Outline of Evidence

Fall 2016
Kevin Simmons

I. Charts ...................................................................................................................................... 3
II. Relevance ................................................................................................................................ 4
1. Introduction to Evidence ..................................................................................................... 4
i. Prefatory Rules................................................................................................................ 4
2. Relevance ............................................................................................................................ 4
i. Basics .............................................................................................................................. 4
b. Cases and Problems .................................................................................................... 5
ii. Balancing Probative Value & Unfair Prejudice .............................................................. 6
b. Cases and Problems .................................................................................................... 6
c. Flight ........................................................................................................................... 7
iii. Specialized Relevance Rules .......................................................................................... 8
b. Cases and Problems .................................................................................................. 10
c. Rules 410-411 ........................................................................................................... 11
iv. Character Evidence ....................................................................................................... 14
v. Conditional Relevance .................................................................................................. 20
b. Huddleston ................................................................................................................ 20
vi. Character for Truthfulness ............................................................................................ 20
b. Rehabilitating a witness ............................................................................................ 26
c. Extrinsic Evidence .................................................................................................... 27
vii. Propensity Evidence in Sexual Assault Cases .............................................................. 28
viii. Rape Shield Law ........................................................................................................... 30
III. Reliability.............................................................................................................................. 33
1. Hearsay ............................................................................................................................. 33
i. Hearsay Practice............................................................................................................ 33
ii. Hearsay Chart: .............................................................................................................. 33
iii. Introduction ................................................................................................................... 33
b. Hearsay quiz.............................................................................................................. 42
c. Exceptions to Hearsay............................................................................................... 46
d. True Exceptions ........................................................................................................ 47
2. Confrontation Clause of the 6th Amendment and Crawford and Testimonial Hearsay .... 57
i. History........................................................................................................................... 57
ii. Crawford v. Washington ............................................................................................... 57
iii. Things you get out of cross ........................................................................................... 58
iv. Out-of-Court Statements Admissible Against Criminal Defendants If: ....................... 58
v. Testimonial Statements Include: ................................................................................... 58
vi. Non-Testimonial Statements Include:........................................................................... 58
vii. Case Studies .................................................................................................................. 58
viii. Analysis of Out-of-Court Statement Post-Crawford .................................................... 61
ix. Hearsay Exceptions Post-Crawford .............................................................................. 61
x. Bruton Doctrine ............................................................................................................ 61
3. Compulsory Process Clause.............................................................................................. 62
4. Lay and Expert Testimony ................................................................................................ 63
i. Rules of Lay Testimony ................................................................................................ 63
 ii.
Rules of Expert Testimony ........................................................................................... 64
5. Authentication and Best Evidence .................................................................................... 69
i. Authentication ............................................................................................................... 69
ii. Best Evidence................................................................................................................ 72
IV. Privileges............................................................................................................................... 75
1. Introduction ....................................................................................................................... 75
2. Attorney-Client Privilege .................................................................................................. 76
3. Proposed Rules.................................................................................................................. 79
V. Rules ..................................................................................................................................... 83

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 I. Charts

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 II. Relevance
August 24, 2016—September 28, 2016
1. Introduction to Evidence
i. Prefatory Rules
1. Rule 102. Purpose
Th e s e r u le s s h ou ld b e c on s t r u e d s o a s t o a d m i n i s t e r e ve r y p r o c e e d i n g fa i r ly, e li m i n a t e
u n j u s ti fi a b le e x p e n s e a n d d e la y, a n d p r om ot e t h e d e ve lo p m e n t o f e vi d e n c e la w, t o t h e
e n d o f a s c e r t a i n i n g t h e t r u t h a n d s e c u r i n g a j u s t d e t e r m i n a t i on .
 Why have the rules of evidence?
o Efficiency rationale
 To avoid needless or repetitive testimony.
o Legitimacy rationale
 To ensure that the evidence introduced bears on the matter at hand and is fair to the litigants.
 To aim at both truth/integrity and virtual truth/authority.
o Precision rationale
 To focus the jury and screen for the most trustworthy evidence.
o Social policy rationale
 To account for externalities, such as the importance of certain communications.
o Core concerns of the law of Evidence: Fairness & Accuracy.
2. Rule 103. Rulings on Evidence
( a ) P r e s e r vi ng a Cl a i m of Er r or . A p a r t y m a y c la i m e r r or i n a r u li n g t o a d m i t or
e x c lu d e e vi d e n c e on ly i f t h e e r r or a f fe c t s a s u b s t a n t i a l r i gh t o f t h e p a r t y a n d :
( 1 ) i f t h e r u li n g a d m i t s e vi d e n c e , a p a r t y, on t h e r e c or d :
( A) t i m e ly ob j e c t s or m o ve s t o s t r i ke ; a n d
( B) s t a t e s t h e s p e c i fi c g r ou n d , u n le s s i t wa s a p p a r e n t fr o m t h e c on t e x t ;
or
( 2 ) i f t h e r u li n g e x c lu d e s e vi d e n c e , a p a r t y i n for m s t h e c ou r t o f i t s s u b s ta n c e b y
a n o f fe r o f p r o o f, u n le s s t h e s u b s t a n c e wa s a p p a r e n t fr om t h e c on t e x t .
3. Rule 104(a). Preliminary Questions
( a ) I n G e n e r a l . Th e c ou r t m u s t d e c i d e a n y p r e li m i n a r y q u e s t i on a b ou t wh e t h e r a wi t n e s s
i s q u a li fi e d , a p r i vi le ge e x i s t s , or e vi d e n c e i s a d m i s s i b le . In s o d e c i d i n g, t h e c ou r t i s
n ot b ou n d b y e vi d e n c e r u le s , e x c e p t t h os e on p r i vi le g e .
4. Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other
Purposes
I f t h e c ou r t a d m i t s e vi d e n c e t h a t i s a d m i s s i b le a g a i n s t a p a r t y or fo r a p u r p o s e — b u t
n ot a g a i n s t a n ot h e r p a r t y or fo r a n ot h e r p u r p os e — t h e c ou r t , on t i m e ly r e q u e s t , m u s t
r e s t r i c t t h e e vi d e n c e t o i t s p r op e r s c op e a n d i n s t r u c t t h e j u r y a c c or d i n g l y.
2. Relevance
 Analyzing Admissibility
o Know the factual and legal context.
o Clearly identify the piece of evidence in question.
o Articulate what the evidence is being offered to prove.
i. Basics
1. Rule 401. Test for Relevant Evidence
E vi d e n c e i s r e le va n t i f:
( a ) i t h a s a ny t e n de nc y t o m a k e a fa c t m or e or l e s s pr o ba bl e t h a n i t wo u ld b e wi t h ou t
t h e e vi d e n c e ; a n d
 “any tendency”: the evidence need not prove anything conclusively; it merely must have some tendency to
make a fact more or less probable
 “A brick is not a wall” Your case is the wall, evidence is just a brick and that's all it has to be
( b) t h e fa c t i s of c ons e qu e n c e i n d e t e r m i n i n g t h e a c t i on .
 Materiality

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 
2. Rule 402. General Admissibility of Relevant Evidence
Re le va n t e vi d e n c e i s a d m i s s i b le u n le s s a n y o f t h e fo l lo wi n g p r o vi d e s ot h e r wi s e :
t h e Un i t e d St a t e s C on s t i t u ti on ;
a fe d e r a l s t a t u t e ;
t h e s e r u le s ; or
ot h e r r u le s p r e s c r i b e d b y t h e Su p r e m e C ou r t .
 FRE 402 is a rule of inclusion
o Rules of Evidence = a catalogue of its exceptions.
Ir r e le v a n t e vi d e n c e i s n ot a d m i s s i b le .
 No exceptions to the negative component of the rule.
o But the standard of relevance is permissive.
 Two ways an offered item of evidence may be excluded as irrelevant:
o Because it is not probative of the proposition at which it is directed
o Because that proposition is not provable in the case
b. Cases and Problems
 US v. James
o Facts:
 Defendant feared for her life and gave a gun to her daughter who killed the victim
 Defendant testified that victim had claimed to have committed various heinous crimes (to
support her claim of fear)
 Defendant wants to admit evidence that the victim had committed the crimes even she
never knew if he actually committed the crimes
o Reasoning and holding
 Inferential chain: Evidence of true criminal history --> victim is more likely to have
bragged about it [key link]--> increases the ring of truth to the defendant --> the defendant
is more likely to have thought victim was deadly
 It corroborates her testimony
o Prosecutor might try to undercut the weight of this evidence (rehabilitate the victim) or try to exclude
on some other rule of evidence
 1.1: husband was arrested for murder and the wife challenged the police to say where the body was
o Chain of inference:
o Wife asked where the body was >>
o Wife thought that the police could not know where the body was>>
o She knew something about the murder
 1.3: defendant took a polygraph test, tried to bring in tester
o Admissible to show consciousness of innocence; this gets us in the defendant’s head
o Tester cannot testify to the results of the test
o (Prosecutor would tell the jury that this testimony should not weigh much)
 1.4: defendants against strict liability crimes cannot introduce testimony as to their states of mind/intent; it
would be irrelevant.
 1.5: defendant was drunk, had gunpowder residue on his hands, and two companions dead by gunshot
o State barred information on intoxication from being presented to address the mental state of a
defendant
o Thus, defendant cannot introduce his BAC because it is statutorily irrelevant (so as not to prejudice
the jury
 1.6: officer was in a dark alley, told victim to drop the violin case, and the victim raised “like a sawed off
shotgun” after officer told him to drop it; officer shot and killed victim

