
c. Misleading the jury
d. Undue delay
e. Wasting time
f. Needlessly presenting cumulative evidence
i. These last three show that efficiency and time are a big concern
B. Specialized Relevance Rules – as a matter of law, this evidence fails the FRE 403
balancing test
1. FRE 407 Subsequent Remedies
a. Bars subsequent remedial measures to prove negligence, culpable conduct,
product defect, or need for warning
b. Allows subsequent remedial measures for other purposes “such as” [not exclusive]
impeachment or, “if disputed” ownership, control, feasibility (with limiting
instructions)
c. Rationale = to encourage remedies/improvements (policy), and to a lesser degree
because the subsequent remedy is not particularly probative of negligence
(relevance)
2. FRE 408 Compromise
a. Bars compromise/attempts to compromise and conduct/statements in negotiations
to prove the validity or amount of the claim or to impeach by prior inconsistent
statement
i. Does not explicitly bar apologies (though many states do); apologies that are
terms of the settlement will likely be excluded, but apologizes that are
adjacent to the settlement will likely be admitted
ii. Evidence of compromise with a third person making a similar claim is also
excluded
b. Allows compromise/attempts to compromise and conduct/statements in
negotiations for other purposes “such as” [not exclusive] proving bias, lack of
undue delay, or efforts to obstruct a criminal investigation (with limiting
instructions)
i. Evidence of inducing a creditor to settle for less than the amount due is
admissible
c. Rationale to encourage compromise (policy) and to a lesser degree because the
compromise or offer to compromise is not particularly probative of wrongdoing
(relevance)
3. FRE 409 Medical Expenses
a. Bars offer or payment of medical expenses to prove liability
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b. Allows conduct or statements made in the course of offering assistance as long as

they are not part of the promise to pay
c. Rationale to encourage assistance and because offers a typically made from
“humane impulses” rather than from a sense of wrongdoing (policy)
4. FRE 410 Pleas
a. Bars against the ∆ guilty pleas later withdrawn, nolo contendere plea, statements
in plea proceedings, statements in plea talks with prosecutors (note: discussions
with police are not protected)
i. Accepted/final guilty pleas are part of the record and are not included in this
rule
ii. Immunity negotiations ≠ plea negotiations (United States v. Biaggi)
b. Allows pleas/statements in plea proceedings to complete a partial account of plea
discussions or in a perjury prosecution if the statement was under oath, on the
record, and in counsel’s presence [exclusive] (with limiting instructions)
i. Technically allows ∆ to offer the prosecution’s plea offer as evidence that the
prosecution’s case is weak or that he refused a plea out of consciousness of
innocence, but in practice this is likely excluded under FRE 403 as not
particularly probative (and as defeating the purpose of the exclusion)
c. Rationale to promote plea bargaining (policy) and to a lesser degree, pleading out
may be evidence of risk averseness rather than evidence of actual guilt (relevance)
5. FRE 411 Liability Insurance
a. Bars liability insurance or lack of it to prove negligence or wrongful action
b. Allows liability insurance or lack of it for other purposes “such as” [not exclusive]
proving bias or agency, ownership, or control (with limiting instructions)
c. Rationale to encourage obtaining insurance and to discourage jury’s from
awarding damages just because they will be paid by an insurance company
(policy) and it is not likely that the insured are actually more careless than the
uninsured (relevance)
i. Arizona Jury Project suggests the “deep pocket” policy concern is not a
reality, though jurors do speculate about insurance
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Character and Habit

I. Propensity Evidence – FRE 404(a)
A. Prohibited Uses: FRE 404(a)(1) – character evidence is not admissible to prove that on a
particular occasion the person acted in accordance with that character or trait (propensity
evidence is not allowed)
1. Rationale: Propensity evidence is unfairly prejudicial (it is often probative)
a. Jurors will overweigh character evidence
b. Jurors may punish ∆ for past acts regardless of guilt for the offense charged
c. Confusing and distracting (especially if “mini-trial” regarding ∆’s past acts)
2. Note “the person acted”; character evidence is offered in a trial to prove that another
party should have known something, etc., is not propensity evidence
B. Alternative purposes (not “exceptions”) – character evidence is admissible for alternative
purposes (with limiting instructions) such as:
1. Intent
2. Motive
3. Knowledge
C. “Exception” for elements of an offense/defense: character evidence is admissible if
required to prove an element of an offense/defense such as:
1. Hate crime – requires evidence of racial bias
2. Custody dispute – best interests of the child may require evidence of a parent’s
character
3. Self defense – a ∆’s reasonable fear of imminent danger may depend on a victim’s
character
D. Exceptions for a Defendant in a Criminal Case: FRE 404(a)(2)(A)
1. Character evidence of ∆ regarding “pertinent trait” is admissible if ∆ opens the door
(“mercy rule”)
E. Exceptions for a Victim in a Criminal Case: FRE 404(a)(2)(B)–(C)
1. Character evidence of alleged victim regarding “pertinent trait” is admissible if ∆
opens the door
a. Prosecution can offer evidence to rebut it
b. Prosecution can offer evidence of ∆’s same trait
2. Homicide case: prosecution can offer evidence of victim’s peacefulness to rebut
evidence that victim was first aggressor
F. Exceptions for a Witness: FRE 404(a)(3)
1. Character for truthfulness is treated differently
2. Applies to all witnesses in all cases (civil and criminal)
3. Governed by FRE 607, 608, 609 (rules on impeachment)
G. FRE 405: Methods of Proving Character
1. By reputation or opinion – character witness can testify on direct examination to the
reputation of the person and to his/her opinion of the person
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a. At common law (Michelson) character witnesses could only testify to reputation

