EVIDENCE SPRING 2013

General stuff note that evidence rules only come into play when theres an OBJECTION to
something!
Purpose/value of evidence rules:
- Efficiency
o Ex. Rule 401 make sure only pertinent evidence is admitted
- Preventing prejudicial and irrational decisionmaking
o Ex. Rule 403 balance we dont have sufficient confidence that fact-finders can
really ignore prejudicial facts
- Social policy
o Social policy objectives (ex. atty-client priv) would be undermined by a system of
unconstrained advocacy
- Ferreting out potentially unreliable information
DC: even though there are very few fed trials, still need to know ev rules they can come up at
any stage of litigation (ex. summ j)
- Only exception: ev rules NOT at play in bench trials b/c its just the judge no reason to
use ev rules in that situation
- Important in how you value settlements what is going to get to the factfinder impacts
how much youre willing to pay
First principles: The Federal Rules of Evidence are PURPOSE-DRIVEN
- This means that admissibility is going to be heavily dependent on the purpose for which
the evidence is being offered
o This means that the same pieces can be inadmissible for purpose A, while being
totally admissible for purpose B! (RULE 105)
DC: in this situation, the proponent of a piece of evidence will offer the
evidence and be prepared to articulate ONLY the ACCEPTABLE purpose
b/c there will def be an objection
We do this b/c if we had a total bar against ANY bad purpose, TOO
MUCH evidence would be excluded!
o In these situations, a ct will issue a limiting instruction tells the jury this ev can
be used for x purpose but not y purpose. (IRL its not gonna make a difference but
YOLO)
Cardozo: at some pt, the reverberating claim of the bad part of the
evidence overcomes the sound of the good at this point, limiting
instruction will not do the job and 403 will exclude

I. Introduction to Relevance
RULES 401-415 ARE THE RULES OF RELEVANCE
- 401: defines relevance
- 402: relevant evidence is admissible unless you hear otherwise
- 403: probative v. prejudicial balance presumption of admissibility [when relevant
evidence is nonetheless excluded]

RULE 401 Definition of Relevant Evidence

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 evidence
- Test for relevant evidence evidence is relevant if:
o (a) it has any tendency to make a fact more or less probable than it would be
without evidence; AND
o (b) the fact is of consequence in determining the action
Factor (a) very minimal just needs to have a tendency to prove the proposition logicbased experiential balancing test, decided by judge
- Basically, does the offered evidence make it more likely that the did the bad thing than
it would be w/o the evidence?
- Does NOT need to be sufficient to prove the offense (a brick is not a wall) the JURY
will decide if s owning a gun is SUFFICIENT to prove he is guilty of armed robbery,
but gun ownership is CERTAINLY relevant to the question
Factor (b) a materiality concern needs to prove the proposition in dispute, not something
else
- If the proposition itself is not in dispute, then the evidence is irrelevant
NOTE: the relevance std is a VERY PERMISSIVE/BROAD ONE
- DC: probative value is NOT in question in a 401 inquiry this comes in w/403
o Here, just concerned w/knowing the substantive law so we can know if something
is relevant lower std
DC: a partys non-introduction of evidence can also be relevant
- You can draw a negative inference a reason that a piece of ev isnt offered may be b/c it
doesnt help them, and might actually WEAKEN their case! (ex. a party chooses not to
introduce surveillance tapes)
o Often comes up in e-discovery one party asks for emails and says we cant
Note: Rule 104(b) condition relevance
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

The proponent must provide enough evidence that the conditional fact exists
Judge should admit evidence if proponent has already produced the other materials or
promises to produce them later

RULE 402 Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence admissible, except as otherwise provided by the Constitution, by Act of
Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence which is not relevant is not admissible.
Note: state rules (or any other sources not mentioned in 402, for that matter) cannot
exclude relevant evidence ONLY other fed rules!
- US v. Lowry (11th Cir. 1999), CB 124
o

Facts: has committed a crime w/others, others not testifying; others will obv give
relevant ev of crime, but argues that state ethics rules in FL prevent this (says you cant
give people benefits to testify and these people are benefitting from sentence
reductions)
Held: testimony is admitted b/c only STATE law source doesnt exclude under 402

DC Lowry takeaway: not only do you have to find a federal source for excluding
evidence, but the source itself has to be EXCLUSIONARY (why McD Amend blows)

McDade Amendment federal prosecutors are bound by state ethics rules.

- DC: no real impact, b/c nothing in this law requires the exclusion of evidence (this is not
an exclusionary law) if prosecutors fail to comply, so no real impact

RULE 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Delay

Although relevant, evidence may be excluded if its probative is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence
DC: almost all questions of relevance become 403 questions because 401 is so permissive!
- Inquiry goes well its relevant under 401 is it PROBATIVE or PREJUDICIAL under
403?
- 403 undergirds every rule apply a rule, and then the judge will always do a
prob/prej analysis before deciding to admit
Key 403 language is SUBSTANTIALLY something must be substantially more prejudicial
than probative to be excluded
- This only happens in the most egregious of cases 403 is concerned with:
o Prejudice/jury inflammation
o Confusion of the jury
o Undue delay of proceedings
Delay is the ONLY prejudice you can raise in a bench trial b/c we have
this legal fiction that judges cant be prejudiced and the judge will be
insulted if you say he got confused

How to do the balance? PRESUMPTION OF ADMISSIBILITY/PROBATIVENESS

- You need to consider the total amount of evidence when making the 403 assessment
o The more ev you have, the less important one piece will be
o The less ev the prosecution has, the more prejudicial evidence they can get in
- When the evidence is in equipoise (equally probative and prejudicial), it will be
admitted
How to object on 403 grounds:
- Make an in limine motion in advance of trial
o Judge will hold in camera hearings to rule on admissibility of testimony
- Object before or when the question is answered
o You need to object to get a less lenient std of review (see below)
- In a bench trial, you can only object based on un delay
Std of review?
- Appeals courts are SUPER deferential to a trial courts 403 determination std of review
is abuse of discretion
o Does NOT turn on whether the courts exclusion was RIGHT, just about whether
it was reasonable why?
Appeals cts look at cold record; trial judges see everything in person
Trial judges have to make immediate decisions, so we are willing to cut
them a little slack otherwise, trial cts would have to take a really long
time and this would undermine the justice system
o BUT there still are major missteps that can lead to a reversal under an abuse
of discretion std
When the trial ct improperly balances the evidence (ex. McQueeny judge
though prejudice just meant harms the other side, as opposed to unduly
harms the other side
The judge is supposed to assume the evidence is true before conducting a
probative value analysis any decision that the judge makes as to the
evidences credibility at this stage is an encroachment on the jurys role as
fact-finder and is thus an abuse of discretion
o NOTE: if the opposing party does NOT make a timely and specific
objection to the introduction of a piece of evidence in question, the std of
review is even more deferential PLAIN ERROR [need to object to the
evidence
In order to be granted a reversal under plain error review, the mistake must
be obvious and unjust
Will basically NEVER happen in the evidence realm b/c a judge is fairly
SO wrong in failing to intervene the judge is not an advocate, not his job
to step in and KEEP OUT bad evidence
Stipulations: these are agreements to allow a fact into trial w/o proof were accepting
something as true
- Use to protect against prejudice, but can be very disruptive for the jury
- Can a party be forced to accept a stipulation?

RULE - cant force a to enter into stipulations of intent

s should be able to prove cases in the way they want need to prove
every element beyond a doubt and proof is often more probative than a
stipulation
Stipulations can prejudice the govt
May be drafted w/intent to deny proponent fair value of evidence
Evidence could prove more than one disputed point
Opponent has incentive to frame stipulation in a way to give away
as little ground as possible

Reasons for rejecting a stipulation:

o Disrupts the narrative/confuses the jury (prejudice under 403)
o Robs you of fair weight of evidence
o Evidence could prove other things that stipulator wants to keep out
Ex. child porn cases cops find cp on s computer, says yeah its cp so
they dont show it to the jury to make him look even worse
Govt might resist this kind of stipulation b/c if an element of the
crime is proving that a person would know its cp they want to
show it to the jury

MAJOR CASE: Old Chief all these reasons for rejecting a stipulation are discussed and then
REJECTED by the ct in this case!
- Facts: OC was arrested after an incident under a statute that criminalized stuff for
someone who had already been arrested for a felony. OC offered to stipulate that he was a
felon; govt was like no we want to talk about it a lot and basically smear you
- Holding: if is accused of a status crime (like felony gun possession) the govt must
accept the s stipulation as to his felon status
o An item of evidence can be viewed as an island or might be seen as inviting
further comparisons to take account of the full evidentiary context of the case as
the court understands it when the ruling must be made.
o No mechanical solution is offered. The determination must be made whether the
danger of undue prejudice outweights the probative value of the evidence in view
of the availability of other means of proof and other facts appropriate for making
decision of this ind under 403.
o In this case, as in any other in which the prior conviction is for an offense likely
to support conviction on some improper ground, the only reasonable conclusion
was that the risk of unfair prejudice did substantially outweigh the discounted
probative value of the record of conviction, and it was an abuse of discretion to
admit the record when an admission was available.
- DC: Old Chief is the exception to most stipulation cases normally the govt
o Takeaway rule from this case: if a proponent is bringing in unnecessarily
prejudicial evidence, it raises 403 concerns

Good exs of probative v. prejudicial:

Torres border patrol agent in TX sees a guy shoot at him and miss; returns to office and gives
vague details of suspects appearance; BP agent then looks in mugshot book and IDs T and wants
to admit mugshot book into evidence
o Held: some prejudice is inevitable, but some is avoidable and the latter should be
mitigated. Either cover up the words mug shot book or cover up everyone elses priors
avoid coloring the as a criminal ex ante
DC: good illustration of Old Chief rule
Guam v. Shymanovitz (9th Cir. 1998) rare case in which a dist. ct.s 403 decision was revd
o Facts: accused of having sex w/young boy; govt wanted to intro x-rated gay porn mag
possession.
o Held: NOT probative might lead the jury to believe he engages in other deviant sex acts
not in question here
Takeaway: you cant be convicted of a crime based just on what you have in your
library but depends on the case
US v. Curtin (applying Shymanovitz)
o Facts: in chat room for young girls, arranges to meet up w/one for sex, says he didnt
think she was actually 12, just into age role play. Cops found 140 stories on PDA of kids
engaged in sex. Prosecution admitted 5 stories, all of which were inflammatory and
included torture and other irrelevant stuff.
o Held: judge read all 140 stories and convicted . couldnt raise a Shym defense b/c
probative value of persons library depends on context
On review, the ct found error you need to figure out what the evidence is so we
know what to read. Judge ended up reading everything so he could figure out
what was and wasnt admissible under 403 and 401

Types of cases in which 403 issues come up:

- Civil cases in which someone has been injured or killed
o

Ex. mom suing for wrongful death post-plane crash. wants to intro that son smoked pot
daily
Probative of damages loss of dope-smoking son is less than non-dope-smoking
son
BUT risk of prej is very high b/c the jury will be unsympathetic and distracted
from the real issue, so will prob be excluded
Perrin: 9 yo boy loses dad when he gets shot by cops suing from wrongful death
damages. cops did search of house and found BDSM mags in plain view in every room
in the house. If introd jury will think hes bad dad
Will probably be admitted PROBATIVE of value of lost dad also prej but
presump in favor of inclusion

Personal injury cases

o

Ex. DAY IN THE LIFE FILMS

Probative b/c shows what a normal day in s life is like
Prejudicial b/c issues of selectivity and typicality must be a typical day, must
be able to examine entire film, cant embellish

Alternative perpetrator cases argument that someone else did it!

o

US v. McVeigh govt found stuff at a cult place dealing w/a separate conspiracy to blow
up the same bldg; M wanted to intro.
Held: prejudicial would lead to jury confusion b/c they would get confused
by a separate conspiracy and would end up addressing that issue instead of Ms
guilt or innocence
DC: when introing alt perp ev, the crux is how strong your foundation is you
need sufficient evidence that the other perp existed/did it before you intro it b/c
you are in effect conducting a trial w/in a trial and it has a high potential for
being confusing and creating delays
This WAS a harsh ruling, but ct has a reason fear of slippery slope
everyone BUT me did it!
Generally, dist cts give govt the benefit of the doubt in criminal trials
Holmes v. South Carolina (SCOTUS 2006) - wins this case
Ct ruled that exclusion of evidence violated s right to an effective defense
The SC rule in question said that alt perp ev CANNOT be introd if the
govt provides forensic ev that the committed the crime, but should
be able to challenge the forensic experts; also overbroad b/c govt will
always have SOME evidence

Similar circumstances intro alternatives to how the events might have occurred
o

DC: in this context, s will move to bifurcate the trial liability phase
and damages phase and will ask to have the film shown in the damages
phase
o Rule 106 if a party intros part of a recording or writing and
that part has any aspect of misrepresentation, the other side can
use the rest of it to make its own case [can happen w/these films]
Ex. class actions re: birth defects - was going to call expert saying there was no
statistical correlation between drugs and birth defects, wanted to bring deformed bebes
into ctroom.
Held: prejudicial and excluded jury will be distracted, bebes cannot
meaningfully contribute and would skew proceedings

Nachtsheim v. Beech Aircraft claimed airplane defect, claimed something else

caused crash. wants to intro that there was another plane crash in which the same
malfunction caused the crash. There IS probative value here to proving sim circs but also
the risk of confusion b/c you end up assessing a totally separate event
Issue in this case is that the other event was disputed similar trial w/in a trial
issue as w/accomplice testimony
If the fact of similarity is in dispute in the other case, very unlikely you will be
able intro
Hypo: takes Vioxx and has heart attack, wants to intro 17 other uses who also had heart
attacks. will say there are a million other factors will probably be excluded under 403
b/c jury will be confused and think this proves causation

Accomplice testimony someone commits a crime w/another and accomplice pleads

guilty and govt wants to intro the guilty plea
o
o

This IS probative but HIGH RISK OF PREJ b/c youre basically using someone elses
guilt to prove the s guilt high risk of jury confusion
Govt intros this evidence to prove that there was no prosecutorial misconduct and
anticipate impeachment will issue limiting instruction saying its not ev of s guilt

Demonstrative evidence seek to introduce a purported recreation of an event

problem is that it is very hard to recreate an out of court event that has already occurred
in any meaningful way
o
o

Ex. arrested on boat filled w/pot, claims he didnt know pot was there, wants to bring
pot into ctroom inadmissible b/c NOT REPRESENTATIVE of what happened plants
age, smell changes, etc
Ex. walking past a driveway and truck backs up and hits her. says beeper on truck
wasnt working, wants to demonstrate what beeper sounded like. Does demonstration
films and completely recreates event but STILL INADMISISIBLE b/c circs of the day
are different (cant recreate ambient noise), plus in the recording you are LISTENING
FOR THE BEEP was not listening for it
Judge says jury was focused on the beep in a way that the was not, so probative
value is diminished waste of time
Keene v. P&G douche allegedly caused TSS expert wanted to demonstrate causation
by putting the enzyme and chemical in liquid form together in a beaker. Beaker caught on
fire
Judge admitted the evidence we know vaginas dont catch fire, and the
evidence is sufficiently probative no prejudice b/c its SO unlike real life

DC RULE: all circs must be substantially similar surrounding the incident in

dispute for evidence to get in under 403
Evidence of prior accidents in civil cases
If used to prove how accident occurred, conditions must be
substantially similar
o

If used to demonstrate scientific principles, recreation need not be

similar
o

Ex. Fusco driving car, ball joint disengages horrible

accident you can never really recreate. No matter what, jury will
think that the video is how the accident happened
Product demonstrations are inadmissible b/c they cant
prove how the accident occurred and cant prove
experts opinion b/c it comes too close to replicating the
event

Ex. Gilbert - s use video w/car seat in question attached to

toboggan offered to demonstrate experts opinion on
engineering. ADMISSIBLE b/c there is zero chance that the jury
will be confused b/c the recreation and the actual event are SO
different

Criminal cases
Ex. tried for importing drugs into US - s were not found in boat;

coast guard says 2 s dove into water, found them wet w/clothes on
coast. s say officer couldnt have seen s 80 feet away in the dark,
govt wants to do demonstration in a blacked out room and let the jury
see This was allowed b/c jury focusing is akin to coast guard focusing
IRL
Gaskell shaken baby syndrome recreation w/CPR baby that needs to be
shaken a lot harder for same effect. Trial ct allowed but appeals ct
reversed b/c SO prejudicial this was the most prejudicial way of
showing the probative ev

Gory pictures
o Criminal cases have high probative value and are almost always probative of
something (tying to crime, proving wasnt an accident, show intent)
Be careful of overkill
o Civil cases most decided in limine; can be admitted to show context, damages,
recovery
More limited that criminal dont want to inflame the jury
s damages
o Expert witnesses generally allowed to call an expert to testify about future
inflation of payout is supposed to occur over time of there is a lost waves issue
Cant be speculative needs to be based on econ principles
o s net worth HIGHLY prejudicial
Civil cases if punitive dams, need to show award will impact so ok.
NOT ok for compensatory (solution: bifurcate trial to liability and
damages)
Criminal cases: ev of s net worth is rarely admissible prosecution must
prove it is highly probative for some reason

II. Special Relevance Rules

Rules 404-415 categorical prohibitions on admitting otherwise relevant evidence based on
some social policy reason
RULE 407 Subsequent Remedial Measures [CIVIL CASES ONLY]
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken
previously, would have made the injury or harm less likely to occur, evidence of the subsequent
measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect
in a products design, or need for a warning or instruction. This rule does not require the
exclusion of evidence of subsequent measures when offered for another purpose, such as proving
ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
Rule: a cannot admit evidence of s subsequent remedial measures to prove liability
- Relevance reason: could lead inquiry into whether should have known about the
social condition prior to the accident; could lead to 403 issue w/jury confusion
- Social policy reason major thing undergirding 407
o Want to encourage repairs - s wont repair things if they could be used as
evidence against them in ct
Youre getting at a notice concern w/this rule was the on notice that
someone could get hurt and failed to do anything? If there was just a freak
accident, we shouldnt use their efforts to make it better v. them
o Negligence is determined by what is FORESEEABLE, not the actions you took
ex post
Note: the evidence in question must be a measure for 407 to apply
- Any kind of repair? YES

Ex. firing someone whose negligence caused an accident, beefing up a safety rule
A safety report/post-accident report? NO
o Prentiss: even though a report might lead to subsequent remedial measures or be
evidence that such measures were taken, it is not automatically exclude under this
rule
o

DC: 407 is a purpose-driven rule

- You cannot introduce remedial measures if the PURPOSE is to show LIABILITY
specifically listed as impressible in rule:
o Negligence
o Culpable conduct
o Product defect
o Design defect
o Warning defect
- But there are exceptions for other purposes for admitting evidence (1. Find proper
purpose; 2. Withstand 403 analysis) all of these other purposes are within the s
control, and thus 407 does not apply becomes a 403 question
o

Ex. run over by car, sues purported owner (not driver); says I dont own the car;
wants to admit that after the accident, brought the car to the shop and paid for repairs.
Thus evidence is offered to prove OWNERSHIP, not fault.
DC: showing OWNERSHIP or CONTROL are proper purposes that get
around 407
Cameron v. Otto Bock Ortho injured when pylon in fake leg broke. Held: ct did not
err by excluding letters sent by to costumers specifying specific torque levels postaccident [sub rem meas] b/c it was introd to show feasibility and/or control and neither
of these things were an issue. also did not dispute that it provided advice to prosthetists

Contributory negligence
- If a says that a defect was open and obvious and that was a rahtard, then the
can admit a sub rem meas to refute the charge of contrib. neg!
o
o

ADMISSIBLE: Ex. someone dies after hitting a rock while skiing; resort claims it was
open and obv, but puts up signs around the rock later can come back w/ev of the sub
rem meass to refute the contrib. neg
INADMISSIBLE: Ex. Fermino v. Honda has motorcycle, gets wasted and drives it
off the road in a windy, hilly place. Claims design defect expert testifies that front
spindle was designed too thin. After the accident, Honda changed the spindle to thicken it
(sub rem meas), wants to intro it in response to Hondas contrib. neg aff defense. Held:
not admissible is not introing evidence to contradict s contrib. neg claim just
introing OTHER sub rem meas ev, so falls into 407 exclusion

Feasibility this is a proper purpose that gets around 407

- RULE: a change is feasible when it is:
o Within the state of human knowledge at the time of the accident
o Is not unreasonably expensive
- If a change has been made, it is pretty good evidence of feasibility
- If a change has NOT been made, must prove that there were alternate designs possible
- RULE: a can concede feasibility MOST s do this! Why? Still defenses available

o
o

Other bad effects if you change it alt designs have other disadvantages
This MAY be feasible but its not the only way

Ex. Honda if spindle too thin, motorcycle would wobble, if spindle too thick,
motorcycle would bob 2 alternatives are equally b/c both have drawbacks

Third party repairs these are admissible b/c do not speak to DEFENDANTS sub rem meas
- 407 does not cover repairs by 3d parties becomes a 403 issue in these cases
- Ex. works for construction company, co has road grinder; s job is to follow grinder, gets
sucked into it and dies. 2 days later, co brings in road grinder and on its own constructs a rear
guard to keep ppl from getting too close. This is admissible to show design defect doesnt
speak to s liability
o 3d party made modification
o Underlying social policy for 407 is not present here!