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 o State wanted to introduce evidence that case only had $40k and no gun
o Admissible because the presence of the cash makes it less likely that the victim raised the case like
the officer said
o (you don’t usually play pretend cops and robbers in a dark alley with an officer training a weapon
on you)
ii. Balancing Probative Value & Unfair Prejudice
1. Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or
Other Reasons
Th e c ou r t m a y e x c lu d e r e le va n t e vi d e n c e i f i t s p r ob a t i ve va lu e i s s u b s t a n ti a ll y
ou t we i gh e d b y a d a n ge r o f on e or m or e o f t h e f o llo wi n g : u n fa i r p r e j u d i c e , c on fu s i n g
t h e i s s u e s , m is le a d i n g t h e j u r y, u n d u e d e la y, wa s t i n g t i m e , or n e e d le s s ly p r e s e n t i n g
c u m u la t i v e e vi d e n c e .
 Simplified Weighing:
o Although relevant, evidence:
o may be excluded
o if its probative value is substantially outweighed
o by the danger of unfair prejudice
 Cautions:
o All relevant evidence is prejudicial.
 Rule 403 guards only against “unfair” prejudice.
 Powerful does not mean prejudicial.
o Rule 403 is a liberal rule that favors the admission of evidence.
 Unfair prejudice must “substantially outweigh” probative value, not the other way around.
o “May” vests enormous discretion in the trial judge.
 On its face, Rule 403 doesn’t require the exclusion of anything.
o However, even sheer time waste may justify exclusion--”a concession,” as Holmes said, “to the
shortness of life” (145 Mass. 23, 28 (1887)).
 Old Chief Highlights
o Facts: Old Chief was convicted before for assault with serious bodily injury
o When a party has conceded a point, it is uncontested, or there is a stipulation that covers it, that
discounts but does not dispense altogether with the probative value of evidence to support the point.
o Main take away: Cannot stipulate away someone's case, only tip/minimize the probative value of
certain evidence
o Although the stipulation to Old Chief’s status as a felon tipped the 403 scales by taking weight off
the probative value of the prior conviction, the opinion is best known for its reasoning about:
 Descriptive richness
 Satisfying expectations
 Narrative relevance
 Morally reasonable verdicts
o Argue for the admission of powerful evidence important to the momentum of your case by
explaining to the court why it “has force beyond any linear scheme of reasoning” (CB 89).
o Dissent: If the prior conviction is a violent act, then there really is a reason--morally legitimate--for
the government to preclude such a felon from possessing a firearm
b. Cases and Problems
 Photo of Aaron Hernandez holding a gun from four years prior to his arrest
o It should not be admitted because it is unfairly prejudicial
o The photo speaks more to the defendant’s character than to the perpetrator
 The Jinx video clip; HBO documentary (bathroom soliloquy)
o Consciousness of guilt: tortured discourse
o Oppose: it could be his own role-playing, so not probative
o Sounds like a crazy and creepy; too prejudicial
 Commonwealth v. Serge
o CGI account of murder
o Because of how simplistic and honest to the experts’ statements it was, admissible

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 o Required jury instructions though
 US v. James (dissent)
o Self-defense shooting (see above)
o Rarely, government will make a prejudicial argument
o Anytime where you see an argument that the victim had it coming, 403 can screen out evidence
 People v. Collins
o Statistically unusual pair of perpetrators matched the defendants
o College mathematician testified to the exceedingly long odds based on very dubious guesses about
the odds of blondes and blacks
o “Mathematics, a veritable sorcerer in our computerized society, while assisting the trier of fact in
the search for truth, must not cast a spell over him.”
o Unluckiest person in the world argument; what are the odds that a different couple was in the
same vicinity; the odds of a yellow car; a blonde…within the same block. Either they are the
unluckiest couple in the world or they did the crime.
o Collins only stands for the proposition that bad and misleading evidence violates 403:
 DNA comes in all the time and it is only statistical
 Toxic tort; everyone in a neighborhood came down with this disease
 Discrimination: statistics of hiring, place of origin, etc
o Three factors for judging the admissibility of statistics
 There must be an empirical basis for assigning values to the variables
 The variables must be independent
 “the court was concerned that jurors might improperly confuse the probability of a couple
possessing the traits possessed by the defendants with the probability that the defendants
were not guilty.”
 What is being said and can the jury readily evaluate
 US v. Jackson
o Defendant was charged in New York for a crime there, but was arrested in Georgia on unrelated
charges earlier
o Prosecutor needed evidence that he used a false name in GA, but was told that that was all the
prosecutor would get; defendant stipulated
o The need for the particular piece of evidence is weighed in the 403 analysis
o Need to convince judge that the evidence will actually make the trial fairer
o Cannot force parties to take a particular strategy, but the judge can make this kind of balanced
suggestion
c. Flight
 “Chain of Inference” Commented [KS1]: What in the world? Why does this
o “Its probative value as circumstantial evidence of guilt depends upon the degree of confidence with go here?
which four inferences can be drawn:
o Step 1: From the defendant’s behavior to flight. [Defendant may just fear police and so ran] >>
o Step 2: From flight to consciousness of guilt. >>
o Step 3: From consciousness of guilt to consciousness of guilt concerning the crime charged. >>
o Step 4: From consciousness of guilt concerning the crime charged to actual guilt.
 See US v. Myers
o Supposed flight from a FL bank robbery; Defendant committed a later bank robbery in PA;
Defendant is caught in CA fleeing police
o (1) from the defendant’s behavior to flight; Defendant could have simply been fleeing an unmarked
car chasing him
o (2) from flight to consciousness of guilt; he is in fact guilty of something
o (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and he could
just be conscious of the PA robbery (indistinguishable)
o (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.”
 1.9: defendant claimed he fled a victim because he was afraid he’d be arrested because of his “priors”
o Prosecutor had defendant talk about what he was arrested for
o However, because it was old and different in kind, it would not be as likely to prejudice the jury
against him

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 o Thus, admissible
 1.10: attempted murder charges; claimed fled because possessed marijuana
o Court would require because possession of marijuana is so different from attempted murder that it
is unlikely to unfairly prejudice the jury against him
 1.11: local businessman charged with murder, does not flee
o Defendant wants to offer evidence that defendant did not flee, but had enough money to have done
so
o Defendant:
 Losing argument
 Yes, because it does make it more likely that he is guiltless, and the prosecution may rebut
this presumption in argument by talking about how he is a sophisticated party with legal
counsel.
o Prosecutor:
 No, because he was tied to the local anyways; if he were guilty, then, of course he would
have wanted to say that he wasn't afraid of anything
 This has almost no relevance to the case, so it would likely be a waste of time
iii. Specialized Relevance Rules
 Rules 407-409 bar evidence of subsequent remedial measures; compromise or settlement negotiations; and
offers to pay medical expenses.
 Rationale based on extrinsic policy concerns:
o 407: Do not want to discourage people from adopting safety measures.
o 408: Public policy favors the settlement of disputes.
o 409: Do not want to discourage offers of assistance to injured people.
 Relevance rationale:
o 407: A party may take a subsequent remedial measure because of an injury caused by an accident
or by third-party negligence, so evidence of such measures is not necessarily relevant to the issue of
negligence.
o 408: An offer to compromise may be motivated by a desire for resolution rather than awareness of
a weak position.
o 409: Payment of medical expenses more likely results from “humane impulses” than from
consciousness of liability.
 **NOTE: Evidence that is not barred by Rules 407, 408, 409, 410, or 411 is still subject to Rule 403
exclusion if the danger of unfair prejudice, confusion, or delay substantially outweighs its probative value.
1. Rule 407. Subsequent Remedial Measures
Wh e n m e a s u r e s a r e t a k e n t h a t wou ld h a v e m a d e a n e a r li e r i n j u r y or h a r m le s s li ke ly t o
oc c u r , e vi d e n c e o f t h e s u b s e q u e n t m e a s u r e s i s n ot a d m i s s i b le t o p r o v e :
 n e g li g e n c e ;
 c u lp a b le c on d u c t ;
 a d e fe c t i n a p r od u c t o r i t s d e si gn ; or
 a n e e d fo r a wa r n i n g or i n s t r u c ti on .
Bu t t h e c ou r t m a y a d m i t t h i s e vi d e n c e fo r a n ot h e r p u r p os e , s u c h a s i m p e a c h m e n t or —
i f d i s p u t e d — p r o vi n g o wn e r s h i p , c on t r o l, or t h e fe a s i b i li t y o f p r e c a u t i o n a r y m e a s u r e s .
 Not Admissible to Prove
o Negligence
o Culpable Conduct
o Product defect
o Need for warning
 But Admissible for Other Purposes, Such As:
o Ownership (if disputed)
o Control (if disputed)
o Feasibility of precautionary measures (if disputed)
o Impeachment

