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401 Def of “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.* two prongs
    • materiality – “any fact that is of consequence to the determination of the action”
      • whether a fact is material to “determination” is normally more a matter of substantive law at issue, rather than FREs
    • probative – “having any tendency to make the existence of any fact... more probable or less probable than it would be w/o the evidnece”
      • James article (p19-21, last few sentences) – “the evidence only needs to place D is a class of persons in which incidence of crime charged is greater than among general public. Doesn’t allow us to say the D is probably guilty, only that the probability of his guilt is now greater than before the evidence was received. This is logical relevancy – the only logical relevancy we can expect in dealing w/ practical affairs where strict demonstration is never possible...”
  • US v James (9th Cir 1999) (p25)
    • trial ct rules that evidence that murder victim really did kill/violently assault others before was irrelevant since current D didn’t know of the truth at the time of the murder.
    • 9th Cir – overrules trial ct say that evidence is relevant to show that D’s claim of hearing these stories from murder victim was more likely to be true if those acts had actually happened. IOW, D was less likely to be lying/totally fabricating the stories she had allegedly heard from victim if those stories were proved by outside evidence to be true in fact.
    • BIG PIC – trial ct illustrates a more narrow reading of “materiality”, and is overruled by 9th Cir.
    • Converse situation – case where D claims self-defense in killing of marshal claims he heard stories about marshal being violent, but can’t say where they came from. State was allowed to intro evidence that story about marshal was false in fact b/c it makes it less likely that D actually heard the story.
  • referred to as “bare relevance” standard



402 Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

  • All relevant evidence is admissible, except as otherwise provided by Const, Act of Congress, by these rules, or by other rules prescribed byt he SCt pursuant to stat authority. Evidence which is not relevant is not admissible.



403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

  • Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waster of time, or needless presentation of cumulative evidence.
    • permits exclusion of relevant evidence (although relevant)
    • decisions to exclude are trial judge’s, and reviewable only for ‘abuse of discretion’ (may be excluded)
    • liberal standard (in the sense that it allows a lot in) since probative value has to be substantially outweighed by danger of unfair prejudice
    • must be unfairly prejudicial, not just prejudicial
    • confusion of issues or misleading the jury are also grounds for excluding evidence
    • as are undue delay, waste of time or cumulative (i.e. needlessly repetitive evidence)
  • Photos and other Inflammatory Evidence
    • State v Bocharski (AZ 2001) – do we allow all kinds of autopsy photo of murder victim w/ various head wounds if D does not contest fact of death, extent of victim’s injuries or manner of her demise?
      • Photos at issue: victim’s decomposing body (42), closeup of victim’s face (43), victim’s face after head was shaved to make wounds more visible (44), victim’s hand and finger (45), and view of victim’s skull w/ top and contents removed, and metal rod going through an opening to inside (46, 47)
      • In AZ, “the fact and cause of death are always relevant in murder case” (so many photos are inherently admissable)
      • State cannot be compelled to try its case in sterile setting
      • Holding: 46 & 47 excluded b/c ostensible reasons for their introduction (angle of attack) were never discussed or contested.
        • Argument can be made that other pics were also unnecessary (since D concedes these facts), so it seems that common-sense/first impression-type thinking prevails
          • but, see Advisory Comm Notes to Rule 401, evidence of matters not in dispute is not per se prohibited or irrelevant – and should only be excluded for waste of time, undue prejudice, etc.
        • PROF: example of view that “juries ought to be protected, or that they’ll be irrational and/or unfair if they see these pics
      • After deciding they were erroneously admitted, Ct concludes that error did not affect jury’s verdict
      • BIG PIC: Lets jury decide relevance, and trusts their ability to deal w/ possible bias
  • Evidence of Flight (p48)
    • U.S. v Myers (5th Cir 1977) (p48)
      • Evidence that D fled is ruled inadmissible; two separate instances of “fleeing” were at issue.
        • First, D fled between 3-6 weeks after bank robbery in FL after being chased by non-uniformed man in shopping center
          • strong suggestion that the greater the time between fleeing and crime, the less likely it is to be admitted – presumably b/c its probative value is less (since more and more reasons to leave state could have arisen in between)
        • Second, D flees after his motorcycle is hit by FBI agent’s car
          • in between FL robbery and this encounter, D had robbed PA bank, so this fleeing encounter not necessarily probative of guilty conscience re: FL robbery (if he hadn’t robbed FL bank, he’d still flee b/c he’d robbed PA bank).
          • plus, agent’s testimony was contradictory
    • PROF: never been part of case where judge kept evidence out
    • PROF: Always puts this on exam?
  • Effect of Stipulations (p64)
    • US v Jackson (EDNY 1975) (p64)
      • D is being charged w/ bank robbery in NY
      • 403 problem: is the probative value of the evidence of flight to GA and use of false ID substantially outweighed by unfair prejudice that would come w/ the story of being told how he was suspected in a robbery in GA, found in a car full of guns, etc.
        • Evidence (flight) suggests consciousness of guilt, but circumstances of story of his arrest probably unfairly prejudice jury.
      • Holding: Judge rules evidence inadmissable so long as D agrees to stipulate that suspect was found in GA & used a false name. But does not allow the GA arrest, story of it, GA patrolman’s testimony, etc. to come in.
    • Old Chief v US (SCt 1997) (p66)
      • Facts: Guy has previous conviction for assault; now charged w/ possessing a gun and being a felon (prohibited), so previous conviction is element of present crime.
      • Issue: Is prosecution allowed to name previous charge, or can D force prosecution to accept stipulation that he was previously convicted of a felony carrying a prison sentence of greater than one year.
      • Holding: SCt overturns trial judge; says allowing previous crime to be named is unfairly prejudicial if D is willing to stipulate, and only relevance is to prove status as prior offender
        • Approach to problem: instead of looking to the evidence as an island, you look at it in comparison w/ all the other evidence offered or available. If another piece of evidence is equally probative, but less prejudicial, the first piece’s value is discounted, but not automatically excluded.
        • Normally 3 reasons/benefit for rule that govt can prove its case by evidence of its own choice: (p72-73), citing Parr v US (5th 1958)
          • story-telling narrative
          • evidentiary acct can implicate the law’s moral underpinnings and jurors obligation to sit in judgment (in a way that a dry restatement of evidence can’t), convincing the juror to do the hard, but necessary thing like sending someone to jail
            • law/Congress speak of simple status (not differentiating between assault and murder, for ex.)
          • to satisfy jurors’ own opinions/expectations of what the evidence should be
      • Prof: Case reflects general reluctance to trust jurors w/ information that is both publicly available and undeniably true.



104 – Preliminary Questions

  • 104(a) – Questions of admissibility generally
    • Std: preponderance of the evidence (see Bourjaily)
    • 2 differences between 104(a) & (b)
      • Ct makes clear 104(a)’s “preponderance of the evidence” is a higher std than 104(b)’s sufficient evidence std.
      • But, 104(b) can only be decided using introducible evidence, whereas 104(a) questions can be resolved using evidence that isn’t admissible.
    • 104(a) is applicable when deciding any preliminary question, except conditional relevance questions which are decided under 104(b)
  • 104(b) – Relevancy conditioned on fact – “When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.”
    • Problem 1.7 (p31) – D charged w/ murder of wife; prosecution suggests motive is that mother was about to tell son that D was not his real father. This motive can only be true if father did know, in fact, both paternity issue and that mother was going to tell son – i.e. intro’d of evidence whose relevancy is conditioned on fact.
      • Real father says mother called him a week earlier to notify him of her intentions; prosecutors allege that it was probable that mother would also tell husband if she had already told real father and intended to tell son.
      • Q of whether this inference is really more probable than not is judge’s to make under Huddleston standard – whether jury could reasonably find conditional fact by “preponderance of the evidence”
        • BIG PIC: standard seems to trust jury to properly weigh evidence
    • It seems that a good lawyer can invent problems of condition of fact connected to almost any piece of evidence introduced.
      • If successful, a clever lawyer forces a judge to compare the evidence to 104(b)’s conditional relevance standard instead of the lower 401 “bare relevance” standard.
        • In reality, difference between these two standards might not be so great