DC: for the same reason (social policy not at issue), pre-accident repairs are also
admissible under 407

Impeachment (generally, any evidence used to make a witness on the stand appear less
credible) how does this apply in the 407 context?
- Something contradictory when a says a product is super safe, but there has been a
subsequent change to it however, this is NOT ENOUGH to get around 407!
o Not admissible if offered for simple contradiction of witness testimony, i.e. if
witness just says product is safe or
- VERY SMALL EXCEPTION only if the makes an extravagant claim (i.e. I have
the safest product in human history!), if the claims no changes have been made
RULE: design changes are covered by 407 ONLY if they are made after the injury in
question
- Policy: you want to make the product safer if design changes happen prior to injury,
youre not dealing w/the social policy of encouraging repairs/increases in safety

RULE 408 Compromise and Offers to Compromise [CIVIL CASES ONLY]

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

Rule: statements made pursuant to settlement negotiations and settlements themselves are
inadmissible to prove admission of fault or the value of a claim
- Underlying policy: promoting settlements
o Protects the party making the offer
o Allows for more openness in negotiations
DC: w/o 408 we would still have settlements, but they would be more
formal/legalistic and less effective
- Applies to both the offeror and offeree many courts hold thatoor cant introduce his
own settlement offer
o

Ex. Pierce: laid off, suing for age discrimination; takes position that they never meant
to engage in age discrim, just realigning the company - wants to admit ev of them
offering job back w/difft title, bldg, obliges, but at same salary but would have to
sign something waiving discrim claim. Held: not admissible might lead to bogus
offers.
DC: slightly difft than normal 408 offer b/c not concerned w/protecting
settlement negs concerned w/disincentivizing bogus offers still has to do
w/408 tho, b/c its about the integrity of the settlement process

2006 amendment: no offers are admissible when offered to prove the validity of a claim
- Want to prevent strategic generation of evidence on both sides pitching settlements they
KNOW the other side wont take to make themselves seem more sympathetic at trial
- Basically hearsay as to whether a settlement offer has even been made anyway s and
s counsels discuss it (not or themselves)
Criminal cases? Civil settlements are not admissible as proof of guilt in a criminal case
What about statements made during settlement negotiations?
- Private lawyers on the rules committee said they SHOULD be PROTECTED b/c what is
critical in settling is that the has to APOLOGIZE to the we dont want this
apology admitted b/c of prejudice!
o Also, often an apology is necessary to convince a to settle, but lawyers would
tell s not to apologize if they coul be admitted
- Contra DOJ statements made in negotiations with regulatory investigators are
ADMISSIBLE!
An offer needs to be STYLED like an offer to fall w/in 408 threatening letters saying we have
a strong case settle w/us are not protected!
When do settlements and negs fall outside 408(a) and into 408(b)?
- To prove bias or witness prejudice
o

Ex. McShain expert testimony given in exchange for releasing experts employer
from 3d party liability

To negate contention of undue delay in presenting a claim

To prove obstruction of criminal prosecution
To show breach of settlement agreement
o

Ex. Cates defective portable bldg units; settlement ag is admissible to prove parties
undertakings in the agreement if it is argued that party breached the agreement

RULE 409 Offers to Pay Medical Expenses

Evidence of furnishing, promising to pay, or offering to pay medical hospital or similar expenses
resulting from any injury is not admissible to prove liability for the injury
Rule: if a party offers to pay another sides medical expenses, this does not count as a
concession of fault
- Policy rationale: want to encourage the payment of medical bills
Notes:
- Does not exclude opinions or admissions of liability when made in connection w/an offer
to pay medical expenses
- If offer to pay is made as part of a settlement offer, 408 should apply
- Not limited to offers or promises related to the disputed claim any offer, promise, or
actual payment is inadmissible, whether or not any dispute over obligation to pay has
arisen
- WHAT IF says Im sorry I ran you over, its all my fault, let my pay your medical
expenses?
o Im sorry I ran you over, its all my fault is admissible
o Let me pay your medical expenses is inadmissible

RULE 410 Inadmissibility of Pleas, Discussions, and Related Statements

(a) Prohibited Uses in a civil OR criminal case, evidence of the following is not admissible
against the defendant who made the plea or participated in the plea discussion:
- (1) a guilty plea that was later withdrawn
- (2) a nolo contendre plea
- (3) a statement made during a proceeding on either of those pleas under FRCP 11 or a
comparable state procedure
- (4) a statement made during plea discussions with an atty for the prosecuting authority if
the discussions did not result in a guilty plea or they resulted in later-withdrawn guilty
plea
(b) Exceptions the ct may admit a statement described in 410(a)(3) or (4):
- (1) in any proceeding in which another statement made during the same plea or plea
discussions has been introduced, if in fairness the statements ought to be considered
together; OR
- (2) in a criminal proceeding for perjury or false statement, if the made the statement
under oath, on the record, and with counsel present
Rule: protects statements made in guilty plea negotiations
- Policy rationale: encourage settlements, discussion of full facts
o If withdrawn plea statements could be used, would be SUPER prejudicial!
o Note: rule says it applies to s, but cases have applied it to govt statements as
well
- Note: protects ONLY FORMAL plea negotiations with the prosecutor
o Confessions to a cop are not covered by 410 and may be admissible (Robertson)

o BUT may be admissible if statements are made to law enforcement officials with
the power to negotiate
Guilty plea is an admission to all elements of the crime. Confession just
relates a set of facts
Impeachment: statements made during plea negotiations cannot be used for impeachment
- If lies on the stand and statements made during plea negs contradict testimony, govts
remedy is bring new charges for perjury
Sentencing: this rule does NOT APPLY at sentencing phase
- Ev rules never apply at sentencing, except those relating to privilege
- Defense can ask govt to agree not to admit info at sentencing
WAIVER waiver of 410 must be KNOWING and VOLUNTARY
- Policy: supposed to encourage the parties to bargain w/e/o
o Mezzanatto: if the form says that no agreement is reached, statement can be
used for impeachment, the waives his rights under 410
o Burch extends Mezz by applying the waiver to the case-in-chief
entered into agreement with prosecutor that if he withdrew his plea, statements
made pursuant to plea negotiations would be admissible even if he did not testify.
Agreement upheld by ct

Breaches of plea agreements if the breaches his plea ag, the prosecution can use statements
from negs and the plea itself v. the
- Once plea discussions reach the k stage, they are admissible b/c no longer negs

RULE 411 Liability Insurance

Evidence that a person was or was not insured against liability is not admissible to prove
whether the person acted negligently or otherwise wrongfully. But the court may admit this
evidence for another purpose, such as proving a witness bias or prejudice or proving agency,
ownership, or control
DC: this stuff has minimal probative value, and were afraid that there will be prejudice if it is
revealed that someone has deep pockets
Permissible purposes: proving witness bias/prejudice, proving agency/ownership/control
- Bernier v. Bd. of City Road Commrs: sues for sons wrongful death; claims it was a result of

failure to mark the intersection. wants to intro ev that it did not have funds to do more than it
did. wants to intro s liability insurance b/c she is scared jury will infer that cant pay if they
find them guilty. Held: deferred ct wanted to see nature of s evidence; if it led to jury
interference, ct would let proof of insurance in
Charter v. Chleborad: allowed liab ev in med malp case b/c s insurer employed s impeaching
witness

III. Character Evidence, Prior Bad Acts, and Habit

RULES 404 and 405 CHARACTER EVIDENCE
- Question: is it worthwhile to provide evidence of how somebody acted at some time
in question?
Character Evidence is only admissible when:
1. A criminal intros it to show his own good character. Prosecution can then crossexamine [404(a)]
2. can show that victim was the aggressor by intoing pertinent character traits of the
victim. Prosecution can then ask about the same character trait w/r/t [404(a)]
3. Prosecution can intro proof of a s sexual propensities in sex offense trials [413-415]
4. When it is relevant for purposes of impeachment [608-609]
5. When substantive law requires proof of character (it is an element of the offense)
[404(b)]
6. When character evidence is relevant for a not-for-character purpose [Rule 404(b)]
7. When it is indicative of habit habit is someones conduct/automatic rxn to
circumstances

RULE 404 Character Evidence Not Admissible to Prove Conduct

404(a) Character Evidence - (1) Prohibited Uses evidence of a persons character or character trait is not
admissible to prove that on a particular occasion the person acted in accordance with
the character or trait
- (2) Exceptions for a or Victim in a Criminal Case the following exceptions apply
in criminal cases
o (A) a may offer evidence of the s pertinent trait, and if the evidence is
admitted, the prosecutor may offer evidence to rebut it;
o (B) subject to the limitations in Rule 412, a may offer evidence of alleged
victims pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; AND
(ii) offer evidence of the s same trait; AND
o (C) in a homicide case, the prosecutor may offer evidence of the alleged victims
trait of peacefulness to rebut evidence that the victim was the first aggressor
- (3) Exceptions for a Witness evidence of a witnesses character may be admitted under
Rules 607, 608, and 609
Civil cases
- Character evidence offered for inference that you acted in a certain way is BARRED
o Will be problematic b/c a) not very probative and b) potentially very prejudicial
b/c the jury will take it too far
Criminal cases unlike in civil cases, we are more lenient on s character admissions here
- Barred in criminal cases generally, but if introduces it, he opens the door to govt
rebuttal

o Also, if intros char ev, it has to be probative of the charge at issue

Ex. if on trial for murder, can intro ev that he is a peaceful guy, but not that
he is honest
POLICY - is losing his liberty, so we allow him to intro character evidence; also to
combat inference of being a bad guy b/c criminal s are already indicted
o Basically a mercy rule: if a was charged w/a crime and he says he didnt do it
and that his alibi was that he was home alone, we allow him to intro character ev
Cases
o Michaelson govt is never allowed to intro a char witness v. the saying that
there is something about his character that makes it more likely he committed the
crime
But if opens the door to being law-abiding, then on c-e, the govt
can ask about ALL laws and whether he abides by those
o Williams govt calls police witness, allows him to say s nickname is Fast
Eddy car-theft related case. objects
Held: this is impermissible admission of character evidence
DC: no problem of ID in this case and nickname is unduly prejudicial b/c
it makes it sound like , who is on trial for car theft, is known as a car
thief. Reference to what people think of him same as fraudulent Eddy
in a sec fraud case
Contra Delpit - is known as Monster, and the jury hears a
taped convo that refers to someone named Monster. s needed
to ID as Monster in order to connect the case to the to the
case.
o Held: admissible b/c not for character purposes for ID
purposes
Keiser character of victim case [404(a)(2)]
convicted of shooting V. claimed he was defending his bro,
who claimed to have been threatened by V and his fam.
o Held: evidence of Vs violent disposition is pertinent and
may be introd; however, here was properly excluded b/c it
was thru opinion or reputation [405]
Testimony goes to s belief

404(b) When Character is Used for Not-For-Character Purpose [applies mostly in

CRIMINAL CASES upon notice of request by ] Crimes, Wrongs, or Other Acts
- (1) Prohibited Uses evidence of a crime, wrong, or other act is not admissible to prove
a persons character in order to show that on a particular occasion the person acted in
accordance with the character
- (2) Permitted Uses; Notice in a Criminal Case this evidence may be admissible for
another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. On request by a in a
criminal case, the prosecutor must:

o (A) provide notice of the general nature of such evidence that the prosecutor
intends to offer at trial AND
o (B) do so before trial or during trial if the ct, for good causes, excuses the lack
of pretrial notice
Rule re 404(b): if attacks a victims character trait, the prosecution can attack the same
character trait in the - permitted in the self-defense context
- must define the character traits as narrowly as possible to limit the scope of the
prosecutions permitted rebuttal
- DC: really easy for s to open the door to c-e character ev admission by the
prosecution, so they need to be VERY careful!
o Ex. charged w/sexually assaulting young girl; calls son, said no evidence of any
discord, struggle; counsel asks as far as you know, he didnt do it, right? And son
says, not only didnt he do it, but he WOULDNT DO IT
has thusly OPENED THE DOOR to govt use of character evidence on
cross-examiniation
RULE: when you start talking about wouldnt or would do something (v.
didnt do something), youve made an indirect reference to character and it opens
the door! Counts even if witness gets flustered and blurts it out

Rule 404(a)(3) Character of witness see rules 607-609

Sex offense cases: difft stds apply see rules 412-415
SOME STUFF ABOUT 404(b);
- Character admissible to prove an element of the crime you can intro char ev to prove
how a person acted when char is directly in issue under substantive law (ex.
defamation, custody, negligent entrustment)
o Evidence of pertinent char trait is also admissible
- must prove they are introing ev for not-for-char purpose
o Proponent must articulate and stick to specific purpose. Cant just list off a bunch
and be like YOLO
- Proponent must always make 2 connections:
o Between and past conduct
o Between past conduct and crime charged
- Notice requirement only applicable in criminal cases
o No specific time limits can be during trial w/ct approved showing of good cause
o Govt need only disclose the general nature of bad acts ev
o entitled to discovery but govt is NOT
o Need not be in writing
- Vast majority of 404(b) cases are criminal, but some are civil
o Discrimination cases wants to show other acts of discrimination that are not
part of this case show intent to discrim
o Excessive force cases claiming damages, emotional distress ex. allegedly
injured by a cop in the course of arrest, claims as a result he cant sleep, is

nervous, etc. wants to show that is srs LSD user to show an alternative
explanation/causation
General note: you cant introduce evidence of a persons character to show the general way he
acts. This emphasizes the limits of the rule. If you can offer evidence for a purpose other than
showing someones general character with which he acted consistently, this is fine. But 404(b)
comes up when someone has done bad stuff in the past and the govt wants to admit prior
crimes/bad acts. Need find a not-for-character purpose something about s state of mind
thats being contested
- DC: but as a general rule, prosecutors will be able to come up with some proper purpose
to introduce something to get themselves out from under 404(b)

2 Step Process for Applying Rule 404

STEP 1: FIND PROPER PURPOSE
Character is the only improper purpose!
Prosecutor can generally articulate some good purpose, so usually admitted
In most criminal cases where 404(b) comes into play, the govt will want to introduce evidence
of other bad acts
PRIOR BAD ACTS CASES deal with whether you can admit a s act that occur prior to the
trial for the act for which the is currently being charged
- DC: whenever you intro uncharged bad acts, you run into 404 issues
o 404(b) bad acts need to be things that actually happened prosecution needs
to have admissible proof that the bad act they want to intro actually occurred
(otherwise theyll just be like WHAT ABOUT THAT BOMB and will be like
what bomb but it will be prejudicial to the jury nonetheless)
o Bad acts are judged by the preponderance std could a person find more
likely than not that the bad act in question occurred? (Huddleston std)
Means that the govt need not have much evidence that committed the
prior bad act in order for it to be admitted
Note: a prior bad act is NOT the same as a prior conviction, tho both are
admissible if they meet requirements
-

For what purposes are prior bad acts admissible under 404(b)?
o Bad acts to prove intent (mental state/scienter, mistake and accident)
Where must prove s intent, he can use similar prior bad acts to do so

Must be a commonality of intent in these cases the bad act needs to be

related in substance to the charged act. PROPENSITY DOES NOT
SUFFICE
Jones (typical case) - charged w/intent to distrib drugs, govt wants to

prove he was previously found to have distribd drugs. Offered to prove

intent; held admissible
o Easterbrook says that intent in this context is not much different
than character/propensity just saying you did this b/c you did
the other thing before
2d Cir case - on trial for turning back odometers, govt wants to intro
carjacking trial ct admitted b/c said common cars satisfied
commonality; 2d cir reversed this is JUST PROPENSITY EVIDENCE
10th Cir case - charged w/drug distrib; govt wants to intro that he was
prev found with user quantity NOT ADMISSIBLE, just propensity
using drugs doesnt show you have an intent to be a dealer
o DC: commonality of intent does not refer to the
instrumentality by which you commit the crimes its about
your mental approach to the crimes

Absence of accident: if claims mistake, on rebuttal, prosec can intro bad

acts proving intent
Woods Woman killed baby by shaking shes accidentally killed 14

Ex. charged w/aggravated assault w/spiked hammer. claimed

accident govt intros prior drug charge. NOT ADMISSIBLE mental
states NOT related!
Beechum mailman suspected of stealing silver dollars out of the mail;
when arrested found 50 silver dollars in his bag; B says that dogs were
tearing up all the envelopes so he was just keeping them for safety
govt wants to admit ev that when they searched his wallet they found 5
difft credit cards with the names of people on his route [prior bad act]
shows a PATTERN o theft DC: admissible probative of lack of
intent to return the $$
Hearst: past conduct shows intent to commit similar crimes later If
claims duress, can previously show that she went on to committed
another bank robbery after duressers were captured not proof
positive of anything, but def probative of duress

babies before. OOPS.

Martinez - says I thought we were just going to the airport to pick up
my GF, didnt know she was a drug courier; govt wants to offer that he
was involved in drug trade w/a white powdery substance similar to the
drug at issue here, and b/c of this involvement, he could recognize a drug
smuggling situation (like the one in question) when he saw one
o Held: prior bad act admissible! DC: shows how broad this
doctrine can be

Stipulations: if wants to keep out bad acts, he should stipulate to his

intent
CANNOT force the to allow him to stipulate to intent
rationale is that the should be able to make his case however he

wants; prove every element beyond doubt, and proof is more

probative than stipulation
o

Crowder 404(b) does not preclude govt from introing

prior bad acts to prove an element of a crime, despite s
offer to stipulate in this case, s offered to stipulate the
person who sold drugs had intent, stip would only show intent.
BUT prior convictions show intent AND knowledge, so more
probative!
BUT: trial cts can take offers to stipulate into account
when doing a 403 analysis

Exception Old Chief rule: if accused of status crime, govt

MUST accept stipulation (403 issue)
o Bad acts to prove knowledge
Prior uncharged similar acts are admissible to show that the acts in
question were not performed inadvertently or w/o knowledge
Huddleston: govt wants to intro prior bad act of selling stolen TVs to
prove that had knowledge in charged offense that he was selling stolen
goods
o

Bad acts to prove plan or scheme to commit the crime charged

Admitting uncharged misconduct to show that it was a part of the same
plan that led to the charged misconduct
Carroll: charged w/robbery, convicted of bank robbery 10 yrs ago
govt wantrs to show ev of 1st robbery as ev of plan. EVIDENCE
REJECTED shows PROPENSITY, not plan!

ONLY PROBATIVE when element of crime is plan/scheme

Where govt must prove premeditation, govt can show preparatory
acts
W/conspiracy, can show acts that indicate association
Affirmative defenses/justifications
Provocation prosecution can rebut by showing plan or scheme
Insanity plan or scheme speaks to potential sanity to rebut this
o Bad acts to prove context
If prosecution does not admit the prior bad act, there would be a gap in the
story govt intros prior conduct in this case to provide context to jury
Steinberg: prosecution wants to intro s prior acts v. witness to show

witness was victim of abuse and had reason to not call cops
o

Bad acts to prove motive (for doing the act in question)

Govt intros ev of prior bad act to show motive for crime charged
Santiago motive to kill in order to be let into gang
Potter gave prescriptions to patients in exchange for blow jobs
introd to show why dr didnt act w/in legit medical purposes

Bad acts to prove identity

Can use bad acts to prove ID if they are similar or unqiue enough to tie
to crime charged

Crimes committed in a unique manner signature or MO (ex.

obsessive conduct that sets apart from others)
o Crimes must be uniquely idiosyncratic
has unique connection to location
has unique connection to victim
has unique connection to crime
o
o

Ex. rare technique used to disarm alarms; prosecution may argue

that s past robbery uses the same unique method and say that
ev of that prior bad act should be admitted to prove ID
Ex. Jones was not allowed to intro Lewinsky b/c sexual
interaction w/her was consensual did not speak to Bills MO (J
claimed harassment)

STEP 2: RULE 403 ANALYSIS

Even if govt articulates a proper purpose, the evidence must pass the 403 balancing test!
Rackstraw test:
o Evidence must be offered for proper not-for-character purpose
o Evidence must be relevant
o Rule 403 probative substantially outweighed by prejudicial or no?
o Rule 105 [limiting instruction] judge shall, upon request, instruct the jury that
similar acts should only be considered for the purpose for which they are admitted
Conditional relevance judge must determine whether there is adequate evidence to
support a conclusion that the really did commit the prior bad act that the
prosecution wants to admit
o Rule 104(b) relevance of 1 act is conditional on the existence of a fact
o Determining probative value: how much evidence must the govt put in to prove
that the did the prior bad act?
Standard preponderance could a juror believe that the
committed these acts
IN STEP 2 judge will apply std, assume act was committed, then
balance under 403. Can consider current charge in evaluating whether
prior bad act was likely committed
The more similarities the uncharged acts have to the crime
charged, the higher the probative value
The older the uncharged act, the less probative
A prior arrest w/o underlying facts is, on its face, NOT probative of
intent, knowledge, or other purposes for bad act evidence
-

Applying the balancing test if remote, not very important/connected to the

prosecutions case, or highly prejudicial, should be excluded
o Risk that jury will misuse evidence as proof of bad character
o Judge must look at evidentiary alternatives if they exist
Some bad acts are worse than others

Evidence of serious criminal activity other than that charged should be

carefully examined (potential for prejudice under 403)
o But, as always, if ev at equipoise it should be admitted

RULE 405 Methods of Proving Character When Character Evidence is Admissible

(a) By Reputation or Opinion when evidence of a persons character or character trait is
admissible it may be proved by testimony about the persons reputation or by testimony in
the form of an opinion. On cross-examination of the character witness, the court may
allow an inquiry into relevant specific instances of a persons conduct
(b) By Specific Instances of Conduct when a persons character or character trait is an
essential element of a charge, claim, or defense, the character or trait may also be
proved by relevant specific instances of the persons conduct
DC: this rule shows the dangers and costs of character evidence
Rule: a witness can only testify to opinion and reputation, but on c-e, the
prosecution can intro evidence of specific facts such as prior bad acts to rebut
testimony
o Rationale: prosecution is giving the jury a basis for evaluating the credibility of
the testifying witness by showing how well the witness really knew the and by
showing what kinds of standards the witness holds people to

Generally, character by way of specific facts is NOT admissible.