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  Most courts allow evidence of third-party repairs because third parties will not be dissuaded from making
repairs just because evidence of those repairs might be offered against someone else. However, some courts
disallow it as of too little probative value to make it past 403.
 Subsequent remedial measures:
o Fixing something
o Changing safety protocol
o Providing new warnings or changing instructions
o Changing design
2. Rule 408. Compromise Offers and Negotiations
( a ) P r o hi bi t e d Us e s . E v i d e n c e o f t h e fo l lo wi n g i s n ot a d m i s s i b le — on b e h a lf o f a n y
p a r t y — e i t h e r t o p r o v e or d i s p r o ve t h e va li d i t y o r a m ou n t o f a d i s p u t e d c la i m or t o
i m p e a c h b y a p r i or i n c o n s i s t e nt s t a t e m e n t or a c on t r a d i c t i on :
( 1 ) fu r n i s h i n g, p r om i s i n g, or o f fe r i n g — or a c c e p t i n g, p r om i s i n g t o a c c e p t , or
o f fe r i n g t o a c c e p t — a v a lu a b le c on s i d e r a t i on i n c om p r om i s i n g o r a t t e m p t i n g t o
c om p r om i s e t h e c la i m ; a n d
( 2 ) c on d u c t or a s t a t e m e n t m a d e d u r i n g c om p r o m i s e n e g ot i a t i on s a b ou t t h e c la i m
— e x c e p t wh e n o f fe r e d i n a c r i m i n a l c a s e a n d wh e n t h e n e g ot i a t i on s r e la t e d t o
a c lai m b y a p u b li c o f f i c e i n t h e e x e r c i s e o f i t s r e gu la t or y, i n v e s t i ga t i v e , or
e n fo r c e m e n t a u t h or i t y.
( b) E xc e pt i ons . T h e c ou r t m a y a d m i t t h i s e vi d e n c e fo r a n ot h e r p u r p os e , s u c h a s p r o vi n g
a wi t n e s s ’ s b i a s or p r e j u d i c e , n e ga t i n g a c on t e n t i on o f u n d u e d e la y, or p r o vi n g a n e f fo r t
t o ob s t r u c t a c r i m i n a l i n ve s t i ga t i on or p r os e c u t i o n .
 Not Admissible to Prove
o Validity of a claim
o Amount of a claim
o Or to impeach by prior inconsistent statement or contradiction
 But Admissible for Other Purposes, Such As:
o Demonstrating witness bias or prejudice
o Refuting a charge of undue delay
o Proving obstruction of a criminal investigation or prosecution
 **NOTE:
o Evidence of conduct or statements during compromise negotiations is also excluded.
o Evidence of a completed compromise with a third person making a similar claim is also excluded
(unless probative of witness bias).
o The validity or amount of the claim must be disputed; an effort to induce a creditor to settle an
admittedly due amount for a lesser sum is not excluded by Rule 408.
 408 does not protect offers to compromise made before a “claim” of some sort has been made.
 Disputed as to validity or amount: “The policy considerations which underlie the rule do not come into play
when the effort is to induce a creditor to settle an admittedly due amount for a lessor sum.”
 Operation in criminal cases: 408 addresses the admission at criminal trials of conduct and statements made
in civil compromise talks; civil talks are inadmissible in criminal trials, except when the civil talks are with
government regulators
 May evidence of compromise and of statements be used to impeach? [both no and yes]
o No: the rule forbids impeachment by inconsistent statements and contradiction made in negotiations
o Yes: only when used to prove a witness's bias or prejudice
 Compromise with third parties: [every circuit has puzzled over this question]
 Does the rule also bar evidence that one of the parties settled with someone else if that
evidence is offered to prove liability for or invalidity of the claim contested in the present
suit?
o Strict reading seems to say only the present parties
o However, it seems not one circuit court has ruled that such evidence always or even generally eludes
408's exclusionary force, when doing so advances the public policy favoring settlement that informs
the rule
o Thus, several courts have adopted a “common event” or “same transaction” principle

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 o Circuits have instead excluded evidence of settlement with a third party whenever admission of that
evidence likely would deter future settlements in similar circumstances
 2.4: Hotel company prepared a report to facilitate negotiations about a dispute
o Plaintiff wants to bring the report in against the company
o However, it fulfills the policy of the rule well and so would be barred
3. Rule 409. Offers to Pay Medical and Similar Expenses
E vi d e n c e o f fu r n i s h i n g, p r o m i s i n g t o p a y, o r o f fe r i n g t o p a y m e d i c a l, h os p i t a l, or
s i m i la r e x p e n s e s r e s u lt i n g fr o m a n i n j u r y i s n o t a d m i s s i b le t o p r o ve li a b i li t y fo r t h e
i n j u r y.
 Not Admissible to Prove
o Liability
o **NOTE: Unlike Rule 408, Rule 409 exclusion does not extend to conduct or statements made in
the course of offering assistance, if they are not a part of the act of paying or promising to pay.
 Really protects insurance companies
 Collateral admissions are not covered
o The statement “I’m so sorry I just hit you [in my car]. It was so stupid and negligent of me” is
admissible, but the sentence immediately following these two, “Let me take you to the hospital and
pay any and all expenses there,” is inadmissible under 409.
 Insurance companies have advance payment schemes without admitting liability
o They mitigate the cost of the final medical problem by paying first and figure out who is ultimately
liable later.
b. Cases and Problems
 2.1: Wolf attacks a beagle and later a child; owner chains wolf between attacks
o In Beagle case, not admitted because it was a subsequent precautionary measure, unless it is used to
prove that the animal is the responsibility of the owners, etc
o In Child’s case, admitted because it is a sign that before the attack Poos knew the wolf was
dangerous and liable to want to attack things; however, could be denied if judge finds it superfluous
evidence since previous attack already put Poos on notice of propensity to attack
o Policy is for taking precautions
 2.2: Victim/city employee was wood chipped; city witness testifies still using the same machines (implying
they were unmodified even after the accident
o Plaintiff gets to bring in evidence of how they actually modified the wood chipper after, but only to
impeach the witness
 2.3: President of the 2.2 wood chipper testifies that it’s the safest shoot length
o Plaintiff’s counsel asks if the president is now selling chippers with longer shoots
o Admitted to impeach the witness
 What to get from Tuer v. McDonald? (Case about changing medication prior to heart surgery)
 Bankcard America, Inc. v. Universal Bancard Systems, Inc
o It would be an abuse of Rule 408 to allow one party during compromise negotiations to lead his
opponent to believe that he will not enforce applicable time limitations and then object when the
opponent attempts to prove the waiver of time limitations
o Rule 408 is not an absolute ban on all evidence regarding settlement negotiations. The rule permits
evidence that is otherwise discoverable or that is offered for a purpose other than establishing
liability
o The settlement discussions are relevant because they explain why the defendant breached
o The party using the rule tries to use it as a sword rather than a merely as a shield, which the court
finds reprehensible; lets the testimony in
o The plaintiffs tried to call the conversations everything but a settlement to get out of the rule

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 o
c. Rules 410-411
1. Rule 410. Pleas, Plea Discussions, and Related Statements
 US v. Biaggi
o Defendant wanted to introduce the fact that he turned down full immunity as evidence of his
consciousness of innocence
o Admitted
o Rejecting immunity is a big deal, but fear of reprisal is a consideration
o Consciousness of guilt is damning in the case, and yet he still rejected immunity for a criminal case
o As often as possible, we give the criminal defendant the opportunity to bring in evidence
o If on retrial government made the same offer of immunity to Biaggi and Biaggi responded that he
would rather meet the government in court than “these guys in a dark alley”
 If Biaggi once again offered the plea deal as evidence of consciousness of innocence
 Government could impeach with the dark alley comment
 As opposed to all the other specialized relevance rules, 410 bars all evidence except where specifically
permitted.
 Evidence during plea deals may not be used to impeach a defendant (cf. legislative history)
o However, 410 does permit certain statements by defendants to be used against them at later perjury
prosecutions--an exception that “may discourage defendants from being completely candid and
open during plea negotiations” (Report of House Committee on the Judiciary)
o Further, per the SC (US v Mezzanatto), prosecutors may demand as a condition of negotiations that
defendants agree that any statements they make during negotiations may be used to impeach
contradictory testimony. Circuits have extended this to prosecutor demands that the defendants
permit statements made during negotiations be used in the case-in-chief by the prosecutor (i.e., as
normal, recorded evidence).
 Reasoning for the absolute protection of 410
o Case management (compromise moves cases along)
o Criminal defendants are the legal system's most vulnerable litigants
 If the defendant unilaterally offers information without first establishing that he is seeking a concession, a
court may determine that no “plea discussions” had begun and that the defendant's statements therefore are
admissible against him