404 – Character Evidence Not Admissable to Prove Conduct

  • 404(a) – Character Evidence Generally. Evidence of a person’s character... is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
    • (1) Character of accused – evidence of a pertinent trait of character offered by the accused, or by prosecution to rebut the same; or if evidence of a trait of character of the alleged victim of the crime is offered by the accused and admitted under 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution
      • character evidence must be relevant & pertinent (i.e. offering evidence of peacefulness if charged w/ violent crime)
      • D can offer evidence to support his own character, or to attack character of other witness
        • In response, prosecutor can cross, and offer his own evidence to rebut D’s claim about his own character
        • Where D intro character evidence to attack character of victim – then prosecutor is allowed to offer evidence of same character trait in D (i.e. if D argues that victim is belligerent, then P can offer evidence that D is belligerent too) (most often used/occurs where D claims self-defense)
      • 405(a) – testimony about reputation or in form of opinion both allowed; specific incidents are only allowable in cross
        • Rationale: though specific incidents are most telling, also have most capacity to arouse prejudice, to confuse, to surprise....” (Comm Notes to FRE)
      • Michelson v US (SCt 1948)
        • convicted of bribing an IRS agent; offered 5 witnesses to testify about his character; 2 of them testify they’ve known him 30 years
          • P brings up 20 yr old conviction, and 30yr old arrest – is this allowable?
          • Yes, b/c they’ve testified about knowing him for 30 years
          • Judge gives limiting instruction that they’re not to take suggestion of conviction & arrest as true, only to be used as proof that witnesses didn’t know (important?) stuff about D
            • limiting inst is very confusing (p210)
          • You can object on 403 grounds
        • important to remember that D “opens the door”
          • except part of 404(a)(2) where P, in homicide cases only, is allowed to intro evidence about victim’s peacefulness if D offers evidence suggesting victim was first aggressor
      • 405(b) – evidence of specific instances of conduct allowed where character or character trait is essential element of charge, claim or defense (for ex., child custody hearing, rebutting entrapment def, or rebutting a def of truth in libel or slander claim)
        • applies to crim and civil cases per word “claim”
    • 404(a)(2) Character of alleged victim – Evidence of a pertinent trait of character of the alleged victim of crime offered by accused, or by prosecution to rebut the same, or evidence of a character trait of peacefulness of alleged victim offered by pros in homicide case to rebut evidence that alleged victim was first aggressor
    • 404(a)(3) Character of witness – per rules 607, 608 & 609
    • only criminal D’s can “open the door” using 404(a)(1) & (2)!!
  • Six exceptions to 404(a):
    • 404(a)(1), (2) and (3) (as elaborated by FRE 607, 608 & 609)
    • 413
    • 414
    • 415
  • 404(a) applies to all cases, not just criminal cases; the exceptions in 404(a)(1) & (2) only apply to criminal cases
  • Also, doesn’t just apply to D’s character, it applies to all witness’ character
  • SEE COPY OF “CHARACTER EVIDENCE” FLOWCHART ON p140
  • 404(b) – Other crimes, wrongs, or acts. (aka “Prior Bad Acts”) Evidence of other crimes or acts not admissible to prove the character of a person in order to show action in conformity therewith. May be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by accused, prosecution in criminal case shall provide reasonable notice in advance of trial... of general nature of any such evidence it intends to introduce at trial.
    • “other...acts” – any act that isn’t at issue in the case, including those that happen after the “crime” is alleged to have taken place
    • 404(b) is totally superfluous – merely restating 404(a)
    • list of 404(b) “exceptions” is illustrative, not exhaustive – many more apply; in fact “exceptions” is a misnomer b/c nothing is prohibited except using the evidence to prove propensity
    • 404(b) includes “may” – the trial judge doesn’t have to allow the evidence even if its not used to show “action in conformity therewith”; admission is at judge’s discretion
      • basically 403 gives the judge an out (i.e. its more unfairly prejudicial than probative)
    • there are exceptions to 404(a), but they are contained in other rules – see sex molestation crimes, etc.
  • People v. Zackowitz (NY 1930)
    • Evidence used by prosecution (ownership of several guns, and possession of them in his apt) at trial against Zackowitz for 1st degree murder by shooting a victim w/ pistol was held to violate 404(b) b/c it was only used (so says Cardozo) to show jury that D was a murderously inclined criminal as evidenced by his ownership of several guns found in his apt – i.e. to “show action in conformity therewith.” 404(b)
    • Lack of connection between crime and ownership of guns that stayed at home is most glaring and bothersome reason behind this ruling, or so it seems
    • Cardozo says character is never an issue in criminal prosecution unless D chooses to make it one.
      • two principle rationales underlying this rule cited by Cardozo
        • unfair prejudice – risk that jury will give excessive weight to evidence; evidence is unrelated to charge, but nevertheless will sway your opinion of the case
          • see graphic display of other guns, and judges questioning on what an “automatic gun” was
        • Jury might decide to punish him b/c he’s “bad person” or “criminal character” vs. punishing him for this specific crime
          • separating out punishment for a particular crime and the person generally can be difficult (and challenged by others), if not impossible
        • PROF: Could also persuade jury to convict despite D’s innocence, if they think that D is bad anyway, or that gun possession, though not criminal, deserves punishment. Prof not really convinced that this happens.
  • PROF: 404 can be seen as Congress’ view on 403 generally – that propensity evidence’s probativeness, as a matter of law, is substantially outweighed by risk of unfair prejudice
    • Remember – it is not that this evidence is not relevant, but that despite being relevant, it is unfairly prejudicial – the evidence is often colorful and memorable, and clouds jury’s judgment
  • Rule 105 (p135) – if there are multiple uses of the evidence, both legitimate and illegitimate, then the D can ask the judge to issue a “limiting instruction” to the jury
    • Q: is it really possible for juries to compartmentalize the information?
      • Yes and no
      • strategically, once the evidence is let in, lawyers differ as to the efficacy of asking for a limiting instruction, some think it will help, others think that it will just draw attention to the matter
  • Mendez - Character Evidence Reconsidered... (p141)
    • new research indicates that people are not either “generally honest” or generally dishonest. Instead, in order to use evidence of character, past acts, etc to predict behavior, you need to know the person’s internal moral code/heirarchy, and the specifics about the current situation. Ex: Stealing from old ladies, bad, but stealing from rich/govt – not so bad, even good. This should caution us from even using character evidence at all, but this new research is not so developed/overwhelming that it can be used to overturn existing situation, yet.
  • PROOF OF KNOWLEDGE – explicit 404(b) “exception”
    • Problem 3.1 (p144)
      • probably admissible as proof of knowledge, or plan
      • Exam tip – always explicitly consider stipulating to the “disputed” matter so as to avoid having the evidence introduced.
        • Some judges wont allow you to stipulate (citing narrative richness, fairness, etc. – see Souter’s opinion in AZ murder case)
    • Problem 3.2 (p144) - Knowledge of drug trade – knowledge seems so common that it doesn’t really seem at issue; the prosecution is really trying to introduce unfairly prejudicial evidence
    • Problem 3.3 – could prior knowledge of engineer’s alcoholism and chronic intoxication be used to, not to prove engineer was drunk at time, but that RR Co was negligent in allowing him to be engineer at all, or at this time w/o prior check of sobriety?
  • PROOF of MOTIVE (p146)
    • Problem 3.4 – Peltier – proof of motive is relevant only if conditional fact proven true – that Peltier knew unmarked cars/agents were FBI/cops. – “Conditioned on fact” 104(b) – preponderance of evidence ruling made by judge per Huddleston
  • PROOF OF IDENTITY
    • Problem 3.6 – Peltier II – p147-48
      • AR-15 - Relevant: establishes identity b/c it connects Peltier to the murder through the weapon (obviously hard to separate propensity from identity)
      • Opportunity/ability/means: his possession of the rifle gave him the means to
    • Possession of FBI Agent’s gun – Relevant – fingerprint on his gun
    • All the other items – Relevant - evidence of motive that he wants to kill “pigs”
  • PROOF OF “MO”
    • US v Trenkler (1st Cir 1995) (p150)
      • proof of “M.O.” can be used when crimes are linked in some idiosyncratic way –you’re not showing that D did this crime too, but only that no one else did it b/c their “signature” didn’t match.
      • Dissent: how much of a complete “match” does it have to be? The dynamite and antenna used were different.
        • CR: but the bombs were used for different purposes, so maybe that explains the pertinent differences
      • Test: in determining whether 2 separate incidents are “sufficiently idiosyncratic”, “exact match is not necessary”. Test must focus on “totality of comparison”, demanding not “facsimile”, but “conjunction of several identifying characteristics, or presence of some highly distinctive quality”
    • What about stipulating: “Yes, it was my bomb, but someone stole it from me a few days before the crime.”
      • Prosecutor could argue that the stipulation would have to be so broad and incriminating that the D wouldn’t agree to it anyway.
    • “Reverse 404(b)” – US v. Stevens (3rd Cir 1991) (p159)
      • two crimes are very similar, checks stolen from both parties cashed right across from street one another at same time, leads to conclusion that same crime was committed by same person. Victim of 2nd crime, therefore, allowed to testify on D’s behalf that he thought someone else did it.
      • Rule: “D must demonstrate 404(b) evidence has a tendency to negate D’s guilty, and that it passes 403 test.” (p164)
        • rationale: When prosecution offers 404(b) evidence it is held to higher std of similarity of crimes b/c of fear that it will prejudice jury against D. When D offers exculpatory 404(b) evidence, it doesn’t need to be held to the same high std b/c the threat to D isn’t present, so crimes need not be so similar.
  • ABSENCE OF ACCIDENT
    • Problem 3.10 – Cleaning his gun (p168) – if guy claims accident in shooting his wife, then prior instance when he claimed same thing after shooting his 1st wife, Pros can probably use evidence to prove “absence of mistake”. Basically arguing that this time D wasn’t mistaken b/c person who already made such a mistake would’ve been extra careful/aware.
    • Problem 3.11 – Cruelty to dog
      • Its hard to see how the introduction of a prior intentional incident did anything but show propensity to do the second, accidental incident.
      • CR: You can use this to show evidence of the absence of mistake/accident. In effect, D is saying he likes dog, and that he threw it into traffic by mistake. You’re introducing the evidence to show that he doesn’t really like dogs, and that he didn’t make a mistake/accident when he threw dog into St
        • but, then, what about 403 – awfully prejudicial, but unfairly prejudicial?
  • DOCTRINE OF CHANCES
    • Brides case (p169) – man and woman are married, and shortly thereafter wife is found dead after drowning in bathtub, she having left everything to the man. Prosecutor wants to show that man’s two previous marriages ended in the exact same way.
      • Does evidence of previous drowning get allowed in?
        • as Absence of accident – something else is going on
        • Crucial difference: in this case, the D isn’t ostensibly doing anything, whereas in the gun case, the D is cleaning the gun in both cases – he is doing something, so the evidence can show something about his state of mind
        • Prof: this case is a much closer question
    • The “doctrine of chances” highlights the way some of these issues come up though you’ll never hear “doctrine of chances” in court.
    • Prof Imwinklereed’s – Doctrine of chances should be intro’d b/c jurors are just comparing it to their everyday experiences, not drawing inferences about the D directly. p173 (last sentence of first paragraph) “The initial decision facing the trier...” You’re avoiding talking about the D’s character. Basically saying that jurors are just using evidence of probability to rule out “pure chance” or “accident” as cause.
      • But, there are some crazy unlucky people
    • Rothstein – No matter how you disguise it, the juror is still thinking that a man who did it X # of previous times is probably likely to have done it again
      • plus, no guidelines on how similar acts have to be, how many times the act has to have happened – other 404(b) exceptions, i.e. “MO”, have limitations/conditions attached to their use
  • Huddleston Standard
    • see Rule 104(b), above
    • Govt charges guy w/ possessing and selling stolen property (VHS tapes) and wants to use his prior act of selling stolen TVs as proof of his knowledge (which he denies) that he was selling stolen goods
    • Q: should evidence re: stolen TVs have come in, and if so, under what std of evidence?
    • Holding: Govt has to prove “by preponderance of the evidence” that the TVs were stolen
      • D’s argument/concern: b/c of the risk that the jury hearing evidence that D sold stolen TVs in a prior act, they might be prejudiced against D – thinking he was criminal in general, that he was innocent now, but deserved punishment for prior act, that “once a thief, always a thief” (i.e. propensity)
    • STD: Whether judge can find that the jury could reasonably find the conditional fact by preponderance of the evidence (p180)
      • judge can consider “the sum of an evidentiary presentation” (i.e. more than just an individual point) in making this decision.
    • Acquittal
      • can’t get convicted unless proven beyond a reasonable doubt, but even if you get acquitted, prosecutors can still use evidence of that crime against you in trial on new charge.
        • gut instinct that this seems unfair/wrong; kind of a double jeopardy situation
        • nonetheless, prior bad acts can be admissible under 404(b) even though you were acquitted of that crime.
    • Even if judge lets 404(b) evidence in, you then argue 403 – unduly prejudicial that this comes in
    • If judge lets that in, you then argue for limiting instruction – 105 – try your best to make sure the judge says himself that the D was acquitted of this crime when he was charged.
    • then argue (to jury?) that this is a vindictive Govt prosecution – they didn’t get him the first time, so now they’re going after him the second time.



406 – Habit; Routine Practice

– “Evidence of the habit of a person or of the routine practice of an org, corroborated or not, and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or org on a particular occasion was in conformity w/ the habit or routine practice.* rests on assumption that habit evidence is more predictive than “character evidence” that is prohibited by 404(b)
  • Habit evidence also seen as less pejorative/prejudicial than negative character evidence
  • Notes/Leg History following rule – habit evidence was excluded in cases of habitual drinking and religious activities
    • drinking – probably seen as exceptionally prejudicial
    • religious – also not allowed
  • Evidence of habit is relevant to prove that the conduct is in conformity w/ the habit.
    • The opposite of 404(b) – where character evidence is not admissible for that purpose
  • By def almost, anything that can be characterized as a “prior bad act” can’t be intro’d under 406.
    • The flip-side – anything that is a positive character trait – i.e. a good habit – can be argued to be evidence of a “good” character, and then you’ve opened the door to the opposing side arguing character.
  • Halloran v VA Chemicals Inc (Ct of App NY 1977)
    • Issue: whether to allow evidence that P had a habit of heating up a jar of water w/ an emersion coil (that would seem to imply that the P would have heated the water to too high a temperature)
    • Prof:
      • the habit itself seems to be neg in this situation – basically misusing a dangerous material over and over – so??
      • Also, evidence could come in diff way – as knowledge (?)
      • Also, P testified that he never used an immersion coil – so in this case, D’s witness’ testimony is just being used to impeach that testimony
  • 406 contemplates neutral, or “vanilla” habits, not those that are quite prejudicial in and of themselves
  • Conduct is allowed in b/c its predictable, and predictive itself – the type of thing done w/o thinking anymore – just a habit



413- Evidence of Similar Crimes in Sex Assualt Cases

(413-415 enacted in 1995)* 413(a) - In crim case in which D is accused of sex assault, evidence of D’s commission of another offense(s) of sex assault is admissible, and may be considered for its bearing on any matter to which it is relevant
  • In order to be admitted, evidence must meet “preponderance of the evidence” standard (Huddleston)
  • Don’t need a previous conviction before it can be intro’d, so you can even be acquitted and still have it come up against you
  • Three elements:
    • D must be charged w/ sex assault
    • Evidence must consist of evidence of D’s commission of another sex assault
    • evidence must be relevant (so must all evidence)
  • Evidence can still be excluded if it fails 403 balancing test (Guardia)



414 – Evidence of Similar Crimes in Child Molestation Cases

  • 414(a) In crim case in which D is accused of child molestation, evidence of D’s commission of another offense(s) of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.
  • 414(d) – “child” defined as person less than 14yrs old.



415 – Evidence of Similar Acts in Civil Cases concerning Sex Assault or Child Molestation

  • 415(a) - 413 & 414 evidence also allowed in civil cases where claim for damages is predicated on party’s alleged commission of sex assault or child molestation...



413, 414 & 415 allow prosecutor/plaintiff to go right through the propensity box. A true exception to the propensity evidence ban.