Basically, 405 is undergirded by a rule of mercy rationale dont introduce character evidence
unless its all you have (last resort). So the above rule is trying to limit what you can ask about
character fear of wafting innuendos into the jury box
-

Ex. charged w/violent crime, wants to call character witness. Witness wants to say, Ive
known since HS, he is so peaceful, his nickname is non-violent Joe, I live in his
community and everyone knows him this way. One time there was a fly and I was gonna swat
it and he was like no its one of Gods creatures and set it free.
o Can testify to him being a peaceful person, but the fly anecdote is not admissible
the rules only allow character to be proven in very truncated ways.
Ex. Kaiser - wants to intro evidence about victim 10 nasty acts committed by the victim
claims that victims character is in issue b/c of s self-defense claim
o Held: victims char is not at issue in self-defense cases - just b/c hes violent doesnt
mean that he attacked you in that specific instance in question
Bruguier prosecution needs to have good faith proof that the specific acts it is asking
about actually occurred, and must present to the judge on sidebar before the witness
testifies, and the judge decides whether the proof is sufficient to ask the witness about
the matter
o Prosecution CANNOT introduce INDEPENDENT evidence of prior bad acts

need to ask and take the witness answers

EXCEPTIONS to specific facts rule:

When character is in issue (ex. libel case)

When it is introd for a not-for-char purpose

NOTE: different rules apply for sex offense cases

RULE 406 Habit; Routine Practice

Evidence of a persons habit or organizations routine practice may be admitted to prove that on
a particular occasion the person or organization acted in accordance with the habit or routine
practice. The court may admit evidence regardless of whether it is corroborated or whether there
was an eyewitness
Rule: habit evidence is virtually always admissible
2 requirements:
o Must meet definition of habit (regular response to certain repeated situation)
o Habit must be tied specifically to the conduct in question in the case
Habit v. character ev?
Habit has MUCH GREATER probative value than character evidence! This is b/c a
person is more likely to act in accordance with habitual behavior than they are with
character/propensity behavior alleged
How do we know when something is habit?
Its in reaction to something specific rxn to specific sitch
o Not like I go to church every Sunday this is not a LEGAL habit
o Looking for frequency, consistency, reflexiveness; need to show sufficiently
specific instances opponent can try to contradict by saying inconsistent with
habit
You can counter habit by saying look you say you react violently to
cops, but heres instances of you hugging cops
-

The more volitional an act, the less likely it is habit looking for UNIFORMITY
OF RESPONSE ACROSS SITUATIONS
o
o

Perrin: try to argue that s violent rxn to police is a matter of habit whenever he runs
across a cop he react violently. Held: ADMISSIBLE characterized as reflexive, reactive
behavior, rather than character ev showing a propensity to violence
Anguin aliens get into RV and didnt stop them I was in the military and they
trained me and as a result my habit is to take the least confrontation position in any social
situation. Held: NOT ADMISSIBLE this is a life philosophy/disposition, not a reflex

DC: exs above are individual habit also such a thing as CORPORATE HABIT
Can show that a large institution/entity has a particular practice or procedure that it
puts in place every time something occurs
o

Ex. says dr didnt ask me if I was allergic to these meds; hospital can intro probative ev
that the hospital has a std practice of always asking about allergy to rebut the s assertion
that the dr didnt ask. ADMISSIBLE

CRIMES INVOLVING SEXUAL ASSAULT

There are 2 major issues w/these rules
1. What do we do w/evidence that alleged assaulter wants to introduce about the victim?
a. Issues of character, prior bad acts, other unrelated activities of the victim
i. COVERED BY RULE 412 RAPE SHIELD LAW
2. What do we do about s prior bad acts?
a. COVERED BY RULES 414-415
RULE 412 Rape Shield Law: The Victims Sexual Behavior or Disposition
(a) Prohibited Uses the following evidence is not admissible in a civil or criminal proceeding
involving alleged sexual misconduct
(1) evidence offered to prove that a victim engaged in other sexual behavior; OR
(2) evidence offered to prove a victims sexual predisposition
(b) Exceptions
(1) Criminal cases the court may admit the following ev in crim cases:
o (A) evidence of specific instances of a victims sexual behavior, if offered to prove
that someone other than the was the source of semen, injury, or other physical
evidence;
o (B) evidence of specific instances of a victims sexual behavior w/r/t the person
accused of sexual misconduct, if offered by the to prove consent or if offered by
the prosecutor
o (C) evidence whose exclusion would violate the s constitutional rights
(2) Civil cases in a civil case, the ct may admit evidence offered to prove a victims
sexual behavior of sexual predisposition if its probative value substantially outweighs
the danger of harm to any victim of unfair prejudice to any party. The ct may admit
evidence of a victims reputation only if the victim has placed it in controversy
(c) Procedure to Determine Admissibility (1) Motion if a party intends to offer evidence under Rule 412(b), the party must:
o (A) file a motion that specifically describes the evidence and states the purpose
for which it is to be offered;
o (B) do so at least 14 days before trial unless the ct, for good cause, sets a difft
time;
o (C) serve the motion on all parties; AND
o (D) notify the victim or, when appropriate, the victims guardian or rep
(2) Hearing before admitting evidence under this rule, the ct must conduct an in
camera hearing and give the victim and parties a right to attend and be heard.
Unless the ct orders otherwise, the motion, related materials, and the record of the
hearing must be and remain sealed
(d) Definition of victim in this rule, victim includes alleged victim
Basically, this rule limits the circs in which you can admit evidence of a victims past sexual
behavior
Policy: rape complainants need more privacy protections that Rule 404 provides

o Dont want to discourage rape claims; rape is already under-prosecuted

o We dont want juries coming up w/their own views about the victim that taint the
verdict
Scope
o Covers sexual behavior, including mental activities (ex. watching porn) and
sexual harassment
Wollack lady cop alleging hostile work environment; s rebut by saying shed
watched porn at an office party and laughed at it. Def probative under 403, but
need to consider how it could prejudice her case under 412

o Does NOT protect against disclosure of false rape claims

Runs somewhat contrary to 413-415
Congress decided that 404(b) wasnt protective enough of victims; otherwise this
stuff would all go thru 404

Deals with both civil and criminal cases involving allegations of sexual assault/misconduct
Criminal: rape shield law is of limited scope in federal cts b/c rape is not usually
prosecuted at the federal level, so mostly comes up w/rape on federal land or
kidnapping
o

Bear Stops other sexual acts of the victim are barred by the rape shield law
This is the GENERAL RULE b/c is not trying to show an alternative source
of injury here he is just trying to show that there is an alternate source of sexual
abuse - 412(a)(1)
Not allowed to intro this stuff under 412, but allowed under the
constitution shows that not necessarily cause of injury (412(b)(1)(C))
Olden v. KY - and have sex, drives home, when gets out of car, roommate is
there; then claims no consent. wants to intro that roommate is s boyfriend and they
have a sexual relationship. Held: ADMISSIBLE SCOTUS says that it is
unconstitutional to bar inquiry into this relationship bc it goes to the heart of s defense
probative evidence of bias in a he said-she said case resolution dependent on
credibility this ev is going to that and not sexual activity - 412(b)(1)(C)
RIGHT TO AN EFFECTIVE DEFENSE AT ISSUE HERE

Civil: comes up in a fair number of cases

o Title VII, hostile work environment
o Apply a balancing test similar but opposite to 403 probative value of sexual
conduct w/dangers of unfair prej to victim, but here probative value must
substantially outweigh prejudicial value in order to be admitted

RULE 413 Evidence of Similar Crimes in Sexual Assault Cases [CRIMINAL]

RULE 414 Evidence of Similar Crimes in Child Molestation Cases
RULE 415 Evidence of Similar Acts in Civil Cases Concerning Sexual Assault and Child
Molestation
In these cases, the govt is seeking to admit evidence of the defendants past sexual behavior
DC: all these rules say the same thing straight up propensity evidence!

Case that spurred these rules rape prosecution in FL brought against a Kennedy; girl claimed
rape, K claimed consent, was acquitted. Jury was never told about the fact that K had been in this
same situation before
Jury never got to hear b/c trial judge said it was excluded by 404(b)
Republicans were outraged, so drafted 413-415
o These rules basically say that bad acts of sexual assault can be admitted to
prove ANY RELEVANT PURPOSE OR ANY RELEVANT INFERENCE
Rule: s prior acts of sexual assault are admissible to prove that had a propensity to commit
such crimes.
Rationale: if you committed prior sex offenses, more likely you did it again
Policy: more liberal admissibility of s prior sex offenses in rape/sex abuse than in
other cases b/c sex cases are different
o These rules basically contradict 404(b)
o Evidence may be introd solely to show that has a deviant personality
o Doesnt have to be a conviction to be introd
o Std: could a juror believe that the prior conduct occurred
This allows for broader admissibility than most other rules what safeguards?
LeMay: 403 is the safeguard that ensures constitutionality here
o Preserves s due process b/c otherwise admission would be automatic and
would just be convicted on prior acts
Critiques of 413-415
Equal protection disproportionately affects Indians
o This is dumb b/c its a jxl happenstance only Indians live on federal land, so
theyre the majority of people to whom this gets applied
Equal protection rape s not treated equally to similarly situated violent offenders
(murders, etc)
o Congress found that propensity inferences are more valuable in rape b/c of the
high rate of recidivism among these types of s higher for rape than any other
crime
Academics say these rules should be limited to cases in which consent is used as a

IV. Opinion Testimony

Major question: when do we allow opinions to be introduced?
Lay every day knowledge
Expert some sort of specialized knowledge
Lay v. expert witnesses
Sometimes cts allow lay witnesses to give expert testimony even though Rule 701
says that witnesses providing specialized knowledge need to meet 702 requirements
(701(c))
Experts have more rigorous disclosure requirements (702)

A witness can be BOTH a lay and an expert witness your status is determined by
your relationship to the specific testimony you are giving, not by the person as a
whole
Different requirements for the kinds of info that that a witness can rely on in
forming his opinion
o Lay can only rely on personal knowledge
o Expert can rely on any information, admissible or not, that other experts in
the field would rely on
Can testify to a broader scope of things than lay witnesses
Dont need personal knowledge
Can rely on symptoms, medical records, etc

RULE 701 Opinion Testimony by Lay Witnesses

If a witness is not testifying as an expert, testimony is the form of an opinion is limited to to one
that is:
(a) rationally based on the witness perception
(b) helpful to clearly understanding the witness testimony or to determining a fact in
issue; AND
(c) not based on scientific, technical, or other specialized knowledge within the scope
of Rule 702
At common law, there was NO lay witness opinion testimony allowed; only ok for facts b/c
opinions are abstractions from facts thus lay witness testimony was seen as impeding on the
jurys role
Now, opinion testimony is permitted from a lay witness

How do we determine who is a lay witness?

Someone who draws his opinion from the standpoint of an average person
experiential knowledge
2006 amendment: if a lay witness is testifying to scientific or technical matters, or
other specialized knowledge, his testimony needs to be scrutinized under 702 expert
stds
RULE: an opinion is admissible if:
It is rationally based in the witness perception, AND
o PERSONAL KNOWLEDGE IS REQUIRED
DC: this is the most common foundation upon which a lay witness
testimony will be based
RULE 602 a person must have first hand knowledge of what he
is testifying about
The foundational requirement assures that someone isnt making shit up
i.e. if the witness is going to testify that it was s voice on the phone, the
foundation is that he is familiar with s voice

Judge can exclude irrational personal knowledge

Cant be based on science/technical/special knowledge unless it meets 702 stds
It helps the jury to determine relevant facts
o If an opinion helps, it should be admitted,
o BUT if the opinion is superfluous i.e. there is already other/factual evidence
admitted that serves the same purpose/proves the same point the lay testimony
will be excluded
o
o

Rea lay testimony ruled inadmissible under 701 b.c it was not helpful to the
jury. Jury already had enough evidence to reach the same conclusion, didnt need
witness opinion
Yazzie - raises mistake of age affirmative defense to statutory rape others
want to testify that they thought she was also of age. Held: admissible b/c this is
helpful jurors are seeing this girl NOW (2 years later), and they had NO WAY
of knowing what she looked like then. This is an acceptable opinion obv she
didnt look 16 is not a fact

Issue: sometimes witnesses will use words in a colloquial manner that have legal significance
in these cases, the judge will issue a clarifying instruction
Ex. that search seemed unreasonable v. that search was unreasonable under the 4a
o DC: you want to counsel witness to avoid this b/c opinion witnesses are not
allowed to testify to ultimate issues
What other stuff is admissible/not admissible?
ADMISSIBLE: common sense impressions as to o Appearance
o Emotional state
o Intoxication
o Speed of vehicle
o Testimony helpful in resolving issues
-

NOT ADMISSIBLE:
o Legal conclusions as to the ultimate issue (direct statements that instruct the
jury on the law)
See Rule 704

RULE 702 Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, training, or education may testify in
the form of an opinion or otherwise if:
(a) the experts scientific, technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; AND
(d) the expert has reliably applied the principles and methods to the facts of the case

Rule: a witness qualifies as an expert based on his relation to the matter in question
Note in crim cases: expert witnesses have to be disclosed by lay witnesses do NOT!
(as a result DOJ opposed 702)
2006 amendment: affirmed trial cts gatekeeper role and says experts must use
reliable methods
Requirements of 702:
Expert must be qualified AND
o Have knowledge and/or skill in a particular area from education or experience
Expert experience needs to be objective/verifiable how did your
experience lead to this conclusion? Expert must explain
o Need to be adequate but not necessarily preeminent in ones field
o Cannot be UNQUALIFIED
Need to be an expert prior to trial (also, not a quack)
Need to have adequate training in field
Kline: calls in expert economist to testify about redlining in bank emp
discrim case; expert never worked in a bank, no degree, never worked
w/loans works for an expert witness firm. Testimony excluded
o

Need to be qualified IN THE SUBJECT AT HAND

Cant use one expert for multiple bases

Subject matter is so specialized that it requires an expert to explain to the jury

AND
o Any helpful testimony is admitted (very expansive approach) b/c the area is so
esoteric
Standard: something not every juror would be expected to know
Admitted to assist the jury to understand evidence or determine a fact at
issue
Can be in the form of an opinion OR otherwise!
o BUT some things are so fundamental or common sense that there is NO NEED for
an expert!
Common knowledge this varies by context, locality
Scott: if jury is likely to know it, expert wont be helpful in this case,

human factors expert testifies to why walked over a grate wearing

heels. This was common sense but harmless error
Ex. IDs in lineup, wants expert to intro ev that lineups are unreliable
based on some studies; COMMON SENSE not admitted
Ex. Scooter Libby/Valerie Plame case Scoot got confused, wants expert
who basically says sometimes people forget stuff. Held: hell naw, obv
common sense
Nimely: expert testimony on why officer testimony conflicts w/forensic
ev- optical illusion! Held: not helpful! b/c credibility of testimony is
SOLELY FOR JURY TO DECIDE
o RULE: do NOT impede on fact finders role

Std of review on appeal: abuse of discretion

Generally a harmless error

o
o
o

Exception Hanna: wrote letters threatening prezs life, std is would person
think it was a serious threat, govt calls secret service as expert. Revd on appeal
b/c secret service isnt ; plus expert was overquald and basically told jury what
to think

Expert cannot make blanket legal conclusions or speculate

Testimony about unreliability of ID evidence is almost always INADMISSIBLE
Opinion testimony about ultimate issue ADMISSIBLE, including s state of
mind at time of trial

Testimony must be reliable see DAUBERT (below) for scientific experts

o Were methods reliable?
o Were they reliably employed?

Determining reliability Rule 104(a), Frye (boo) and Daubert (yay)

Reliability is an extra requirement for scientific experts, but the tests can be applied to nonscientific experts too
RULE: proponent must show that the scientific test or principle employed is
scientifically valid
o Rationale: jury is lay people and easy to fool; judicial screening is necessary to
prevent dangers of unreliable testimony
Methods
Frye test is the evidence/methodology relied upon generally accepted in the field?
This method basically polls other scientists to determine if the methodology is
accepted as reliable
Dispute about the method within the field is taken as evidence of UNRELIABILITY
Not speaking to the reliability of the test per se, but how experts in the field view
the test ITO its credibility
o
-

Frye v. US: ct held that polygraph test was not admissible b/c it was not generally
accepted

Critiques of Frye:
o Too restrictive
Got here first b/c ct didnt want to set bar too low and mislead juries
o Too conservative, lags behind science
Might disadvantage/disincentivize experts from using most recently
developed techniques
Hurts prosecutors using newest forensic techniques
DC: cts are for these reasons now moving toward looser stds, but Frye is
STILL the text in many jxs ex. NYS uses the Frye test
Generally admitted under Frye: DNA, fiber comparisons, bite-marks (as ID
methods), fingerprints

Generally not admitted under Frye: polygraphs, voice IDs, scientists w/personal
interest in the matter

BUT FRYE DOES NOT CONTROL IN FEDERAL COURT! When using the FRE, look to:
Daubert test: an expert must be testifying to knowledge
Shift to the idea of trial judge as gatekeeper, regulating whether expert testimony,
upon objection, is based on sufficiently reliable methodology
o Daubert v. Merrell Dow: alleges that mom taking bendectin in utero caused limb
reduction. s 3 experts failed Frye; reversed for error, remanded for review under
Daubert std

RULE: cant just take experts word for something needs to be scientific/empirical proof
Generally, if the expert is acting professionally in their testimony and conclusion, it
will probably be admitted
But how to determine this? 4 Daubert factors! [not an exclusive list of what judges can consider
no factor is dispositive here, just indicia of reliability]
1. Is the method used verifiable/falsifiable can it be proven [in]accurate?
Is the experts methodology falsifiable, meaning that someone else can use and test
the methodology?
Basically fanci word for is the test OBJECTIVE (rather than subjective or
conclusory)
o

Ex. Three Mile Island case expert uses weird plume cloud test that no one else uses
NOT ADMISSIBLE; expert apparently didnt use the accepted test b/c it didnt come out
with the results he wanted

Why does the expert use this test? Is it established?

o What did he rely on? Are there any red flags (see below)? Would other scientists
also use this test?
2. Has the method been peer reviewed and published?
If yes, then this makes it seem more respected and thus more reliable
o Means it has been vetted by those in the community and an objective factor cuts
in favor of its reliability
Issue some fields lack peer review/there might be a reason for not publishing
o Ex. child porn case used enhanced peer to peer software to determine that cp was s;
-

counsel is like yo theres no peer review/publishing govt is like DUH if we reveal the
method, pedos are gonna find a workaround
o Ex. VERY specific findings not everything gets/is expected to get published

3. Is there a discoverable rate of error and are there standards and controls?
If there is a rate of error, it means that the method is testable and you can objectively
determine if an outcome is right
o Focus on HOW test is conducted
2 requirements:
o Methods must be employed in the same way every time
o There must be some indication of the rate of error
Something will be inadmissible if there are no standards in place or the
rate of error is indeterminate or there is a known way of beating the test

Polygraphs can fail Daubert b/c of this but if the parties stipulate to
the admissibility of a polygraph ex ante, then it will be allowed in
4. Is there general acceptance for the method in the scientific community?
One Daubert factor this constitutes the WHOLE Frye test! Shows you how much
more permissive Daubert is! Frye is still relevant but NOT dispositive
BUT still a stringent gatekeeper fct proponent has to convince a JUDGE (rather
than a jury) of by preponderance see below [104(a)]
RULE 104(a) trial judge determining admissibility has to determine whether the method in
question is more likely than not reliable
Contra 104(b) Huddleston std, which is much more permissible
Rule 104(a) assessments are made at Daubert hearings these are discretionary
o Done before trial; adversary hearing before judge in which experts testify,
describe methods, get cross-examined, and the judge decides whether the
testimony will be admitted
DC: if testimony is NOT admitted, a motion for summ j from the
opponent will usually follow
o Most judges dont hold these b/c they create a ton of paperwork and the expert has
already been deposed (in civil cases) just creates more work. Wamp.
Std of review for Daubert hearings is abuse of discretion (Joiner)
Issues raised in Daubert hearings:
Problems with 2 competing expert witnesses
o Same method can lead to different conclusions
o In some disciplines, there are different but equally credible schools
Admitting stuff under Daubert that wouldnt get in under Frye sometimes good, but
sometimes bad
o

US v. Ferry murder case w/muddy footprint. Govt calls expert who is anthro Ph.D
who is creating a new method of IDing shoeprints; did a lot of experiments to figure out
this method, but is new and no one else uses it. Ph.D tells you theres a 20% error rate,
and 99% of errors are false NEGATIVES (meaning that if she finds it was , like she did
here, its def right). This theory has been peer reviewed and has support.
Trial judge ADMITS it. DC: this expert offed herself a few years later b/c turns
out shed been lying at govts behest and her shit wasnt really reliable

What about DNA evidence?

Reliable under BOTH tests
BUT constantly changing science, must still determine test in question is
properly conducted; also consider weight to which DNA ev is entitled
o DC: Ferry case is emblematic of the issues w/both tests
Frye may be more likely to root out fraud in some cases, but theres
fraud in ALL sorts of research, and Frye wont root out collective
ignorance
Daubert cutting edge stuff might be unreliable but judges get excited
and let it in
Problem in criminal cases, maybe not as big a deal in civil
o

Rule 706 should judges appoint an impartial expert?

o Breyer is pro-this in Joiner and Kumho
o BUT this is expensive (parties pay for it), and no one knows what hell say. Also,
this basically passes the buck to the expert he decides on credibility instead of
the judge
DC: b/c of this stuff, 706 has been used a bit more frequent since Daubert,
but not a ton

Applying Daubert RED FLAGS

Analytical Gap extrapolates from an accepted premise to reach an unestabd
conclusion
o Problem is that this might restrict ppl from having new ideas; also who are cts to
judge sufficient connection?
Rule: animal studies can be used if reliably conducted, can be replicated,
and there are no epidemiological studies available epidemiology
ALWAYS trumps animal studies
Joiner: do PCBs cause cancer? Animal tests find yes in baby mice but

Testimony must sufficiently fit facts of the case FIT REQUIREMENT

o Related to analytical gap your conclusion has to fit the facts of the case

o
-

not adult mice. Epidemiologist comes up with widely different results.