(not to his/her own opinion) and only ∆ could open the door for character
testimony
2. By specific instances of conduct – character witness can testify to specific acts by the
person only if:
a. The character trait is an essential element of the charge, claim, or defense
i. Not propensity evidence – the existence of the trait is the thing being proved
ii. E.g. libel/slander defense, custody disputes, defense to entrapment
b. On cross-examination of a character witness
i. Test the witness’s knowledge of the person to determine if the witness’s
reputation or opinion testimony is credible
c. Note: specific instances of conduct = most convincing/probative but also most
prejudicial, most likely to confuse the jury, and most likely to consume time
3. Note: we limit character evidence to criminal cases (except for character for
truthfulness)
a. Standard of proof is high (beyond a reasonable doubt) and character evidence can
refute the Government’s case by itself
b. ∆ gets every chance to defend against the charges given the liberty interest at
stake
c. ∆ gets choice to open the door and will only do so if it is beneficial
4. Note: challenges of character evidence
a. ∆ can become character witness for himself without meaning to (when they
testify)
b. Jurors might underweigh positive character evidence but overweigh bad character
evidence
c. Confining questions to the “pertinent” trait (e.g. ∆ on trial for a violent crime who
has committed fraud in the past should not be described as “law-abiding” because
the fraud will come out on cross-examination)
II. Other Acts Evidence – FRE 404(b)
1. Prohibited Uses: FRE 404(b)(1) – evidence of a crime, wrong, or other act is not
admissible to prove a person’s character or that on a particular occasion the person acted
in accordance therewith (propensity evidence is not allowed)
1. Deals with prior, contemporaneous, and subsequent acts
2. Permitted Uses (not exceptions): FRE 404(b)(2) – this evidence is allowed for other
purposes (with limiting instructions)
1. In a criminal case, ∆ can request notice before trial (and prosecutor must give that
notice)
2. Huddleston 104(b) standard applies to other acts evidence: can a reasonable jury
conclude that the acts were similar by a preponderance of the evidence
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a. Charged offense: selling stolen videotapes, ∆ claims he didn’t know they were
stolen
b. Other act: selling stolen television sets, only relevant if ∆ knew they were stolen
c. Result: jury determines whether television sets were stolen
3. Permitted uses include [not exclusive]:
i. Motive
ii. Opportunity
iii. Intent
iv. Preparation
v. Plan
vi. Knowledge
a. Must be specialized knowledge
vii. Identity
a. Proof of modus operandi; inference must be “nobody else but ∆ could have
done this” not just “∆ could have done this”
viii. Absence of accident/mistake
a. Used to refute a claim/defense of mistake
b. Distinguish from “Doctrine of Chances”
ix. “Reverse” 404(b)
a. Always in context of alternative perpetrator defense
b. Goes to identity (proving that ∆ is not the one who did the crime) but lower
standard of similarity than in regular 404(b) cases
x. Narrative integrity/“Inextricably intertwined” acts
III. Habit Evidence – FRE 406
A. FRE 406 Habit; Routine Practice – Evidence of a person’s habit or organization’s routine
practice may be admitted to prove that on a particular occasion the person or organization
acted in accordance with the habit or routine practice
1. Does not need to be corroborated
2. Must be morally neutral
a. Drug use ≠ morally neutral
i. Invariable alcohol use is less problematic, but still raises concerns about
whether it is morally neutral (will be fact-specific)
b. Abstinence = morally neutral (Griffin says admissible every time)
c. Religious observance ≠ morally neutral
i. But religious observance paired with geography, timing, etc. could be
admissible (e.g. driving to church every Sunday morning at 8:00am)
3. Habit = regular to the point of being predictable; invariable; “semi-automatic”
4. Most common use is to show the routines of an organization
5. Rationale: people act in conformity with habit; jury will not overweigh or punish
habit evidence
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IV. Propensity Evidence in Sexual Assault Cases – FREs 413, 414, 415
A. In a criminal cases for sexual assault or child molestation (413 and 414) and in a civil
cases involving claims of either sexual assault or child molestation (415), evidence that
the committed any other sexual assault or child molestation is admissible for any purpose
to which it is relevant
1. No time limit or statute of limitations applies to the other acts
2. Other acts do not need to yield a charge or conviction
B. Disclosure to ∆ (in a criminal case) or opposing party (in a civil case) is required
C. Rationale: make sexual assault/child molestation cases easier to try
1. Need to corroborate victim testimony
2. Judicial Conference opposed these rules
V. Rape Shield – FRE 412
A. FRE 412(a) Prohibited uses in all cases (civil and criminal) involving sexual misconduct
(not just in which a sex crime is charge, e.g. could apply in a kidnapping case)
1. Bars evidence of a victim’s sexual behavior
a. Including sexual experiences, use of contraception, pregnancy, abortion, STDs,
posing nude, sexual fantasies, etc.
b. Applies to subsequent and prior behavior but not to behavior that is
contemporaneous with or intrinsic to the incident at issue
2. Bars evidence of a victim’s sexual predisposition
a. Including dress, lifestyle, and some forms of speech
B. FRE 412(b)(1) Exceptions in criminal cases
1. Allows specific instances of victim’s sexual behavior to refute physical evidence
a. E.g. to prove that someone other than the ∆ was the source of semen
2. Allows specific instances of victim’s sexual behavior with the accused
a. If offered by the prosecutor
b. If offered by ∆ to prove consent
c. Evidence whose exclusion would violate ∆’s constitutional rights (extends to
substantive evidence and impeachment evidence)
i. 6A rights to expose bias or motives to falsify testimony (Olden v. Kentucky)
C. FRE 412(b)(2) Exceptions in civil cases
1. Allows otherwise admissible evidence (meaning it complies with other FREs) of
sexual behavior or sexual predisposition if its “probative value substantially
outweighs the danger of harm to any victim and of unfair prejudice to any party”
a. Burden is on proponent
b. Heightened reverse FRE 403 weighing
i. Heightened because harm to the victim is on the scale
2. Allows evidence of victim’s reputation if victim puts it in issue
D. FRE 412(c) Procedural Requirements
1. Notice in the form of a written motion at least 14 days before trial
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2. In camera hearing including all parties and the victim

3. Sealing of the motion and record of the hearing (generally, but not always ordered)
E. Prior false accusations
1. Difficult to tell if prior accusations are false
2. Difficult to tell if the prior accusations fall under the umbrellas of “sexual behavior”
a. If the accusations are false stories about a real sexual encounter, they fall under
the umbrella of sexual behavior and are barred
b. If the accusations are false and no sexual encounter ever occurred, there is no
prior sexual behavior and the false allegations can be used as impeachment
evidence
F. Rationale
1. Encourage victims to come forward
2. Encourage victims to testify and protecting them when they do
a. Note there are no alternative purposes via which the prohibited evidence can be
admitted
3. Make prosecutions easier
VI. Character for Truthfulness – FREs 404(a)(3), 607, 608, 609
A. FRE 607 Who May Impeach a Witness
1. Any party, including the party that called the witness, may attack the witness’s
credibility
B. Rehabilitation and Extrinsic Evidence
C. FRE 404(a)(3) Character Evidence Exception for a Witness
1. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
2. Allows propensity evidence relating to propensity for truthfulness
3. Rationale: truthful testimony is the crux of our justice system and all witnesses put
their propensity for truthfulness/their credibility at issue
D. FRE 608 – A witness’s character for truthfulness/untruthfulness can be attacked or
supported by:
1. Reputation or opinion evidence
a. Evidence of truthful character is admissible only after witness’s character for
truthfulness has been attacked
b. Evidence of bias is not an attack on credibility
c. Must establish that the character witness has enough knowledge to testify to the
witness’s reputation in the community (analyze “community” rigorously)
2. Specific instances of conduct
a. Evidence of specific instances of conduct are admissible only on cross-
examination of the witness himself or the character witness
b. Extrinsic evidence is not allowed to prove the specific instance of conduct; a
lawyer is stuck with the answer he gets on cross-examination
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c. A lawyer must have a good-faith, reasonable basis for inquiring into a specific
instance of conduct (no fishing expeditions)
E. FRE 609 – A witness’s criminal convictions can be used as a method of impeachment
1. Witness other than a criminal ∆ – evidence that a witness other than a criminal ∆ has
been convicted of a felony punishable by death or more than one year imprisonment
is admissible subject to FRE 403 weighing (does unfair prejudice substantially
outweigh probative value?)
a. FRE 403 weighing concerns prejudice to the ∆/party, not the witness
2. Testifying criminal ∆ – evidence that a criminal ∆ has been convicted of a felony is
admissible if its probative value outweighs its unfair prejudicial effect
a. Reverse and modified FRE 403 weighing – probative value outweighs unfair
prejudice (focus on probative value; not “substantially outweighs” as in FRE 403)
3. Crimes of dishonesty/false statements (all witnesses) – Evidence of a witness’s
conviction for a crime that requires proof of an act of dishonesty or false statement is
admissible
a. No FRE 403 weighing; “shall” be admitted
b. E.g. fraud, perjury, embezzlement, false pretense
c. Applies to all felonies and misdemeanors
4. Time limit (all witnesses) – if more than 10 years have passed from the witness’s
conviction or release from incarceration, the conviction is only admissible if its
probative value substantially outweighs its prejudice
a. Reverse FRE 403 weighing – probative value substantially outweighs unfair
prejudice (focus on probative value)
5. Pardoned/annulled convictions – excluded if the witness has no subsequent felony
convictions
6. Pardoned/annulled convictions based on a finding of innocence – not admissible
7. Juvenile convictions – only admissible with respect to a witness other than a criminal
∆ if necessary for a fair determination of guilt or innocence in a criminal case
8. Pendency of an appeal – does not affect admissibility
9. Gordon Factors – factors to consider in FRE 609 weighing
a. Nature/seriousness of prior convictions v. probative worth with respect to veracity
b. Recent/remote nature of the convictions and witness’s conduct since
c. Similarity b/t past crime and charged conduct
d. Importance of ∆’s testimony
e. Centrality of credibility issue
Hearsay
I. Introduction to Hearsay – FREs 801, 802, 805
A. Definition: Out of court statement made for the truth of the matter asserted
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1. Statement = oral assertion, written assertion, nonverbal conduct, if the person