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  Defendants speak at their peril to police officers who merely appear to have authority to negotiate pleas
(Circuits are split on this)
 By its terms, defendants may offer plea evidence against the prosecutor; however, courts have generally
barred the evidence since it discourages plea bargaining by the prosecutor
 2.8: defendant offered a plea deal for 2 nd degree murder; at trial for 1 st degree, defendant offers plea offer to
show weakness of the case and consciousness of innocence
o Barred because it would be
 Irrelevant because it is not a very big reduction, and
 It would be unfairly prejudicial to the government because the prosecutor needs to move
cases along and be a good steward of taxes
o If it had been a reduction to manslaughter the case to admit would be stronger because it would
show a stronger case for consciousness of innocence and for the weakness of prosecutor’s case
( a ) P r o hi bi t e d Us e s . In a c i vi l or c r i m i n a l c a s e , e vi d e n c e o f t h e fo l lo wi n g i s n ot
a dm i s s i bl e a g a i ns t t he d e f e nda nt wh o m a d e t h e p le a or p a r t i c i p a t e d i n t h e p le a
d i s c u s s i on s :
( 1 ) a gu i lt y p le a t h a t wa s la t e r wi t h d r a wn ;
( 2 ) a n o lo c on t e n d e r e p le a ;
( 3 ) a s t a t e m e n t m a d e d u r i n g [ p le a p r o c e e d i n gs ] ; or
( 4 ) a s t a t e m e n t m a d e d u r i n g p le a [ n e g ot i a t i on s wi t h t h e p r os e c u t or ]
( b) E xc e pt i o ns . Th e c ou r t m a y a dm i t a s t a t e m e n t d e s c r i b e d i n Ru le 4 1 0 ( a ) ( 3 ) or ( 4 ) :
( 1 ) i n a n y p r oc e e d i n g i n wh i c h a n ot h e r s t a t e m e n t m a d e d u r i n g t h e s a m e p le a or
p le a d i s c u s s i on s h a s b e e n i n t r od u c e d , i f i n fa i r n e s s t h e s t a t e m e n t s ou g h t t o b e
c on s i d e r e d t o ge t h e r ; or
 I.e., if necessary to complete a partial account of plea negotiations
( 2 ) i n a c r i m i n a l p r o c e e d i n g fo r p e r j u r y or fa ls e s t a t e m e n t , i f t h e d e fe n d a n t m a d e
t h e s t a t e m e n t u n d e r oa t h , on t h e r e c or d , a n d wi t h c o u n s e l p r e s e n t .
2. Rule 411. Liability Insurance
E vi d e n c e t h a t a p e r s on wa s or w a s n ot i n s u r e d a ga i n s t li a b i li t y i s n ot a d m i s s i b le t o
p r o ve wh e t h e r t h e p e r s o n a c t e d n e g li ge n t ly o r ot h e r wi s e wr on g fu ll y. Bu t t h e c ou r t m a y
a d m i t t h i s e vi d e n c e fo r a n ot h e r p u r p os e , s u c h a s p r o vi n g a wi t n e s s ’ s b i a s or p r e j u d i c e
or p r o vi n g a g e n c y, o wn e r s h i p , or c on t r o l.
 Not Admissible to Prove:
o That the insured acted negligently
o or otherwise wrongfully
 But Admissible for Other Purposes, Such As:
o Proof of agency
o Proof of control
o Proof of ownership
o To demonstrate witness bias
 Williams v. McCoy
o Car accident case, plaintiff wanted to say she had insurance to explain why she went to an attorney
before she went to the chiropractor
o Defendant wanted the evidence excluded so he could make a stronger case that plaintiff was a profit
seeker; wanted to use the rule as a sword rather than a shield
o Rule 411 only excludes insurance evidence “as an independent fact, i.e., solely on the issue of
negligent or wrongful conduct” but not if it “is offered to achieve a collateral purpose
 2.5:
o A fell down B’s unlit stairs; B’s claims adjuster asked A in the hospital how often she had been to
B’s house: 12 times; A wants to introduce evidence that adjuster was working for B
o Excluded: it is irrelevant because it is a simple factual question
 2.6
o Doctor sued for medical malpractice; expert witness insured by same company; plaintiff wants to
bring in that they have the same insurance
o Excluded
 Evidence: contents of transcript showing they have a shared pecuniary interest in the case

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  However, because this is a big company, the individual financial motivation is small
 Tiny probative weight, but highly prejudicial against expert's testimony (and defendant's
case)
 2.7
o Defendant day care wants to show that it had insurance for employee inflicted child abuse, so it had
little reason to hide abuse that it learned of
o Purpose of the rule is to encourage getting insurance; excluding the evidence does not help us reach
our policy goal
o The defendant has a strong theory of relevance
o The government does not have a strong unfair prejudice argument

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 iv. Character Evidence
 If character is an element, then it is admissible without restriction, i.e.:
o Unclean hands defense
o Defamation suit
o Hate crime
o Negligent entrustment
o Child custody dispute (best interest of the child)
o Self-defense: character evidence of both victim (see James) and defendant
o Entrapment defense
 Advisory Committee’s Note: no problem of “general relevancy” where character is actually in issue.
 Questions to Consider Regarding Relevance/Character Evidence
o What are the legal issues and factual context?
o What is the piece of evidence in question?
o What is the evidence being offered to prove?
o Even assuming relevance and a purpose other than propensity, is the probative value outweighed by
unfair prejudice?
 One Way to Think about “Doubt”
o The “truth” of what happened, the full understanding of which may include the parties’ personal
traits, circumstances, and experiences. ≠ Legal truth, in the form of a verdict, plea, damages award,
or settlement agreement.
o If you view the trial as the process of converting “what happened” into some “legal truth,” then
you can also see that the parties largely determine how much of the former they want to spend,
and the rules of evidence serve as the rate of exchange.
1. Rule 404. Character Evidence; Crimes or Other Acts
 Character evidence is not admissible to show propensity (“act[ion] in accordance with the character or trait”).
 Exceptions:
o Pertinent character trait of the accused if the defendant opens the door (“mercy rule” for criminal
cases only)
o Pertinent character trait of the victim if the defendant opens the door (criminal cases only)
 3.15: defendant said “I wouldn’t shoot anybody” which opens her up to the prosecutor
asking her about shooting at other people, or at least saying she shot at others
o Character of a witness for truthfulness (criminal and civil cases)
 See 1930 NY case, People v. Zackowitz; basis for this rule
o DA characterizes evidence: we want to use the evidence to show that he is a person criminally
inclined
o Can't do this by 404
o Real danger of this is that the jury will think that it is more probative than it is
o Cardozo suggests another reason: unfair surprise, the case is about these events and defendant should
not have to defend other events in this trial; otherwise too general and sweeping
( a ) Ch a r a c t e r E vi d e n c e .
( 1 ) Pr o hi b i t e d Us e s . E v i d e n c e o f a p e r s on ’ s c h a r a c t e r or c h a r a c t e r t r a i t is n ot
a d m i s s i b le t o p r o ve t h a t on a p a r t i c u la r oc c a s i on t h e p e r s on a c t e d i n a c c o r d a n c e
wi t h t h e c h a r a c t e r or t r a i t .
( 2 ) E xc e pt i o ns f or a De f e nda n t or Vi c t i m i n a Cr i m i na l Ca s e . Th e fo ll o wi n g
e x c e p t i on s a p p l y i n a c r i m i n a l c a s e :
( A) a d e fe n d a n t m a y o f f e r e vi d e n c e o f t h e d e fe n d a n t ’ s p e r t i n e n t t r a it , a n d
i f t h e e vi d e n c e i s a d m i t t e d , t h e p r os e c u t or m a y o f fe r e vi d e n c e t o r e b u t
it;
 “Mercy rule”:
 Criminal defendant can put on evidence of a pertinent trait, i.e.:
o honesty in a theft case
o meekness in an assault case
o law-abiding character in any criminal case
 But there is a catch:

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 o Once the defendant offers such character evidence, the prosecution can call rebuttal witnesses or
cross examine the defendant’s character witnesses to refute the defendant’s claim of good character.
 Note:
o Prosecutor cannot open this area
o Civil litigants cannot discuss character evidence
( B ) s u b j e c t t o t h e li m i t a t i on s i n Ru le 4 1 2 , a d e fe n d a n t m a y o f fe r e vi d e n c e
o f a n a lle g e d vi c t i m ’ s p e r t i n e n t t r a it , a n d i f t h e e vi d e n c e i s a d m i t t e d , t h e
p r os e c u t or m a y:
( i ) o f fe r e vi d e n c e t o r e b u t i t ; a n d
( i i ) o ffe r e vi d e n c e o f t h e d e fe n d a n t ’ s s a m e t r a i t ; a n d
 A criminal defendant may offer evidence of a pertinent character trait of a crime victim, i.e.:
o violent disposition to demonstrate that victim was first aggressor
o reputation for violence to demonstrate that defendant made a preemptive strike in self defense
(James)
 Again, there is a catch:
o The prosecution can then call rebuttal witnesses or cross examine defense witnesses to establish that
the victim was non-violent.
o Since the 2000 Amendment to FRE 404, introducing evidence of a victim’s character also “opens
the door” to demonstrating that the defendant has that same character trait.
( C) i n a h om i c i d e c a s e , t h e p r os e c u t or m a y o f fe r e vi d e n c e o f t h e a lle g e d
vi c t i m ’ s t r a i t o f p e a c e f u ln e s s t o r e b u t e vi d e n c e t h a t t h e vi c t i m wa s t h e
fi r s t a g g r e s s or .
 If the defendant in a murder case offers evidence of any kind to establish that the victim was the first
aggressor:
o The prosecution may then offer evidence of the victim’s peaceful character.
( 3 ) E xc e pt i o ns f or a Wi t ne s s . E vi d e n c e o f a wi t n e s s ’ s c h a r a c t e r m a y b e
a d m i t t e d u n d e r Ru le s 6 0 7 , 6 0 8 , a n d 6 0 9.
 Integrity is a universal trait: a small amount of academic dishonesty, can mean you would commit tax fraud
 Once a defendant takes the stand, all character evidence of past dishonesty is fair game and so related to a
defendant's willingness to perjure himself
 Thus, keeps most criminal defendants off the stand
( b ) Cr i m e s , W r on gs , or Ot h e r Ac t s .
( 1 ) Pr o hi b i t e d Us e s . E vi d e n c e o f a c r i m e , wr on g , o r ot h e r a c t i s n ot a d m i s s i b le
t o p r o v e a p e r s on ’ s c h a r a c t e r i n or d e r t o s h o w t h a t on a p a r t i c u la r oc c a s i on t h e
p e r s on a c t e d i n a c c or d a n c e wi t h t h e c h a r a c t e r .
 This is superfluous—it is only restating (a)(1)
( 2 ) Pe r m i tt e d Us e s ; N o t i c e i n a Cr i m i na l Ca s e . T h i s e vi d e n c e m a y b e
a d m i s s i b le fo r a n ot h e r p u r p os e , s u c h a s p r o vi n g m ot i ve , op p o r t u n i t y, i n t e n t ,
p r e p a r a t i on , p la n , k n o wl e d g e , i d e n t i t y, a b s e n c e o f m i s t a k e , or la c k o f a c c i d e n t .
On r e q u e s t b y a d e fe n d a n t i n a c r i m i n a l c a s e , t h e p r os e c u t o r m u s t :
( A) p r o vi d e r e a s on a b le n ot i c e o f t h e g e n e r a l n a t u r e o f a n y s u c h e vi d e n c e
t h a t t h e p r os e c u t o r i n t e n d s t o o f fe r a t t r i a l; a n d
( B ) d o s o b e fo r e t r i a l — o r d u r i n g t r i a l i f t h e c ou r t , for g o od c a u s e ,
e x c u s e s la c k o f p r e t r i a l n ot i c e .
 Evidence of prior bad acts is not admissible to show propensity, but it may be admissible for other purposes,
such as:
o Motive: financial pressure (e.g., for defendant charged with bank robbery: information about why
they might have committed the underlying theft); retribution (a lot of kidnappings are from drug
debts); membership in gangs explain motive for a shooting; cover up; evidence of drug habits are a
big one (can lead to financial need, etc.)
 3.4: a defendant knows of his outstanding warrant, perpetrator kills officers, prosecutor can
bring in evidence of the other warrant.
o Opportunity: past crimes to show that you have knowledge to commit crime, or opportunity to
obtain materials needed for crime; hacking, bomb making, financial expertise; you were somewhere
you really shouldn't have been

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o Intent: broadest category; intent is almost always an element and is almost always proven by
circumstantial evidence; prior drug trafficking can show that the quantity of drugs you are carrying
was for distribution; claiming that you just found the item with a history of theft and trafficking in
stolen goods
o Preparation: research; trying to obtain burglary tools; usually not the most damaging, but it usually
comes in; be careful about trying to fit too much in here; make sure it shows an overarching
purpose/pattern, not a one-off; needs to look like a plan
o Plan:
o Knowledge: knowledge of how to produce meth is relevant to bringing here; this is really close to
the line, so sometimes prosecutors forego so that if it goes to appeal; also, know has to be available
to few people; safecracking is great, bomb making, etc.
 3.1: there were two hacks into the same company which bypassed the credit checks to place
a shipment order straight in the shipping department
 Defendant pled guilty to the one where he signed for one delivery, but claimed he
did not do the other
 Specialized skillset cases; knowledge; (if there was some idiosyncratic piece to
the hacking, could go to MO in addition to knowledge)
 Ask how big of a pool includes the crime we're looking at; theft is too big a pool;
hacking is much narrower; hacking into this kind of system is narrower still
 Defendant: 403 evidence; unfairly prejudicial that this is too similar
 Government: it is so probative because it is so similar
 US v. Trenkler
 Factors for:
o Two bombs; an uncommon crime
o Used donut magnets
o Remote controlled
o Used a list in obtaining supplies
o Were created for someone else
o Uniqueness of the wiring
o No one was hurt and no damage was done in the second bombing, so
bringing in both is less prejudicial
 Factors against:
o The purpose for the bombs was different
o Prejudice: if any amateur bomb maker were to make a bomb, this is how
it would be made
 Merely having been convicted of a drug offense does not mean that that defendant
forever has “knowledge” sufficient to gain admittance of his past convictions to
future drug charges
o It is too general; too much like propensity
o Identity: be careful; must be very narrow--distinctive MO
 If we know the defendant committed a particular crime in the past, and the present offense
matches that crime in some idiosyncratic ways, we may infer that the defendant committed
the present offense as well. The permitted inference is not that “this is the defendant's kind
of crime.” Rather the idea is “this could not be anyone else's crime.” The similarities
between the two crimes must be so distinctive that the inference that nobody else could
have committed this crime overcomes the jury's temptation to engage in propensity
reasoning pure and simple.
o Absence of mistake or accident: really tricky; version of unluckiest person in the world arg.; also,
doctrine of chances (what are the odds); must have a past claim against defendant
 3.11: defendant killed first wife “accidentally” while cleaning rifle; second wife killed
same way
 Evidence of previous accidental killing admitted
 Defendant should have cleaned with excruciating care
 In between the two incidents defendant should have changed behavior; claim of
accident

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  3.12: defendant beat one dog to death; now is charged with throwing a different dog into
oncoming traffic
 Previous dog should not have been admitted because:
 One was purposeful and this was at least allegedly an accident; thus runs afoul of
the propensity ban
 Rex v. Smith: three wives each died in the bathtub in turn
 Not accident because he would not have taken a chair to prevent wife from
drowning in the bathtub
 Could be that it is just propensity
 Very few cases where this kind of evidence would be admitted; is admitted here
 **Note: These are not exceptions to the prohibition on propensity evidence but examples of purposes other
than propensity, i.e., other than what is barred by (a/b)(1); the list is illustrative, not exhaustive
 Further notes on 404(b):
o Although often referred to as “prior bad act” evidence, 404(b) evidence may concern acts prior to,
contemporaneous with, or subsequent to the charged conduct.
o The purpose for which the evidence is offered need not be one of the enumerated ones, but it must
be clearly identified by the proponent.
 A common but unenumerated purpose for offering other acts evidence is narrative
integrity: the “res gestae” or “inextricably intertwined” theory of relevance.
 US v. George: Permitted testimony that the defendant could not get insurance on
his own because of three other lost boats; did not tell that he collected insurance
proceeds or other incriminating pieces
 3.10: defendant charged with possession of a particular gun; ex testifies that he
loaded the gun with one round and pointing at her, pulled the trigger a few times
o Court barred testimony that he pointed at her head
o But, in order to make her testimony that it is the same gun believable, we
need to know that her life was at risk
o “Weapon blindness:” victims often fixate on the instrument of their
deadly risk and remember the weapon much more than the bearer
 Other in class example
o Federal agent making a drug deal told to go to the defendant's trunk to
take the drugs and saw a library card
o Because of how surprised the agents were, they took note of the name on
the card
o The card was of a kidnapping victim in a completely unrelated case
o The kidnapping case permitted the account of the drug bust as
inextricably intertwined
o The prosecution must give notice of the intent to introduce other acts.
o When 404(b) evidence is introduced, the court will generally give a limiting instruction.
 403 Weighing of Evidence Otherwise Admissible Under FRE 404(b) Will Account For:
o The probative force of the evidence.
o The extent to which the point for which it is being offered is disputed.
o The adequacy of the proof of the prior act.
o The proponent’s need for the evidence: Is it cumulative?
o The availability of less prejudicial means of proof: Is a stipulation adequate?
o The prejudicial impact of the evidence: Is it inflammatory?
o The effectiveness of a limiting instruction.
o The extent to which admitting the prior acts will prolong the proceedings.
 Propensity evidence causes unfair prejudice in two ways:
o Such traits are much more memorable and would cause over weight
o Danger of punishing for other offences
o Danger through 403 (unfair prejudice vs. low probity)
 Further, the specific acts used to prove character normally are not the focus of the present case; focusing on
them could turn this dispute into a mini-trial that “could consume loads of time”
 3.3