Ask: have there been enough tests/inquiries?
o Rule: you can use animal studies, but they have to get at the
point youre trying to prove
Ex. oil spill gets oysters sick, expert says other sea critters get sick from oil, dont
need study about oil and oyster sickness to prove it. Admitted despite analytical
gap b/c this gap is ok

Ex. leaves dinner, walks by local airport where there has been jet fuel spill; she
is diagnosed w/respiratory disease, calls expert who links this w/jet fuel
exposure. Held: fit problem b/c only breathed it in once and studies referenced
make a link between disease and REPEATED exposure only
Bobosian: parks Ford, rolls down a hill and runs her over; brings in expert
design engineer whos like yo there is this thing w/these cars called false park
attempt where you think its in park and its not and 45 people have been run over
by their cars b/c of this. Held: not admissible b/c this ACTUALLY put her car
in park!
Westberry claims sinus infection from talc exposure; s claim that no fit,
how do we know studies proffered by s expert discuss the same amt of
exposure? Held: ADMITTED perfection is not required! has given evidence
that he was exposed to lots of talc doesnt need to show exact amt

DC: fit is another way of looking at relevance

Alternative Causation failure to test for possible other causes

o An expert cannot testify to causation unless he has ruled out all other alternative
causes needs to ESTABLISH CAUSE AND EFFECT
DC: Daubert cases are largely about causation
o Need to rule out most basic/common causes, not everything

Differential diagnoses method of determining causation Westberry is leading

case
Experts take all possible known causes, rule out all other causes, and know
by process of elimination that one is it
Negative proof but still reliable Westberry ruling was proper b/c there
are a lot of studies linking talc exposure to sinus infections
BUT in some cases like w/fibromialgia there are a TON of
possible causes too many, cant pinpoint one thru diff diag
Temporal proximity
o

o
o
-

Ex. totally healthy guy hit in head, develops many symptoms proximity of head hit is
relevant but not dispositive
Ex. everyone on a plane who eats fish gets food poisoning temporal prox on a large
scale can be more reliable

Alternative design
o Expert must test the alternative design if he is testifying that the product should
have been designed differently and that it would work that way
o If too expensive, can use an alternative, ex. exerot safety manual
Must bring same intellectual rigor to in ct testimony as to out of ct analysis
o Must act in prep for trial like you would in real life
What did the expert rely on?
What was the experts method?
Was the method accurately applied?
o Rule: Daubert applies to ALL EXPERT TESTIMONY, not just scientific
testimony

Kumho: expert purports to conclude that tire was defective as opposed to

properly inflated. challenges under Daubert, saying it doesnt apply b/c expert
isnt a scientist. Held: still applies b/c we care about intellectual rigor is this
expert operating in the same way in court as he is out of court
Testimony in question, however, was excluded b/c the expert was paid by
the and anted to hold for him

Daubert II: was research conducted in anticipation of litigation? [suspicion of

motives]
o RULE: if research was conducted in anticipation of litigation, it is
INADMISSIBLE, UNLESS:
Method was peer reviewed, OR
Expert explains precisely how he reached conc and points to an objective
source estabing that he followed a method recogd by the maj of scientists
in the field
DC: the premise of this is a lil ridic bc all studies are
commissioned by someone like drug cos etc, all anticipating
eventual litigation

Statistical analyses under 702: in order for probability/statistical analysis to be admitted, it

needs to be reliably conducted
-

Collins: you can use probability evidence if you have a valid method and no confounding
evidence need empirical, independent factors

Chin: Asian port authority employees allege discrim promotions, but there are SO many more
whites than Asians messes with the stats
Smith v. Rapid Transit: cannot, on the basis of statistics alone, determine liability
o estabs conclusively that 70% chance she was hit by a RT bus; both sides move for
directed verdict; ct doesnt rule for echoes of market share liability, but no proof it
wasnt the 30%
This evidence is ADMISSIBLE, but its not dispositve

Indeterminate problem judge treats group as class action, reduces the damages
by the background rate of cancer, etc.
Marketshare liability works w/DES, other drugs w/100% rate of bad effect
o must prove that they did NOT market the product AT ALL to avoid liability;
otherwise liable for % share of the market they held
In some jxs, this shifts burden; in NYS no burden shifting
o When can marketshare liab apply?
There must be a defined market
Cant be other sources of contamination
Must be unable to determine whose product caused harm
Generally has been a time lapse between marketing and symptoms
Goods must be fungible

Rule 702 amendment intended to codify Daubert, provide a checklist:

Sufficient basis
o Cant come to a reliable conc w/o thorough research
Reliable method
Reliably applied
o

Ex. Vuitton case ppl will confuse Dooney logo w/ours and think we went downmarket.
Did survey that showed confusion, but did it in a poor people mall

RULE 703 Bases of an Experts Opinion Testimony

An expert may base an opinion on facts or data in the case that the expert has been made aware
of or personally observed. If experts in the particular field would rely on those kinds of facts
or data in forming an opinion on the subject, they need not be admissible for the opinion to be
admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion
may disclose them to the jury only if their probative value in helping the jury evaluate the
opinion substantially outweighs their prejudicial effect
Rule: the basis of an experts opinion must be either from a source reasonably relied upon by
experts in the field, or, if not, the data must be substantially more probative than prejudicial
(reverse 403 test)
Tilts in favor of EXCLUSION
What kind of data is admissible?
Personal knowledge of underlying facts
Observation of prior evidence/testimony

Hypothetical questions
Otherwise inadmissible evidence if in line w/limiting instruction
o Can consider hearsay
o Not bound by rules of evidence in considering info in question b/c experts in the
field would rely on said info
o Expert must rely on this info in the normal course of his work
DC: this is why otherwise inadmissible stuff is ok here

DC: basically, under 703 the expert need NOT have personal knowledge experts often testify
to things like cause of death, symptoms, etc, without knowing/having ever treated the person in
question
Cases examples for 703:
-

Leeson: is the insane or pretending to be insane? Expert is psychologist, gets info from
interview w/ and discussions w/psychs at the jail who say was faking
o Admitted b/c experts would normally rely on interviews w/other drs, but admit w/caution
Ex. Ford case: window needs to be replaced, nothing in manual says how, mechanic does it in
a way that causes window to explode; calls warning expert, who says warning manual is un
- this expert looked at other warning manuals and the one reissued 6 mos post accident
o Admitted b/c normal stuff to rely on, even tho the manual itself would be a sub rem meas
and not admiss
Holyland: case re material support to Hamas; govt alleging that orgs are strawmen; to rely
on reports of ppl w/in the org; s allege that govt go reports by torturing these people!
o Rule: govt cannot rely on info that has been gleaned from torture, but ct refuses to rule
on this b/c says theres no factual basis for torture here
Peoli: dr prepd to testify to ppls symptoms (ppl lived near train yard) objection that dr
never saw any of these ppl as patients DOESNT MATTER under 703!
o BUT he relied on weird stuff checklist of possible symptoms from living near RR; had
s lawyer send checklists to s and they did it themselves. HELD: inadmissible under
703! If you were treating these patients, you wouldnt rely on a self-reporting checklist
prepped specially for litigation
o DC: Difference between creating patient records that no one would rely upon
(unreasonable) and relying on PREEXISTING patient records ()

Major 703 concern: expert becoming a conduit for admitting inadmissible evidence
The reverse 403 test solves this problem
Big 703 requirement: expert must be QUALIFIED
-

Meridia: calls toxicologist; based on years of study, he can certify that M causes damages
to the human heart. Has to be proven in contrast to benefits of M concludes that risks
outweigh benefits is this admissible?
o NO expert is not qualified to weigh benefis and risks like a dr hes just a
TOXICOLOGIST, that is his expertise he is testifying outside his expertise here
o DC says its b/c the wants to squeeze as much as it can out of 1 expert

DC: this in turn creates a big 702 problem in re the SUBJECT MATTER OF TESTIMONY
Maybe the expert is testifying to something that isnt the subject matter

Is the expert REALLY helping the jury come to a conclusion it couldnt w/o the
expert testimony?
o DC: scientific testimony is almost always helpful this question comes up mostly
in re non-scientific experts
Ex. as a rule, translating code/slang in a certain field is properly the subject

of expert testimony. Code expert testifies to meaning of jawn in a recorded

convo this is ok; testifying to meaning of tonight is the night is NOT ok not
code; jury can tell this is referring to the drug deal
Ex. cannibal cop case - wants to call expert on sexual fetishist culture on
interwebz; judge held this would be helpful
Ex. wrongful death case s wife was homemaker, calls economist to testify
as to value of housewife services; held: this is admissible; monetizing is
something the jury needs help on

RULE 704 Opinion on an Ultimate Issue

(a) In General Not Automatically Objectionable: an opinion is not objectionable just b/c
it embraces an ultimate issue
(b) Exception: in a criminal case, an expert witness must not state an opinion about whether
the did or did not have a mental state or condition that constitutes an element of the
crime charged or of a defense. Those matters are for the trier of fact alone
704(a)
-

Expert testimony isnt automatically inadmissible just b/c its in re an ult issue, even
tho lay testimony would be
Question remains does the testimony help the jury?
o
o

Scop: fraudulent and manipulative security practices. Expert testifies about trades, gives
opinion that they were manip and fradut. Held: not helpful just parroting the statutory
language
Buchanan: charged w/operating firearm for shooting homemade potato gun this is
helpful capstone to complicated jury analysis (more than this is what I think but
whether it falls w/in the legal def of firearm

704(b) enacted in response to John Hinkley trial

We automatically exclude evidence if it has to do with the s mental state if it is a
required element of the commission of the crime
o Problem is the jury will choose the expert they like better
Ex. prosec I think hes insane; - I think hes sane
DC: this rule is either nefarious or superfluous unhelpful testimony is already
excluded, so is this designed to exclude helpful testimony?
o

US v. Brown - called up prosecution expert and he is not allowed to testify judge says
this is dumb and allows it. Appeals ct reverses this is an injustice, but its what the rule
says

DC: you get around this by framing questions in the hypothetical or in

general terms whether someone with s mental state/condition could
commit the crime dont point to partic

V. Hearsay: Step 1 determining whether evidence is subject to exclusion

RULE 801 Defining Hearsay; Hearsay Exclusions
(a) Statement means a persons oral assertion, written assertion, or nonverbal conduct if
the person intended it as an assertion
(b) Declarant a person who makes the statement
(c) Hearsay a statement that: (1) the declarant does not make while testifying at the
current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter
asserted in the statement
Approaching a hearsay question:
1. Look to 801(a) (c)
2. Does the statement fit into one of the hearsay exceptions?
a. 801(d), 803, 804, 807
3. [CRIMINAL CONTEXT ONLY] Is there a Confrontation Clause issue even if it fits
an exception?
a. Hearsay issues frequently come up in criminal cases
4. Remember: all other exclusionary rules (403, etc) still apply, even if the out-of-court
statement does not present a hearsay problem

RULE: a statement, other than one made while testifying at trial or at a hearing, that is
offered into evidence for its truth, is not admissible unless it satisfies the requirements of
one of the hearsay exceptions
Rationale: having someone in court repeats someone elses out of court statement is a
bad way for the jury to determine its truth/credibility. Getting info through an
intermediary is inherently less reliable than getting it straight from the declarant
o The judge needs to screen for reliability b/c we dont trust the jury to be able to
tell
DC: unlike many evidence rules, hearsay rules are RULES OF EXCLUSION
o This is b/c
Adverse party is denied opportunity to cross-examine potential denial
of DP and Confrontation Clause rights
Jurors cannot evaluate statements reliability by traditional means, so
prejudical potentially
Four major testimonial infirmities reasons why a statement can be unreliable:
1. Insincerity
a. Person is intentionally lying most common problem
2. Imprecision/ambiguity
a. Disconnect between what the witness is trying to say and what the declarant
hears. Also, need context
3. Perception

a. When you say something like I saw the run from the bank is it b/c he likes
to run or b/c he just robbed it
4. Memory
a. If you make a statement that occurs sometime after the event, can get hazy
DC: our adversarial system provides us w/certain guarantees of reliability
Cross-examination
Oath
Jurys opportunity to view demeanor
o These safeguards do not exist when it comes to hearsay
Bench trials: hearsay rules APPLY
BUT hearsay rules dont APPLY in:
o Sentencing proceedings
o Suppression hearings
o Competency hearings
Rule 1101 judges can interpret reliability properly, dont want to exclude
evidence from proceedings that are supposed to be more flexible, as
opposed to more formal IRL trials
DC: basically, hearsay rules apply to trials on the merits
The std for determining hearsay is a preponderance of the evidence ( std), determined by a
judge once a determination as to whether it is hearsay is made, it is for the jury to decide
whether the evidence is powerful or not

Not hearsay statements when an out-of-court statement is relevant, regardless of whether it is

true, it may be admissible b/c it is not hearsay (limited by 403) probative but not offered for
their truth
Offered for the fact that the statement was made
o

Ex. someone overheard someone talking introd for whether someone survived an
explosion

Verbal Acts doctrine: some statements give rise to liability no matter what
Ex. Craig: declarant purported to terminate a k by saying I terminate;

insurance co wants to intro this to prove k was terminated - not hearsay!

Ex. words with independent legal significance (slanderous words, etc)
Ex. saying I do on the alter has objective legal significance, not hearsay.
Saying I do basically anywhere else no real meaning

Offered to establish a foundation (like fraud)

o

Ex. US v. Brown: tax prepper allegedly filed false returns for clients, govt wants to show
that taxpayers have x amt in deductions and prepper overstated. The way to do this is ask
taxpayer how much they got in deductions. Held: excluded as hearsay; cant get around it
with 703 b/c expert testimony is not helpful here just need to show that amt was
overstated; govt can get actual amt from their own records, dont need the taxpayers
statements to establish fraud

Offered for effect on the listener context of statement is important, can go to

reasonableness of belief/state of mind not-for-truth purpose
o

o
o

Ex. McClure dude heard that his wife was sleeping around, kills his wife wants to
intro out of ct statement to show his state of mind. DC: this is ok b/c the issue is HOW
the declarant said what he said, not WHAT he said issue is that hes gonna lie to make
the context seem more dire
Sok tho! He gets cross-examined and this mitigates our concerns with
untrustworthiness
DC: just b/c testimony is self-serving, doesnt mean its excluded, you just argue
to the jury that its self-serving they determine its credibility goes to
WEIGHT of testimony, not admissibility.
Ex. Duress case - argues that he was acting in response to a threat [kill him or Ill kill
you] if offered for effect on , then may be admissible; def not a hearsay problem
Ex. typical criminal case: on trial for drug dealing, govt calls arresting officer, tells ct
that CI told him who the biggest drug dealer is and its ; got warrant, went to s house
and found a bunch of drugs; govt intros CIs statement for effect on listener
explaining WHY officer went to s house
Inadmissible cops conduct not in dispute, too prejudicial under 403
Not a hearsay problem tho
Would be probative if there was a gap in cops logic and he all the sudden
decides to go to s house why did he do that? Oh this statement. K cool.
Ex. Freeman officer testifies, heard from CI that Carlson is a counterfeiter, went to
address, sat outside, see and C sit down on stoop and exchange something I arrest
them both and find cash in brown sake and fake $$ in briefcase.
Admissible probative b/c gap in cops logic whats the background for my
actions/belief that is involved in this? Oh this statement
Probative under 403 b/c the statement was not against , it was against C! Less
prejudicial than prior ex b/c jury makes inferential leap ok C is big bad guy,
and is dealing w/him prob bad guy, but not relying on out of ct statement to
reach that conclusion!

Offered to show that was on notice

o

Ex. Vinyard: people told driveway was slippery; this put him on inquiry notice.
Admissible truth of statement is not the point; trying to show that was on notice, thus
giving rise to a duty
Problem 403 prejudice issue fear that jury might use it for its truth (OMG
the driveway was slippery) but this is where a limiting instruction comes in
and mitigates the issue

Procedure for admitting not for truth statements:

Make appropriate hearsay objection
Burden shifts to proponent to explain why it is being offered
If proponent gives valid not-for-truth purpose, opponent needs to argue prejudice
under 403
o Say its a backdoor for a for truth purpose
Std of review on appeal abuse of discretion
To summarize: we are concerned with out-of-court statements being offered for the truth of
the matter asserted

How do we know when the statement is being offered for its truth?
o

Ex. TN v. Street: S charged w/murder, doing it with P; P writes confession implicating P

AND S. S had also confessed. Hearsay issue: S gets on stand and contests the
voluntariness of his confession said that it was duress officer put gun to his head and
was like heres Ps confession copy dat shit. Govt wants to intro Ps confession (the out
of ct statement in question) to show that the 2 confessions dont match (Ss included stuff
not in Ps), so S couldnt have copied it! says hearsay, govt is like no were just
showing it as probativeness that this didnt happen. Held: not hearsay, introd for
proper purpose not trying to show that Ps confession is TRUE or that Ss confession
is TRUE trying to rebut something S said!
DC: this is an easy case b/c opened the door govt didnt intro Ps
confession of its own accord

How do we know what the matter asserted is?

o

o
o
o

Ex. Wright: is M competent to draft a will? Want to intro a letter if it says you are
competent! then its inadmiss b/c its hearsay and speaks directly to the matter at issue.
But if the letter is like OMG youre so good at complex trig! then it implies
competence, and its not hearsay
Ex. ship captain implies thru conduct that ship is seaworthy, so not hearsay. If hes like
OMG this ship is lyk So0o0o0o seaworthy, then hearsay
Zenni: caller is like put $500 on the Giants issue is is this place a betting parlour? We
can intro this b/c it implies that its a betting parlour w/o speaking to the matter itself
Park: charged w/killing someone whos never found, witness said he talked to s
associates who said in response to wheres the victim? that there are many places to
bury a body govt wants to intro statement, claims its ok for the implication that of
these many places, chose one to bury body. Held: THIS IS HEARSAY trying to
communicate that killed the dude, which is the matter at issue

Note on implied assertions (when a party offers an out-of-court statement for a matter that is
implied, rather than expressed, in the statement, it may still be deemed hearsay)
At common law, statements offered for the truth of the implication are subject to the
hearsay rules. All implicit assertions were inadmissible. Was meant to get at the fact
that everyone speaks in a veiled manner
The Federal Rules use an intent-based test did the declarant intend to assert the
proposition for which the proponent is using his out-of-court statement? Intended to
liberalize the common law appch
o Determining intent is very difficult helps to look to CONTEXT
If there was NO intent to communication the truth o the matter/a motive
other than to express the underlying premise, then its not hearsay
DC: still present is the major hearsay concern w/insincerity
how do we know what the speaker INTENDS? Hes gonna lie!
Applying this intent based test:
1. Classic case matter asserted is its raining
Witness testifies that I saw 10 ppl outside w/raincoats and umbrellas
o At common law this is hearsay b/c its implied its raining
o Under FRE, its ok speakers intent is keeping selves dry, not trying to tell ppl
its raining (intent of a person)

2. After oil spill in Gulf, BP exec goes to eat fish in LA restaurant, bringing media along
Hearsay under FRE clearly tryna communicate that eating fish is ok
3. Trayvon Martin protest everyone wearing hoodies
This would be hearsay communicative fct, not trying to be like oh my head is cold
o That being said, what is it communicative OF? Not probative of coldness, but
hard to determine what the speakers intent is so hard to say it would be excluded
from a trial on Zimmermans guilt
4. The Piano hub finds out wife is sleeping around, cuts off finger and sends it to student.
Probably hearsay intended to communicate husbands belief that wife is sleeping
around

VI. Hearsay: Step 2 determining whether an exception/exclusion to hearsay

rules applies
RULES 801(d)(1)-(2), 803, 804, 807 Hearsay Exceptions
These out of court statements are being offered for their truth and are admitted despite
being hearsay
Note: 801 exceptions are technically not hearsay, and 803, 804, and 807 are
technically hearsay but excepted from the hearsay rule no practical difference!
THERE ARE FIVE MAJOR RULES GOVERNING HEARSAY EXCEPTIONS:
801(d)(1) Prior Statements of Testifying Witnesses
DC: these statements are not considered reliable when they are made we admit
them NOW because the person who made them is testifying in court, and is thus
subject to cross-examination and other safeguards for reliability
801(d)(2) Statements of Party Opponents
DC: these are admitted basically b/c the opened the door its stuff your side has
said in the past, now you cant complain that its being admitted
803 Exceptions to Hearsay Rule Regardless of Whether the Declarant is Available as a
Witness
DC: these statements are so reliable that you dont need to produce the declarant
804 Exceptions to the Hearsay Rule When the Declarant is Unavailable as a Witness
DC: the circumstances under which these statements are make them reliable, but in ct
testimony would be better
807 Residual Hearsay Exception
Catch-all exceptions

RULE 801(d)(1) Prior Statement of Testifying Witnesses [requires witness availability]