  • Lannan v State (SCt of Indiana 1992) (p183)
    • At issue is common law exception, commonly referred to as “depraved sexual instinct” exception, under which evidence about uncharged acts of child molestation were admitted
    • Rationales for rule:
      • recidivist rationale – evidence that someone who’s committed the crime before likely to do it again
      • bolsters victim’s credibility - lends credence to victim’s accusations/testimony which otherwise would sound improbable standing alone
        • CR: in day and age where sex assault & child molestation are more open and commonly reported, the need to bolster victim’s credibility isn’t as great
      • PROF: These crimes are unlikely to have witnesses, hard to prove, particularly abhorrent, and in case of 414 (child molestation), one party has a particular advantage in strength, stature, etc., and you’re talking about inclinations/tendencies that aren’t as susceptible to control as others (maybe, but this might be overblown)
      • Taking a step back – if one acknowledges that this evidence is relevant, disallowing it makes it more likely that guilty will go free; allowing it therefore is just policy judgment in favor of protecting children, society’s most vulnerable.
    • Holding: Ct overrules exception, and instead treats this evidence just like any other under 404.
  • State v Krisch (NH 1995)
    • Child molestation case where Pros wants to bring in evidence of prior incidents also involving girls involved in same church as D. State does not have 413/414 exception; instead evidence is judged by 404(b) standard
      • Pros wanted to bring the prior evidence in as motive – Ct strikes this down as simple propensity evidence
      • Pros tries intent – Ct strikes this down as propensity
        • Prof: but intent is irrelevant in this type of case – no “intent” is needed, child molestation is a SL-type offense
        • shows that the prosecutor was kind of grasping at straws
      • Pros tries common plan – almost a conspiracy type – Ct strikes this down after reading the common plan narrowly; prior evidence had to be part of a common plan w/ some overarching goal – here Ct sees a bunch of separate crimes. Kind of tough/weak – i.e. too narrow of a reading
        • is common plan same thing as “MO” – if so, the evidence should probably have been admitted – maybe not if you compare it to the bombing case
        • MO vs common plan – MO is more for identity;
    • Bigger story – at end of prosecutor’s presentation 7 of 13 charges were dismissed (didn’t even get to jury). Only charges remaining involved one girl. This probably made the judges skeptical of the info involving incidents where the prosecutor didn’t prosecute.
  • U.S. v. Guardia (10th Cir 1998)
    • Issue: Can judge exclude evidence on 403 grounds even though its admissible under 413?
    • Holding: Yes, 403 still applies to all evidence.
  • U.S. v Mound (8th Cir 1999) (p207)
    • appellate en banc challenge to 413 on due process grounds denied, but 3 judges dissent
    • Rationale: for same reasons that Due Process only allows conviction when evidence proves “beyond a reasonable doubt”, it might also not allow evidence to be intro’d when it only comes in through “propensity” box.



412 – Sex Offense Cases: Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Disposition

  • 412(a) Following evidence generally inadmissible in any civil or crim proceeding involiving alleged sex misconduct exceptas provided in (b) & (c)
    • 412(a)(1): Evidence offered to prove that any alleged victim engaged in other sexual behavior
    • 412(a)(2): Evidence offered to prove any alleged victim’s sexual predisposition
  • 412(b)Exceptions
    • (1) In criminal cases, following evidence is admissible
      • (a) evidence of specific instances of sex behavior by victim to prove that a person other than the accused was source of semen, injury or other physical evidence
      • (b) evidence of specific instance of sex behavior by victim w/ respect to D offered by D to prove consent, or by prosecution
      • (c) evidence that, if excluded, would violate D’s const rights
    • (2) In civil case, evidence offered to prove sex behavior or sex predisposition of any alleged victim is admissible if its otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of alleged victim’s reputation is admissible only if its been placed in controversy by victim.
  • 412(c)Procedure to determine admissibility
  • Sherry Colb article (p294)
    • Difference between admitting evidence against victim in self-defense aasault or homicide case (of victim’s violent nature) and against victim in rape case (of victim’s promiscuous nature).
    • Difference is meaningful b/c there is no association between P’s sexual history and P’s potential to claim rape
      • though evidence that girl frequently consents to sex on first date is relevant to whether she would consent to sex on this first date, in this case we have dramatic evidence that in this specific case she did not – she pressed rape charges.
  • Galvin article (p297)
    • Big point: Congress should have created a 404(b) type rule which would disallow evidence of prior sex behavior when it was used to show propensity, but allowed it in all other circumstances
  • 412 does can bar evidence of past false accusations of rape (see Boggs v Collins, below ??)
  • Problem 5.1 (p299)
    • “introducing not for the truth of the matter, but for the fact that it was said, and for the proof of the evidence of his state of mind.” – that he heard these things, and he reasonably thought she wanted it even though she kept saying no.
    • not sure if that falls under “motive”
    • maybe it comes in as evidence of flirting – 412(b)(1)(B)
    • CR: but victim doesn’t mention D in emails, so cant’ prove consent in this instance
    • might be disallowed under 403 anyway.
  • Problem 5.2 (p300) - Fingerprints in bedroom
    • Finger prints found in bedroom; D denies he was there that night, but says a month earlier he had consensual sex w/ her in bedroom
    • Yes
      • use to impeach her testimony (maybe Confrontation Clause)
      • also, per 412(b)(1)(B)
        • CR: but D is not using it to prove her consent this time
      • it doesn’t fit nicely into any of these categories, but the fact that there was a prior consensual sexual encounter is significant, and the “law is not an ass”, so this rule shouldn’t preclude this type of evidence
      • Just stipulate the fingerprint was there, but not allow any evidence was what allegedly happened there.
    • No
  • State v Smith (SCt LA 1999) (p300)
    • Case involved possible false past accusation of sex molestation
    • D wanted to intro evidence re: past false accusation
    • Judge held preliminary hearing, and held (using Huddleston std) that past false accusations of sex misconduct didn’t occur
    • D argues that evidence should be allowed b/c its being used to impeach witness, not being offered as proof of past sex behavior.
    • HOLDING: Evidence allowed
      • Trial Ct should hold hearing using Huddleston std on whether reasonable jury could find using evidence that victim had made prior false accusations, not where prior allegations were false
    • Seems that evidence directly bearing on credibility of victim’s statements will be allowed
  • Problem 5.3 – Smith on Remand (p305)
    • try to get it into evidence using 404(b) – pattern of attention seeking behavior, MO, motive – seeking attention, dislike of family
  • Using evidence of prior sex behavior as Proof of Bias
    • Olden v KY (SCt 1988)
      • Facts: D’s accused of rape testified they dropped off victim near Russell’s house at her request. Russell and victim were married (to others) but having affair at time of crime, but by time of trial live together. D’s want to intro evidence of their current living arrangement to show that V had motive to be dropped off near, but not at, Russell’s house since she didn’t want to be seen getting out of another man’s car.
      • Trial judge excluded all evidence of V & Russell’s current living arrangements
      • V lies on the stand during direct saying she lives w/ mom, and judge prohibits cross on this subject
      • SCT: overturned – Confrontation Clause of 6th Amend, incorp to states by 14th Amend, includes “the right to conduct reasonable cross-examination”
      • Is it prohibited by 412?
        • covered by 412(a)(1) – evidence of cohabitation obviously implies sex
        • SCT says excepted by 412(b)(1)(C)
      • Under Galvin’s 404(b) would it have come in?
        • yes, not using it show propensity to have sex, or anything, going around box to prove motive
    • Boggs v Collins (6th Cir 2001) (p309)
      • Rule: D shows violation of Confront Clause by showing that he was “prohibited from engaging in otherwise appropriate cross-exam designed to show a prototypical form of bias on the part of the witness.”
      • Crossing as to “bias, motive or prejudice is constitutionally protected, but cross-exam as to general credibility is not”
      • This case seems to suggest that there isn’t a broad right to intro evidence of past false accusations of rape!
  • Using evidence of prior sex behavior for Narrative Integrity (Res Gestae)
    • Stephens v Miller (7th Cir 1994) (p311)
      • Very close question b/c en banc decision was pretty divided
      • He claims it was consensual, she claims it was rape
      • Issue: Do you allow him to intro his alleged statement “doing it doggy fashion.. then I said “Do you like it like this? Tim Hall said you did” and then later mentioned “switching partners”
      • D wants to tell story, but judge doesn’t let him tell the story w/ details
        • Ct cites concern that statement would impact on her reputation and involve allegations re: past sexual behavior (see “Tim Hall said you did” statement)
        • IOW, allowing these statements in might gut rape shield laws b/c then D could always intro past sex behavior evidence by saying they said something about it before/during encounter
      • Prof: thinks it came out the way it did b/c judges were pissed off at D, and that he probably should have been allowed to tell his story
      • How do you balance narrative integrity (letting D testify that he said something objectionable enough to get her mad enough to press false rape charges as he alleges), with
    • Prof: 412 is tough – it implicates judge’s personal views on sex
  • Using evidence of prior sex behavior for D’s State of Mind
    • US v Knox (Mil Ct 1992)
      • Girl gets drunk, wakes up and finds D having sex w/ her; D alleges that he came back to room, girl was having sex w/ BF, and by looks & motions invited him to join, he did so – he claims she was awake but silent whole time.
      • Q: Can D intro evidence of her prior public sex acts? D says this would help him show that he was reasonably mistaken re: her consent that night.
      • Holding: No, this is exactly what 412 prohibits. Plus this evidence wasn’t critical to his defense (see Chambers, below) since it essentially came down to jury believing his or her story.
    • 4th Cir allows this type of evidence to be intro’d as evidence of D’s intent – 412 only bars it if used to prove V’s consent or veracity.
      • Similar to Galvin article – but no other Cir follows this rule



404(a)(3) – Character of witness

- exception to prohibition of use of character evidence to prove action in conformity therewith as provided by FRE’s 607-609* applies to both criminal & civil cases
  • one of the exceptions to the general bar on propensity evidence
    • propensity to lie under oath
  • can apply to any person who takes the stand, including the plaintiff or defendant!!! b/c any person who takes the stand becomes a witness



607 – Who May Impeach – credibility of witness may be attacked by any party, including the party calling the witness

  • Before you impeach your own witness, you have to solicit their testimony first.



608 – Evidence of Character & Conduct of Witness

  • 608(a) – credibility of witness may be attacked or supported by evidence in the form of opinion or reputation, subject to these limitations:
    • 608(a)(1) – evidence may refer only to character for truthfulness & untruthfulness, and
      • i.e. not peacefulness, temperance, etc.
    • 608(a)(2) – evidence of truthful character is admissible only after the character of witness for truthfulness has been attacked by opinion or reputation evidence or otherwise
      • IOW, can only argue that witness is truthful if opposing side has attacked witness’ honesty
  • 608(b) – Specific instances of conduct - ...of a witness, for the purpose of attacking or supporting witness’ character of truthfulness, other than conviction of a crime per 609, may not be proved by extrinsic evidence. They may, however, in the discretion of Ct, if probative or truthfulness or untruthfulness, be inquired into during cross-examination of witness concerning 1) character for truthfulness or un..., or 2) character for truthfulness or not of another witness as to which character the witness being crossed has testified.
    • you can question on cross only witness (Jones) about prev lie if Jones is a principal witness, or upon crossing another witness about their testimony re: Jones’s character
    • More liberal than 405(a)
      • 405(a) only allows specific instances to be brought up when crossing character witness (but not the sketchy person herself)
      • 608(b) allows spec instances to be brought up against sketchy person and/or the character witness
    • Even if you lose the 608 objection, you always have a 403 objection.
    • Limitations of 608(b)(1)
      • No extrinsic evidence is allowed to prove that witness lied. I witness denies lying, that’s the end of it.
      • Still must pass judge’s 403 judgment
      • Lawyer has to have a good-faith basis for believing something before he asks that question
      • 611(a)(3) – trial judge must exercise reasonable control... to ... protect witness from harassment or undue embarassment
      • Any evidence spec excluded by 609 almost certainly wont get in under 608(b) – i.e. its not a backdoor around 609 prohibition