intended it as an assertion (intent matters)
a. Assertions can be in the form of questions
b. Assertions can be implied
c. Assertions can be indirect
2. Matter asserted = matter asserted in the hearsay statement (not by the proponent of
the evidence)
3. Out of court = includes statements made in other trials, includes statements made by
the testifying witness on earlier occasions
B. Prohibition: “Hearsay is not admissible unless any of the following provides otherwise: a
federal statute; these rules; or other rules prescribed by the Supreme Court”
C. Rationale: reliability
1. We are concerned about the witness’s reliability  with hearsay, we have to be
concerned about the reliability of both the witness and the declarant
a. Sincerity (including bias)
b. Perception (e.g. poor eyesight)
c. Narration (including ambiguities)
d. Memory
2. Safeguards in the courtroom ease concerns about the witness’s reliability. Hearsay
declarant is not subject to the same safeguards
a. Oath/threat of perjury
b. Observation of witness’s demeanor
c. Cross-examination
D. Hearsay analysis
1. Was the statement made out of court?
a. Separate testifying witness from hearsay declarant (even if they are the same
person)
2. Was the statement intended as an “assertion”?
3. What is the statement being offered to prove?
a. Does it matter whether the statement is true?
b. Is the statement relevant even if it is false?
c. Do we need to enter the declarant’s mind to determine the truth?
4. If the statement is hearsay, does it fall within an exemption/exception?
a. Whether a statement falls within an exemption of exception is a 104(a)
determination for the court
b. Whether a hearsay declarant has personal knowledge of the subject of the
statement is a 104(b) determination for the jury
c. Multiple levels of hearsay are permitted as long as there is an
exception/exemption for each level – FRE 805
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5. If an exception/exemption applies, but the statement is offered against a criminal ∆,

the Confrontation Clause applies:
a. Is the statement testimonial?
b. If the statement is testimonial, the declarant must testify or be unavailable and
subject to past cross examination by ∆ or ∆ must have forfeited his confrontation
right
6. Even assuming the hearsay and constitutional challenges are met, does the statement
pass FRE 403 weighing?
E. Examples of statements offered for a purpose other than their truth
1. Statements offered to demonstrate their effect on the listener (e.g. notice, duress, fear)
2. Statements offered to show the speaker’s state of mind (e.g. knowledge, confusion)
3. Verbal acts (e.g. fraud, defamation – the statements themselves are the offense)
4. Performative utterances (e.g. “I now pronounce,” “The price is,” “I hereby cancel”)
5. Statements offered as circumstantial evidence (e.g. proof somebody can speak a
particular language, proof somebody was alive because they spoke)
II. Exemptions – FRE 801(d)
A. Admissions by a party opponent offered against the party
1. Rationale
a. Reliability – most parties will not lie about something against their interest (and
prior hearsay statements by a party are usually introduced because they are
statements against interest)
b. A party can take the stand to explain the statement
i. Criminal ∆s have incentives not to testify
ii. Party is not the actual declarant in the case of adoptive/vicarious admissions
iii. For this reason, admissions do not require firsthand knowledge from declarant
2. Direct admissions
3. Adoptive admissions
a. Did the party hear and understand the statement?
b. Did anything prevent the party from refuting the statement?
i. Reasonable fear of violence or other motive to stay silent
ii. Miranda – after Miranda warnings have been given, a party cannot adopt
statements made during custodial interrogation (but a party can adopt
statements during pre-Miranda noncustodial interrogation and possibly even
pre-Miranda custodial interrogation)
c. Did the circumstances call for a response?
d. Did the party fail to respond?
i. Silence can be an adoption if the circumstances warrant a response
4. Authorized admissions
a. Statements by a spokesperson on behalf of the party
b. Includes statements by the agent to the principal
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c. Court makes 104(a) determination that the declarant is authorized