Something the witness himself said could be hearsay b/c maybe he said it in a convo w/the
declarant
Classic ex. declarant says to witness: I saw commit the crime! Witness says blah
blah statement at issue!
(a) Prior Inconsistent Statements a statement is not hearsay if declarant testifies at trial or
hearing and is subject to cross examination and the statement isinconsistent with the
declarants testimony and was given under oathat a trial, hearing, or other proceeding or
deposition
RULE: Witness is on the stand testifying and contradicts a statement that he
previously made under oath at a formal proceeding; previous inconsistent statement is
admissible for its truth
o Ex. Livingston: statements made under oath at former postal inspector proceeding; held
improperly admitted under (d)(1) b/c even tho the statements were made under oath, they
were not made at a formal proceeding
DC: getting at whether this was a RELIABLE account

Prior inconstant statements are admissible as substantive evidence if they meet the
requirements
Impeachment: prior inconsistent statements may be used to impeach a witness even
if it does not meet the (d)(1)(a) requirements [Rule 613]

(b) Prior Consistent Statements a statement is not hearsay if declarant testifies at trial or
hearing and is subject to cross-examination, and the statement isconsistent with the
declarants testimony and is offered to rebut an express or implied charge against the declarant
of recent fabrication or improper motive
RULE: Statement made out of ct by the witness that supports or reinforces the
witness in-court testimony is admissible for its truth
o Normally, these kinds of statements would be inadmissible (like yay you repeat
yourself, that doesnt make you more credible impermissible bolster), but in
this specific situation we allow it dealing with REBUTTING A MOTIVE TO
FALSIFY
o Requirements:
Witnesss testimony must have been attacked AND
Can be an IMPLIED attack
o

Ex. attacks a cooperating witness who made a deal w/govt;

witness statements v. prior to the deal can be admitted to give
the witness credibility

Prior consistent statement must have been made prior to alleged

motive to falsify
A PCS must predate arrest once youre arrested, you have a clear
motive to lie
Ex. Tome witness being attacked on stand for having motive to falsify
(said kid didnt want to live w/dad anymore so made up false abuse

allegations) ended up being able to admit PCSs b/c was saying this
stuff before motive to falsify presented itself

o This rule is used when there are prior statements that can rebut a charge by the
other side that the witness had a reason to fabricate the story
Explains inconsistency and rebuts attacks of witnesses having a bad
memory
o PCSs need not have been made under oath
o ASK
What is the other side saying?
When did the motive come about
When did the declarant make the original statement?
(c) Statements of Prior Identification a statement is not hearsay if declarant testifies at trial
or hearing and is subject to cross-examination, and the state isone of identification of a person
made after perceiving a person
RULE: prior ID is offered for its truth that is responsible for the crime charged
o DC: this is admissible b/c the person is subject to c-e about the ID and the
advisory comm. thought that c-e would be v effective in this sitch can ask
about ID procedure, conditions under which the witness first saw the perpetrator,
etc
Used when a witness has previously IDd someone outside of ct at, ex., a crime scene
or lineup
o Required that witness a) made prior ID; b) has been produced at trial; and c) is
now willing to testify
The witness DOES NOT have to ID the in ct
o We like these prior ID statements b/c they were closer in time to the actual event
2 issues w/this rule:
o 1. Often, witnesses make incorrect IDs in ct BUT doesnt matter for the
purposes of this rule! Just must be now on the stand subject to cross-exam
about the PRIOR ID IDing ct not important/necessary
Ex. 1st WTC case accidentally IDd 3 alt jurors instead of the terrorist s
o 2. Subject to cross examination is a very loose requirement just having the
opportunity to c-e the witness is all that matters; doesnt matter if they are
crazy, cant remember, etc saying I dont know, etc speaks to
CREDIBILITY, which is for the jury to assess
This req does not guarantee a GOOD cross-exam just gives you
adequate OPPORTUNITY to impeach the witness
Ex. Owens: witness doesnt remember making the ID. Doesnt matter!
His prior ID is still admitted

Problem is ppl will use IDK to get around perjuring themselves

BUT if witness is DEAD, CANNOT admit prior ID b/c we need them
on the stand!

RULE 801(d)(2) Admissions Offered By Party Opponent

An admission is anything a party or his agent states out of court that their adversary wants to use
against them at trial
Basically, the you break it, you buy it rule you make the statements, you have to
deal with them being used against you MUTHA FUCKA
Must be a statement made by party A offered against party A by party B cannot be
admitted by party A
Statement need not have been against interest at the time it was made, merely needs
to contradict present positions
o Rationale: ppl should have to live w/their assertions; b/c the party made the
statement himself, credibility concerns are obviated in many circumstances
Note: completeness is required the ENTIRE statement must be admitted!
Means that the can admit certain exculpatory portions of the statement in response
to the prosecution cherrypicking the most offensive parts
o BUT, the portions admitted must be affirmatively misleading and the redacted
portions must clear up the controversy to be admitted [Rule 106]
o You cant admit more when just cold facts are required
Ex. Branch: charged w/carrying gun during ATF raid in Waco; confessed to
TX Ranger. Ranger testified that said he went to kitchen and picked up AK47
not misleading b/c we just need the fact
o

Can admit more when the statement is more probative w/fuller inclusion (ex.
drugs were mine but guns were not)

There are FIVE kids of party-opponent statements that can be admitted for their truth under
801(d)(2):
(a) Partys Own Statement [party is available]
Statements made by individual parties or their reps are offered against said parties by an
adversary
Must be against the partys interest and must be relevant
Declarant does NOT need personal knowledge of the truth of the statement for
opposing party to offer v. him
o

Ex. Mahlandt: company had wolves running around in STL yards; Mr. Poos
(LOLOLOL), one of the s, comes home one day and sees a wolf standing over a kid.
Says wolf bit the kid! this is offered against him. He says at trial yeah I said that but I
was just assuming; I didnt see it happen! Ct was like too bad YOLO were admitting it

Ex. confession of crime by a

Should still raise a 403 objection

(b) Adoptive Admissions [party is available]

When an individual agrees with/[silently] assents to something that someone else said, it
becomes his statement and may amount to an admission
BIG QUESTION did the party actually adopt the statement?
o Test: whether, taking into acct all circumstances, As conduct/statement justifies
the conclusion that he knowingly agreed w/Bs statement

Covers express rxns to anothers statements AND implied adoptions

Ex. Hoosier: GF says stuff about crime; BF was silent, held to have adopted the
statement via silence
RULE: SILENCE CAN BE AN ADOPTION WHEN A PERSON
IN THE CIRCUMSTANCES WOULD HAVE DENIED IT IF THEY
DIDNT WANT TO BE ASSOCIATED
o Silence is deemed to be assent where:

Present and heard and understood statement

(foundation)
Physically and mentally capable of denying it
person would not let statement go unchallenged

Ex. Flecha: and budz were on boat, pulled over by coast guard, raided and
found bales of drugs; F and buds chained together on deck of boat; one bud says
were in trouble now, F doesnt response. Govt says this is adoptive statement.
Held: NOT adoptive b/c a person would be silent in police presence!

Personal knowledge not required

Judge must apply preponderance std

(c) Statements By Agent Authorized to Speak on Parties Behalf [party is available]

A statement by a person authorized/hired by the party to make a statement concerning the
subject speaking agent rule
Rationale: if you authorize someone to speak on your behalf, you adopt what they say
Does NOT cover: agents not hired, agents tangential to the need to be HIRED
TO SPEAK ABOUT THE PARTICULAR SUBJECT
o BUT agent need not have personal knowledge of the statement made for it to be
admissible
o There must be evidence of agency relationship other than the hearsay itself can
be circumstantial
Examples:
o PR firms
o

Ex. DaSilva: border patrol finds drugs on a dude who requests a translator, translator
arrives, asks in Spanish are you here for me, trans says yes, says THANK GOD
and then speaks in Spanish. Customs agent called to testify - objects b/c its what
translator told him. Held: translator is customs agent in this setting not hearsay
BUT if trans has own motive to falsify and act on his own, no agency
Ex. McKeon: lawyer is generally an agent, so statement admiss v. client
RULE: as long as lawyer is authd to maek the statement, the statement by the
or the prosecution will be admitted as an agency admission
ISSUE atty will potentially become an unsworn witness and be
disqualified if wants to attack his statement

(d) Statements By an Agent About a Matter Within the Scope of His Authority [party is
available]
A statement by the partys agent or employee concerning a matter w/in the scope of the agency
or employment, made during the existence of the relationship is admissible for its truth
Rationale: authority to do an act gives agent authority to speak about it

DC: in civil cases, this is a -friendly std b/c there are now going to be a lot of
statements admitted

BUT there are requirements and limitations

o Speaker must be an agent or employee
This must be proven either directly or circumstantially employment
records
Preponderance of the evidence std
Even low-level employees are admissible
Must be employed at same time as
o Statement is about something within the scope of their authority
Doesnt have to be during work hours but needs to be w/in the scope of
their job
Ex. Hill: wants to bring in statements made to him by other employees

you got fired b/c youre old wants to attribute these statements to
HR/mgmt. Held: NOT admissible b/c hiring/firing decisions are not w/in
the scope of their jobs DC: (d) does not apply to water cooler gossip
Ex. janitor statements
o Sorry you slipped should have cleaned that up
ADMISSIBLE
o Sorry the company has an oil monopoly NOT ADMISSIBLE
Ex. employee at chemical plant responsible for disposing waste comes
home after work, wife asks how day was. He says bad b/c we got all this
waste and I put it in the ocean YOLO.
o WOULD BE ADMISSIBLE within the scope of employment
and still employed
Pappas: at VT condo, comes out and slips on ice and falls and breaks
arm. Calls condo association and reports injury. 10 mins later guy comes
and de-ices; says theres been a lot of trouble with ice here, we should
be more cognizant. didnt get his name but wants to intro his
statement, cant find agent
o Statement is admitted b/c circumstances show hes an employee

(e) Admissions by a Co-Conspirator

A statement by a co-conspirator of a party during the course of and in furtherance of the
conspiracy is admissible
Acts and words of your CCs are imputed to you they become your own
FOUNDATIONAL REQ: Govt does not have to charge conspiracy to use this rule,
BUT need to provide substantive evidence of a conspiracy existing
o Need to prove by a PREPONDERANCE OF THE EVIDENCE judge can
look at the hearsay statements/other circ ev to determ whether consp exists; can
have a pretrial hearing or limit stuff ex post
Mitigates concern that people will go to jail b/c other people not produced
call their CC
Acquittal does not prevent admission under this rule b/c proving
conspiracy needs to be beyond a doubt

DC: in 99% of cases, conspiracy is usually charged, but its not a

requirement for using this rule
DC: FRE re: conspiracy track the substantive law on conspiracy

3 requirements for admitting CC statements:

1. Statement must have been made in furtherance of the conspiracy
a. Idle chatter DOES NOT further the conspiracy (mom: hows the conspiracy? Guy:
oh its good)
2. Statement must have been made during the course of the conspiracy
a. Pre-conspiracy statements are NOT admissible
3. Person who spoke and are members of the same conspiracy (CCs)
Examples
-

Ex. Bill is , Barry and Jack have convo I was just talking to Bill, hes the new conspiracy
boss; we gotta kill a guy; J says ok if Bill says so b/c Bill is conspiracy master. B and Js
statements are admitted v. B
o These statements fulfill all three above factors
Ex. Holyland: material support to Hamas case; lots of statements by ppl in the org about the
need to fund Hamas, but many of them were made before Hamas was designated a terrorist
org. Held: doesnt need to be an illegal joint venture for CC statements to be admitted under
(e) so admitted
o DC: this is a stretch on the rule
Ex. Persico: NYS crime family head P incarcerated, while in jail CCs say P said to do stuff;
P says I withdrew from the consp Im in jail! Held: incarceration does NOT estab withdrawal
for purposes of this rule
Ex. Frigale: L says F will handle drug deal; deal goes down and F is found around but not in
transaction. Govt says F was near transaction and L says he was CC; F objects. Held: not
admiss b/c govt did not estab that a consp existed between F and L

RULE 804 Hearsay Exception When the Declarant is Unavailable as Witness

(a) Criteria for Unavailability is the declarant unavailable?
(b) Exceptions are the admissibility requirements of the exception met?
Proponent might have prior testimony from the declarant
Proponent might have a dying declaration from the declarant
Proponent might have a declaration againt interest of the declarant
o BASICALLY: a statement made that disserves the declarant when made
Big issue: does the party against whom the testimony is being offered
have a similar motive and opportunity to develop the testimony at the prior
time? If yes, then the opposing party can admit evidence
DC: to get statements admitted under this rule, you need to show a) that the declarant is
unavailable and b) the statements meet the reliability requirements of (b)
RULE 804(a) Proving a Declarants Unavailability
Must be shown to judge, burden on proponent of evidence; preponderance
Cannot CREATE witness unavailability

If motive is to keep witness off stand, the testimony can still be impeached under
804, so really doesnt accomplish anything
Rule 806 you can impeach the declarant even if hes not on the stand

Grounds for unavailability:

o (1) Declarant has a privilege and refuses to testify
If they invoke priv, they are unavailable
Judge must also rule that witness is exempt from testifying
There needs to be a foundation for the privilege
Often a hearing outside jury to make sure person will invoke priv
o (2) Declarant has moral objection/refuses to testify
o (3) Declarant lacks memory of underlying event
Ex. hit w/lead pipe I dont fuckin know what happened
o (4) Declarant is dead, ill, or infirm
Illness balance importance of witness testimony v. disruption that will
occur w/delay or restructuring the trial due to the illness
If big part of case, will wait; otherwise will prob be declared
unavailable
o (5) Absence
Last resort not used if theres another ground for unavailability
2 kinnds of hearsay can be admitted under 804(a)(5):
Prior testimony (804(b)(1))
o Unable to produce OR
Tried to find him and couldnt
Std must use DUE DILIGENCE to find declarant
o Beyond subpoena power even though you know where they
are
Civil outside state in which ct sits
Criminal outside US
Declarations against interest (804(b)(3))
o Provides mechanism for getting depositions
o Requires that you cannot produce declarant for trial AND
could not get their testimony
If prior testimony is on point, declarant is not
unavailable for purposes of decs v. interst and
hearsay will be inadmissible
o

Ex. Coleman: kids burned by gas heater outside house, s

claimed design defect, s think babysitter was drunk and threw
heater out the window. Babysitter is deposed and adheres to
story; after he admits truth to bartender, offered as dec v. int.
wants to show absence b/c babysitter left town. Problem: phys
presence isnt necessary b/c testimony is available
What to do w/dec v. int which a person has but cant

get admitted under 804?

Impeach w/inconsistent statement as long as

other party offers depo into ev (never
happens)
If person is dead cant use 804
Acceptable grounds for absence depends on exception invoked
o Stds are diff for prior test and decs b/c of pref for live
testimony

Rule 804(b) admissibility requirements of exceptions

804(b)(1) PRIOR TESTIMONY
RULE: Declarant
o 1) previously made statements under oath,
o 2) was cross-examined,
o 3) declarant is now unavailable, and
o 4) now opponent wants to introduce the previous testimony as evidence against a
party at trial
Reliability std satisfied but b/c of pref for live testimony, must show unavailability [if
c-ed with a similar motive at T1, then the testimony will be reliable when used
for the same purpose at T2]
DC: this isnt a personal right to c-e the witness this is about whether the
substance of the testimony is reliable/sufficient
Civil case test in most cts: did original party [proponent against whom the evidence is
being introduced have a similar motive and opportunity to do the crossexamination/develop the testimony at T1, and was the original c-e as good as the
current party could do
o Look to the predecessor in interest to determine similar opportunity
Test for predecessor in interest
Did 1 have SIMILAR MOTIVE AND OPP TO DEVELOP
TESTIMONY as 2 does now?
Did 1 DO AS GOOD A JOB as 2 would?
o RULE: when there is a NEW PARTY, testimony may not be offered against them
if:
No opp to c-e at T1
Goals for developing testimony are difft at T2

Ex. Concord cannot admit negative evidence about 2 obtained during

1 v. C case

How to determine similar motive?

TEST: what kinds of questions would you ask the witness if he were here today? Are
they similar to the qs theyve prevly asked?
o Asbestos litigation provides a good ex of this

Ex. Manville: Dr. Crane used to work for asbestos co; testified for s at T1 as to
danger of asbestos. Dr. C is now dead (), can s suing asbestos co at T2 intro
his testimony? says no b/c T1 case involves end users and T2 involves

employees Held: doesnt matter! Crane depo is admissible b/c the nature of the
motive to develop the testimony was the same at T1 and predecessor in
interest did a good job doesnt matter that the ultimate question in the case is
difft
Ex. Bailey: B charged w/robbing jewelry store at T1; alibi is he was w/his mistress. At
divorce proceeding at T2, wife wants to intro alibi to prove he was cheating. Held: not
admissible b/c NOT SIMILAR MOTIVE didnt investigate what he was doing
w/woman, just showing they were present together at T1; at T2, asking WHY are they
together. Because this line of inquiry was not explored at T1, T1 depo not admissible
Ex. Duenas: charged w/selling meth in return for stolen goods at T1. Govt wants to
admit part of transcript from this case at T2 suppression hearing. Held: not admissible b/c
different motives; at T1, just getting bare facts, at T2 the objectives are the details; too
dissimilar

Grand Jury Testimony: major use of prior testimony is w/GJ testimony later offered v. the govt
Under (b)(1), cant use GJ against the in trial b/c has no opp to c-e
might want to intro exculpatory ev from GJ proceeding
o ASK: when the govt questions a witness at a GJ proceeding who exculpates the
, is the motive for qing the witness at the time the same as it is when qing the
witness at trial
RULE: exculp GJ testimony rarely admissible against prosecution
EXCEPTION: similarity of motive likely to be found only where issuance
of an indictment is in doubt, so prosecution goes all out to c-e witness

804(b)(2) Dying Declarations

In a prosecution for homicide or a civil action/proceeding, statement made by a declarant while
believing that death is imminent, concerning the cause or circumstances of what declarant
believes to be impending death is not excluded under the hearsay rules
RULE: statement must be made BY DYING PERSON when their death is
IMMINENT concerning THE CAUSE OF THEIR DEATH [sufficient nexus]
o Rationale: circumstantial guarantee of reliability no incentive to lie on your
deathbed (obv this is flawed; grounded in idea of last rites) if a statement fits
into (b)(2) it is admissible for its truth
BURDEN: on the proponent of the evidence, by a preponderance std
RULE declarant must be aware of the imminence of death a swift and certain doom
Declarant must have given up all hope of recovery
o
o
o

Ex. woman w/cancer, dr makes house call and asks how she is feeling, says she thinks
she will be better b/c sis gave her pills, dies an hour later from poisoning. Held: not
admiss under (b)(2) b/c death was imminent enough and she wasnt aware
Ex. Shepard v. US: Ss wife died held: wifes statements NOT ADMISS b/c she was
not aware of swift and certain doom (Cardozo)
Ex. declarant walking down street, run over by car, someone comes up to him and is like
OMG ur dying and its like totez Im dying btw I committed a triple murder and an
innocent man is on death row for my crime. Held: NO ADMISSIBLE insufficient
nexus btwn circs of death and hearsay declaration

Personal knowledge requirement? Even if statement meets the requirements, the declarant must
have PERSONAL KNOWLEDGE of what was said
Judge must be convinced of this personal knowledge can prove it
CIRCUMSTANTIALLY (defensive wounds, etc)
o
o
o

Ex. dead guy shot in back; did it not admiss b/c how could he know?
Ex. Owens: guard hit in back of head with lead pipe, IDd O ct said it was ok b/c you
could infer personal knowledge from circs there were defensive wounds on arms so
he saw his assailant
Ex. Mr. Poos case this was let in w/o personal knowledge b/c opened the door to its
admission; thus we do not have the same reliability concerns

RULE 803(b)(3) Declarations/Statements Against Interest

A statement which was at the time of its making so far contrary to the declarants interests, or so
far tended to subject the declarant to criminal or civil liability, or to render a claim by the
delcarant invalid against against another, that a person in the declarants position would not
have made the statement unless they believed it to be true
Rule: non-party has made a statement against his interest and it is offered against a party (not the
declarant) at trial
Rationale: a person wouldnt totally pwn himself if he wasnt telling the truth; thus,
we feel that the statement is sufficiently reliable to warrant being admitted as hearsay
o DC: IRL there are many reasons why someone would disserve themselves but like
w/dying decs we just admit statements if they fall into this exception
ADMISSIBILITY REQUIREMENTS for (b)(3):
Declarant is unavailable [804(a)]
Declarant must NOT be party to litigation
Must demonstrate that statement disserves declarants interest
o Statement must be made under circs that a reasonable person would find so
contrary to his own interests that he wouldnt make the statement unless it was
true
This is the tends to disserve requirement need to know CONTEXT
of the statement
Williamson rule: govt cannot admit 1 statements to cops to implicate other s
under (b)(3) NOT ACTUALLY A DISSERVING CONTEXT
o When youre IDing other people your motive to finger other ppl and shift
blame/curry favor w/law enforcement outweighs your motive against your own
interest
This rule only applies to statements made to cops
The corroborating circumstances clearly indicate trustworthiness
o

Ex. Williamson: in custody, makes statements directly implicating someone else NOT
ADMISS b/c not disserving motivation in custody is to help yourself out.
BUT govt can still use the disserving portions of the statement then try to
connect hearsay w/other evidence

DC: post-Williamson, cts are skeptical of statements made to law

enforcement

Hypos (Bob is )
Inculpatory decs v. int: I robbed a bank w/Bob
To the extent that you ID other indivs in your crime, it can incriminate you b/c it
indicates inside knowledge speaks to reliability
Bright line rule: I bought drugs from W last night
If statement made to law enforcement CANNOT be used v. IDd
If statement made NOT to law enforcement CAN be used v. IDd
o DC: context is critical w/r/t inculpatory statements like this

Ex. Katsugrakis: declarant arsonist burns down diner; sitting in burn ward, he
says to friend I torched the diner, K gave me $$ to do it but I am bad at arson so
I messed it up. Admitted against K b/c motive is NOT currying favor (b/c made
to FRIEND diff than W), also TENDS TO DISSERVE you never know who
your friends are, if theyre gonna tattle, etc
DC: guiding principle w/this rule is when the statement could lead to a
risk of criminal responsibility, this cuts in favor of its admissibility!