609 – Impeachment by Evidence of Conviction of Crime

  • 609(a) General rule – for purpose of attacking credibility of witness
    • (1) evidence that witness other than an accused has been convicted of a crime shall be admitted, subject to 403, if crime was punishable by more than 1yr in prison, and it shall be admitted if Ct determines that probative value outweighs its prejudicial effect to accused; and
      • The last prong of 609(a)(1) gives extra protection when the witness is the D - b/c 403 says “substantially outweighed”
      • only felonies allowed; except misdemeanors that deal w/ dishonesty per 609(a)(2), below
    • (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment
      • not subject to 403 - Skelley Wright suggests that is reason to construe narrowly, not broadly.
      • Adv Comm Notes back this view up
      • still subject to strictures of 609(b), (c) & (d)
    • doesn’t allow you to walk through the propensity box
    • an exception to 404, nevertheless, b/c the jury can use it as propensity-to-lie evidence
    • any witness, including D
  • 609(b) Time limit – conviction is not admissible under this rule if more than 10yrs has passed since date of conviction or release from confinement, whichever is later, unless Ct determines, in interests of justice, that probative value of conviction supported by spec facts and circumstances substantially outweighs it prejudicial effect. Notice must be given.
    • establishes a balancing test that is even harder to overcome than 403 or 609(a)(1) – old convictions only “very rarely” supposed to come in (see Adv Comm Notes)
  • 609(d) – Juvenile Adjudications
    • never admissible in civil cases, or to impeach criminal D
    • only comes in if Ct finds it “necessary for a fair determination of guilt or innocense”



Stds of Admission (from easiest to hardest to admit): 609(a)(2) –> 609(a)(1) if not D –> 609(a)(1) if D –> 609(b) –> 609(d)* judgments re: probativeness of evidence seem to underly the various stds

  • 609(a)(1) – more serious crimes suggest greater willingness to lie on stand(?)
  • 609(a)(2) -if you lied before, you’re morel likely to lie again
  • 609(b) – more recent crimes are more probative of present character
  • 609(d) – juv crimes are least probative b/c substantially likely that you’ve changed since you were a kid



Richard Uviller – Credence, Character & FREs... (p237)* old Common law: convicted felons weren’t allowed to ever testify at all

  • The FREs are ironic b/c you can use prev convictions (for fraud, for ex) to show that the person is lying or dishonest in general, but not to show that they have done something similar again (committed fraud) – pretty counter-intuitive.
  • Plus, FREs are inconsistent - you can’t use prev conviction to show that they’ve done something like that again, but you can use prev conviction of dishonesty to show that they might be lying again
  • FREs seem to posit several axioms:
    • Dishonest people are more likely to lie in any given situation than honest people
    • Veracity/Mendacity is detectable by casual observers in community, and community consensus is accurately transmitted among acquaintances
    • Ordinary people, properly instructed as jurors, will appreciate distinction between an inference from dishonest character to untruthful testimony and an inference from dishonest character to criminal conduct.
  • All seem remarkably naive



**Problem 4.1 – Bar Fight (p240) - answers on p246


**Problem 4.2 – do them – answers on p269



In general, 607-609 say that once a witness has offered testimony, the opposing lawyer can use character evidence to attack the credibility of the witness. Then the witness’ attorney can use character evidence to support her credibility.* In order for the character evidence to be pertinent to a witness, it must bear on her “character for truth-telling”; IOW, witness doesn’t have an honest character, therefore she is more likely to be lying here

  • rules (607-609) governing character evidence w/ re: witnesses are more liberal than the rules governing character evidence and its use against Ds.
    • 607-609 apply to both criminal and civil cases
    • 608 & 609 allow either party to initiate an attack on a witness; 404(a)(1) & (2) only allow the character door to be opened by D
  • Evidence that witness is lying w/ re: to this statement doesn’t need to go through these rules, and will be allowed subject to 402 & 403 (& other rules), b/c its not a general attack on witness’ credibility. Examples:
    • evidence of witness bias (exempted from 608(a) by Adv Comm Notes)
      • possible to disagree w/ this (see Mark Fuhrman’s racism, but ACN’s are pretty authoratative)
    • contradiction in form of past inconsistent statement
      • if there is evidence of pervasive and intl lying, maybe this is an attack on witness’ general character
    • contradiction in form of other evidence (physical, other witness’ statement, common experiences of life, etc.)



IMPEACHMENT EVIDENCE FLOWCHART – p247 – COPY & KNOW


Klavin & Ziesel - The American Jury (p253)* Kalven & Zeisel data (1966) (p253) shows that overall, D’s w/ crim records are much less likely to testify than D’s w/o crim record (presumably b/c crim record can/will be brought up in cross by prosecution)

    • collected prior to SCt decision in Griffin.
    • Griffin v CA (SCt) – if D doesn’t testify, prosecution can’t mention that to the jury



US v Brewer (E.D. Tenn 1978) (p255)* Release date is found from latest release date – if released from parole, then reincarcerated for violation of parole, its this 2nd release date that counts when determining whether release date was w/i 10 yrs.

  • Five factors (Gordon) in determining whether probative value substantially outweighs prejudice
    • nature of the crime
      • acts of violence don’t really have anything to do w/ honesty
    • time of conviction and witness’ subsequent history
      • behavior after release from first crime (i.e. re-arrest & convictions) implies witness is less than rehabilitated and therefore weighs for admittance
    • similarity between past crime and charged crime
      • convictions for the same crime should be admitted sparingly (ironic, no?)
    • importance of the D’s testimony
      • the more critical D’s testimony is to D’s case, the more reluctant the Ct should be to allow the evidence in
    • centrality of the credibility issue
  • Holding: prior conviction for kidnapping kept out of D’s trial for kidnapping, while other prior convictions not forbidden by 609 balancing test.



Problem 4.3 – Weighing Tests (p259)* Pros tries to intro prior drug conviction under 404(b), judge denies it per 403, but then later allows it over a 609 objection

  • Holding: 609 test is even stricter than 403 balancing test, so if it fails a 403 test, it has to fail 609 test as well!



U.S. v Brackeen (9th Cir 1992) (p260)* Trial Ct allowed evidence of prior bankrobbery conviction in under 609(a)(2); Wouldn’t allow it on under 609(a)(1)

  • Issue: Appeals Ct has to decide whether bank robbery is a per se “dishonesty” offense under 609(a)(2).
  • Holding: NO!
  • Trial Ct reserves judgement on D’s motion in limine (2nd para, p261) until after D testifies. Is that fair? Why?
    • Prof: seems tough to figure why/how its fair to force the D to wait until after he testifies to know if he can be impeached.
  • Trial judge doesn’t allow evidence in under 609(a)(1) – probably b/c he was being charged w/ bank robbery, and that’s what priors were for. – makes it more likely that jury will use the priors for the wrong reason. And jury is only hearing it b/c the D took the stand – if he didn’t take the stand, this evidence would never come in.
  • 609(a)(2) - Would a bank robber who says he has a gun, but really doesn’t, qualify?
    • yes – he lied during the crime
    • no – the crime was taking the $, and he did that openly
  • think about the reason why 609 exists
    • to some extent to undermine the credibility of the witness
    • how close is the prior to the present charged crime?



Problem 4.4 (p263)* does prior conviction of tampering w/ electric meters qualify as a crime involving “dishonesty or false statement”

  • not a 609(a)(1) issue b/c crime is misdemeanor theft and sentence is <6mos
  • 609(a)(2) –crime is def as “obtaining product through deception” (then it does qualify), but if its just “receiving stolen property” (then its not)
    • tough call
    • in the real case it was a crime of deception
    • working together w/ McDonald’s to deceive electric co.
    • judges probably do look to underlying facts of case – they don’t just rely on the name of the charge, or how severe the penalty is.
  • One school of thought is that since the category says it “shall” be admitted, the category should be construed relatively narrowly



Appellate review of trial cts decision on 609* In order to appeal, two things must have happened:

  • First, D must have testified, Luce v US (SCt 1984))
  • Second, P must have intro’d evidence of contested conviction, Ohler v US (SCt 2000)
    • case involved trial ct ruling allowing evidence of conviction to be intro’d, D intro’s it preemptively to reduce effect, P says nothing, and SCt says D isn’t allowed to appeal b/c by intro’ing it himself, he waived any right to appeal



Wissler & Saks – Inefficacy of Limiting Instructions: When Jurors Use Prior Conviction Evidence to Decide on Guilt (p274)* First, prior convictions (for same crime or perjury) don’t seem to affect the already low credibility of D

  • Second, in spite of explicit limiting instruction – conviction of prior same conviction raise conviction rate, w/ some jurors admitting b/c they thought if D did it once, he did it again



Rehabilitating the Credibility of a Witness* before you can rehabilitate, or elicit testimony re: witness’ truthfulness, the witness’ credibility must have been attacked.

  • 3 ways to attack present testimony:
    • evidence of bias
    • past inconsistent statement
    • contradiction by conflicting evidence
  • Evidence of bias is not an attack on witness’ general character of truthfulness under 608(a)(2) (per Adv Comm Notes) – so you can’t rehabilitate attack of bias w/ testimony of witness’ general honesty



**Problem 4.5 (p277) – answers on p280


Use of Extrinsic Evidence (p280)* Under 405(a), character witness can be asked if she has heard of specific act committed by the person the witness is testifying about. Regardless of the character witness’ answer, however, no other evidence re: the act may be presented

  • Under 608(b) similar rule – so rule only really works if person on the stand is being honest – if witness lies (saying “No, I did eat lunch w/ him on that day at that time”) then no evidence may be presented to contradict witness and expose him/her as liar.
    • However, if evidence can be found that can be intro’d for a reason other than showing witness’ character for honesty (for ex., showing the bias as opposed to honesty) than that evidence can come in – and show witness to be a liar. Example on p282.
  • However, 608(b) only bars extrinsic evidence showing gen character for evidence. You can intro specific evidence to show bias or contradict present testimony.
  • Plus, evidence experts (see Weinstein; Mueller & Kirkpatrick) endorsed Adv Comm’s proposed amendment that would allow 402 & 403 to govern these matters – so that if its important enough, evidence would be allowed in.



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RULE AGAINST HEARSAY

Hearsay is fundamentally about the reliability of evidence the jury hears.* Four possible sources of unreliability in a person’s testimony:

    • Perception – the witness saw Tom pull the trigger, but mistook him for John
    • Memory – witness saw and recognized Tom, but now thinks its John
    • Narration – witness means to say Tom, but says “John”
    • Sincerity – witness means to deceive
  • We feel reasonably secure b/c we test the witness’ testimony using 3 tools
    • Oath - encourages sincerity and care
    • Demeanor Evidence – jurors scrutinize
    • Cross-Exam – opposing lawyer probes for all 4 sources of unreliability
  • Hearsay is normally not allowed b/c if B is testifying the C told him that Tom pulled the trigger, only B’s 4 weakness/sources of unreliability are being tested, and C’s sources of unreliability remain untested



COPY & KNOW HEARSAY CHART on p357!!!!