5. Vicarious admissions
a. Statements by an employee during the course of employment
b. Must be related to a matter within the scope of employment
6. Coconspirator admissions
a. Bourjaily v. United States conditions for admitting a coconspirator’s statements as
an adoptive admission – 104(a) determinations for the court (court can use the
statement as evidence for the existence of a conspiracy)
i. A conspiracy existed at the time the hearsay statement was made (not a
technical criminal law standard)
ii. The conspiracy included both the declarant and the party
iii. The declarant spoke in furtherance of the conspiracy (confessions ≠ in
furtherance of the conspiracy; by the time law enforcement is involved,
conspiracy is usually over)
B. Declarant-witness’s prior statement
1. These statements come in substantively
a. Stringent conditions for admitting past statements as either hearsay exemptions or
exceptions because the statements come in as substantive evidence (contrast this
with past statements used for impeachment that come in under FRE 613)
2. Inconsistent statement given under penalty of perjury at a trial, hearing, or other
proceeding (including a deposition)
a. Jury gets to decide who to believe: the witness testifying now at trial or the
declarant who testified/made the earlier statement
b. Tension between prior statement and in-court testimony is sufficient to establish
an “inconsistency”
c. Changes in knowledge, specificity, and memory are inconsistencies
i. Memory loss is a tricky subject
d. Statement must be made under oath
i. Grand jury testimony (prosecutor’s rule = lock in your witness)
ii. Does not include statements to law enforcement
e. Witness must be subject to cross examination about the statement
i. Witness, not declarant, is subject to cross examination (which is why grand
jury testimony counts)
ii. Submitting to questioning about the circumstances under which the prior
statement was made even if the testimony is to lack of memory and is not
responsive to the content of the statement
iii. Memory loss is difficult; main question is: is the witness who loses his
memory available for a cross examination such that the adverse party can
discredit the witness in anyway (see Owen, class notes from 10/19)
15
3. Consistent statement offered to (i) rebut the express or implied charge of recent
fabrication of improper influence or motive or (ii) to rehabilitate a declarant’s
credibility
a. Repair/rehabilitation function so only available after witness’s credibility has
been attacked
b. Statement offered to rebut a charge of fabrication must have been made before the
alleged motive to fabricate arose (Tome)
c. Must be subject to cross examination
4. Statement of identification made after declarant perceived a person
a. Requires some form of “that’s the one” identification from a line up, photo array,
identification from a sketch, voice identification
b. Must be subject to cross examination
c. Rationale: identification made closer to the incident will be more reliable than an
in-court identification and less susceptible to pressure/suggestions/intimidation
III. Exceptions – FRE 803, 804, 807
A. Unrestricted exceptions – FRE 803
1. Present sense impression
a. Description or explanation of an event or condition while the declarant is
perceiving the event or immediately thereafter
b. Rationale: reliability (no risk of memory failure, minimum possibility/time for
deception)
2. Excited utterance
a. Excited reaction (determined subjectively) to an external stimulus while declarant
is under the stress of excitement caused by the stimulus
b. Rationale: reliability (little risk of memory failure, excitement minimizes
possibility of fabrication) and necessity (reluctance to silence victim’s cries)
3. State of mind (aka then-existing mental, emotional, or physical condition)
a. Statement of intention, emotion, sensation, or physical condition that is forward
looking (with the exception of wills) offered to prove declarant’s future conduct
b. Chain of inferences has to be forward looking, not backward looking
i. Hillmon – Walters’s letters state his intention to go away with Hillmon 
Walters did intend to go away with Hillmon  Walters in fact went away
with Hillmon; inferences are all looking toward the future (what happened
after Walters wrote the letter
ii. Shepard – Mrs. Shepard said that Dr. Shepard poisoned her  Mrs. Shepard
thought that Dr. Shepard poisoned her  Dr. Shepard in fact poisoned her;
inferences are all looking backward (what happened before Mrs. Shepard
made the statement)
c. Do not import a third party’s intentions into the declarant’s statement of intention
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i. For the statement “I’m going to the parking lot to meet Angelo,” we would
need independent evidence to corroborate that Angelo will be/was in the
parking lot because the speaker’s intent is different from Angelo’s intent
d. Rationale: reliability (minimal possibility of misperceiving your own sensations,
only present conditions allowed so no memory failure, flaws in statement of
intention are readily apparent to fact-finder, think New Year’s resolutions) and
necessity
4. Medical diagnosis or treatment
a. Statement made for the purpose of diagnosis or treatment
i. Iron Shell two-part test: (1) is the motive of the declarant to get medical help,
and (2) is the statement sufficiently reliable for a doctor to rely on in
administering treatment
ii. Includes statements of medical history, present sensations and symptoms (can
also come in under present sense impressions)
iii. Includes statements made to persons other than doctors (such as law
enforcement and paramedics)
iv. Statements from doctors to patients/families are more difficult: is the doctor
telling the patient/family to do something in furtherance of the care or just to
inform the patient/family
v. Includes statements between caretakers (e.g. statements between paramedics
and ER doctor or statements between nurses and doctors or parents and
doctors)
vi. Can include the cause of injury/condition but only if necessary for diagnosis
or treatment (e.g. it is relevant whether an elderly man fell because he was
abused by a caregiver or because he was dizzy)
5. Recorded recollection
a. Statement written or adopted by the witness at the time of the event described
i. Requires firsthand knowledge by the witness
ii. Requires witness to testify to the lack of present recollection
iii. Confirmation by the witness in court that the record is accurate (recorded
recollection cannot verify itself)
b. Only allows the recorded recollection to be read to the jury but not admitted as an
exhibit (unless admitted by an adverse party)
c. Recorded recollection exception ≠ refreshing a witness’s recollection
i. Refreshing a recollection = a technique used to get the firsthand live testimony
from the witness (which is preferred over reading a recorded recollection to
the jury)
ii. Both the exception and the technique require a witness in the witness chair
who testifies to having no present recollection
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iii. Most jurisdictions require a witness to testify that seeing the document will
refresh their memory; counsel can show the witness the document but must
take it away before questioning resumes (artificial, but okay because it is done
in good faith and with the opportunity for cross)
6. Business records
a. Record of a business (broadly defined)
b. Regularly maintained
i. Not prepared specially for litigation
c. Made promptly after the events described
d. Made by a person with knowledge or based on information transmitted by a
person with knowledge
e. Does not apply if source, method, or circumstances call the trustworthiness of the
business record into question
f. Rationale: reliability (inherent trustworthiness of regularly kept records) and
necessity (difficulty in finding the particular employee with personal knowledge
of the particular record)
7. Public records
a. Records of public offices or agencies that:
i. Set for the activities of the office or agency
ii. Set forth matters observed and reported according to a legal duty (except
police reports in criminal cases)
iii. Set forth factual findings resulting from an official investigation in civil cases
and against the government in criminal cases (includes opinions and
conclusions in investigatory reports, Beech Aircraft Corp. v. Rainey)
b. Does not apply if source, method, or circumstances call the trustworthiness of the
business record into question
c. Police reports are not admissible against criminal ∆s (though some courts allow
police department records in as business records if part of the regular business of
the department and not adversarial)
B. Restricted exceptions (witness must be unavailable) – FRE 804
1. Definition of unavailability
a. Privilege
b. Refusal to testify
c. Lack of memory
d. Death or illness
e. Absence from court
f. Note: if proponent of the statement causes the declarant’s unavailability then the
declarant is not considered unavailable
2. Exception for former testimony
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a. Testimony at a prior trial, hearing, or deposition if there was a prior opportunity

for cross examination
i. Criminal case: the party against whom the statement is offered must have had
the opportunity and a similar motive to develop the testimony
ii. Civil case: the party against whom the statement is offered or a predecessor in
interest with a similar motive must have had the opportunity to develop the
testimony
b. Exception for dying declaration
i. Only applies in prosecution for homicide or civil cases (e.g. will dispute)
ii. Personal knowledge required
iii. Statement must be made while declarant believed death was imminent (“hush
of death is impending”)
iv. Statement must concern the cause or circumstances of the death
v. Rationale: reliability (why lie at death) and necessity (no other way to get this
evidence paired with its importance, especially in homicide cases)
c. Exception for a statement against interest
i. Statement against proprietary, pecuniary, or penal interest
ii. Would a reasonable person in the declarant’s statements have made the
statement unless believing it to be true?
iii. Distinguish self-inculpatory statements (admissible under this exception) with
blame-shifting statements (not admissible under this exception)
iv. Mitigating statements are not against interest
v. Criminal cases: need corroborating evidence
C. Residual exception – FRE 807
1. Exception for hearsay not “specifically covered” by exceptions in FREs 803 and 804
a. Statement must have “equivalent circumstantial guarantees of trustworthiness”
b. Statement must be offered as evidence of a material fact
c. Statement must be more probative than any other evidence that the proponent can
procure through reasonable efforts
d. The purposes of the rules and the interests of justice favor admission
2. Applies to evidence “the truth of which no reasonable person could doubt” (Learned
Hand)
3. Origin: Dallas County v. Commercial Union Assurance (58 year old newspaper
article provided proof that a fire had burned the courthouse dome)
4. Very rarely used
5. Rationale: necessity
IV. Confrontation Clause
A. Sixth Amendment: “In all criminal prosecutions the accused shall enjoy the right . . . to
be confronted with the witnesses against him”
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B. Confrontation Clause = guarantee of cross-examination