Exculpatory decs v. int: Bill and I robbed the bank, we asked Bob to join and Bob said I dont
do criminal acts
Declarant is admitting to crime, also proving Bob was not involved!
W/an exculp statement, they might look like they incrim the declarant and exculpate
the , but it really depends on context
o

Ex. Silverstein: head of prison gang, charged w/killing prison guard, wants to intro
statement from another prisoner not available taking credit for killing the guard. Held:
not admissible not disserving; other guy is serving 7 life terms, wants street cred, status
in prison gang
Pagaio: statement made by dad: I did whole fraud, son not involved admissible by
son ? Held: YES dad inculpating self to help son. Keep in mind: dad helping son, cuts
against

Establishing liability:
Pecuniary liability more easily admitted; many reliable ppl make pecuniary
statements
Penal interest statements against penal interest are those that subject the declarant
to liability. But thats not enough must show CORROBORATING
CIRCUMSTANCES that clearly indicate TRUSTWORTHINESS of the
statement
o

Mills: leader of prison gang wants to intro statement from H taking credit for killing the
guard that M is on trial for killing; H is in for 3-5 years, so it seems disserving, but M
does not provide sufficient corroborating circs H just saying I did it and not M
doesnt cut it
Rule: statements that subject the declarant to liability and are offered to exculpate
the accused are NOT admissible UNLESS corroborating circ clearly indicate the
trustworthiness of the statement

DC: corroborating circumstances are NOT merely self-professed claims of

innocence by - cts also look to see the context and personality of declarant,
ask: reliable?

Policy: dont want ppl confessing just to get others off the hook
Unclear what std of proof is
o Majority rule: both sides must provide corroborating circs
that make statement reliable
o Minority rule (2d cir plain language appch):
If statement INCULPATES declarant, statement
admiss w/o corrob circs
If statement EXCULPATES declarant, must prove
corrob circs
o How to prove estab corrob circs?
Proof of s motive/opportunity to commit crime
Physical evidence
Who it was said to if trusted confidante, likely more reliable
Spontaneity of statement (shows it wasnt a plant)
Consistent track record of credibility
Inside info shows that did it

RULE 804(b)(6): Forfeiture Exception

Any party forfeits the right to hearsay inadmissibility objections of a declarants prior statement
when the partys deliberate wrongdoing or acquiescence therein procured the unavailability of
the as a witness
Rule: hearsay statements are admissible against the opponent if the opponent has done
something to make the declarant in question unavailable
For (b)(6) to apply, the opponent must have done this intentionally to keep declarant
away from trial
Policy: discouraging witness tampering/intimdating
Applies to govt as well!
Std of proof: preponderance of evidenc

RULE 803 Hearsay Exceptions Not Requiring Declarant Unavailability

Availability of declarant is IRRELEVANT the statements admitted under 803 are
so reliable that it doesnt matter
Considered better/more reliable than in court testimony b/c theres less time to lie;
stuff more fresh in declarants mind

Rule 803(1) Present Sense Impressions

A statement describing or explaining an event or condition, made while or immediately after the
declarant perceived it

Rule: a statement made immediately upon an event occurring can be admitted for its
truth
o Statements are usually made to someone else who is there to check for accuracy
Requirements:
o Must be expressly contemporaneous needs to have happened at the time of the
event or IMMEDIATELY thereafter (no more than 1-2 mins)
Rationale: dec is speaking so close in time ot the event that he has no
opportunity to reflect

Must describe the event - cant simply refer to it/relate to it

Ex. a 911 call where witness is describing an event as it occurs

Ex. guy slips on ketchup in grocery store aisle; employee saying I warned them
about the ketchup an hour ago is not admissible as a PSI

Proponent must provide corroborating evidence that the event actually happened
as described
Needs to be enough of an indication that what the witness is saying is true
Eye witness
Supporting ev of some sort
Totality of circumstances

Rule 803(2) Excited Utterances

A statement relating to a startling event or condition, made while the declarant was under the
stress of excitement that it caused
Rule: if a statement is made while declarant is under the influence of a startling event, the
statement is automatically deemed reliable
Rationale: cant lie b/c no time to reflect [problem: this isnt always true]
Test: declarant must be describing (1) a startling event [objective std], (2) needs to
be under the influence of the startling-ness [subjective std], and declaration must
be related to the startling event
Personal knowledge required: inadmissible unless you were at the scene
o

Ex. Nicoles sister saying OJ killed her inadmissible b/c she wasnt there even tho
startled

This excludes unIDd declarants!

These people dont have substantive enough statements to indicate
personal knowledge
Not a hearsay problem b/c the witness testifying about the statement can
be c-ed about whether the declarant existed, etc

Requirements:
Proponent must show that there is a startling event by a preponderance AND
o Flexible test, but must be objectively startling
Anything surprising/out of the ordinary
Physical crimes
Injuries

Must be unexpected (hoping is different than expecting)

o To prove event occurred, can look to:
Hearsay statement itself (judge cant rely on inadmiss ev)
Appearance, behavior, and condition of declarant
Can be proven circumstantially

Ex. viewing a gruesome photo 6 weeks post-assault depicted startling event is

VIEWING THE PIC, not the assault

Declarant must be under the influence of the startling event for the entire time
between event and statement AND
o Must show by a PREPONDERANCE that
Dec was affected by the event AND
Dec was in a CONTINUOUS STATE OF EXCITEMENT between event
and utterance [subjective test]
No time to reflect once you calm down, no longer an excited utt
o More time that passes, less likely still excited, but no set
time
Can show continuity by relevant circumstantial ev
Factors to consider:
o Nature of event (seeing a stabbing is not as startling as
being stabbed)
o Whether dec was unconscious
o Fluidity of events leading to utt
o Nature of dec

Ex. children w/sex offenses: usually make more matterof-fact decs over an extended time pd
Is statement self-serving to dec?

Was it in response to qs?

Utterance must be related to startling event
o Not necessarily describing event, just needs to relate
Admissible: I told the manager about ketchup on floor an hour ago
Inadmissible: I slipped on ketchup this one time
o

Rule 803(3) Then-Existing Mental, Emotional, or Physical Condition

A statement of the declarants then-existing state of mind (such as motive, intent, or plan) or
emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not
including a statement of memory or belief to prove the fact remembered or believed unless it
relates to the validity or terms of the declarants will
Rule: must be a statement as to how the dec is feeling AT THE MOMENT spontaneous
statement!
Want to prove how dec thought or felt at time in question by using his own out-of-ct
statements
Rationale: you are the only one who really knows your state of mind (goes to
reliability), tho not necess accurate, spontaneity seen to guarantee reliability

Types of statements admissible under this rule:

Statements about then-existing mental or physical condition
o You would know if youre hurt
o Statements contemporaneous with the symptoms are more reliable than ones
made based on recollection
Statements about state of mind at issue in the case under substantive law (offered
for truth)
o Rule: when substantive law requires proof of mental state, dec statements as to
state of mind are admissible for parties AND non-parties

Ex. extortion case govt must prove that dec put victim in fear
Ex. severe emotional distress usually used when someone wants to admit his
own state of mind

Statements about state of mind used to prove how dec subsequently acted NOT
OFFERED FOR TRUTH
o Can draw an inference about how dec acted b/r/t SOM
o Must offer SOM to prove or disprove a disputed issue in the case

Hillmon I: you know how someone felt, so you likely know how they acted
Use statement to prove existence of state of mind
Ex. tape saying if you find me dead, my wife did it can infer fear;
offer as fact to prove disputed issue of whether victim slept w/gun under
pillow
ALMOST ALWAYS NEED TO CONDUCT 403 ANALYSIS HERE
Hillmon II: when statement is used to predict someone elses activity
Maj rule: statements pertaining to another persons intentions are
INADMISS
Min rule (2d cir): statement ARE admiss if proponent can offer
corroborating circs to support truth of statement that pertains to another
persons SoM
Ex. I am meeting A in the parking lot
o Shows your and As intentions
o Under min rule, can prove A intended to meet you in parking lot
if you provide corrob circs
Shepard: Dr. S has been poisoning me statement cannot speak to past act,
needs to look forward
Still must pertain to issue in dispute
Use forward-looking statement to show SoM turn backward
looking into forward looking
o Ex. cannot admit I went to the movies yesterday, can admit
Im seeing a movie tmo stated on Thursday relevant to
whether went to movie on Friday

Issue ppl dont really make straightforward statements about SoM

Statements of events or historical facts that can be unreliable dont fall under SoM
exception
Degree of probative value depends on other ev; depending on 403 analysis, judge
may issue limiting instruction

Ex. I hate you b/c sex w/B is better than sex w/you. I hate you falls under SoM
exception. Rest is factual assertion. Proponent argues that admitting only portion of
statement changes context and argues for whole thing to be introd introd w/limiting
instruction

Rule 803(4) Statements Made for Purpose of Treatment or Diagnosis

A statement that (A) is made for and is reasonably pertinent to medical diagnosis or
treatment; AND (B) describes medical history; past or present symptoms or sensations; their
inception; or their general cause
Rule: a statement to medical personnel that a medical condition really existed is admissible for
its truth
Rationale: reliable b/c patient has motive to tell dr the truth

Requirements:
Declarants motive must be consistent with purposes of obtaining medical
treatment, AND
Content of statement must be something that a physician would rely on
o When stated, must be PERTINENT TO TREATMENT OR DIAGNOSIS
o Scope of rule:
Covers statements of existing conditions, past medical history (as long as
not too far back)
IMPORTANT: also covers causation where pertinent to tmt/diag [i.e.
would treatment differ based on how injury occurred]
Note: non-patient statements admissible if pertinent to diagnosis/tmt and motive is sincere
Case by case assessment
Particularly applies to kids if parents speak for them BUT when parent is involved
(e.g. child abuse), not automatically admissible
Note: statements attributing fault generally inadmissible
Exceptions:
o Child sex abuse cases IDing perp is pertinent, so attrib of fault is ok
Even more pertinent when perp is neighbor or parent
Govt must estab:
Kid was aware he was speaking to dr
Kid knew he must tell the truth (was warned of this)
o Adult sex abuse cases ID of perp is admiss b/c goes to treatment of STDs
o Spousal abuse cases same rationale as child abuse
o Statements made to psychiatrists almost all statements could be admitted b/c
they are pertinent, but we need to make sure they are reliable

RULE: when treatment depends on truthfulness of statement,

admissible
Need statement from dr that his tmt depended on his belief that
statement was true
o Statements made to litigation drs admiss if pertinent to diag
Can still be c-ed juries can sort thru bad motive
Would come in anyeway under 703
o Social worker normally NOT covered, but admitted in some cases (usually child
abuse)
May be admiss if made for purpose of obtaining medical tmt/diag

Rule 803(5) Past Recollections Recorded

A record that (A) is on a matter that the witness once new about but now cannot recall well
enough to testify fully and accurately; (B) was made or adopted by the witness when the matter
was fresh in the witness memory; AND (C) accurately reflects the witness knowledge
If admitted, the record may be read into evidence but may be received as an exhibit
only if offered by an adverse party
Rule: witness can read relevant portions of a record on the record where it represents an accurate
reflection of a past event
Rationale: reliability is inherent in these sorts of statements b/c they were made while
events were still fresh in recorders mind
o Person who made record is testifying; if that person is dead, not admissible!
Requirements:
Witness must have insufficient recollection to testify about the matter
Must prove general record keeping procedures for accuracy
o ASK
Do you remember? NO
Does this refresh your memory? NO (if YES, no hearsay problem)
Do you keep accurate records? YES
Document must have been prepped or adopted BY THE WITNESS while the events
were fresh in mind
o Flexible std if many years ok, but cannot be prepped in anticipation of
litigation!
Notes:

Dont need to have COMPLETE memory loss about an event

o Record can be used to fill in gaps in persons testimony
What if the person w/personal knowledge does not make the record but told someone
else to?
o If he reviewed it for accuracy, then OK!
o If both reporter and recorder testify, then OK!

Rule 612 gives the opposing party the right, when the witness recollection is refreshed by the
document, to reexamine the document on the stand and make use of the document at the time

Rule 803(6) Business Records Exception

A record of an act, event, condition, opinion or diagnosis if: (A) the record was made at or near
the time by or from the info transmitted by someone w/knowledge; (B) the record was kept in
the course of a regularly conducted activity of a biz, org, occupation, or calling, whether or not
for profit; (C) the making of the record was a regular activity of the biz; (D) all these conditions
are shown by the testimony of the custodian or another qualified witness or by a certification
complying with Rule 902(11) or (12) or a statute permitting certification; AND (E) neither the
source of info nor the method or circs of preparation indicate a lack of trustworthiness
Rule: can admit records of regularly conducted biz activity if they are regularly recorded
Rationale: reliable b/c biz has independent incentive to keep accurate records
o These are std practices dont keep records in anticipation for litigation
Judge can exclude records if info or circs seem untrustworthy
o Computerized records are amiss even though can be altered
o Proponent can give extra foundational ev at trial to make records appear more
reliable
Burden of proof
o Proponent will show typicality of records
o Opponent will show something aberrant in the records at issue in rebuttal
Note: applies to lots of stuff (e.g. law school transcripts covered by 803(6)), but NOT
diaries, etc
Requirements:
Regularly conducted activity
o Routine info, doesnt just cover for-profit bizzes

YES prison fights log book, medical records, personal activity when
proving truth of event
NO blotter/regular self-serving info, record of unusual event/non-routine
info
o Self-serving reports created in anticipation of litigation are INADMISSIBLE
Pre-accident reports ok when offered by preparer
Post-accident reports ok if they do not favor preparer
Regularly recorded when it occurs
o Case-by-case appch
o Entry must be made by someone with a duty to record/make entries (working for
biz) who has knowledge of records being made
Witness DOES NOT NEED TO HAVE PERSONAL KNOWLEDGE of
event he is recording
Foundation required
o Need qualified witness to estab how event was recorded
o Can admit by stipulation or proven by affidavit by qualified witness
o ANYONE who has knowledge of record-keeping process can testify, even if you
never actually prepped a record (ex. outside auditors)

Ex. in drug cases, DEA is a qualified 803(6) witness

Trustworthiness clause
Johnson v. Lutz rule: if the witness does not have a biz duty to report, record is
INADMISSIBLE unless you can find another hearsay exception or verify the
info [meant to deal w/issue of verifiability of info]
o

Ex. Vigneau: Western Union verifies recipient of $$ but not sender. Can admit record
only to prove that recipient picked up the $$, not that sender was the one who signed the
form could be forged!
BUT govt can use 15 forms sent by same person to estab CONSPIRACY not
trying to prove senders guilt; tryna link all recipients to e/o

As a result of this rule:

o Bystander reports not admiss no duty to report accurately
o If circs are untrustworthy, not admiss (ex. address of store receipt, hotel records)
o If someone outside biz structure records, person w/in biz structure needs to verify
the info for accuracy
o Ex. of verification gun shop owner checks ID

Records made in anticipation of litigation:

RULE: if favorable to prepper, INADMISSIBLE due to suspect motivation
o

Yates: admissible if report does not favor prepper

Accident reports are inadmissible b/c they are BY DEFINITION anticipatory

o

Palmer v. Hoffman: some kind of accident, investigated, came back w/routine accident
report; seemed routine because the accident had already occurred, prepprs
motives were already skewed

Opinions in biz records

Under trustworthiness clause opinions have to satisfy the same stds set out in 701703
Test: is the person who made the record qualified to testify on the subject?
What if the records are doctors records or qualify as expert recrods?
o Need to satisfy Daubert std!
Is witness qualified/reliable?
Will opinion HELP the jury?
Is info reliable?
Common exs of opinions: doctor records (must satisfy Daubert): police records (if
something is obvious need not satisfy Daubert)

Rule 803(7) Absence of Business Records

Evidence that a matter is not included in a record described in (6) is admissible if (A) the
evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly
kept for a matter of that kind; AND (C) neither the possible source of the info nor other circs
indicate a lack of trustworthiness
Basically, inference that the event didnt actually occur b/c there should be a record
and there isnt
o Similar stuff as in 803(6)
o Ex. a rental car isnt on a list printout of list admissible to show car wasnt
rented

Rule 803(8) Public Records Exception

A record or statement of a public office is admissible if: (A) it sets out (i) the offices activities;
(ii) a matter observed while under a legal duty ot report, but not including, in a criminal case, a
matter observed by law-enforcement personnel; or (iii) in a civil case or against the govt in a
criminal case, factual findings from a legally authd investigation; AND (B) neither the source of
info nor other circs indicate a lack of turstworthiness
Rule: public records are admissible b/c they are prepd by govt officials and are presumed
trustworthy b/c their job is to keep records reliable [ex. seismological survey]
Rationale: govt records of routine matters are presumptively reliable. Govt has a
motivation to keep accurate data recording agency EXISTS TO ENSURE
ACCURACY. Plus accts made using objective, scientific measures.
o Also, too onerous to admit everything under 803(6) govt official would have to
testify every time someone wanted to admit something
o PLUS, this includes unusual/non-regular recorded activity, and (6) just covers
regular stuff
Requirements:
Need to prove document is a govt record
o Seal authenticating document under rule 902
Trustworthiness

o
o

Heavy presumption in favor of trustworthiness

Civil cases: burden on opponent to prove records untrustworthy
Bias of prepper: when bias occurs (racial, financial, etc), must argue for
exclusion
Strong showing of bias required

What about opinions in official reports? (ex. pilot error was cause of crash)
DC: you can only exclude a report that it COMPLETELY opinion!
o Rule says that reports containing factual findings are admissible says nothing
about opinion

Ex. Beech Aircraft: JAG finds plane crash caused by pilot error. Bias/opinion
issue b/c wants to justify buying these planes. But admitting pilot was badly
trained. Allowed in

When is an opinion untrustworthy?

o Same criteria as 803(6) when treated/assessed like expert opinions, they are
reliable
ASK
1. Is the report reliable?
2. Is the reporting body/official qualified?
o Presumption in favor of both

Rule 803(10) Absence of Public Records

Testimony or a certification under 902 that a diligent search failed to disclose a public record
or statement if the testimony of certification is admitted is admissible to prove that (A) the record
or statement does not exist; OR (B) a matter did not occur or exist, if a public office regularly
kept a record or statement for a matter of that kind
Same logic as 803(7) w/r/t 803(6)

Rule 803(18) Learned Treatise Exception

A statement contained in a treatise, periodical, or pamphlet is admissible if: (A) the statement is
called to the attention of an exert witness on c-e or relied on by the expert on direct examination;
AND (B) the publication is established as a reliable authority by the experts admission or
testimony, by another experts testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit
Rule: if a publication is considered a respected authority in the field, relevant excerpts can be
read into evidence and offered for truth
Foundational requirement: must establish that the treatise in question is authoritative
o Can be done via direct or cross examination
Acceptable treatises
o Articles

Periodicals
Video tapes
Not an exhibit, just testimony so jury cant bring it into deliberations
o
o

RULE 807 Residual Hearsay Exception

(a) In General under the following circumstances a hearsay statement is not excluded by the
rule against hearsay even if the statement is not specifically covered by a hearsay exception in
Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness
(2) it is offered as evidence of a material fact
(3) it is more probative on the point for which it is offered than any other evidence
that the proponent can obtain through efforts; AND
(4) admitting it will best serve the purposes of these rules and the interest of justice
(b) Notice the statement is admissible only if, before the trial or hearing, the proponent gives
an adverse party notice of the intent to offer the statement and its particulars, including the
declarants name and address, is that the party has a fair opportunity to meet it
DC: the committee was worried that reliable/trustworthy statements would not be included b/c
the hearsay rule is fairly stringent, so they created this exception, based on trustworthiness
How do you determine that a statement is trustworthy?
o Circumstances guarantee reliability
Case by case basis
o Near misses analogize to another exception
Nearly missing multiple exceptions makes it look more reliable, can weigh
in favor of admissibility
o Corroboration
Criminal cases: no corroboration allowed!
Statement must be admissible on own terms to satisfy
confrontation clause
Civil cases: cts look to corroborating evidence
DC: this is a rule of necessity only use 807 when you cant use anything else
o Congressional intent was that this would be used as a last resort, not to dilute the
other exceptions
3 Admissibility requirements of 807:
Statements must be reliable/trustworthy AND
o Circumstantial guarantees are determined on case-by-case basis
o Relevant factors:
Nature of relationship between dec and person to whom statement was
made (confiding in BFF makes more reliable, ex)
Capacity of declarant at time of statement
Declarants general credibility
Complexity of statement

Recanted or repudiated statement after making it; made other statements

consistent or inconsistent with statement at issue
Has personal knowledge of event/condition described
Memory impaired due to time lapse between event and statement
Statement is clear or vague
Statement made under formal circs
Statement made in anticipation of litigation/favble to prepper
Statement given voluntarily or in exchange for immunity
Is declarant disinterested person or interested party?
Is declarant a child? Language, spontaneity, to trusted adult, internal
inconsistencies
Residual hearsay offered must be more probative than any other evidence
available to prove the same pt AND
o Ask: is it more probative than other ev available?
mostly likely wont challenge govt b/c he is just pointing to even worse
shit
o Issue: can any other evidence be used to prove this point?
Use where time lapse/memory has faded

Ex. sex abuse case hearsay usually more probative than childs
testimony

You must give notice to the other side before trial/hearing that youll be using
807
o Prevents proponent from using this as a last resort when planned efforts fail,
levels playing field,
o POLICY limits use of this exception
o FAIRNESS make sure opponent is prepared

Note: testimonial hearsay is inadmissible

Ex. grand jury testimony, prior testimony, police interrogations

VII. Hearsay: Step 3 determining whether the Confrontation Clause

excludes hearsay when offered against the accused, even though it would be
admissible under a hearsay exception
The 6th Amendment Confrontation Clause and the FRE
The 6a guarantees an accused the right to confront witnesses against him
This right is qualified balance between s right to challenge hearsay and govts
right to try the case using fair evidence
RULE: if a statement is not hearsay, if the declarant is subject to c-e prior to trial, or if
the declarant is subject to c-e at trial, there is no confrontation clause problem
o Ex. Street confession not introduced for its truth; no hearsay problem, so no
conf clause problem!