801 – Definitions* 801(a) – Statement – is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion

  • 801(b) – Declarant – is a person who makes a statement
  • 801(c) – Hearsay – is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
    • Two components: has to be 1) an assertion, and 2) offered to prove the truth of the matter asserted.
    • Offered to prove the matter asserted:
      • If BC, charged w/ killing Joey, claims that A called him the night before and said “Watch out – Joey’s got a gun and is coming for you”
        • is not hearsay if used to prove that BC had a reason to fear for his life
        • is hearsay if offered to prove that Joey had a gun or was looking for BC.
      • Wright v Tatham – where issue was testator’s competency, evidence that others wrote to him to resolve problems can be admitted since they weren’t trying to communicate that testator was competent; probably didn’t even intend to imply that testator was competent; only evidence of their belief that testator was competent
      • Indirect assertions, as well as implied assertions are both still assertions – and therefore excluded as hearsay
      • in dealing w/ out of court statements, think about what you’re arguments would be if the party stipulates that the substance of the statement is false.
        • if you can stipulate that substance of the statement is false, but the evidence is still useful, then you’ve crafted a good argument for admitting the evidence
        • helps you focus on what you really need to argue
    • Assertions:
      • Whether certain conduct was an assertion can be determined by asking if the actor intended to communicate anything
        • In sea captain case – he inspected vessel before embarking w/ his family – not intended to communicate anything
          • w/o an audience, you can’t intend to lie
        • Secy Schlessinger who, in response to safety criticism, said he’s taking wife & daughter to nuclear test and then does take them is intending to communicate
        • Though conduct is similar w/ respect to 1st 3 potential sources of unreliability, the first is fundamentally diff w/ respect to sincerity since the 1st didn’t mean to communicate anything, and therefore no real question remains re: the sincerity. A man doesn’t lie to himself.
      • Exclamations like “Ouch” are probably admissible b/c not intended to communicate
      • railcar example: if no one complains about temperature, can conductor testify to the absence of complaints?
        • if conductor says “Is anyone cold” and someone answers that will definitely be hearsay
        • question of whether silence is itself hearsay or not (the fact that they said nothing in the face of some situation) – analysis is pretty complicated --> though often it would seem silence is being used as implied assertion
        • both sides turn into “pop” psychologists
      • Almost all verbal conduct is assertive, however. But maybe offered for something other than “truth of matter asserted”
    • Close calls should be resolved... in favor of admissibility - ACN
  • 801(d) –HEARSAY EXCEPTIONS
    • (d)(1) Prior statement by witness – declarant testifies at trial or hearing and is subject to cross-exam re: statement, and the statement is
      • (A) Prior Inconsistent statement - inconsistent w/ declarant’s testimony, and was given under oath subject to penalty of perjury at a trial, hearing, other proceeding or in deposition, or
        • assumes declarant has taken stand
        • only applies to prev statements made under oath
        • Edmund Morgan – Hearsay Dangers & the Application of the Hearsay Concept (p387)
          • there really isn’t a good reason why you wouldn’t allow a declarant’s prior statements (consistent or not) to come in as evidence if the declarant is on the stand and subject to cross-exam. All the dangers normally associated w/ hearsay would seem to be ameliorated w/ availibility of cross-exam. See rationales behind keeping hearsay out.
        • allows the statement to be admitted for the truth of the matter asserted, not just as impeachment (cf. 613) (see ACN)
      • (B) Prior consistent statement - consistent w/ the declarant’s testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive, or
        • spouse is excellent source
        • Tome v U.S. (SCt 1995) (p406)
          • Child molestation case: victim tells mom, then repeats allegations to babysitter, 2/3 Drs, etc. Prosecution intros these statements per 801(d)(1)(B), saying they rebut D’s claim that mom had victim say this to avoid giving daughter back to D/Dad.
          • None of the statements allowed in b/c they were made after “bias” or improper motive was alleged. If, instead, victim had made allegations to babysitter several months before, then that statement would be admissible
          • exception made (from hearsay) for these statements b/c they’re “extra” reliable – if they come after instance of “bias” then they’re just repetition of originally biased allegation – and don’t carry any “extra” reliability
        • allows the statement to be admitted for the truth of the matter asserted, not just as impeachment (cf. 613) (see ACN)
      • (C) Statement of Identification - one of identification of a person made after perceiving the person; or
        • composite sketches done of Ds are allowed in under 801(d)(1)(C), as are the descriptive statements re: perpetrator made by witness after perceiving perp (Weichell, p414)
        • Even if witness, in cross, admits to memory loss re: prior identification, statements re: identification still allowed in per 801(d)(1)(C) b/c often goal of cross is exactly that – to show uncertain memory. Cross is still effective; can’t argue that “real” cross isn’t avail b/c of memory loss – US v Owens (1988) (p417)
    • (d)(2) Admission by party-opponent. Statement is offered against a party and is
      • (A) Party’s Own Statement in either individual or representative capacity, or
      • (B) Adoptive Statement - statement of which party has manifested an adoption or belief in its truth
        • silence can be an adoption if 4 conditions are met (Jenkins v Anderson) (p401)
          • 1) statement was heard and understood by party against whom its offered
          • 2) party was at liberty to respond
          • 3) circumstances naturally called for response
          • 4) party failed to respond (Jenkins v An
      • (C) Spokeperson’s Statement - statement by a person authorized by party to make a statement concerning the subject
        • Dirs statements in BoD minutes not hearsay b/c they’re authorized to speak for Org/Co (p372)
          • can be admitted against Org/Corp, but not some other employee b/c they’re agents of Org/Corp, not employee
      • (D) Agent’s Statement - statement by party’s agent or servant concerning a matter w/i scope of agency or employment, made during existence of relationship
        • doesn’t need indicators of trustworthiness – jury can sort it out – see “calls for generous tx of this ave. to admissibility” ACN (p372 of casebook)
        • no need to for statements to be made to 3rd parties; internal communications are fine (p372)
      • (E) Co-conspirator’s statement - statement by co-conspirator of a party during course and in furtherance of conspiracy. The contents of statement shall be considered but are not alone sufficient to establish declarant’s authority under sub-division (C), ....
        • has to be offered against the party (mostly against D)
          • only applicable to criminal trials
          • conspiracy – a plan and single act in accordance w/ plan
          • once conspiracy starts, anything co-conspirator does in furtherance can come in against D (not limited by D’s knowledge of that action/speech)
        • be made by a co-conspirator (meaning both parties have to be part of the same conspiracy)
        • statement has to be made during the conspiracy and in furtherance of the conspiracy
          • furtherance rules out confessions
        • SEE Bourjaily below
        • Rationale:
          • Co-conspirators statements are reliable enough to get into evidence b/c both parties share the same goal, an illegal one at that.
          • Co-conspirator’s statements are analagous to agent’s statement – admittable under 801(d)(2)(C) – basically they’re an agent too, just in an illegal enterprise
          • CR: Read Blackmun’s dissent!! in Bourjaily v US
            • maj completely misunderstands the FREs
            • FRE doesn’t rely upon reliability – no thinks participants in crim conspiracies are reliable
            • Like w/ agency, we don’t just take the word of the agent that he’s the agent, and that’s why we wouldn’t just take the co-conspirator’s statement against
          • Basically, you and your agents will be stuck w/ what you said; you can always argue to the jury that you were joking, were mistaken, etc., but you can’t say something and disavow it later (can’t have your cake and eat it too) – i.e. same “war” rationale
      • 801(d)(2) is most important hearsay exception
      • Can only be offered by party against declarant
      • applies to D, D’s agents, D’s co-conspirators
      • Rationale: people don’t generally have incentive to make statements against themselves, so we don’t worry about statement’s reliability
        • plus, you can still cross-exam the person who allegedly made the statement
      • 2nd Rationale: lack of cross-exam (primary obj to hearsay) isn’t present here, except when declarant is D, and exercises right to not testify
        • esp. if D/declarant has crim record – see 609
        • plus, declarant doesn’t necessarily have to be D, could be agent who isn’t present at trial
      • 3rd rationale: ACN says this is “war” b/c of adversary system; maker of statement wont be heard to complain that its unreliable


Bourjaily v U.S. (SCt 1987) -- 801(d)(2)(E)* Three open questions at the time

    • First, judge should make determination of whether conspiracy exists, whether D and declarant are members of same conspiracy, etc. under 104(a) (i.e. judge isn’t bound by FREs)
    • Second, by what std of evidence should the judge decide whether conspiracy exists?
      • Ct concludes preponderance of evidence (i.e. same as Huddleston, 104(b) std)
    • Third, In deciding whether the preponderance std is met, can the judge use the statement itself?
      • Ct says yes – reserves question of whether statement alone is sufficient
      • Later amendment explicitly says “statement shall be considered but are not alone sufficient” – so something else is needed as well
    • Must the judge, before admitting the statement, make a reliability determination under the so-called Confrontation Clause of the 6th Amendment
      • b/c co-conspirator exception is so rooted in FREs, its not necessary



HEARSAY QUIZ on p358-360; Answers on p863!!! (and in Class Notes p20)


Problem 7.15 – Translation (p384)* problems – is conspiracy over once deal goes down – maybe there isn’t a conspiracy anymore

    • apparently that’s a loser
  • even if conspiracy isn’t over, these aren’t N’s, a co-conspirator’s, statements at all. In short, N wasn’t speaking, he was just repeating what Y said. So the jury is really hearing D’s statements.
  • Ans: Yeah, we can’t be sure that N was translating accurately, but let Y’s lawyer argue that – that isn’t an argument as to the admissibility of the evidence, but an argument as to the weight to attach to the evidence (and hence, an argument for the jury).
  • CR: Who knows if N was translating accurately, who knows how good N’s Arabic even was?



802 – Hearsay Rule

– Hearsay is not admissible except as provided by these rules or by other rules prescribed by SCt pursuant to stat authority or by Act of Congress


HEARSAY EXCEPTIONS* most justified by reference to 2 values: necessity and trustworthiness/reliability

  • Unavailable doesn’t always mean physically not present – witness could just be asserting privilege; testifies to loss of memory; or refuses to testify



“PAST STATEMENT” RULES – SEE CHART ON p386


803 – Hearsay Exceptions; Availability of Declarant Immaterial

  • The following are not excluded by hearsay rule, even though declarant is available as a witness:
    • (1) Present sense impression – stmt describing/explaining an event or condition made while declarant was perceiving event or condition, or immed. thereafter
      • almost impossible to distinguish between (1) & (2)
      • Rationale: since so little time passes between event & stmt, little threat of falsehood creeping in.
      • the more time lapses between event & stmt, less likely to be admitted
    • (2) Excited Utterances – stmt relating to startling event/condition made while declarant was under stress of excitement caused by event or condition
      • similar rationale to (1)
      • limit is not time between event & stmt, but how long period of “excitement” lasts.
      • stmts under (1) & (2) are more frequently being allowed in to prove the event actually happened (ACN, p221-222)
    • (3) Then-Existing Mental, Emotional or Physical Condition –stmt of declarant’s then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a stmt of memory or belief to prove fact remembered or believed unless it relates to the execution, revocation, ID, or terms of declarant’s will
      • Hillmon (1892 (p459)
        • evidence under 803(3) can only be used to prove something about declarant; so if other people in stmt come up, that part should probably be stricken, or stmt shouldn’t come in????
    • (4) Statements for Medical Diagnosis – stmt made for purpose of med diagnosis or tx and describing med history, or past/present symptoms, pain, sensations or inception or gen character of the cause or external source of those symptoms, insofar as reasonably pertinent to diagnosis or tx.
      • stmts of fault normally aren’t medically pertinent, but in cases of child/elder abuse, Dr has duty to figure out who’s in charge for tx purposes, and whether they’re involved
        • seems like if you can make argumnt that Dr needs to know who did it to ensure that it harm ceases, stmt could be admissible b/c it was “for purpose of med tx”
      • Problem 7.32, p470
      • US v Iron Shell (8th Cir 1980)
        • Rationales:
        • 1) stmts are assumed to be true b/c patient thinks they’ll be used for the diagnosis (focused on patient)
        • stmt presumed to be reliable if they were believable enough to base a tx plan upon (focused on Dr)
        • 3rd rationaled intro’d – patients are more likely to tell the truth to their Dr. (more pop psychology!!)
      • whether Dr was consulted for tx, or just diagnosis (i.e. expert witness) doesn’t matter (Iron Shell)
      • stmt doesn’t have to be made directly to Dr to be admissible
    • (5) Recorded Recollections – memo or record re: subject which witness once had knowledge but now has insufficient recollection, shown to have been made/adopted when matter was fresh in witness’ memory and to reflect knowledge correctly. If admitted, memo or record may be read into evidence but may not itself be received into evidence unless offered by adverse party.
      • Witness on stand has to exhibit a lack of recollection on the stand
      • the memo/record has to be shown to have been made/adopted to when the memory was “fresh” and to reflect that knowledge correctly
        • see Johnson v State (TX 1998) – past stmt not allowed b/c witness wouldn’t admit that facts in stmt were true, or that his memory was transcribed correctly.
      • witness doesn’t have to be the person who writes the memo/record that’s used to “refresh” the memory. The memo/record has to be shown to be made by the witness, or adopted by the witness.
      • It only comes into evidence itself if offered by adverse party. Otherwise its just read into the record
      • consider 803(5) w/ 612 – Writing used to refresh memory
        • in order to get to 612 you have to show that the writing refreshes the “current” recollection.
        • Ex: If you can’t remember the name of a person you spoke to a few years ago, and then its told to you, and then it comes back to you.
      • Problem 7.36 (p478) (class notes – p34)
    • (6 & 7) Business Records – reg kept business records allowed in w/o testimony of person who made such a record - 803(6) – the absence of reg kept records used to prove the non-occurence of an event if such a record was reg made and preserved, unless the sources of info or other circumstances indicate lack of trustworthiness – 803(7)
      • Palmer v Hoffman (1943) (p488)
        • prerequisite for stmt intro’d using 806
          • 1) regularity serving to counteract possible temptation to misstatement, 2) situation which would lead to detection of falsification so that misstatement can’t be safely made, 3) an employment relationship whereby writer of stmt runs risk of censure & disgrace for misstmts
        • after-accident interviews not kept in “course of reg conducted business activity” – 803(6) – principal objection is that they don’t have same indicia of reliability
      • the more routine the record, the more likely it will be to come in. Hearsay w/i hearsay can be problem – see Problem 7.37
      • Vigneau (2000) (p492)
        • parts of reg kept business records which contain unverified stmts of stranger to business not allowed in under 803(6) if offered for truth of matter asserted b/c “hearsay w/i hearsay” problem
        • verification of ID would probably result in stmt coming in – enough circumstantial evid of ID (same for slips found in alleged sender’s briefcase)
    • (8 & 10) Public Records & Reports – parallel to 803(6) & (7) – allowing admission to prove truth of matter asserted, and to show non-occurrence of event through absence of reg kept record
      • Beech Aircraft Corp v Rainey (SCt 1988) (p496)
        • In official govt report, do you allow both factual evidence as well as conclusions & opinions in report?
        • Beech tries to introduce JAG investigator’s report which seems to conclude that it was pilot error, but acknowledges that it could have been plane defect.
        • SCt allows the report in – but decent arguments as to whether indicia of trustworthiness weigh against admitting it in.
        • 4 factors discussed – timeliness of investigation, special skill or experience of author of report, whether hearing was held, and possible motivational problems mentioned in Palmer v Hoffman (see above)
      • Under 803(8)(B) & (C), evidence from law enforcement not allowed in against criminal Ds. Rationale: didn’t want to impinge upon criminal D’s right to confront witness’ against him. See ACN. Also US v Oates (2nd Cir 1977)
      • But see US v Hayes (10th Cir 1988), where computerized IRS records permitted to be intro’d to show D didn’t pay taxes in 1981.
        • PROF thinks this is ridiculous example
  • All 803 evidence intro’d for the truth of the matter asserted
  • implying that authors of FREs thought some out of court stmts are more reliable/trustworthy than in court statements