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 o ??? Commented [KS2]: Help (2nd page of Character
 3.7 evidence)
o Evidence of illegal gambling is found at a stash house
o Four years before defendant was convicted of illegal gambling
o Pros: wants to bring in his previous conviction as identity evidence
o Defendant: this goes right through the propensity box; this is asking the jury to take propensity
evidence to evaluate against the defendant
o Propensity evidence is towards gambling, not the underlying charge of drug dealing; admissible? Commented [KS3]: Is it
 3.8
o Instead of illegal gambling evidence (3.7), the police found evidence that a bicycle racer was in the
stash house and the defendant is a racer
o Structurally it is the same problem; but the jury is not going to punish him because he is a biker
o It could be admitted because it is not an issue of character; its just a low probity piece of evidence
 3.13 ??? Commented [KS4]: Help; (3rd page of Character
2. Rule 405. Methods of Proving Character Evidence)
 Methods of proving character:
o The name someone has:
 Reputation Testimony
 Opinion Testimony
 Individual’s subjective opinion of someone else
o The person someone is:
 Specific Instances of Conduct
 On cross-examination: inquiry only
 Where character is an element: proof allowed
o The rule of how people get names for themselves is antiquated
 “The shadow people have in the neighborhood”
 Problem: our communities are dissimilar
o Why does the rule favor reputation and opinion over a catalogue of specific acts?
 Specific acts are too prejudicial
 Worried about confusing/distracting/other 403 concerns
 “Good faith” basis for inquiring into specific instances required.
o Michelson: can’t ask “a groundless question to waft an unwarranted innuendo into the jury box.”
 Inquiry must concern a trait of character about which the witness has testified.
 403 weighing still applies.
 Limiting instruction will generally be given.
 Rule 405 codifies the approach described in Michelson:
o Defendant may introduce affirmative testimony concerning the favorable “general estimate of his
character” as to a pertinent trait.
o Cross-examination as to specific acts “may take in as much ground as the testimony it is designed
to verify.”
o Note: Both opinion testimony (on direct) and “do you know” questions (on cross) are now allowed.
 Defendant’s or Victim’s Character
o 3.17: US v. James
 The evidence is being offered to show the defendant's reasonable fear; it does not lead the
jury through the propensity box; implicates defendant's propensity reasoning, but not the
jury's. You can bring in specific instances to show things that establish for the jury the
defendant's state of mind.
 Government might be able to plead unfair prejudice (403); attacks on the victim; also,
waste of time to make a mini-trial about the man
o 3.18: defendant claimed self-defense; wanted to introduce evidence that the dead victim had lots of
intoxicants some of which make a person prone to violence
 Thus, court ruled that this was not about impact of character on behavior, but of intoxicants
on behavior; thus it should have been admitted
 Government: this evidence is not very probative because it is speculative; highly unfairly
prejudicial about the victim; could have won

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 ( a ) B y Re p ut a t i on or O pi ni o n. Wh e n e vi d e n c e o f a p e r s on ’ s c h a r a c t e r o r c h a r a c t e r t r a i t
i s a d m i s si b le , i t m a y b e p r o v e d b y t e s t i m on y a b ou t t h e p e r s on ’ s r e p u t a t i on or b y
t e s t i m on y i n t h e fo r m o f a n op i n i on . On c r os s -e x a m i n a t i on o f t h e c h a r a c t e r wi t n e s s , t h e
c ou r t m a y a llo w a n i n q u i r y i n t o r e le va n t s p e c i fi c i n s t a n c e s o f t h e p e r s o n ’ s c on d u c t .
( b) B y S pe c i f i c I ns t a nc e s of Co n d uc t . Wh e n a p e r s on ’ s c h a r a c t e r or c h a r a c t e r t r a i t i s
a n e s s e n t i a l e le m e n t o f a c h a r ge , c la i m , or d e fe n s e , t h e c h a r a c t e r or t r a i t m a y a ls o b e
p r o ve d b y r e le va n t s p e c i fi c i n s t a n c e s o f t h e p e r s on ’ s c on d u c t .
 (b) causes quite a bit of confusion. Most of the time, the confusion stems from an overly broad conception
of what it means for a character trait to be “an essential element”
 Typical self-defense claim: the victims/alleged-initiator’s violent temperament is not the essential element;
rather, it is that the defendant/alleged-second-actor was reasonably in fear
 Only applies when the existence of the character trait--and not conduct in accordance with the trait--is the
thing to be proved; arises rarely; three most common instances:
o Rebutting an Entrapment Defense: the defendant claims that the government induced the defendant
to commit a crime; thus, the government may show that the defendant had a thievish disposition.
The government need not prove the defendant was acting in accordance with this disposition at the
time of the alleged offense. The existence of the predisposition is the critical thing.
o Proving or Rebutting a Defense of Truth in a Libel or Slander Action: The defendant accuses the
plaintiff of a crime; plaintiff sues for slander or libel. If the defendant claims that the accusation was
truthful, the trial will focus on whether the plaintiff is indeed a criminal. In that event the existence
of the character trait is the critical thing
o Resolving a Parental Custody Dispute: The judge must determine which of the parties is the better
parent. Here each litigant's character as a good or bad parent is the critical thing
3. Rule 406. Habit; Routine Practice
E vi d e n c e o f a p e r s on ’ s h a b i t or a n or g a n i z a t i on ’ s r ou t i n e p r a c t i c e m a y b e a d m i t t e d t o
p r o ve t h a t on a p a r t i c u la r oc c a s i on t h e p e r s on or or ga n i z a t i on a c t e d i n a c c or d a n c e wi t h
t h e h a b i t or r ou t i n e p r a c t i c e . Th e c ou r t m a y a d m i t t hi s e vi d e n c e r e ga r d le s s o f wh e t h e r
i t is c or r ob or a t e d o r wh e t h e r t h e r e wa s a n e ye w i t n e s s .
 Evidence of a habit or routine practice is admissible to prove conduct in accordance with that habit or practice
on a particular occasion.
 Habit = “regular response to a repeated specific situation”
o “semi-automatic”
o morally neutral
 Why does this not run afoul of 404(a)(1) [banning propensity evidence]? Propensity evidence has two risks
of unfair prejudice
o Overweigh evidence: However, because it is more predictive than other propensity evidence,
evidence of habit is harder to overweigh. The more predictive the evidence of other acts is, the more
probative it is of present conduct.
o Risk that the jury will punish for past (bad) acts/character: lower risk because habits are usually
innocuous; advisory committee explicitly excluded drinking as a habit in its notes for 406 because
juries might try to punish for drinking more than any other habit
 Line is at showing how regular the response is; also needs to be semi-automatic (so highly probative)
o Also, must be morally neutral: so not unfairly prejudicial
 Cannot bring in religious observances or violence or drinking (or other addiction)
 With enough regularity, even alcohol could come in.
 11th: person always drove with beer in his cooler in the back
 8th: someone 4 nights a week always had 6 beers
 GA : always drank till drunk and then smoked in bed
 Total and complete abstinence probably will come in
o 403 is still there
 Most common is organizational habit
o Mailroom receiving stamping
o Who signs off
o How does the organization operate?
 Violence does not come in ever! Because is never invariable and highly unfairly prejudicial