1. To ignore the procedural guarantee and focus only on the reliability of the evidence
circumvents the process set out by the Confrontation Clause
C. Main question: when is hearsay a violation of the Confrontation Clause?
D. Current doctrine (Crawford v. Washington and its progeny)
1. Out-of-court statements are admissible against criminal ∆ without implicating the
Confrontation Clause if:
a. Statement is not offered for its truth
b. Declarant is cross-examined at trial
c. Declarant is unavailable but ∆ had prior opportunity to cross-examine
d. ∆ forfeited Confrontation right by wrongdoing that was perpetrated with the intent
to prevent testimony
e. Statement is non-testimonial
i. Casual, offhand, or overheard remarks (Crawford)
ii. Statements in furtherance of a conspiracy (Crawford)
iii. At least some business records (Crawford)
iv. Statements 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 (Davis, Bryant)
2. Testimonial statements are constitutionally permissible if
a. Declarant testifies at trial and is subject to cross examination
b. Declarant is unavailable but was subject to cross examination at the time the
statement was made
c. ∆ has forfeited Confrontation Clause rights
3. Testimonial statements
a. Solemn declarations “for the purpose of establishing some fact” (Crawford,
Davis)
b. Prior testimony at a preliminary hearing, before a grand jury, or at a former trial
(Crawford)
c. Statements produced “with the involvement of government officers” or “with an
eye toward trial” (Crawford)
d. Statements made to police when the circumstances indicate that there is no
“ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past facts potentially relevant to later criminal prosecution
(Davis)
e. Affidavits reporting the results of forensic analysis (Melendez-Diaz)
f. Prof. Griffin’s “shortcut” analysis: the statement is probably testimonial if cross
examination is valuable/necessary
E. Development of Confrontation Clause jurisprudence
1. The Mattox Era
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a. Mattox v. United States (1895) – hearsay exceptions are not constitutionally

sufficient, but declarant showing up to answer questions about hearsay is
constitutionally sufficient
2. The Roberts Era
a. Ohio v. Roberts (1980) – took substantive view of the Confrontation Clause;
hearsay that met the rule of necessity and the rule of reliability was
constitutionally sufficient
3. The Crawford Era
a. Crawford v. Washington (2004) – Confrontation Clause concerns only testimonial
evidence; testimonial evidence is only constitutionally sufficient if the declarant
testifies or if the declarant is unavailable but was subject to cross examination
when the statement was made; Court never defines testimonial, but some
possibilities are:
i. Narrow definition: affidavit or ex parte statement that is formalized for use in
court (Justice Thomas’s view)
ii. “Formal” but not “formalized” statements (e.g. police statements, interviews)
iii. Broad definition: any statement that can be used in court
iv. Note: none of these options is actually adopted, but the bottom line is to
beware of Government created evidence
b. Whorton v. Bockting (2006) – Court explicitly says that Crawford overruled
Roberts and clarifies that the Confrontation Clause does not bar admission of
unreliable non-testimonial hearsay (Confrontation Clause only concerns
testimonial evidence)
c. Davis v. Washington/Hammon v. Indiana (2006) – deals with 9-1-1 calls; adopts
objective “primary purpose test” to determine when statements to the police are
testimonial
i. Statements primarily to resolve an ongoing emergency are non-testimonial
ii. Statements primarily to assist a criminal investigation are testimonial
d. Giles v. California (2008) – ∆ forfeits right to confront a witness when ∆ makes
that witness unavailable and the intent was to prevent in court testimony
i. Plain murder ≠ forfeiture
ii. All justices agree that intent to isolate a domestic violence victim could be a
forfeiture (intent must be inferred to make this work)
e. Michigan v. Bryant (2011) – uses “primary purpose” test
i. Could have been a case where Court clarified dying declarations in context of
Confrontation Clause, but the prosecutor never tried to enter the statement as a
dying declaration (came in as an excited utterance)
ii. Scalia/Ginsburg in dissent accuse the Court of focusing on a reliability
analysis reminiscent of the Roberts era
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f. Melendez-Diaz v. Massachusetts (2009) – forensic lab reports are testimonial,

prosecution needs live testimony of a lab tech to accompany a forensic lab report
g. Bullcoming v. New Mexico (2011) – prosecution needs live testimony of the lab
tech who completed the forensic lab report
i. Lab techs are not “mere scrivener[s]” and cross examination about the
particular report is necessary
h. Williams v. Illinois (2012) –DNA analysis relied on by expert witness is non-
testimonial and are not offered for the truth of the matter in this case (they are
only offered to evaluate the expert testimony)
i. Ultimately this decision (4-1-4) is reached because enough justices conclude
that the underlying lab report is not testimonial
ii. Dissent: There is no meaningful distinction between admitting the statements
to evaluate the expert’s opinion and admitting the statements for their truth
i. Ohio v. Clark (2015) – intent of the declarant matters in the primary purpose test;
children rarely have the primary purpose to produce testimonial evidence
F. Hearsay exemptions/exceptions post-Crawford
1. Declarant-witness’s prior statements = unaffected because subject to cross
2. Opposing party’s statements = unaffected because no constitutional right to confront
yourself
3. Present sense impression, excited utterance, state of mind = depends on whether
statement is testimonial
4. Statement made for medical diagnosis or treatment = generally non-testimonial, but
be careful where the medical record functions as a report of factual findings
5. Recorded recollection = unaffected because subject to cross
6. Business records, absence of business records, public records = generally non-
testimonial unless prepared especially for litigation; distinguish between routine and
investigative reports; forensic reports are testimonial; police reports and other
evaluative reports are already barred by the FRE
7. Former testimony of an unavailable witness = has Crawford requirements embedded
in exception
8. Dying declaration = unresolved by Court, but likely admissible (based in dicta in
Crawford) even if testimonial
9. Statements against interest = depends on whether statement is testimonial
10. Statement against a party that wrongfully caused the declarant’s unavailability =
wrongdoing likely extinguishes Confrontation Clause rights, but only if the
wrongdoing is intended to silence the witness (Giles)
Impeachment
I. Manners of Impeachment
A. “Classic” impeachment
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1. Classic or focused impeachment = the witness is lying now