804 – Exceptions Applicable Only When Declarant is Unavailable

  • 804(a) – Def of Unavailability – includes situation in which declarant –
    • (1) exempted by ruling of Ct from testifying re: subject matter of declarant’s statement b/c of privilege
    • (2) refuses to testify despite Ct’s orders to do so
    • (3) testifies to lack of memory of subject matter of declarant’s testimony
    • (4) is unable to be present or testify at hearing b/c of death or physical or mental illness or infirmity
    • (5) absent from hearing and proponent of statement has been unable to procure declarant’s attendance by process or other means
    • Not unavailable if exemption, refusal, claim of lack of memory, inability, or absence is due to procurement or wrongdoing of proponent of statement for purpose of preventing witness from testifying/attending
  • 804(b) – Hearsay exceptions – following aren’t excluded by hearsay rule if declarant is unavailable
    • 804(b)(1) Former Testimony
      • testimony given as witness at another hearing of same or diff proceeding, or in deposition, if party against whom testimony is now offered, or in civil action, a predecessor in interest, had an opportunity & similar motive to develop testimony by direct, cross or redirect
      • U.S. v. DiNapoli (2nd Cir 1993) (p423)
        • two guys called into grand jury, given grant of immunity, and asked to testify. Both say “Didn’t see/hear anything” Evidence suggests grand jury didn’t really believe either of them. Prosecutor doesn’t press them further (didn’t want to reveal informants, wiretap surveillance) and doesn’t take guy up on his later offer to correct testimony. Grand jury indicts others. D’s try to intro guy’s grand jury’s testimony to help Ds. Prosecutor objects, saying he didn’t cross b/c grand jury didn’t believe them anyway
        • On “motive” question prosecutor wins – not similar enough.
        • Takeaways
          • Demonstrates the difficulty in analyzing the “similarity of motive” question.
          • If two proceedings aren’t precisely the same, its easier to argue difference of motive
          • Inquiry is “fact specific”
          • Critical fact – there were wiretaps; prosecutor could have really gone after them, but pros didn’t want to reveal the wiretaps.
      • Lloyd v. American Export Lines, Inc (3rd 1978)
        • Lloyd and Alvarez get in fight on ship; Lloyd sues ship-owner, ship-owner joins (sues) Alvarez; Alvarez, in turn, sues Export. Lloyd ends up dropping, not appearing, so all that is left is Alvarez suing Export.
        • Export tries to use Lloyd’s testimony to Coast Guard panel/hearing, Alvarez objects, trial judge doesn’t allow the statement. Export loses, appeals, and wins on appeal > Export allowed to intro Lloyd testimony
        • Big Question: can Coast Guard cross stand in as fair replacement for Alvarez’s cross?
        • Holding: yes – i.e. don’t take a very strict view of rule
        • In order for 801(d)(1) to be used, declarant has to be available. Here, this isn’t true
        • 804(b)(1) – it is a “civil action or proceeding” – seems to be proceeding
        • Is CG a “predecessor in interest” w/ “similar motive”?
          • Arguments against:
            • potential outcomes are different: losing a “badge” vs having to pay a lot of $$$
            • diff motive: CG’s: justice, Alvarez: wants $$/victory (see litigation as “war”)
            • CG took a year – very possible that CG lawyer wasn’t same throughout, overworked, inexperienced.
          • Argument for: Lloyd was under oath, and subject to cross by Coast Guard examiner (but not by Alvarez or Export) – but “both sought to exact penalty for same condemned behavior thought to have occurred.”
    • 804(b)(2) Dying Declarations
      • In prosecution for homicide or in civil action or proceeding, stmt made by declarant while believing that declarant’s death was imminent, concerning cause or circumstances of what declarant believed to be impending death
        • doesn’t apply to D’s – as in dealth penalty D maintaining innocence to the end?
      • Death does have to be imminent or thought to be imminent, not just feared generally, or sometime in near, but not immediate, future. Shepard v US, p445.
      • Dying person’s testimony only allowed in if dying person had personal knowledge, e.g. “I think Dr. Shepard poisoned me” not allowed in. Shepard v US, p445. – 602 – non-expert witness must have personal knowledge
        • contrast Dr Shepard’s wife stmt (not allowed) vs K. Poos’ stmt in wolf-biting case (allowed) when neither of them had personal knowledge. – Poos’ stmt was against interest, and therefore intro’d – more proof of litigation as war
    • 804(b)(3) Statements Against Interest – statement which at time of making so far contrary to declarant’s pecuniary or proprietary interest, or tended to subject declarant to civil or crim liability, or to render declarant’s claim against another invalid, that a reasonable person wouldn’t have made it unless true. A statement tending to expose declarant to crim liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of statement.
      • DEF ON EXAM
      • sometimes statements will be parsed, and only part of statement will be allowed in to prove truth of matter asserted
        • Williamson v US (SCT 1994) (p434)
          • only part of declarant’s statement that is allowed in is self-inculpatory part. The parts where he implicates D, but doesn’t implicate himself, aren’t allowed in – they don’t have same indicia of reliability
            • CR: whole statement should be excluded b/c if he’s lying to shift blame, the whole statement lacks reliability (see concurrence)
          • Q is whether statement was sufficiently against penal interest of declarant to such that “reasonable person...” - 804(b)(3)
      • 3/4 ways to statements against interest in
        • (what are others)
        • co-conspirator statement
      • try to analyse w/ respect to indicia of reliability
        • memory, perception, narration & sincerity
        • gen thought to be more reliable b/c nobody lies against there own interest
        • speaking to police vs speaking to others
          • talking to cop is more reliable b/c you’re more likely to get in trouble
          • but, not if you inculpate someone else too – then its likely you’re getting yourself in a little trouble to get yourself out of a lot of trouble
    • 804(b)(6) Forfeiture by Wrongdoing – stmt offered against party that has engaged or acquiesced in wrongdoing that was intended to & did result in witness’ unavailability.
      • If you killed witness, can’t later claim that his statement is hearsay. US v Houlihan (1997) (p450)
      • Confrontation Clause & hearsay objections impliedly waived, since D killed witness. Not that its any more reliable – just that you have no right to object since you’re responsible for absence. Id.
      • potentially applicable to Govt too
  • If something comes in under a 804(b) exception, they are not hearsay and come in to prove the truth of the matter asserted.
  • 804(b) reflects judgment that though not ideal, some evidence is better than none (so let hearsay in). Cf. w/ 803 – where letting stmt in is not contingent on witness availability.



Problem 7.21 – Roadway Incident (p423)* Victim of DUI accident sues D, gets cross-examined at that trial, and then prosecutor tries to use her testimony at criminal DUI trial

  • Definitely unavailable – head injury prevents her from testifying (a3 or a4)
  • Does it fit into an exception? – seems like fits in (b)(1)
    • already cross’ed by D’s lawyer
      • same lawyer?
    • “similar motive to develop the testimony” present in civil vs criminal trials
      • you’d have to know more about facts – does ins cover him, does it matter that he was drunk at all, or was he at fault anyway, was there a specific allegation that he was drunk? Driving w/o a license, or exp license, is inapplicable during a civil trial
      • Was there enough indicia of reliability to intro the statement at a 2nd trial?
  • Sometime judge will try hard to prevent intro of evid if Govt can prove its case through other means - b/c the prior testimony can be damag/unfair



Problem 7.22 – Ask Magnolia (p434)* 801(d)(2) – admission by party-opponent – if D said it, and its being admitted against him, you should definitely allow it

  • 5th Amend makes Robert unavailable
  • Argument that it comes in – Statement totally admits Robert’s involvement/participation
  • Argument against it – Statement is admitting guilt but trying to lay blame on Magnolia; so statement is in his interest
  • Co-conspirator’s statement? – not in furtherance
  • SCT doesn’t admit 2nd half of statement on grounds that it wasn’t statement against interest under 804(b)(3)
    • He said, in effect, “Yes, I robbed the truck and it was Magnolia’s idea



Problem 7.23 – Alice’s Restaurant (p440)* Under Williamson, the statement seems to come in. Portion that comes in only implicates himself.

    • CR: his statement naturally suggests that he’s doing the arson at someone else’s behest. But, doesn’t relieve him of any guilt/responsibility so you why is statement any less reliable



Problem 7.24 – Accomplices* Co-conspirator statement? – any part of the cover-up isn’t “in furtherance”

  • 1st Cir allows statements to be admitted
  • Q: Do you tx statements made to family diff than statements made to police
    • this Ct seems to think so – implicating accomplice to police diff than to sister (statement to sister is more reliable)
      • more pop-psychology – who knows if you’re more/less/same likely to feel pressure to not be guilty of heinous crime to family vs cops
  • Is admitting an affair (by husband to wife) a statement against interest? Ans: depends on facts surrounding case



806 – Attacking & Supporting Credibility of Declarant

  • When hearsay statement, or stmt admitted per 801(d)(2), (C), (D) or (E) has been admitted, the credibility of declarant maybe be attacked, and if attacked, may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a stmt or conduct by declarant at any time, inconsistent w/ declaran’t hearsay stmt, is not subject to reqt that declarant may have been afforded an oppty to deny or explain. If party against whom stmt has been admitted calls declarant as witness, party is entitled to examine him as if cross’ing him.
  • Basically, you can attack the credibility of maker of hearsay stmt the same as if witness was actually there, including proof of bias, contradiction by inconsistent stmt, contradiction by other evidence, and evidence of untruthful character, whether in form of opinion or reputation per 608(a), specific acts suggesting untruthful character – 608(b), or past convictions under 609. (bottom of p448-449)
  • 806 also extends to stmts by spokepersons, agents, and co-conspirators
  • 806 applies to hearsay admitted under 803 or 804, too.
  • 806 also apparently contemplates allowing Ds to take stand to attack their own credibility after stmts have come in under 801(d)(2)(A) & (B).