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  Take out this evidence by undermining invariable regularity or positing unfairness
 Rationale:
o People act in conformity with habit more predictably than they act in conformity with character.
o The jury is unlikely to overweigh habit or to punish a party for it.
 Halloran v Virginia Chemicals Inc
o “Evidence of habit or regular usage, if properly defined and therefore circumscribed, involves more
than unpatterned occasional conduct, that is, conduct however frequent yet likely to vary from time
to time depending upon the surrounding circumstances; it involves a repetitive pattern of conduct
and therefore predictable and predictive conduct.”
o 1000s of times mechanic has used this coolant coil to change out Freon; it does not have to be every
single time, but extremely high
 Weil v. Seltzer (3.19)
o Facts:
 Dr prescribed the wrong allergy medication and it killed a patient
 The victim’s estate found 8 other patients who were prescribed the same thing
o Not morally neutral; it is fatal
o Is prescribing a drug semi-automatic; way too volitional
o Need to know more about how many patients were prescribed the wrong thing: 8 is way too low; a
reasonably busy doctor has 1000s of patients over decades of practice
v. Conditional Relevance
1. Rule 104(b). Preliminary Questions
( b) Re l e va nc e T ha t De pe nds o n a F a c t . Wh e n t h e r e le v a n c e o f e vi d e n c e d e p e n d s on
wh e t h e r a fa c t e x i s t s , p r o o f m u s t b e i n t r od u c ed s u ffi c i e n t t o s u p p or t a fi n d i n g t h a t t h e
fa c t d oe s e x i s t . Th e c ou r t m a y a d m i t t h e p r op os e d e vi d e n c e on t h e c on d i ti on t h a t t h e
p r o o f b e i n t r od u c e d la t e r .
 If relevance turns on a condition of fact, the contested piece of evidence goes to the jury only if the judge
determines that:
o there is evidence sufficient to support a finding of the condition,
o which means evidence from which “the jury could reasonably find [the condition] by a
preponderance of the evidence.” (Huddleston)
 The judge does not actually decide whether the condition is established, only whether a reasonable jury could
think so.
 When comparing with 104(a), remember that the jury can only consider admissible evidence
 Would the use of a coerced confession make the fact of coercion of conditional relevance?
o No, the confession is certainly relevant to guilt or innocence.
o However, it stays out based on another rule
 “In a true conditional relevance situation, jurors are never asked to do anything counterintuitive. When they
are supposed to ignore information it is highly likely they will do so, because the information will not seem
to them to have anything to do with the case.”
b. Huddleston
 Facts and Holding
o February 1985: Defendant sells 38 black-and-white television sets.
o Charged offense
 April 1985: Defendant sells 5000 stolen Memorex videotapes. Claims he did not know the
tapes were stolen.
 May 1985: Defendant sells stolen kitchen appliances.
o The other acts are relevant on a knowledge theory, but only if the defendant knew that THOSE
items were stolen.
o Other acts come in if, given all the evidence in the case, “the jury could reasonably find the
conditional fact—here, that the televisions were stolen—by a preponderance of the evidence.”
 Unsubstantiated innuendo about some other act is insufficient, but it is not the court’s job to make the ultimate
factual determination either. Accordingly, the court decides whether there is sufficient evidence to support a
finding by the jury that the defendant committed the other act.
vi. Character for Truthfulness

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 Impeachment without Reference to Character
o Classic impeachment proceeds without reference to the rules concerning character for truthfulness.
o Not saying that the witness is a liar in general, just that her particular testimony is untrue.
o Three general methods:
 Contradiction by conflicting evidence -- highlighting internal inconsistencies in the
testimony.
 Contradiction by past inconsistent statement.
 Evidence of bias.
 Impeachment by Character for Untruthfulness
o Every witness puts truthfulness in issue (FRE 404(a)(3)).
o The credibility of a witness may be attacked by any party (FRE 607).
o FRE 608
 Character for untruthfulness may be raised by opinion or reputation evidence.
 Evidence with respect to character for truthfulness is admissible only after credibility has
been attacked.
 Specific instances of dishonest conduct may be inquired into on cross examination.
 Good faith basis for inquiry into specific acts required.
 No proof by extrinsic evidence.
 Distinguish first between mistake and mendacity
 Mistake: doubt powers of perception, memory or narrative accuracy; character evidence rules impose no
constraint on these modes of calling a witness mistaken; beware, though, because later rules such as hearsay
and expert testimony and privileges can constrain these modes of impeachment
 Non-character impeachment; typically exposes one lie at a time: [these are more successful than calling a
liar]
o Contradiction by conflicting evidence (exposes lies and mistakes)
 Get witness to wholly commit to one position and then lead the witness to contradict
himself
o Contradiction by past inconsistent statement
o Evidence of bias
o Most common; show the witness has a dog in the fight
 Cf. A Few Good Men
 Cross of a doctor who gave the victim a clean bill of health when victim died soon after
possibly from a heart problem
 (focused impeachment-you have a reason for not telling the truth right now)
o (Intrinsic evidence: in the conversation now; extrinsic evidence: outside evidence)
 Character-based impeachment:
o 607: either party may attack a witness's credibility
o 608(a):
 either party may offer evidence of a witness's character for untruthfulness;
 the opponent may then rebut with evidence of the witness's character for truthfulness;
 in either event the evidence must take the form of opinion or reputation;
 inference is that the person has a general character of truthfulness or mendacity and
therefore is now acting in conformity with that trait
 Can only offer evidence of truthfulness after the witness has been attacked for
untruthfulness
o 608(b):
 on cross-examination, a party may ask about specific instances of a witness's conduct if
they are probative of character for truthfulness or untruthfulness;
 the permitted inference is that the person's past lies are evidence of her general bad
character for truthfulness and that, in accord with her character trait, she is lying now
 Must have a good faith basis for inquiry into specific acts required
 No proof by extrinsic evidence
o 609:
 either party may seek to impeach a witness by showing her past conviction of a sufficiently
serious or deceptive crime;

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  the past crime is evidence of general immorality, so the witness could be lying now
o All character evidence must bear on a pertinent trait (per 404(a)(2)(A) and (B)).
Evidence of the character of a witness, to be pertinent, must bear on the witness's character for truth-
telling.
 608/609 constrain when and how a party may offer evidence about a witness's character for truthfulness; 2
ways in which these rules permit more liberal proof of character than the rules governing evidence of the
character of the accused (404(a)(2)(A)) and evidence of the character of a victim (404(a)(2)(B) and (C)
o 404(a) only applies to criminal cases, whereas the rules governing evidence of a witness's character
apply in both criminal and civil cases
o 404(a)(2)(A) and (B) permit only the criminal defendant to initiate the use of character evidence;
(C) and 413 and 414 608-09 permit either party to initiate an attach on a witness's character for
truthfulness
o Similar ordering principle: truthfulness must be attacked before it can be bolstered
o Similar form of proof: limited to opinion and reputation evidence except on cross
o BUT, either party may introduce the issue of character for truthfulness
 608 applies in both civil and criminal cases
 N.B. 405(a) only permits inquiry into specific instances of conduct during cross examination of the character
witness, but not during cross examination of any other person, including the person about whom the character
witness is testifying
 Two explicit limits on challenging a character witness:
o 1) the specific instance of conduct must address character for truthfulness, 2) it may not be proved
by extrinsic evidence; the lawyer must accept the witness's answer to the question, i.e., the lawyer
could not call another witness to prove that the first witness lied,
o Implicit limit: 3) the court may permit this cross-examination subject to a 403 weighing, 4) a lawyer
may only ask for specific instances if he has a good-faith basis for believing they took place, a
reasonable basis
o 611(a)(3): 5) “The court should exercise reasonable control over the mode and order of examining
witnesses…so as to…protect witnesses from harassment or undue embarrassment.”
o 609: 6) most courts do not permit a lawyer to use 608(b) as a back door through what is excluded
by 609; for example, if a lawyer tried to use an 11yr old conviction, excluded by 609(b), as a
“specific instance[] of a witness's conduct” under 608(b),many courts would exclude the evidence
 US v. Whitmore
o Defendant appealing; trying to exclude an officer’s critical testimony
o Wants to impeach
 By saying he has a character for lying
 By showing specific instances of lying
o Three people who would call witness a liar (appeals lets stand)
 District Court does not like any of the three
 Journalist: he has reported on him and interviewed a few years prior; court: too remote
 Edmunds: used to live on Soto's beat but no longer lives there; court: too remote
 Defense lawyer: court community does not think he's truthful; court: a few members of the
bar is insufficient to make a “community”
o Specific instances: (appeals directs it to be brought in)
 His car had a registration problem
 Did not report that he was driving on a suspended license
 Did not pay child support
 Court of appeals admits because witness is so central
o Lower court made a mistake and said that asking about the failure to pay or registration was
extrinsic; actually it is intrinsic as long as attorney does not try to bring in the right paperwork
 Why do we give character totally different treatment?
o These are rules of reliability; systemic thing: we rely so much on the truthfulness of witnesses
o Another assumption: that we can tell who a truthteller is
o Last: that jurors understand the difference between a defendant being a dishonest person and a
defendant committed this crime
 Committee notes: You can ask the witness if the other is the kind of person you would believe under oath