Notes:
-

At trial, you need to make a specific 6a objection. If you only challenge on hearsay
grounds and raise 6a on appeal, then you only get plain error review on 6a grounds
Ct has never said that there is an absolute right to confrontation; also never said that
testimony in open ct always satisfies confrontation
o Merely need adequate confrontation to satisfy 6a (meaning person was in ct and
you could ask them questions)

Historically, there was one major issue w/this rule:

Bruton problem: there are 2 s, one confesses and implicated the other; the nonconfessing co- is prejudiced by the admission of the others hearsay.
o Bruton rule: hearsay that is unreliable and not subject to c-e violates a s 6a conf
clause rights
o SCOTUS holding: the above problem violates a s 6a rights limiting
instructions wont prevent the hearsay from being used for its truth.
SO WHAT TO DO? 2 potential solutions
1. Produce the declarant for c-e, OR
2. Find an alternative way to guarantee reliability
o Sever the trial
Not preferred wastes time, money, time
o Redaction
Not effective jury can infer how to fill in the
blank
Only really works w/conspiracies b/c theres a lot of
people works when not all CCs are on trial/have
confessed
Richardson rule: take out all refs to all nonconfessing CCs [no Bruton issue b/c not SO facially
incriminating]
o Empanel 2 juries
Not normally entertained; only for high profile trials
o Cross-confessions
Cruz: both s confess and implicate each other
this is just double the Bruton problem!
Need to consider the defense being argued by each

o Scope of Bruton no right to confrontation if statement not offered for truth

NO PROBLEM IF:
opens the door
Bench trial (judge can follow on limiting instruction)
When statement is in closing argument

Modern concern: TESTIMONIAL HEARSAY

Crawford does not define testimonial, but the ct suggests that it includes things like statements
given to police, statements made during an interrogation, or statements made for the purposes of
trial
Roberts: if a statement satisfies a hearsay objection, it satisfies the confrontation clause
o **ROBERTS IS NO LONGER GOOD LAW notions of reliable hearsay are not
rooted in the history or lang of 6a and these hearings were not particularly rigorous
DC: SCOTUS rejected this test in Crawford b/c it had no historical grounding and replaced it
with
o Crawford test of testimoniality testimonial hearsay does not violate the Confrontation
Clause unless there is no cross-examination
o DC: we dont really know what testimonality means, but maybe determine it
using this test:
Primary Motivation if the declarants statement was primarily
motivated by its being used in a criminal trial, then it is testimonial
Some factors to consider to estab primary motivation:
o 1. Formality of statement
o 2. Timeliness of statement
o 3. Pending Emergency status [is the on the loose or is it
post-capture? Is he still a present threat to public when
statement was made]
o 4. Victims medical state
Testimonial Hearsay and Records/Certificates
Melendez-Diaz affidavits related to criminal lab analyses exist for the sole purpose of criminal
prosecution and therefore constitute testimony under the 6a; as such, those generating criminal
lab analysis affidavits must appear in court to allow for c-e
DP clause of 5a is no substitute for 6a confrontation rights
But what if the lab technician who ran the test is unavailable? 2 options:
o Re-run the test and call the new technician
o If its a one time test, most cts will find a way to say the affidavit is not testmonial
Experts Reliance on Testimonial Hearsay
DC: the M-D rule is INSANE SO onerous, required so many people to be called to ct
Also the procedure was total BS cts were just allowing experts to evaluate reports
and then be c-ed about the evaluation so that the report was not being introd for its
truth as hearsay, but under 702 and 703!
So, in Williams v. IL, the ct tried the same thing (called an expert to offer an opinion about the
data in the report) and the made a 6a objection
Differs from M-D b/c
o Report not introd into evidence
o Defense gets opportunity to c-e someone

Ct just needs to police conduit problem 703 analysis to prevent expert from
sneaking his own analysis into his opinion testimony

IN CONCLUSION 2 MAJOR RULES

If a statement is not hearsay under the FRE then it is not a confrontation clause
issue
If a statement is not offered for its truth then no hearsay or confrontation clause
issue

Applying the Confrontation Clause to Hearsay Exceptions

801(d)(1) prior ID
o NOT TESTIMONIAL - must be subject to c-e as part of rule
801(d)(2)(A)-(B) personal statements of party opponents
o NOT TESTIMONIAL cant c-e yourself, you opened the door
801(d)(2)(E) CC statements
o NOT TESTIMONIAL statement in furtherance of consp is not primarily
motivated by litigation
801(d)(2)(D) agency statements
o VERY POSSIBLY TESTIMONIAL employees/agents could be aware of
litigation coming down/the potential for it
803(1) PSI
o UNLIKELY would have to be making the statement directly to law enfmt right
as it happens
803(2) Excited Utterance
o UNLIKELY no time allowed for reflection so how can the statement be
motivated?
803(3) SoM Statements
o UNLIKELY often dont make SoM statements to cops
o BUT maybe look at why the statement was made and how formally it was
made/recorded if I die, prosecute my wife likely testimonial, esp if recorded
by lawyer or something
803(4) Tmt or diagnosis statements
o UNLIKELY this would basically mean there are 2 conflicting motives imma
diagnose/treat you, or imma prep for litigation
803(5) Past Recollection Recorded
o NOT A PROBLEM even if testimonial, person has to be on the stand anyway so
doesnt matter
803(6) Biz records
o UNLIKELY if records regularly kept, negates potential litigation-related motive
o BUT its possible like an accident report maybe youre only keeping these
sorts of records in case of litigation
If this is case, look to M-D, and say its ok as long as youre just
authenticating
803(8) Public records

If a Grady report, then its ok

Law enfmt reports might be a problem
804(b)(1) Prior testimony
o TESTIMONIAL but you had opp to c-e so its ok!
804(b)(2) dying declaration
o Could be testimonial, but these are so deeply rooted in our history as admissible
that youre probably ok
804(b)(3) Decs Against Penal Interest
o NOT AN ISSUE if you make decs v. penal int to law enfmt, its inadmissible
Only testimonial if its v. pen int and NOT to law enfmt
804(b)(6) Forfeiture
o Giles: must show intentionality of forfeiture in order to show forfeiture of
confrontation right as well
807 Residual exception
o PROBLEM HERE going to bar a lot of things form coming in under residual
exception
o
o

Right to Face-to-Face Confrontation

Issue here is not about hearsay or reliability; about limitations on presentation of in-court
testimony
Coy v. IA: black screen around kid whos been sexually abused; ct holds this violates
6a; requires face-to-face visibility
o Later OVERTURNED in Craig v. MD face-to-face isnt necessary so long as
state interest > indiv right to face-to-face, its ok
This is a qualified right that has been expanded to apply to terrorism
prosecutions too
What about pro se litigants?
o Judge appts stand-by counsel for specific witnesses and allows them to ask qs
o Ct says both rights (to self-rep and f-2-f conf) are QUALIFIED

VIII. Rules Governing the Treatment of Witness

Basically, these rules deal with competence and impeachment of witnesses
DC: these rules show you how the advisory committee thought about the rules pre
codification, there were a lot of idiosyncratic rules that made no sense
o Ex. Dead mans rule cant testify to get $$ from an estate based on a convo
you had w/the dead person
o Ex. juror cant testify in a case in which he himself is a juror. Duh.

COMPETENCY RULES
RULE 601 Competency to Testify in General

Every person is competent to be a witness unless these rules provide otherwise. But in a civil
case, state law governs the witness competency regarding a claim or defense for which state law
supplies the rule of decision
Rule: presumption of competence. Exclusion is VERY rare.

RULE 606(b) Competency of Juror as a Witness During an Inquiry into the Validity of a
Verdict or Indictment
(1) Prohibited Testimony or Other Evidence during an inquiry into the validity of a verdict
or indictment, a juror may not testify about any statement made or incident that occurred during
the jurys deliberations; the effect of anything on that jurors or another jurors vote; or any
jurors mental processes concerning the verdict or indictment. The court may not receive a
jurors affidavit or evidence of a jurors statement on these matters
(2) Exceptions a juror may testify about whether:
o (a) extraneous prejudicial info was improperly brought to the jurys attention;
o (b) an outside influence was improperly brought to bear on any juror; OR
o (c) a mistake was made in entering the verdict on the verdict form
Rule: jurors are deemed incompetent to testify about anything relating to the deliberations that
led to the verdict
RATIONALE: protect the sanctity of jury deliberations, prevent a slippery slope
where everything would be questioned and there would never be any finality
Even if someone loses, interviews jurors, thinks there was a miscarriage of justice b/c
the jurors were all high you cant prove what the deliberations were like or what
misconduct may have occurred through juror testimony
INCLUDES threats among jurors, intoxication, inattention, etc
o Can think of it as internal factors (intoxication, mental illness, conversations,
racism, intimidation among jurors) as being things jurors are incompetent to
testify about and external factors like threats by outsides, outside research and
unauthorized experiments, as falling into (b)
Exceptions:
Extraneous prejudicial info can get an affidavit
o If juror was bribed, threatened, or read material he wasnt supposed to read
o FACT of influence is admissible; the IMPACT on the juror is NOT
Prejudice CIRCUIT SPLIT
o One view: When racist or sexist comments are made during deliberations, those
COMMENTS are ADMISSIBLE
606(b) outweighed by right to fair trial would violate the 6a to
knowingly allow a racist jury
o Another view: inquires into potentially racist juries are not permitted under 606(b)
fall into (a) prohibition
Clerical error if someone fucks up writing the verdict (puts a comma instead of a
decimal in the $$ award), you can ask them what they really meant

This does NOT cover jurors not listening or misunderstanding instructions if

they are dumb, too bad 4 u

RULE 603 Oath or Affirmation to Testify Truthfully

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a
form designed to impress that duty on the witness conscience
Rule: a witness has to affirm in some meaningful manner that he understands the weight of his
testimony and assure the ct that he is telling the truth
There is no prescribed (or proscribed) form of the oath
Needs to waken the witness awareness that if he perjures himself he will go to jail
o If they cannot do this then they are not permitted to testify
o BUT if someone has a religious objection, etc to swearing, the judge needs to
permit them to do it in their own way

RULE 615 Excluding Witnesses [Sequestration]

At a partys request, the ct must order witnesses excluded so that they cannot hear other
witnesses testimony. Or the court may do so on its own. But this rule does not authorize
excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being designated as
the partys representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the partys claim or
defense; OR
(d) a person authorized by statute to be present
Rule: upon a motion of a party, a trial judge MUST exclude witnesses from trial before they
testify so they cant hear other testimony; trial judge can also do this of his own accord
Rationale: CCs can fuck w/each other, lie together, change/tailor stories
Exceptions:
o Parties to the proceeding
o Corporate parties who designate a rep who cant be sequestered
o A witness whose presence is necessary for the presentation of the case
Ex. experts
o Crime victims

Ex. McVeigh Bill victims of crimes have the right to attend a trial of the in
their crime even if they are a witness
Ex. Agard: testifies in a way that plugs all of the holes exposed by previous
testimony; prosecutor pointed out that he heard the whole trial and could tailor
testimony ct says YOLO

May language allows judge to expand sequestration power witness cannot talk
about his own testimony, etc

Suppression hearings:

Some circuits have held that Rule 615 applies to suppression hearings
o Reflects the notion that trial judges have inherent authority to ensure the integrity
of the proceedings
o Deals w/fundamental fairness of proceedings (not like other rules)
o Judge needs flexibility to control hearings

RULE 611 Mode and Order of Examining Witnesses

(a) Ct should exercise control over mode and order of witnesses so as to (1) ensure
proceedings are effective for determining the truth; (2) avoid wasting time; and (3)
protect witnesses from harassment or undue embarrassment
(b) Scope of Cross Examination c-e should not go beyond the subject matter of the direct
examination and matters affecting the witness credibility. Ct MAY allow inquiry into
addtl matters as if on direct exam
(c) Leading Questions leading questions should not be used on direct exam except as
necessary to develop witness testimony. Ordinarily, the ct should allow leading
questions: (1) on cross-examination; AND (2) when a party calls a hostile witness, an
adverse party, or a witness IDd with the adverse party
611(b) rule: American rule cross-examination can only cover questions that are related
to what is asked on direct [British rule is much looser on whats allowed]
Rationale: has a right to control proof, cant just start asking about random stuff
BUT ct is allowed to expand the scope of c-e questioning to prevent undue
inconvenience or squabbling between parties
611(c) rule: not supposed to use leading questions on direct, but can do it if hostile witness
or witness for adverse party basically prevents you from putting a puppet witness on the
stand
Definition of leading: Posner suggests that if the question contains or suggests the
answer, it is leading
o BUT extreme leading is harmful to presentation so were not SUPER worried
607 says you can call adverse witnesses and treat them like its c-e on direct
IMPEACHMENT RULES
RULE 607 Who May Impeach a Witness
Any party, including the party that called the witness may attack the witness credibility
Rule: you can call an adverse witness on direct examination to impeach him in order to lessen
the sting of his testimony, BUT you cannot call a witness simply to impeach him based on
hearsay/inadmissible testimony
Replaces the common law voucher rule which said that a party vouches for the
credibility of any witness they call this made no sense
This rule tries to prevent you from calling witnesses in bad faith who you know are
gonna lie just to make yourself look good

You need to have a good faith reason for calling the witness must hold some
belief that he will testify truthfully to your benefit. CANNOT call witness just
HOPING theyll tell the truth if youre on notice that they arent planning to
looks like revival of common law surprise doctrine
Some cts will admit the prior statement if they believe the good faith
argument

In order for counsel to protect against surprises, they should:

Make a motion before the witness takes the stand for a voir dire witness
If a prior statement satisfies a hearsay exception and is admissible, can call witness to
admit the statement as SUBSTANTIVE evidence, not just for impeachment
o Ex. Prior inconsistent statement satisfying 801(d)(1)(A)

How to impeach a witness: 5 ways to attack a witness credibility

1. Attack his character to prove he is lying on the stand
2. Introduce a prior inconsistent statement
3. Introduce evidence that contradicts his testimony
4. Prove bias witness has motive to lie
5. Attack capacity prove that perception or memory is marred in some way
RULE 608 A Witness Character for Truthfulness or Untruthfulness
Make the jury aware of the witness propensity for lying
608(a) is restrictive and hardly ever used
Rest of 608 and 609 are more broad and better for impeaching witnesses
o Can show prior bad acts and convictions, attack on c-e
Rule 608(a) Reputation or Opinion Evidence
Witness cred can be attacked or supported by testimony about his reputation for
having a character for truthfulness or untruthfulness, or by testimony in the form of
an opinion about that character
ONLY ADMISSIBLE AFTER WITNESS CHARACTER FOR TRUTHFULNESS
HAS BEEN ATTACKED
o Limited to character and reputation, cannot ask about specific acts
Rule 608(b) Specific Instances of Conduct (i.e. PRIOR BAD ACTS)
Except for a criminal conviction under 609, extrinsic ev is not admissible to prove
specific instances of a witness conduct in order to attack or support char for tflness
BUT the court may on c-e, allow them to be inquired into if they are probative of
char of tflness or untflness of:
o (1) the witness; or (2) another witness whose char the witness being c-ed has
testified about
The witness does NOT waive priv against self-incrim by testifying on
another manner for testimony that relates only to witness char for tflness

Rule: a party may question a witness about prior bad acts on c-e when the questions are
probative of character for tfulness; the party MUST accept the witness answers
Extrinsic evidence is NOT PERMITTED to prove bad acts here
o Exception: if ev if offered for a different purpose (ex. not for character purpose
like intent, motive to falsify, bias, etc), then extrinsic ev MAY be admiss
In this case 403 still applies even tho 608(b) does not

Ex. Abel: charged w/killing prison guard; s witness asked if he is member of

Aryan Brohd, denies it. Govt wants to admit extrinsic ev to disprove denial b/c
constitution of AB requires bros to lie for e/o govt says this ev goes to bias.
Held: admissible; 608(b) preclusion does not extent to bias
608(b) covers character for truthfulness purpose ONLY

The bad act at issue NEED NOT BE CRIMINAL

Must have a GOOD FAITH BELIEF THAT PBA OCCURRED before asking about it
o Prevents a fishing expedition; does not require enough proof that the PBA itself
would be admissible

Factors for a 403 analysis in this situation:

Dishonest nature of the act
Remoteness of the act
Impeachment on other grounds
Importance of witness credibility to case as a whole
Inflammatory nature of the act (goes to prejudice)
Similarity of bad act to issues in the case (goes to prejudice if too similar, wont be
admitted)
Relationship of offering party to witness
Typical Bad Acts
Faking an insanity defense
Using aliases
False credit card apps
Failure to report political contribs
False excuse for absence from work
Lying about marital status on marriage license
Forgery, bribery, suppression of ev, cheating, and embezzlement
Crimes of dishonesty/false statements

RULE 609 Impeachment By Evidence of A Criminal Conviction

(a) In General the following rules apply to attacking a witness character for tflness by ev of a
crim conviction
(1) for a crime that, in the convicting jx was punishable by death or imprisonment for
> 1 year, the ev (A) must be admitted subject to 403 in a civil case or in a crim case
in which the witness IS NOT a ; AND (B) must be admitted in a crim case in which
the witness IS a if the probative value of the ev outweighs the prejudicial effect to
that ; AND

(2) for any crime regardless of the punishment, the ev must be admitted if the ct can
readily determine that establishing the elements of the crime required proving or
the witness admitting a dishonest act or false statement
(b) Limit on Using Evidence After 10 Years (b) applies if more than 10 yrs have passed since
the witness conviction or release from confinement for it, whichever is later. Ev of the conviction
is admissible ONLY IF
(1) its probative value, supported by specific facts and circs, SUBSTANTIALLY
outweighs its prejudicial effect; AND
(2) the proponent gives an adverse party written notice of the intent to use it so
that the party has a fair opportunity to contest its use
(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation
Basically just says that ev of a convic is NOT ADMISSIBLE if (1) the convic has
been a subject of one of these things based on a finding of rehab and the person has
not been convicted of a later crime for more than a year; OR (2) the convic was the
subject of one of these based on a finding of innocence
o ALL OTHER CONVICTIONS (including those being appealed) ARE
ADMISSIBLE
Rule: no bar on extrinsic evidence for convictions b/c its really easy to intro this info and really
hard to misinterpret it. However, the most that a jury hears is what crime, the judgment, and
the date. NO OTHER DETAILS.
Sandoval compromise: gives a judge discretion in balancing to ADMIT convictions
but NOT tell jury what the conviction was for (ex. say felony, but not murder)
Steps to applying 609
Does crime fit under (a)(1) or (a)(2)?
If under (a)(2), admit automatically to impeach witness
o

Ex. Hayes (preceded 2006 amendment) H on trial for violent crime, prev convicted of
drug smugg; govt says admiss under (a)(2). Held: drug smugg NOT a (a)(2) offense
does not NEED to be committed by lying and is not an umbrella offense, so not admiss
RULE: umbrella offenses, like obstruction of justice, are admitted under (a)
(2) on a categorical appch logic element of lying, even tho specific cases
dont require it

If under (a)(1), conduct balancing test

o If witness is not - Rule 403
o If witness is - reverse 403 only admit if probative OUTWEIGHS prejudice
If under (b), conduct balancing test (super reverse 403)
o Only admitted for impeachment unless probative SUBSTANTIALLY
OUTWEIGHS prejudice
Presumption against inclusion b/c of remoteness only admitted when
old crime is something like perjury or fraud (convics w/lying/false
statements) and witness has not bee n otherwise impeached
Rationale: the older the act, the less it says about your character
o DC: Sometimes prosecutors will get a continuance right before trial so they can
get someones conviction admitted

Note: ppl like Charles Manson will never be able to have a conviction admitted
under (b) b/c hes never getting out of jail

Issue bringing up your own prior conviction to stave off impeachment by the other party
Oller: wants to testify, moves to exclude convic, trial judge says no, testifies
anyway; at trial, talks about prior convic on direct; is then convicted and asks for a
review of the in limine determination to include her conviction
o Held (SCOTUS): NO you opened the door
PROBLEM she brought it up as a matter of trial strategy
Ct said too bad so sad you ASSUME that the govt might have introd it,
but they might not have, and by introing it on direct yourself, you deprive
the govt of opportunity to avoid error
DC: govt might not bring this up b/c it has an airtight case and
doesnt want to create an appealable issue
o RULE 103 to reverse error, need to make a timely
objection
Basically 609 TAKEAWAY
Convictions involving a dishonest act or false statement under crimen falsi principle
fall under (a)(2) these come in w/no balance
Felonies not involving false statements/lying come in under (a)(1) do balance
Limiting instruction judge should instruct jury that prior conviction is just for
credibility of s char for tfulness

RULE 613 Impeachment with Prior Inconsistent Statements

Point to PIS to show witness didnt get his story straight not using PIS to prove
truth (b/c that would be impermissible hearsay) but rather to show inconsistency
o NOTE: lack of detail/omission of fact generally constitute a grey area for
impeachment when lack of details speak to heart of the matter, THEN they
constitue a PIS
o BUT, if has been Mirandized, he has the right to stay silent govt can take
silence for impeachment]
Lack of memory: not necessarily an inconsistent statement (ex. Owens) judge needs
to assess if youre faking it
o Extrinsic ev is permitted here b/c youre attacking the statement, not character

CONTRADICTIONS
Rule: like prior inconsistent statements but contradiction comes from other testimony or
extrinsic evidence
PIS must come from another witness
Contradiction must come from some other source
o If contradiction is denied, when can you intro extrinsic ev?
Beauchamp apply 403

If contradiction is collateral, no extrin ev admissible

If contradiction about important aspect of case (non-collateral)
extrin ev may be admitted

BIAS
Bias exists in situations where the witness has a predisposition in favor of someone, shows
prejudice, has a financial or liberty interest in the outcome of the case, or where there is
corruption
When considering whether to admit, ask: how important is witness? How probative is
evidence?
Common bias situations:
o Financial interest at stake
Ex. Rodney King has financial motive to testify v. cops in crim case b/c
civil case is pending
o Parents protecting kids
o Witnesses who have entered into plea w/govt

RULE 806 Attacking and Supporting a Declarants Credibility [Impeaching Hearsay

Declarants]
When a hearsay statement or a statement described in Rule 801(d)(2)(C), (D), or (E) has
been admitted in evidence, the declarants credibility may be attacked, and then supported, by
any ev that would be admissible for those purposes if the declarant had testified as a witness.
The ct MAY admit ev of the declarants inconsistent statement or conduct, regardless of when it
occurred or whether the declarant had an opportunity to explain or deny it. If the party against
whom the statement was admitted calls the declarant as a witness, the party may examine the
declarant on the statement as if on cross-examination
Rule: allows all attacks on witnesses to also be used on hearsay declarants
Rationale: they are basically testifying so they should al be impeachable
Rehabilitation Devices Used to Support a Witness Credibility
RULE 801 Use of a Witness Prior Consistent Statements
801(d)(1)(B) these statements are not ordinarily admissible to bear on credibility (seen as an
impermissible bolster) but you can introduce them after (ONLY AFTER) the witness character
for tfulness has been attacked!
DC: these statements are ADMISSIBLE FOR TRUTH, not for credibility [DC: no
real difference]
RULE: prior consistent statements have to both WAIT FOR and DIRECTLY
RESPOND TO the attack!
o

Ex. adversary calls your witness who is impeached by prior perjury; want to intro prior
consistent statement NOT ALLOWED b/c perjury does not speak to the truth of
statement at issue at trial speaks to witness character GENERALLY!