807 – Residual Exception

– stmt not specifically covered by 803 or 804, but having equivalent circumstantial guarantees of trustworthiness, not excluded if:* A) stmt is offered as evidence of material fact
  • B) stmt is more probative of point trying to be proved than any other evidence which proponent can get through reasonable efforts
  • C) gen purposes of these rules and interests of justice will be best served by admitting evidence.
  • Must make evidence known to opposing party prior....
  • Dallas County v Commercial Union Assurance Co (5th Cir 1961)
    • two important factors govern:
      • necessity (of evidence)
      • circumstantial guaranty of trustworthiness
    • rationale behind “ancient documents” exception is same here:
      • ordinary evidence is unavailable, so resort to circumstantial evidence is permitted.
    • newspaper article (evidence in question) was 58 yrs old, but didn’t fit w/i ancient documents exception (this is subject of dispute) b/c it would’ve been hearsay w/i hearsay – the author didn’t seem like he directly witnessed the fire – and the witness’ hearsay wouldn’t be admissible under some other rule for sure
  • United States v Laster (6th Cir 2001) (p514)
    • Issue: whether “near-misses” can still be admitted under 807? When another exception directly applies, but the evidence doesn’t meet one of the criteria, can you still try to get it in under 807?
      • “not specifically covered by Rule 803 or 804” – what does that mean?
    • Facts: can’t be admitted under business record b/c only business person who could “sponsor” evidence has died, so prosecution tries to use a detective to introduce the business record, but he’s got no knowledge of the business – he didn’t work there, couldn’t testify as to whether these records were kept as part of ordinary business, etc.
    • Holding – only means that evidence which could be admitted under 803 or 804 should be admitted under that Rule, not 807, first. So if something is close, but not allowed, under 803 or 804, then 807 can apply if it meets the indicia of reliability.
    • Dissent – should only apply to evidence which isn’t covered on its face by another rule
  • Prof: 807 is always a back-stop. When you lose on something else, try 807 as a last ditch effort to get evidence in. Similar to using 403....



613 – Prior Statements of Witness

  • 613(a) – Examining witness concerning prior statement – in “ “made by witness, written or not, the statement need not be shown nor its contents disclosed to witness at that time, but on request shall be shown or disclosed to opposing counsel
  • 613(b) – Extrinsic evidence of prior inconsistent statement of witness – not admissible unless witness afforded an opportunity to explain or deny the same and opposite party is afforded an opportunity to interogate the witness thereon, or interests of justice otherwise require. This doesn’t apply to admissions of party-opponent per 801(d)(2).
  • If evidence is intro’d under 613 std, it cannot be intro’d for the truth of the matter asserted, only to impeach/support witness’ truthfulness (or not).
    • Cf. w/ 801(d)(1) – harder to get evidence in, but can be used for truth of the matter asserted.
  • U.S. v Barrett (1st Cir 1976) (p389)
    • D is accussed of stealing and transporting stamps. Witness (“Adams”) says D told him he did it (said this to police) and D has another witness that says Adams said D didn’t do it a month later.
    • Trial Ct doesn’t let in other witness’ statements about what they heard Adams said. Appeals Ct overrules, saying that D’s defense is that Adams is lying b/c Adams did it himself.
    • Can’t admit it under 801.
    • 613(b) – can come in as prior inconsistent statement by witness b/c witness is afforded an opportunity to explain/deny it.
      • Under 613, you only need opportunity to explain or deny it, but you don’t need to be cross-examined on it.
    • Prior inconsistent statements are crucial to the “trial process”, even if not intro’d for the substance of the matter, and only for impeachment.
    • Under 613(a) you can directly examine Adams about what he said to Delaney.
    • 613(b) allows you to intro’d extrinsic evidence if Adams denies saying that to Delaney (i.e. allows you to call Delaney as a witness to testify that Adams did say that to him)
  • U.S. v Ince (4th Cir 1994)
    • murder case. Witness tells MP that she saw D shoot; now at trial she says she can’t remember (even if her memory is refreshed).
    • So prosecution calls MP to contradict witness, and MP testifies that witness says Ince (D) shot him. Ostensibly govt says MP called just to contradict witness, but really they’re just trying to find some way to get D’s alleged confession in.
      • prosecution uses MP’s statement in their closing, telling the jury they’d heard evidence that Ince had confessed – NO GOOD b/c you use 613 evidence only to impeach witness, not for the truth of the matter asserted.
      • also, per 403, if “impeachment” evidence is particularly prejudicial, and only used to impeach a witness who’s testimony is of negligible value – impeachment evidence can be disallowed per 403; basically, use 403 to block “backdoor”
    • So instead of calling witness (and then trying to impeach her), prosecution should just have intro’d her statement under 803(5).
      • 803(5) evidence can be intro’d for truth of matter asserted
  • Fletcher v Weir (SCt - 1982) (p399)
    • Post-Miranda no, but pre-Miranda silence can be used against D
    • post-arrest, pre-Miranda unclear
    • pre-Miranda, pre-arrest – almost certainly, esp. if police aren’t around
    • for Miranda & Silence – see chart, p404
    • Incentivizes police to not give Miranda warnings
    • Indicia of reliability behind SCT’s ruling is that how can person claiming self-defense not claim so when arrested?
    • Prof: big problem w/ this case – guy claims self-defense but doesn’t call police, etc.
      • but there are reasons not to call police even though you really were acting in self-defense
    • For exam, keep in mind issues re: silence, and the criteria on p401 re: when they can be admitted (Marshall, see above)



Problem 7.16 (p392)* Initially witness tells officer who shot who, and later at trial witness states that she didn’t see anything

  • Is cops’ testimony re: what she said earlier admissible under 801?
    • No, statement wasn’t made as part of a proceeding, or under oath, etc. – see 801(d)(1)(A)
      • periodically, lawyers try to expand def of a “proceeding” to include police investigations, but they haven’t succeeded. The reason seems to be that the indicia of reliability aren’t there (as they would be if person is under oath, etc.)
  • under 613?
    • Yes, its inconsistent. She’s not saying she doesn’t remember, she’s saying she didn’t see it, or wasn’t there at the time
    • But, You want jury instruction saying that you can’t use witness’ statement to judge whether D was guilty, but only as to whether witness was telling the truth.



Problem 7.17 (p398)* Not a co-conspirator’s statement b/c not in “furtherance” anymore. Conspiracy is over. Arrest ends the conspiracy - Any statement made post-arrest is not a co-conspirator’s statement

  • 801(d)(2)(B) – statement of which the party has manifested an adoption or belief it its truth
    • 4 conditions of using silence as “adoption”
      • post-Miranda, your silence can’t be used against you.
      • 4 pre-conditions for using silence against person (Marshall, p401) – 1) party heard, 2) party was at liberty to respond, 3) circumstances naturally call for a response, and 4) party failed to respond.
        • Big issue is #3 – circumstances don’t naturally call for a response.
        • Some say silence is only natural after you’ve heard Miranda, but once you’ve been arrested you can argue the same thing.
  • Prof: probably does come in – (look at bigger pic/circumstances)




CONFRONTATION CLAUSE & HEARSAY (p519)* 6th Amend guarantees criminal Ds “the right... to be confronted w/ the witnesses against” them

    • taken literally, this would seem to ban all hearsay evidence
  • Pointer v TX (US 1965)
    • 6th Amend Confrontation Clause incorporated by Due Process Clause of 14th Amend and is therefore binding on states
  • CA v Green (US 1970)
    • if declarant is present & testifies at trial, then previous out of Ct statements can be considered in-court testimony
    • 2nd holding is subsequently modified
  • Dutton v Evans (1970)
    • Even when witnesses are available, sometimes they don’t need to be called – see Business Records exception of the FREs
  • OH v Roberts (1980)
    • Rule of Necessity – prosecution must either produce, or demonstrate unavailability of, declarant whose stmt it wishes to use against D
      • subsequently overruled (completely) in White v IL, below
    • Rule of Trustworthiness – if declarant is unavailable, hearsay stmt is only allowed if it bears adequate indicia of reliability. (either suffices)
      • reliability can be inferred per se if evidence falls w/i firmly rooted hearsay exception
      • otherwise, evidence must be excluded absent a showing of “particularized guarantees of trustworthiness”
  • US v Inadi (US 1986)
    • Roberts only applies to prior testimony
    • Rule of necessity doesn’t apply to Co-conspirator’s stmt
  • Maryland v Craig (1990) (5-4 decision)
    • if state makes individualized determination that child would suffer serious emot distress if forced to testify in presence of D accused of child abuse, then minimal intrusion on D’s right to confront accuser is permitted b/c D still has right to cross-exam
  • ID v Wright (1990)
    • Dr-Child exchange prohibited from being intro’d at trial b/c they violated D’s right to confront (since witness, 3yr girl, didn’t testify) b/c testimony didn’t fall w/i tradt’l hearsay exception, nor did it have particularized guarantees of trustworthiness (Dr asked blatantly leading questions)
      • 807 hearsay exceptions are not firmly rooted
      • “particularized guarantee of trustworthiness” to be determined by “totality of the circumstances” – relevant circumstances only include those that surround the making of the stmt and that render the declarant particularly worthy of belief.
      • p531 – list of particular factors that help determine reliability
    • Dissent: you’d think that independent corroborating evidence would be allowed to help determine stmts veracity as part of totality of circumstances – in fact, what could possibly be more helpful?
      • Prof: thinks dissent argument is far stronger
  • White v IL (1992) (p535)
    • Rule of Necessity is killed off – Ct allows out of Ct stmts w/o witness testimony b/c they have probative value that wouldn’t be captured if only testimony was allowed, and see next pt
    • stmt that qualifies under “firmly rooted” hearsay exception is so trustworthy that adversarial setting can be expected to add little to it
    • New Rule: if stmt has substantial probative value and significant indicia of reliability (per se for long-standing hearsay exceptions), then they don’t violate D’s right to confront
  • Lilly v VA (1999) (p543)
    • reaffirms two prong test: evidence must be either firmly rooted hearsay exception, or contain particularized guarantees of trustworthiness
      • re: firmly rooted – stmts against penal interest are not always included in category
        • admitted against declarant himself is firmly rooted
        • offered by D to implicate declarant doesn’t bring up Confrontation Clause issues – and is presumably OK
        • if used by Prosecution, against D, then it is not firmly rooted.
      • re: particularized guarantee of trustworthiness – when govt is involved in stmt’s production, when stmt describes past events, and when stmt is not subject to cross-examine – its hard to imagine that stmt can overcome presumptive unreliability
    • Prof: hard to imagine a stmt that isn’t firmly rooted that does have particularized guarantee of trustworthiness b/c that’s what the development of Evidence law is all about – what it seeks to fig out
  • Crawford v WA (2004) – overrules Roberts, above
    • D objects to wife’s stmt being admitted, claiming it violates his right to confront, even though she isn’t available to be cross’ed b/c he’s exercise his right (in WA) to not have her testify against him
      • forcing D to choose between 2 would be “Hobson’s choice”
    • Holding: if hearsay stmt seeking admittance is “testimonial” in nature (basically, no prev chance for cross, and govt is involved), then it is per se barred unless D has chance to confront (i.e. cross) declarant.
    • Testimonial (for purposes of Crawford) are:
      • grand jury - cant cross
      • police interview - can’t cross
      • key factor: availability of cross
  • Over time SCt has identified several hearsay exceptions as “firmly rooted”
    • co-conspirator
    • medical stuff
    • dying declaration
    • past testimony under oath
      • but, per Crawford, this probably isn’t allowed unless D had chance to cross sometime previously
    • business records and public records
    • statements which have specifically found not to be admissible include:
      • accomplice confessions which inculpate
      • statements admitted under residual exception
        • Residual is specifically not “firmly rooted”
      • grand jury testimony (w/o chance to cross declarant)
      • police interviews (w/o chance to cross declarant)
  • Exam tip: If your a D attorney, you’d be an idiot not to raise a confrontation clause objection sometime during a trial
  • Today, the FREs basically trump the confrontation clause except in narrow cases/situations – but see Crawford for modern wrinkle.