a. Generally more effective than character impeachment
2. Can be “proved up” with extrinsic evidence
3. Methods of “classic” impeachment:
a. Casting doubt on a witness’s power of memory, perception, or accuracy
b. Contradiction by conflicting evidence (including internal inconsistencies)
c. Contradiction by prior inconsistent statement – FRE 613
d. Bias
B. Character-based impeachment – permitted under FRE 404(a)(3)
1. Character-based impeachment = the witness is a liar
a. Character-based impeachment rules explain when you are allowed to call a
witness a liar and how you are supposed to do it
2. Can only be based on intrinsic evidence (the conversation in the court room)
3. Methods of character-based impeachment:
a. Propensity for truthfulness – FRE 608
b. Evidence of a criminal conviction – FRE 609
II. Evidence Used for Impeachment
A. Extrinsic evidence (classic impeachment only)
1. Prior inconsistent statement (with limiting instruction) – FRE 613
a. Not offered for the substance for the statement; offered to show it was made and
is different than what the witness says now (therefore the witness is not credible)
i. The statement does not go to the burden of proof
b. Procedure for introducing prior inconsistent statements for impeachment purposes
i. May question the witness without showing the prior statement to the witness
(but must show it to opposing counsel)
ii. Extrinsic evidence is only admissible if the witness is given the opportunity to
explain or deny the statement and an adverse party gets to cross examine the
witness (this proves up that the statement was made, but still does not go to
the burden of proof)
c. Prior inconsistent statements from compromise/settlement negotiations are not
admissible for impeachment purposes per FRE 408
d. Prior inconsistent statements from plea negotiations are not admissible for
impeachment purposes per FRE 410 (unless ∆ waives that right)
B. Reputation or opinion evidence – FRE 608(a)
C. Specific instances of untruthful conduct – FRE 608(b)
1. On cross-examination (intrinsic evidence/inquiry only)
2. Where character is an element of the crime (extrinsic evidence/proof allowed)
D. Past criminal convictions – FRE 609
III. Rehabilitation
A. Determine whether your witness’s credibility has been attacked
23
1. Evidence of bias ≠ attack on character for truthfulness

2. Whether evidence in the form of a contradiction is an attack on character for
truthfulness depends on the circumstances
3. Has a witness testified that he has a bad opinion of your witness’s character for
truthfulness or that your witness has a reputation for dishonesty?
4. Has a witness or your witness been crossed on your witness’s specific instances of
dishonest conduct?
B. Call character witnesses to testify to the attacked witness’s credibility via reputation or
opinion testimony
1. Character witness can be questioned about specific instances of conduct on cross
Constitutional Issues
I. Confrontation Clause
A. See Confrontation Clause under Hearsay
II. Bruton Doctrine
A. In a trial with co-∆s, the trial court cannot permit the jury to hear an accomplice’s out-of-
court confession even is the court instructs the jury that the confession is only admissible
against the declarant and not against the other ∆
1. Violates Confrontation Clause rights of ∆ against whom it is not admissible because
he cannot cross examine the statement
2. We do not trust limiting instructions in this situation
3. Dissent (White): jury can understand the unreliability of the accomplice’s confession
B. Redacting the ∆’s name and replacing it with a symbol, word, or blank space designating
the deletion does not cure the constitutional problems with admitting the accomplices
out-of-court confession; must conceal the deletion/redaction (Gray v. Maryland)
1. Dissent (Scalia): distinguish between facially incriminating confessions
(constitutionally problematic) and inferentially incriminating confessions (okay)
2. Be aware of unfairness to declarant and co-∆s who are not named in the original
confession when a redaction occurs to hide who is actually referenced (jury may draw
negative inferences where it should not)
3. Dissent (Scalia): distinguish between facially incriminating confessions
(constitutionally problematic) and inferentially incriminating confessions (okay)
C. In a trial with co-∆s, the trial court cannot permit the jury to hear an accomplice’s out-of-
court confession even if the court instructs the jury that the confession is only admissible
against the declarant and not against the other ∆
III. Compulsory Process
A. Constitution guarantees ∆’s a meaningful opportunity to present a complete defense (due
process) and a meaningful opportunity for obtaining witnesses in their favor (6A)
B. Chambers v. Mississippi – ∆ must be allowed to present critical evidence as long as it has
pervasive guarantees of trustworthiness, notwithstanding evidence rules
24
1. Decided on due process grounds

2. Often involve alternative perpetrator defenses
C. Holmes v. South Carolina – an otherwise valid evidentiary rule applied in a way that does
not serve the purpose of the rule and is being arbitrarily extended to the ∆ violates ∆’s
constitutional rights
Opinion and Expert Testimony

I. Lay Opinion Testimony – FREs 701, 704, 704
A. Lay opinion is limited to testimony that is
1. Rationally based on perception of witness
2. Helpful to a clear understanding of the witness’s testimony or the determination of a
fact in issue
3. Not based on scientific, technical, or other specialized knowledge
a. Lay opinion testimony is based on “normal human experience” and “everyday
reasoning process”
b. Particularized knowledge is okay (e.g. knowledge that a substance is cocaine as
long as foundation is laid to show witness has firsthand knowledge)
B. Permissible lay opinion includes
1. Appearance of persons or things
2. Identity
3. Manner of conduct
4. Competency of a person
5. Degrees of light or darkness, sound, size, weigh, distance
6. Owners of a business about value of the business
7. Fact of death (time and cause are realm of expert)
C. Impermissible lay opinion
1. Witnesses cannot encroach on the province of the jury
a. Witnesses cannot vouch for the credibility of other witnesses
b. Opinion testimony is not automatically objectionable just be it embraces an
ultimate issue (except with expert opinion and mental states in criminal cases)
2. Opinions cannot tell the jury which result to reach
3. Opinions cannot be conclusory (phrased in inadequately explored legal criteria,
mostly a rule about form over substance)
4. Note: can always make an FRE 403 argument if the testimony invades the province of
the jury
II. Expert Testimony – FREs 702, 703, 704, 705
A. Expert testimony is permitted when
1. Scientific, technical, or any other specialized knowledge will assist the trier of fact
a. “You don’t need a weatherman to know which way the wind blows”
2. Witness is qualified by knowledge skill, experience, training, or education
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3. Daubert/Kumho Tire requirements are met

a. Testimony is based on sufficient facts or data
b. Testimony is the product of reliable principles and methods
c. Expert has reliably applied the principles and methods to the facts of the case
4. Determination of whether a witness is qualified as an expert is a 104(a) determination
for the court
B. Impermissible expert testimony
1. Expert cannot state an opinion about whether a ∆ had a mental state that constitutes
an element of a crime or defense (that’s the role of the jury)
2. Expert cannot explain a legal standard (that’s the role of the court)
a. E.g. explaining what constitutes deadly force (Hygh v. Jacobs)
3. Expert cannot communicate that a legal standard has been met (that’s the role of the
jury)
a. E.g. that particular conduct was justified (Hygh v. Jacobs)
4. Expert cannot state an opinion on the credibility of a witness
a. Can bar expert from testifying about the incidence of false reporting because that
can be the same as testifying that a victim was telling the truth (State v. Kinney)
b. Expert cannot conclude that a victim has a syndrome such as rape trauma
syndrome, but can only explain the symptoms/signs of that syndrome (State v.
Kinney)
C. Experts can rely on
1. Facts/data the expert has personally observed
2. Facts/data the expert has learned of at the hearing (including hypotheticals presented
during questioning)
3. Facts/data the expert has learned secondhand provided that other experts would
reasonably rely on such information
4. Facts/data that are inadmissible (including inadmissible hearsay)
a. Trial court must determine if the jury needs the underlying facts/data to
adequately assess the expert testimony using a balancing test:
i. Underlying facts/data will be admitted (with limiting instructions that they are
used only for evaluating the expert) if the probative value substantially
outweighs the prejudicial effect
ii. Challenge: in order for the jury to evaluate the expert, doesn’t the jury in part
need to evaluate the truthfulness of the facts/data on which the expert relied
iii. Note: learned treatises and statements made for medical diagnosis (which
often form basis for expert testimony) come in as hearsay exceptions under
FRE 803
D. Expert testimony analysis
1. Does the witness qualify as an expert in the relevant field? (FRE 702)
a. Expertise is specific, not general
26
b. Be rigorous about whether you have the right expert