Ex. drive by shooting, witness on stand says did shooting. On c-e, witness impeached
by counsel, saying that on the day after the event, the witness said I saw nothing.
Witness says he felt unsafe IDing the person b/c dangerous neighborhood, so that was
immediate rxn, but after thinking about it for a while, he told close friend I need to man
up I saw something and need to say it.
This statement to close friend is the PCS you want to intro

Witness attacked for BAD MOTIVE?

You should try to show that the statement was made before the bad motive could be
formed introduce a prior statement from this time
o

Ex. witness testifies to something that occurred in store v. storeowner, impeached by

isnt it true you have grudge v. store b/c they fired you attack on motive
Get a PCS from before he was fired!

IX. Privileges
Privilege rules need to be certain b/c of private ordering concerns we want to encourage the
socially beneficial relationships need to know what priv applies and its scope before you speak
RULE 501- Privileges in General
The common law as interpd by US cts in the light of reason and experience governs a claim
of privilege UNLESS any of the following provides otherwise the US constitution, a federal
statute; or rules prescribed by SCOTUS. BUT in a civil case, state law governs priv regarding a
claim or defense for which state law supplies the rule of decision
Rule: exclude relevant and reliable evidence in cases in which countervailing social policy
requires non-disclosure
Party seeking to exclude on the grounds of privilege has the burden of showing that
the priv in question applies
501 itself does not delineate privilege Advisory Committee did not want to codify
o RULES
In diversity cases, state rules of priv apply
In federal question, federal common law applies

RULE 502 Attorney-Client Privilege and Work Product; Limitations on Waiver

Rule: client holds a privilege to refuse to disclose and to prevent anyone else (including the atty)
from disclosing a confidential communication between an atty and a client during legal services
Excludes info that it relevant and reliable b/c it is protected by this relationship

Rationale: promoting clients being truthful to attys, empowers atty value, prevents
lawyers from serving as witnesses against clients

3 requirements for invoking atty-client privilege

1. Client must be seeking legal advice (as opposed to non-legal advice)
Creates distinctions
o Legal v. illegal advice (how do a I kill someone)
o Legal v. nonlegal advice

Ex. lawyer and drug dealer playing squash, dealer said fed searched my house
and found some of my finances I think theyre gonna search for drugs ct says
priv doesnt apply; dealer just looking for shoulder to cry on

Its legal advice if using legal skills

o Privileged client asks atty to sort thru docs to determine priv
o Not privd atty operating as fileboy, doing factual investigation a PI could do
What if the lawyer is sought for multiple purposes?
o Need to establish that they were being retained for legal advice for priv to
kick in
Dominant intent test: if the dominant intent appears to be legal, the fact
that you may be also seeking non-legal advice is irrelevant and comms are
privd
Look at CONTEXT nature of relationships
Attys who work for corps? Protection depends on situation
o Ex. bd meetings not privd just b/c all attending are attys, but if discussing a partic
legal sitch, it could apply
o Ex. memos prepped in anticipation of litigation are privd
o Rule: when atty conducts internal investigation of own firm, comms are privd
For purposes of potential future litigation

2. What they want protected needs to be a communication

Client to be privd, info needs to be coming from the client
Lawyer anything a lawyer learns in prep for litigation
Agents comms are privd when the 3d party is an agent of the atty client
relationship
o Clients must hire lawyer before comms w/agent are protected
Ex. if lawyer goes to accountant, privd; if client goes to accountant, then
determines he needs a lawyer after, not privd
o Agents can include engineers, secretaries, paralegals, stenos, etc
Rule: communications by atty to client are protected to the extent that they
would disclose clients statements
o Must be confidential and in the course of legal advice
o Most cts have 2 way priv, but some only see it as running client to atty
Upjohn: who is the client when the party is a corporation [CORPORATE PRIVILEGE]

Rule: so long as the employee is speaking to the corp lawyer about a matter in the
scope of his employment, that communication is protected by privilege he
becomes a client for the purpose of that communication, but he is not himself a client
as a whole
o Rejecting narrow control group test, which only protected comms between attys
and mgmt
o Note: priv does NOT protect the info itself protects communications ABOUT
the info
Not a personal priv the priv runs between the corp atty and the corp
Problem: makes basically everyone an agent of the corp makes it harder to
investigate corp misconduct b/c its harder to get internal convos between lawyers and
attys

Can we extend Upjohn to govt cases?

Criminal: Upjohn does not protect Hillary Clintons comms to govt attys
o Govt lawyer has a DUTY TO THE POPULOUS (not just his corp)
o Govt lawyer also has statutory duty to report crim conduct
Civil: Upjohn privileges these comms
o Issue lower level govt employee might not know whether conduct at issue will
give rise to crim or civil liab
Could always invoke 5th a
What counts as a comm. protected by the priv?
Pre-existing documents existing before a-c relationship? NOT PRIVD
o Cannot create priv
Physical evidence? NOT GENERALLY PRIVD
o Something doesnt get priv just by giving it to lawyer
o But there is something communicative about producing the entity need to
separate the communicative act re: the ev from the ev itself
Adversary can get the thing but not how govt will have to tie the ev to
the in some other way than by act of production
-

Ex. lawyer repping client; on break have convo in locked room; when lawyer comes out,
looks beat up; convicted and at sentencing govt wants to show he is bad guy so subpoenas
lawyer to testify about what happened in room lawyer invokes priv Held: not privd
beating up is not communicative, govt is just trying to prove that the punch happened
Ex. lawyer repping person in body cast, lawyer goes on vaca to Aspen, sees client skiing
down slopes; goes back and withdraws rep, sends red flag other side wants to know what
lawyer knows. Held: seeing client skiing is NOT privd just knowledge of a physical fact

How do we define lawyer for the purposes of this rule?

Kovel: necessary non-legal reps are part of the atty-client relationship
o BROAD DEF! Based on who is NECESSARY to the a-c relationship!
o Held: priv is concerned w/maximizing the effectiveness of lawyers when
another agent is necessary to the rep and they need to hear the privd comms,
these comms are WITHIN THE PRIV

However, PR people do NOT fall w/in the priv all emails on which PR ppl are ccd
LOSE THEIR PRIV

3. Client must have reasonably anticipated and intended for the communication to be
confidential
REQUIREMENTS:
Intent: client must intend to comms to remain confidential
Anticipation: must be careful w/your comms
o Discussions in the presence of 3d parties who are not agents destroys priv!
Emails and cell phone convos dont destroy priv
But what if talking loudly in the libe on cell phone? Maybe
bursts into restaurant and shouts I did it at atty not privd

Ex. People v. Harris: woman killed dr who dumped, calls cops from scene, says
I need to speak to my lawyer she says I want to do it here; picks biggest room
in mansion and goes to phone at other end to tell lawyer she did it out of ear
shot of cops but the cop across the room is a master lip readers so he knows she
said it and wants to admit it; says privd - anticipation. Held: not
anticipated to be confidential cops arent on your side in this situation; if
overhead-able, not privd!
DC: VERY famous case! Shows you need to be careful!
Ex. Shargel: priv does NOT apply to ID of client and the fee that they pay
POLICY REASONS: a general rule requiring disclosure of the fact of
consultation does not place attorneys in the professional dilemma of
cautioning against disclosure and rendering perhaps ill-informed advice
or learning all the details and perhaps increasing the perils to the client of
disclosure.

The COMMON INTEREST rule when clients agree to pursue a common interest,
communications BETWEEN CLIENTS become privd! Expands scope of a-c priv
REQUIREMENT: the common interest needs to exist PRIOR to the comms between
clients for the priv to apply!
o If multiple clients repd by multiple lawyers are pursuing a common int, comms
among ALL parties will be protected
BUT if/when comm. int breaks up, parties can sue e/o and use confid info
v. e/o!
Need a common interest agreement should be in writing
o Can limit risk of post comm. int suing by making a clause saying all info remains
confid
Garner rule: if youre acting in a fiduciary relationship, you cant shield info from the
beneficiary in a suit between the 2
Garner: CEO engaging in transaction, it blows up CEO says I screwed that up
shareholders wont get that info

BURDENS

Burden is on CLIENT to show something is privd in first place

Burden to rebut this or prove it falls into an exception is on the GOVT

How does the priv get asserted?

Belongs to client, but atty has right to assert it whenever he needs if client is
unavailable or relationship has ended
Survives clients death
o Post-death consids could prevent free flow of info, client could still have interest
in estate
o Issue is this impedes search for truth

WAIVING PRIVILEGE
Rule: the person who holds the privilege may waive it
MUST be voluntary
o Can occur by either completely voluntary disclosure

Ex. to cooperate w/govt/an agency in exchange for better treatment

Corp death sentence problem DOJ will threaten to indict a corp if it
does not release info
o DOJ changed rule (Filid Memo) made it so indictments do not
hinge on whether corp cooperates, but they obv still will
Ex. w/IPOS Doe: boo hoo, you have to give up the privileged info to the
underwriter to get your IPO underwritten? TOO BAD cost of doing biz. This is
a voluntary waiver

Can be waived by client ONLY but atty can waive on his behalf
o Corporate mgmt has the authority to waive a corps priv
Rule: if the waiver is intentional, 502 requires a SUBJECT MATTER WAIVER

Rule 502 lays out some rules re: waivers/mistaken disclosures

(a) Subject Matter Waiver a waiver that extends to require disclosure of all communications
on the same subject matter. Very broad
You can only have a SMW for an intentional disclosure no mistaken disclosures can
trigger a SMW
(b) Inadvertent Disclosures governed by a reasonableness rule
If you take steps to avoid a mistaken disclosure and promptly try to get back any
accidentally disclosed documents, then there is NO WAIVER OF PRIV
(d) Court Orders Preventing Waivers
If a ct orders that disclosures on a certain matter are not waivers, then they are not
waivers. This is true for the disclosures as they can be used in ALL OTHER STATE
AND FEDERAL MATTERS no state or federal ct can relitigate the waiver issue
on these disclosures of the ct has ordered that there is no waiver
NOTE: this sub does not permit selective waiver orders
o These are seen as sneaky/too strategic
SCOPE OF A WAIVER

Subject Matter Waiver Rule: once you waive priv on a part of a communication,
communications on the same subject also get priv waived if the disclosure is intentional
Billzerian: B charged w/willfully violating sec laws, said he consulted a lawyer who told his
this stuff was ok so not willful; prosecutor requests ALL comms between B and lawyer. Held:
all comms on this matter are admissible under SMW rule w/o SMW, could tell a half
truth. Need all info to ensure this doesnt happen
o WHY SELECTIVE WAIVERS ARE NOT ALLOWED

Some courts say that if you release info to the govt, EVERYONE gets it b/c
public record
SMW logic rests on idea that when you assert a defense that you relied on advice
of counsel in order to negate an element of the crime, you waive all privd comms
on that matter

MISTAKEN DISCLOSURES
Implicit waivers when an atty waives on clients behalf we imply authorization
o But what about ACCIDENTAL IMPLICIT WAIVERS
Majority view negligence std
If disclosure was innocent mistake and atty was quick to rectify, no
waiver of priv
If disclosure was negligent, waiver
Minority view inadvertent waiver waives ALL priv (SL)
Covers all subjet matter
Clients remedy is malpractice suit
Mistaken disclosures are a big problem w/e-discovery
o 502(b) seeks to remedy harms
o Now ppl will use clawback agreements send priv doc you accidentally
received back to other side; 2 sides strike an ag to do this and not waive priv for
accidental disclosures
502 made it so these agreements were enforceable in ct
Cts can mandate these agreements
PROBLEM dont necessarily apply to 3d parties
CRIME-FRAUD EXCEPTION
Rule: if a client is using his lawyer to perpetrate crime or fraud, the communication is not
privileged
o Burden is on the party SEEKING THE INFO to prove that c-f exception applies b/c
there is a presumption of priv
o Judge will hold an in camera hearing and determine by a more likely than not std that c/f
occurred in these hearings, the party seeking info can USE THE COMMS
THEMSELVES to prove the c/f. Judge can also look to circumstantial indicia of
something fishy going on
DC: dividing lines in c-f exception
Client is asking about a legal grey area
o

Ex. is this legal? PRIVD!

PROBLEM is the client REALLY seeking advice? If lawyer says dont do it and he
does it anyway? Hard to tease out clients intent

Seeking advice about PAST CRIMES is PRIVD. Asking about FUTURE CRIMES is
NOT.
o Ex. we destroyed a bunch of documents lawyer, we think there are legal problems and we
want advice this is privd! The exact kind of comms we want to protect. Act has
already occurred, not seeking to further a crime or fraud

SPOUSAL PRIVILEGE
Note: sham marriage rule priv not designed to protect these
7th Cir: spousal priv does not apply to pre-marital activity
DC: general trend toward chipping away at this priv
Privilege Against Providing Adverse Testimony (Trammel): privilege against forcing a spouse
to give adverse testimony against his/her spouse
Focused on preserving the sanctity of marriage at the time of trial you need to be
married AT THE TIME OF TRIAL for this priv to apply
The privilege belongs to the testifying spouse if s/he wants to testify its ok, b/c
were not disturbing marital harmony, as it clearly does not exist
o cannot invoke the privilege
Post-Trammel reading of this priv: cannot force a wife under pain of contempt to
testify against her husband
BUT, privilege does NOT apply to spousal hearsay 3d party can be forced to
testify about what spouse said at time of incident; MUST STILL FALL INTO
HEARSAY EXCEPTION to be admitted
o Hypo: hub charged w/murder, wife waiting for him on porch, neighbor comes up to hub,
opens trunk, takes crowbar out and starts beating him and kills him. Wife runs into
house, calls mom, says Bill just killed neighbor. Held: would be admitted as an excited
utterance exception to hearsay rule; also spousal priv does not extend to mom, so doesnt
matter that wife will invoke ad test priv

Joint Participant exception to this privilege?

If spouses are jointly participating in crime, does that indicate no marital harmony? NO
Ex. Koecher: govt says Karl is soviet spy, have proof that wife H is helping him, says that
b/c they are joint participants, their relationship is more akin to a conspiracy, govt wants to
give her immunity to testify. Judge Friendly (2d Cir) held: that marital harmony is clear here,
but 10th cir had accepted the JP exception, so the case went to SCOTUS.
o SCOTUS args tracked 2d cir (OC had rejected the JP exception 9-0), but case became
mooted b/c Ks were deported 3 days before the verdict came down

o RESULT: circuits are split on whether this exception exists. Does not in 2d
cir.
Note: not all jxs have this privilege NYS does not have Trammel priv! Spouses can be forced
to testify

Confidential Communications Privilege: privilege against spouse having to disclose ANY

communications between his/her spouse and him/herself during the course of their marriage
Focused on preserving the marital relationship at the time of the communication in
question about RELIANCE
o DC: only worry about if this privilege applies with ad test does not
Both and testifying spouse hold this privilege the communictor of the info in
question holds the priv
Other spouse CAN testify, just not to confid info
o Ex. Neal: N charged w/bank robbery, Mrs. N hates him and wants to testify that she was
at home when N came in, closed door, threw gun and $$ on bed and she said sup and he
said I robbed a bank. Held: she can testify to his ACTIONS, but not to him saying I
robbed a bank
will say those acts were communicative but this is MORE PROTECTION than
necessary
If she said did you kill tellers and he held up three fingers, this action will be
protected b/c it was intended to be communicative
o Hypo: kills neighbor w/crowbar hypo above, but this time wife is inside and doesnt
see it happen; he tells her. Wife calls mom and tells her. Held: not admissible b/c double
hearsay
Wife will say its an excited utterance, which will prob still hold true here, but the
wife has NO PERSONAL KNOWLEDGE of the underlying facts, so exception
doesnt apply

That is the hearsay objection, but the privilege objection will be

that spousal hearsay is not admissible here

Rule: if the communications at issue are those reasonably expected to remain confidential at
the time that the communication was made, they are privileged
Why spousal hearsay is not allowed under this priv [same rat as a-c priv]
That being said, if hub knew that wife told mom everything, PRIVILEGE
OBJECTION FAILS
o Hypo (DC calls this ruling too harsh) - communicates over work email w/wife,
employer has no monitoring policy for 1st 2 years; then enacts one so hub stops. Govt
wants archived emails from before policy; says at time he had exepec of confid.
Held: he should have deleted the archives WAIVED PRIV BY INACTION

MOAR PRIVILEGES
Clergy-penitent recogd by common law
Protects comms to clergy where penitent is seeking religious/spiritual advice
Priv is held by penitent
State secrets recogd by common law
Protects v. disclosure of info that would harm state security interest
o Judge decides in camera if it applies

o If the only thing you can introduce is protected as a state secret, TOO BAD you
lose!
Executive privilege: allows prez to confer w/ppl in exec branch, encourages flow of
info; exists at federal common law
o QUALIFIED if substantial showing of need, priv disappears (ex. Nixon)
o Will never protect info from a grand jury proceeding b/c there will always be
showing of need (why Clinton didnt invoke it)

Law Enforcement recogd at federal common law

Protects sources who will testify if get guarantee of confidentiality
Applies PRE trial but NOT at trial b/c has to be able to c-e witness
Journalist recogd by common law
Privilege to protect confidential sources
o Qualified: need for info in litigation destroys priv (Brazenberg: no absolute 1a
priv)
Grand juries and crime s are NOT entitled to journalist sources
Privilege to protect against disclosure of non-confidential material
o Rejected by most cts only stands in compelling cases of EXTREMELY
burdensome production
Mental Health professional NEW PRIV, NOT recogd by common law
Jaffee: recogd psychotherapist-patient priv SCOTUS says its absolute b/c we want
to encourage ppl to seek treatment and talk openly. Extends to social workers.
BUT knowledge of Tasaroff duties (have to disclose crimes/bad acts), priv is
WAIVED!
o Called dangerous patient exception Tasaroff warning
SCOTUS held you could develop new privs under 501 (Jaffee) criteria are 1)
prevelant in states; 2) in advisory committee list [if so, pts to it being part of
common law so its a priv that already existed]
Note: no dr-patient priv in fed law! Just in states if statutorily mandated
o DC: this is b/c w/mental health, tmt is often predicated TOTALLY on
words/comms, as opposed to w/physicians
Tax preparer NEW PRIV, NOT recogd by common law
If you seek advice from accountant to prep taxes, comm. is privd in US Civil ct only
Does not extend to private lawsuits or crim cases
Parent-child NOT RECOGD AT FEDERAL LEVL
Would extend too far seems to replicate spousal priv args
o Doesnt make sense under a confid comm. priv rat b/c parent-kid relationships
exists whether or not comms occur
o Maybe makes sense under ad test arg dont want to place one party in a position
where its testify or be in contempt (Trammel rationale) would extend too far

Secret Service/Protective Fct NOT A REAL THING

President has statutory right to secret service protection, would basically prevent
anyone from ever hearing anything the prez said
Self-Analysis Not recogd at fed comm. law b/c corps have duty to investigate, prevent future
litigation Would have applied to inward looking reports in which corp officials would analyze
their own performance