Problem 8.1- Anonymous Note (p542) (Prof loves this problem)* Facts: 2 guys rob check cashing store (both are dead by time of trial)

  • R&S leave robbery in beige car driven by Mitchell
  • Beige car found, anonymous note found inside – ties robbers to green car. Mitchell’s fingerprints found in beige car
  • FBI finds Green car, at Anita’s house, stop Mitchell for traffic violation and find $1400 in small bills
  • 3 possible ways to get this note into evidence
    • first, present sense impression – 803(1)
      • declarant unavailable, but thats okay under 803
      • but, no proof of close time overlap (though it did occur w/i at least an hour/45 minutes.
        • CR: who keeps knowledge of license plate in their head for long periods of time
      • but, you still have to prove that the declarant had personal knowledge – the person who wrote the note might have been different than the person who witnessed it
      • PROF: probably lose
    • 2nd: 807 – same arguments, b/c its a residual exception.
      • trustworthiness – probably close in time, people who do these things don’t really have a motive to lie
      • thumb on the scale should be that it doesn’t come in if it doesn’t already come in under another exception
    • Corroborating evidence, though it exists, doesn’t count under 807 – see ID v Wright
    • Confrontation Clause
      • not a firmly rooted exception to hearsay rule, so
      • it has to have particularized guarantees of trustworthiness
        • but again, you can’t include corroborative facts
        • hear, the most convincing evidence are corroborative facts
        • Is the trustworthiness analysis similar under 807 and Confrontation Clause – yes
    • 807 doesn’t apply to criminal cases b/c its not a firmly rooted exception
    • Dirty little secret – you get to 807, it doesn’t apply, then judges will use Confrontation Clause argument; its a fiction... or judge will let it in under 807, then change mind once reminded of Confrontation Clause
    • Ans: U.S. v Mitchell, 145 F.3d 572, evidence does NOT come in



Bruton Doctrine (p550)* Question that gives rise to Bruton Doctrine: May the Ct permit the jury to hear the out of Ct confession so long as Ct carefully instructs jury to consider the stmt only against its maker?

  • Bruton v US (1968) (p551)
    • Bruton & Evans tried jointly; Evans confesses, also implicating Bruton; Judge allows confession, though Evans refused to take the stand and be crossed; Judge instructs jury not to use Evans confession against Bruton
    • Both convicted, Bruton appeals saying it violates his rights under the Confrontation clause
    • Holding: Limiting instruction not adequate substitute for const right to cross-examine.
      • holding despite incredibly clear limiting instruction- Rule 105
      • Though we allow limiting instructions w/ re: to character evidence, a confession would seem to be even more damaging
  • So how do you get around the Bruton problem?
    • “joint trial” – have two juries, one of which gets excused when the out of court confession is heard
      • expensive – b/c two juries, and b/c courtrooms equipped for two juries are hard to find
      • otherwise easy to do, but for logistics, most judges wont do it
    • separate trials
    • Confessions are not coconspirator statements b/c not in “furtherance of” the conspiracy.
  • Bruton can be a major problem in any criminal trial. The more likely you claim its a Bruton statement, the more likely you are to keep it out.
  • Problem 8.2 - “Dogs O War” problem (p559)
    • Facts: D’s out of Ct statement is that fellow D liked to refer to this operation as “Dog O War”
    • How can you get the statement in?
    • Claim its a co-conspirator statement, and conspiracy existed per Bourjaily
      • but hearsay w/i hearsay and using it to prove the truth of the matter asserted, not just that it was made
      • not made to police, at a hearing, so they didn’t think they were being watched
      • CR, but they were attorneys, must have known they’re letters were getting read
        • CR: statement against a penal interest - 804(b)(3)
          • is it offered to exculpate the accused? Not really, implicating the wife, but not moving any kind of blame
    • statements that encourage trust & cohesiveness can be deemed a conspiracy statement
    • Best way to think about this is that Bruton applies to confessions that implicate co-D; co-conspirator statements lack the incentive to lie that exist w/i confession (to spread blame, place blame on co-D).
    • Prof: probably comes in as co-conspirator statement; esp. once Aryan Brotherhood comes in; see Lynn... the lawyer in NYC who was convicted of helping blind sheik and the relaxing of the rules of evidence.
  • Cruz v New York (SCt 1987) (p560)
    • Issue: Is co-D’s confession admissible when D has also confessed? (basically, Bruton + D’s own prev out of court statement is being used against him b/c its self-inculpatory); IOW, does this intro of D’s confession make the Bruton problem go away w/ re: co-D’s confession?
    • HOLDING: No, just b/c D’s out of Ct statement is admitted doesn’t make it any less devastating
      • more devastating, not less, if two overlap
      • Scalia doesn’t seem to like idea of leaving it up to Trial judges whether confessions are “interlocking” – how they support, or don’t, one another in making a greater determination of whether Confrontation Clause applies
  • Gray v Maryland (1998) (p564)
    • Couple of guys beat victim to death. One of them confesses. Ct, per post-Bruton ruling, allows confession in against only confessor (limiting instruction given), and has Gray’s name deleted out of confession. But cop reads confession saying “delete” instead of Gray’s name, and also, immed afterwards says, “Yes, this confession allowed me to arrest Gray.”
    • Holding: Not allowed. Basically too easy for jury to realize (as prosecutor intends) who “deleted” is, and that its too prejudicial – the limiting instruction almost gets the opposite result, just drawing attention to the D
  • Problem 8.3 (p572)
    • whether lady who did driving, is her confession allowed even though fellow D’s can cross her; In her confession, they used neutral pronouns – did that allow it to overcome the Bruton hurdle?
    • Prof: the lady’s confession now sounds weird. Instead of the nephew coming at midnight needing gas, it was just “someone”... which makes her sound weird. It makes her sound more guilty than she was before
    • What about co-D’s
      • there is obviously some relationship between lady and “redacted” since they succeeded in getting a lady to get them gas at 2am
      • plus, those who weren’t involved in that part of crime can’t defend themselves by establishing that it wasn’t them who went to her house in the morning
      • plus, just devolves into game/sneakiness by prosecutors
      • and can make confessor appear even more dishonest than they meant to be
    • PROF: thinks this probably does violate Bruton




COMPULSORY PROCESS

  • Chambers v Mississippi (SCT 1973) (p573)
    • Basically there is a due process right that someone can’t be denied a fair chance to present his D. MI Rules of Evid prevented D from calling witnesses that would’ve helped him. SCT says you have to let him call the witnesses, otherwise his Due Process “Compulsory Process” (fundamental right “to call witnesses on one’s own behalf”) rights are violated
      • Witness stmts, forbidden as hearsay, had assurances of reliability
      • Plus, hearsay stmts could be tested b/c original declarant was in Ct, and had testified
      • Due Process 14th Amend; Compulsory Process – 6th Amend
    • Green v GA (1979) – state’s unreasonable app of hearsay rules can violate Due Process clause (state didn’t recognize stmts against penal interest as admittable hearsay)
      • where its critical, and bears persuasive indicators of trustworthiness, you’re Const allowed to present it. Basically Const Due Process demands fair trial/oppty, and if necessary, trumps FREs
    • 807 – residual exception – serves this purpose in FREs
    • Prof: most fed judges will bend over backwards for criminal Ds in federal trials



701 – Opinion Testimony by Lay Witness

– If witness isn’t testifying as an expert, the witness’ testimony in form of opinion or inferences is limited to those opinions or inferences which are:* (a) rationally based on the perception of the witness
  • (b) helpful to a clear understanding of the witness’ testimony or determination of a fact in issue, and
  • (c) not based on scientific, technical or other specialized knowledge w/i scope of FRE 702.
    • But, ACN: occassionally can offer evidence based on her “particularized knowledge” gained “by virtue of his/her position in a business”
  • US v Figueroa-Lopez (9th Cir 1998) (p591)
    • police witness is allowed to testify under 701, but 9th Cir says it should have been 702 b/c they identified behavior as that of an experienced drug trafficker.



Problem 9.1 – Despondently (p587)* prob comes in; its rational..

  • Main argument against it: not qualified as a clinical expertise & no basis of comparison
    • “depression” is a term of art
  • less admissible if this conversation took place over the phone
  • run the risk of having jury wonder why you’re making such a big deal



Problem 9.2 – How Old? (p588)* Affirmative def to selling cigs to minor where D reasonably believed customer was over 18

  • yes it comes in
  • ACN – clearly meant to include evidence that includes “appearance of persons or things, identity, and manner of conduct...”
  • make argument that testimony isn’t rationally related to D’s belief, but CR, testimony shows that D’s belief was reasonable



702 – Testimony by Experts

– If scientific, technical or other specialized knowledge will assist trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill or experience, training or education may testify in the form of opinion of otherwise if:* (1) the testimony is based upon sufficient facts of data

  • (2) the testimony is the product of reliable principles and methods, and
  • (3) the witness has applied the principles and methods reliably to the facts of the case
  • requires pre-trial disclosure if you plan to have expert testimony – and nothing worse than having other side prepared to rip your guy to shreds



Rule 703 – Bases of Opinion Testimony by Experts

Rule 704 – Opinion on Ultimate Issue

  • (a) Except as provided in (b), testimony in form of an opinion of inference otherwise admissible is not objectionable b/c it embraces an ultimate issue to be decided by the trier of fact
  • (b) No expert witness testifying w/ respect to the mental state or condition of a D in a crim case may state an opinion of inference as to whether the D did or didn’t have the mental state of condition constituting an element of the crime charges or a def thereto. Such ultimate facts are for judge/jury alone.


Expert Testimony – Five Issues* Proper Qualifications

    • U.S. v Johnson (5th Cir 1979) – guy who’s smoked mj >1000 times is allowed to testify as an expert
      • Two elements needed to testify as expert (Fineberg v US):
        • 1) inference must be so related to some science, profession, business or occupation as to be beyond knowledge of avg layman
        • 2) witness much have such knowledge or experience in the field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth
      • having expert testify on other side prob makes it more likely that you’re expert will be admitted, or not overturned on app
    • Jinro America v Secure Investments (9th Cir 2001) (p598)
      • Expert testifies that Korean business tend to be corrupt – his testimony not allowed
      • Prof: that’s def of racism
      • Experience gained from his consulting Co/Korean wife – only has experience w/ investigating allegations of corruption
      • Takeaway: “Expert” status gives your testimony special status w/ jury; allows you testify w/ no 1st hand knowledge
    • IF ALL ELSE FAILS, USE 403!!
  • Proper Topic
    • (Im)proper topic – matters of common knowledge
      • Problem 9.6 – are words “Match” & “Macho” so similar as to cause confusion in consumer – English prof not allowed to testify as expert
    • Opinions on Law and/or Ultimate Issues
      • Hygh v Jacobs (2nd Cir 1992) – expert testimony expressing a legal conclusion is still not allowed. Objectionable not just b/c it might lead jury to adopt outright legal conclusion, but also b/c it might communicate a legal standard, implicit or explicit, putting him in competition w/ judge.
        • objectionable opinions: D’ conduct was “not warranted uner the circumstances” & “not justified under the circum”
    • Opinions on Credibility
      • State v Batangan (HI 1990) – child psychologist testifies that alleged victim of sex assault was believable, and telling the truth
        • Jury, only, assesses witness’ credibility
        • Expert can testify that its common for child victims to delay reporting to authorities, and then to switch/recant their stories sometimes – but can’t testify that girl is telling the truth/is believable.
        • Rests on assumption that jurors are best lie detectors – remarkable assumption, and prob wrong
          • Evidence suggests that jurors have no special talent, though they believe they are better than they are
    • Opinions on Eyewitness ID
      • U.S. v Hines – judge allows expert witness to testify generally about controversy surrounding eyewitness IDs, esp. cross-racial IDs. Opposing expert also testifies. Jury will probably be able to “cabin” the expert testimony approp
  • Sufficient or Proper Basis of Opinion Testimony
  • Relevant & Reliable Methods
    • Assessing Reliability of Scientific Evidence/Experts
      • Daubert v Merrell Dow (1993) – std of admitting expert scientific testimony. Factors (non-exclusive list) to be considered in determining 2 things: relevance & reliability:
        • 1) can theory/assumption be tested, and has it been tested?
        • 2) theory/technique been subject to peer review and publication
        • 3) is there a known or potential rate of error
        • 4) existence & maintenance of stds controlling technique’s operation
        • 5) “general acceptance” of theory/technique (a la Frye)
        • Finally, apply 403 balancing test
      • Daubert factors have been subsumed in 702 (in 2000 Amend)
      • 702 is meant to be more liberal than Frye “gen acceptance” test – see ACN – but evidence suggests that Daubert has raised the bar
        • But, judge’s role is “gatekeeper” (Daubert), so keep junk science out!
    • Assessing Reliability of Non-scientific Expertise
      • Kumho Tire (1999) -