2. Will the expert’s analysis assist the jury? (FRE 702)
a. Look for special reasoning process or peculiar knowledge that does not come
from common experience
b. Do not ask the jury to relinquish its common sense
3. Is the testimony on a proper topic for expert opinion? (FREs 702, 704)
4. Does the expert’s opinion rest on proper bases? (FRE 703)
5. Does the expert testimony satisfy Daubert?
a. Is the methodology reliable and is the testimony based on sufficient facts and
data?
i. Good grounds requirement
ii. Enumerated Daubert factors (exemplary, not exhaustive)
 Whether the technique or theory can be or has been tested
 Whether the technique of theory has been subjected to peer review and
publication
 The known of potential error rate of the technique or theory when applied
 Whether standards are maintained to control the technique’s operation
 Whether the technique or theory has been generally accepted in the
relevant scientific community (note: before Daubert, general acceptance
was the test for expert testimony, now it is usually the most important
factor)
iii. Additional Daubert factors (illustrative)
 Whether the opinion was developed independent of the litigation
 Extent of the analytical gap between data and the opinion
 Expert’s consideration of alternative explanations
 Whether expert is applying the same rigor as a witness as would be
applied by a professional in the field
 Whether the field of expertise itself is reliable
 Qualifications and professional stature of the expert
b. Has the expert reliably applied the principles and methods to this case?
i. Does the expert’s testimony “fit” the issues the case?
E. Development of expert testimony jurisprudence
1. Frye v. United States (1923) – test for expert testimony is general acceptance in the
particular field
2. Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) – concludes that FRE 702
overrules Frye’s general acceptance test; gives judges a “gatekeeping” role in
determining that (1) scientific testimony is based on reliable methods (good grounds),
and (2) will assist the trier of fact (fit); includes a list of factors for judges to consider
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3. Kumho Tire v. Carmichael (1999) – extends Daubert test to all expert testimony
(scientific, technical, and specialized knowledge); clarifies that Daubert factors are
illustrative
4. Effect of Daubert/Kumho Tire
a. Supreme Court’s goal was to liberalize evidence rules and allow the market forces
of the adversarial process take care of bad experts
b. In fact, more testimony is excluded now (good for ∆’s in civil cases)
c. General acceptance is still the law in many states, and even in states that purport
to rely on Daubert, general acceptance tends to be the dominant factor
F. Expert testimony and lie detection
1. Generally courts will not admit lie detection evidence because it fails Daubert’s good
grounds/reliable methods requirements; Even if lie detection satisfied Daubert it is
likely kept out under FRE 403
2. No constitutional/compulsory process right of criminal ∆ to present favorable lie
detection evidence (United States v. Scheefer)
a. Compulsory process requires necessity and reliability (reliability is not satisfied
by lie detection)
b. If ∆ is allowed to present lie detection evidence, the prosecution must be notified
in advance and be allowed to administer its own lie detection exam and ∆ must
submit to cross examination (otherwise the lie detection results will be testimony
without cross examination)
c. What about when ∆ wants to offer the fact that he was willing to take a polygraph
test (and not the substance/result of the test)?
i. Most courts will require ∆ to testify so prosecution can cross examination
about the circumstances surrounding the polygraph
Authentication
I. Authenticating Documents – FREs 901, 902
A. Process of authenticating documents
1. Proponent must produce sufficient foundational evidence to support a 104(b) finding
that the item is what the proponent claims it to be; for example:
a. Witness testimony identifying an item by a witness with first hand knowledge
b. Process testimony
i. Evidence was produced by a process that is reliable
ii. No evidence of tampering/fabrication
iii. E.g. security camera footage
c. Handwriting identification
i. Nonexpert opinion identifying handwriting based on familiarity not acquired
for litigation
ii. Investigation ≠ litigation
28
d. Comparison of the item with an authenticated version by an expert witness or by

the trier of fact
e. Circumstantial evidence
i. Context (e.g. reply to a duly authenticated communication)
ii. Content (e.g. facts peculiarly known to the writer)
iii. Other distinctive characteristics (e.g. distinct language pattern)
iv. Note: when authentication is based on circumstantial evidence, that evidence
must come in so the jury can make the authenticity determination
f. Voice identification
i. Testimony identifying a voice in combination with circumstances that connect
the voice with the alleged speaker
ii. Familiarity of the witness can be acquired either before or after the speaking
being identified
g. Telephone conversations
i. Incoming calls: content of statements, reply technique, voice identification
ii. Outgoing calls to individuals: calling a number assigned by the telephone
company and self-identification of the answerer or other circumstances to
identify the answerer
iii. Outgoing calls to businesses: calling a number assigned to the place of
business and conversation that relates to business reasonably transacted over
the phone
h. Ancient documents
i. at least 20 years old
ii. in a condition that creates no suspicion of fabrication
iii. in the place that, if authentic, they are likely to be
2. Evidence must be self-authenticating as determined by the court’s 104(a)
determination
a. Domestic public documents that are sealed and signed
b. Domestic public documents that are not sealed but are signed and certified
c. Foreign public documents
d. Certified copies of public records
e. Official publications
f. Newspapers and periodicals
g. Etc.
Best Evidence
I. Rationale and Application – FREs 1001, 1002
A. Rationale = to prevent forgeries (mainly) and to prevent fragments of a writing to be
admitted out of context
29
1. Does little work now because we are less concerned with the trustworthiness of
duplicates (did a lot of work when duplicates were all produced by hand)
2. More aptly called the “original documents” rule
B. Applies when the content of the writing is inherently at issue in the litigation
1. Cases in which the writing itself has independent probative value
2. E.g. contract, copyright infringement, will, lease, written libel, child pornography
II. Requirements – FREs 1001, 1003, 1004
A. Definitions
1. Writing and recording – letters, words, numbers, or their equivalent
a. Very broad; encompasses handwriting, typewriting, printing, computer files,
disks, CDs, tape recordings, photographs, x-rays, videotapes, motion pictures,
drawings
2. Original – the writing or recording itself or any counterpart intended to have the same
effect as the original
a. Multiple wet-ink contracts, carbon copies, negatives or any prints from them, any
output of printout from computer data
3. Duplicate – a counterpart produced by a mechanical, photographic, chemical,
electronic, or other equivalent process or technique, that accurately reproduces the
original
B. Function of the rule
1. Originals are required when the content of the writing is inherently at issue in the
litigation and ahs independent probative value
2. Duplicates are admissible to the same extent as the original unless
a. There is a genuine question about the authenticity of the original
b. Unfairness
3. Exceptions to the requirement of the original
a. Originals are lost or destroyed through no fault of the proponent
b. Originals exist but cannot be obtained by any judicial process or procedure
c. Opponent possesses the original and does not produce it
d. The writing or recording is not closely related to a controlling issue
Privileges
I. Elements of a Privileged Relationship
A. Society values the relationship
B. Relationship in which communications occur in confidence
1. Privilege allows disclosure
C. Relationship in which the communications would not occur but for confidentiality
1. Privilege promotes law and justice because the “evidence” (the communication)
would not be created without it
30
2. The communication itself is socially valuable (e.g. between a husband and wife about
preserving a family, between an attorney and client when the attorney is giving
candid advice not to violate the law, between a clergy and penitent when the penitent
is seeking moral advice)
3. Concerns about “chilling effects” of not protecting the communications
a. This rationale disfavors qualified privileges
D. Injury to the relationship is greater than the benefit that would be obtained from
disclosure
E. Note: whether a communication is privileged is a 104(a) determination for the court, but
the court is bound by the rules of privilege in making those determinations
1. Party that wants to get behind privilege must provide a factual basis adequate to
support a good faith belief by a reasonable person that privilege does not apply
II. Sources of Privilege Law – FRE 501
A. Common law as interpreted by United States courts in the light of “reason and
experience” governs the claim of privilege
1. Reason = policy arguments
2. Experience = consensus among the states
3. Constitutional values (e.g. Self-Incrimination Clause, Free Exercise Clause,
Griswold-style privacy)
4. Un-enacted FREs
III. Conflicting Privileges/Compulsory Process
A. Privilege v. privilege
1. Which privilege has the stronger constitutional grounds
2. Fifth Amendment privilege against self-incrimination is the strongest (wins every
time)
B. Privilege v. compulsory process
1. Very fact-specific analysis (see Morales v. Portuondo)
IV. Recognized Privileges
A. Professional privileges generally
1. Held by client (but professional can assert privilege on the client’s behalf)
2. Protects only confidential communications
3. Protects only communications made to facilitate the professional services
4. Protects only the communication (not the underlying facts or circumstances)
B. Patient-psychotherapist
1. Newest privilege
2. Extends to social workers
3. Held by patient
4. Exception for dangerous patients
5. Recognized in Jaffee v. Redmond
a. Reason: promote mental health
31
b. Experience: all 50 states and D.C. have this privilege, FREs included it (but un-
enacted)
c. Dissent (Scalia) – objects to elevating this relationship above others and
especially objects to extending it to social workers
C. Clergy-penitent
1. Morales v. Portuondo
a. Interesting case, involves (1) hearsay analysis, (2) privilege analysis, (3)
Chambers analysis
D. Attorney-client
1. Elements of attorney-client privilege
a. Attorney-client relationship
i. Extends to communications with third parties (like paralegals)
ii. Includes corporate clients (complicated)
iii. Excludes friendly conversations between business partners
b. Communication
i. Can be verbal or nonverbal
ii. Does not include transfers of property, identification of clients, or information
about fees (unless under the circumstances disclosure of such information
would result in disclosing a confidential communication)
c. Made in confidence
i. Client must take reasonable precautions to prevent disclosure
ii. Client’s intent matters
d. For the purpose of facilitating legal services
i. Does not apply to work that a non-lawyer could perform (courts are split on
whether this includes or excludes preparing tax returns and investigative
work)
2. Privilege is the client’s
3. Privilege extends past death of the client
a. Swidler and Berlin v. United States – Supreme Court rejects a balancing test for
breaking the privilege after a client’s death in criminal cases
4. Exceptions
a. Crime-fraud
b. Claims against the lawyer/between lawyer and client
c. Attested document where lawyer is the witness
d. Joint clients
e. Some communications where claims are through the same deceased client
f. To further client’s intent in testamentary disputes
E. Familial/spousal privileges
1. Adverse spousal testimony privilege
a. Rationale: prevent marital discord
32
b. Spouse does not have to testify against another spouse

i. Majority: applies in criminal cases only
c. Held by the testifying spouse (Trammel v. United States, pro prosecutor)
i. Rationale: testifying spouse will be the spouse considering the marriage; ∆
spouse cares more about avoiding conviction
d. Can concern events before or during the marriage
e. Requires lawful marriage at time of the would-be testimony
2. Marital confidences privilege
a. Protects against disclosure of communications made in confidence during a
marriage
i. Confidence is destroyed if communication is made in presence of third parties,
including children (except very young children)
ii. Confidence is destroyed if one spouse discloses as to the disclosing spouse but
the non-disclosing spouse can assert the privilege as long as he/she took
reasonable precautions to prevent/rectify disclosure
b. Applies in civil and criminal cases
c. Applies even after marriage ends
d. Both spouses hold the privilege (most courts do not parse who said what)
e. Exceptions
i. Crime-fraud
ii. Proceedings between spouses
iii. Proceedings involving crimes between spouses or their children
V. Rejected Privileges
A. Reporter-source
1. Rationale: promote marital communication
2. Some support in the First Amendment
3. Difficult to define the boundaries (who is a journalist?)
4. Public policy concerns related to law enforcement, national security, government
function mean injury from preventing disclosure can be very large
5. Rejected in In re Judith Miller with 3 approaches
a. Judge Sentelle – would hold there is no privilege
b. Judge Henderson – no need to decide whether a privilege exists because in this
case it is definitely overridden by national security concerns
c. Judge Tatel – would hold there is a qualified privilege that would be overridden
by the need for the evidence in this case and others like it
VI. Waiver – FRE 502
A. Who can waive
1. Client
2. Attorney generally has implied authority to waive on behalf of the client
B. What constitutes a waiver
33
1. Voluntary disclosure to third parties, excepting disclosure in furtherance of attaining

legal services
2. Attacking the attorney’s competency
3. Failure to assert the privilege
4. Inadvertent disclosure
C. Limitations on inadvertent waiver
1. Disclosure must be inadvertent
2. Holder of the privilege must have taken reasonable steps to prevent disclosure
a. Includes explaining the document review process and the resources available to
prevent disclosure
3. Holder of the privilege promptly took reasonable steps to rectify the error
a. Immediacy is the biggest factor
34

Griffin - Evidence Outline

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Evidence 245.

II. Conditional Relevance – FRE 104(b)

vii. A party that loses an admissibility argument on “unfair prejudice” grounds

b. Allows conduct or statements made in the course of offering assistance as long as

Character and Habit

a. At common law (Michelson) character witnesses could only testify to reputation

2. In camera hearing including all parties and the victim

1. Statement = oral assertion, written assertion, nonverbal conduct, if the person

5. If an exception/exemption applies, but the statement is offered against a criminal ∆,

c. Court makes 104(a) determination that the declarant is authorized

a. Testimony at a prior trial, hearing, or deposition if there was a prior opportunity

B. Confrontation Clause = guarantee of cross-examination

a. Mattox v. United States (1895) – hearsay exceptions are not constitutionally

f. Melendez-Diaz v. Massachusetts (2009) – forensic lab reports are testimonial,

1. Classic or focused impeachment = the witness is lying now

1. Evidence of bias ≠ attack on character for truthfulness

1. Decided on due process grounds

Opinion and Expert Testimony

3. Daubert/Kumho Tire requirements are met

b. Be rigorous about whether you have the right expert

d. Comparison of the item with an authenticated version by an expert witness or by

b. Spouse does not have to testify against another spouse

1. Voluntary disclosure to third parties, excepting disclosure in furtherance of attaining

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