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  An example:
Plaintiff: Larken
Defendant: Parker
Plaintiff Witness: Rice
Defendant Witness: longtime coworker

1. Irrelevant; 608(a) only permits testimony about veracity, not

peacefulness (see also 404(a)(2)(A) and (a)(2)(B)
2. 608(a): Evidence of truthfulness can only be given when cross has
challenged it
3. 608(b)(2): another witness may testify about specific instances;
however, this is on direct examination, so it is inadmissible
4. 608(a): opinion and reputation testimony are both admissible
when addressing the truthfulness of a witness
5. 608(b) permits inquiry into specific instances if they are probative
of character for truthfulness; it gets in because it sets up #6;
however, it is inadmissible because it is not directly related
enough
6. Straight up 608(b)

 Tyco Lawyer Trial

o Lawyer lied to get out of jury duty, to get a driver’s license in another state (his first state’s was
revoked), and in a letter of recommendation to help his boss’s daughter get into business school
o Lying about jury duty: attorneys err by using this information to say he is more likely to have
committed the crime; could have come in to undermine honesty as a witness; “dishonest statement
to officials” (probably wouldn't allow “jury duty” because jurors did not lie to get out of)
o Driver's license: denied license had been revoked; still lying to the state; bears sufficient similarity
to lying in court
o Lied in a letter of recommendation: much vaguer; gave false witness for his boss and for benefit
1. Rule 404(a)(3). Character Evidence; Crimes or Other Acts
( 3 ) E xc e pt i o ns f o r a Wi t ne s s . E vi d e n c e o f a wi t n e s s ’ s c h a r a c t e r m a y b e a d m i t t e d u n d e r
Ru le s 6 0 7 , 6 0 8 , a n d 6 0 9 .
2. Rule 607. Who May Impeach a Witness
An y p a r t y, i n c lu d i n g t h e p a r t y t h a t c a lle d t h e wi t n e s s , m a y a t t a c k t h e wi t n e s s ’ s
c r e d i b i li t y.
3. Rule 608. A Witness
( a ) Re p ut a t i o n o r O pi ni o n E vi d e n c e . A wi t n e s s ’ s c r e d i b i li t y m a y b e a t t a c ke d or
s u p p or t e d b y t e s t i m on y a b ou t t h e wi t n e s s ’ s r e p u t a t i on fo r h a vi n g a c h a r a c t e r fo r
t r u t h fu ln e s s or u n t r u t h f u ln e s s , or b y t e s t i m on y i n t h e fo r m o f a n op i n i on a b ou t t h a t
c h a r a c t e r . Bu t e vi d e n c e o f t r u t h fu l c h a r a c t e r i s a d m i s s i b le on l y a ft e r t h e wi t n e s s ’ s
c h a r a c t e r fo r t r u t h fu ln e s s h a s b e e n a t t a c ke d .
( b) S pe c i f i c I ns t a nc e s of Co n du c t . Ex c e p t fo r a c r i m i n a l c on vi c t i on u n d e r Ru le 6 0 9 ,
e x t r i n s i c e vi d e n c e i s n ot a d m i s s i b le t o p r o ve s p e c i fi c i n s t a n c e s o f a wi t n e s s ’ s c on d u c t
i n or d e r t o a t t a c k or s u p p or t t h e wi t n e s s ’ s c h a r a c t e r fo r t r u t h fu ln e s s . Bu t t h e c ou r t m a y,
on c r os s -e x a m i n a t i on , a llo w t h e m t o b e i n q u i r e d i n t o i f t h e y a r e p r ob a t i v e o f t h e
c h a r a c t e r fo r t r u t h fu ln e s s or u n t r u t h fu ln e s s o f:
( 1 ) t h e wi t n e s s ; or
( 2 ) a n ot h e r wi t n e s s wh os e c h a r a c t e r t h e wi t n e s s b e i n g c r os s -e x a m i n e d h a s
t e s t i fi e d a b ou t .
B y t e s t i fyi n g on a n ot h e r m a t t e r , a wi t n e s s d oe s n ot wa i ve a n y p r i vi le g e a g a i n s t s e l f -
i n c r i m i n a ti on for t e s t i m on y t h a t r e la t e s on l y t o t h e wi t n e s s ’ s c h a r a c t e r for t r u t h fu ln e s s .
 Impeachment: Compare FRE 404(a)/405 & FRE 608
o Similar ordering principle:

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  Truthfulness must be attacked before it can be bolstered.
o Similar form of proof:
 Limited to opinion and reputation evidence except on cross.
o But note:
 Either party may introduce the issue of character for truthfulness.
 608 applies in both civil and criminal cases.
 Propensity review
o Cannot ever show character evidence to show anyone acted in conformity with that trait (404a)
o If you are introducing acts by a person (404b) for a different reason
 You can introduce propensity in the trick situations; when the defendant raises the mercy
rule (I do not have the character that would do this); when the victim allegedly was first
aggressor; sexual assault or molestation; habit
o Largest loophole in the propensity ban: impeachment of witnesses
 Every witness puts character for truthfulness at issue once s/he takes the stand
 Calling the witness a liar
o Juries seem really good at assessing credibility of witness (Griffin)
 Reasoning sharp cross-examination will ensure accuracy; goal of ferreting out and
preventing perjury
4. Rule 609. Impeachment by Evidence of a Criminal Conviction
( a ) I n G e ne r a l . Th e f o llo wi n g r u le s a p p l y t o a t t a c ki n g a wi t n e s s ’ s c h a r a c t e r fo r
t r u t h fu ln e s s b y e vi d e n c e o f a c r i m i n a l c on vi c t i o n :
( 1 ) fo r a c r i m e t h a t , i n t h e c on vi c t i n g j u r i s d i c tion , wa s p u n i s h a b le b y d e a t h or
b y i m p r i s on m e n t for m o r e t h a n on e ye a r , t h e e vi d e n c e :
 The crime had to have the possibility of a more than 1 year sentence, not an actual sentence of more than 1
( A) m us t be a dm i t t e d , s ubj e c t t o Rul e 4 0 3 , i n a c i vi l c a s e or i n a
c r i m i n a l c a s e i n wh i c h t h e wi t n e s s i s n ot a d e fe n d a n t ; a n d
 403 weighing is done with reference to prejudice to the defendant, not the witness
( B ) m us t be a dm i t t e d i n a c r i m i n a l c a s e i n wh i c h t h e wi t n e s s i s a
d e fe n d a n t , i f t h e pr o ba t i v e va l u e o f t h e e vi d e n c e ou t we i gh s i t s
p r e j u d i c i a l e f fe c t t o t h a t d e fe n d a n t ; a n d
 Stricter standard than 403 [how??]
o 5 Brewer factors
 1) nature of the crime
 2) the time of conviction and witness's subsequent history
 3) similarity between past and charged crimes
 4) importance of the defendant's testimony
 5) centrality of the credibility issue
 US v Paige: district judge barred admitting evidence of prior convictions because of how important the
defendant's testimony was to his defense; did not want to deter defendant from testifying for fear of being
convicted for past crimes
 Judge can limit info to jury to “felony” rather than name/type of felony; in general, the type of felony is
admitted
 Evidence that a criminal defendant has been convicted of a felony is admissible if its probative value
outweighs its [unfair] prejudicial effect.
( 2 ) fo r a n y c r i m e r e ga r d le s s o f t h e p u n i s h m e n t , t h e e vi d e n c e m us t b e a d m i t te d
i f t h e c ou r t c a n r e a di l y de t e r m i ne t h a t e s t a b li s h i n g t h e e le m e n t s o f t h e c r i m e
r e q u i r e d p r o vi n g — or t h e wi t n e s s ’ s a d m it ti ng — a d i s h on e s t a c t o r fa ls e
statement.
 Non-discretionary--no 403 weighing; perjury, false statements, fraud, embezzlement, false pretense; applies
to both felonies and misdemeanors (only part of the rule that includes misdemeanors)
 4.5 (Altobello v. Borden Confectionary Products, Inc.)
o Defendant “tampered” with the electric meters to steal electricity. Is this “deceptive” or “dishonest”?
o No, it does not have an element of deceit, so it would not be admitted
o Plaintiff:
 It is dishonest to alter it, period

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  Posner: there is only one reason to tamper with a meter: to deceive the meter reader
( b) Li m i t o n Us i ng t h e E vi de nc e Af t e r 1 0 Ye a r s . Th i s s u b d i vi s i on ( b ) a p p li e s i f m or e
t h a n 1 0 ye a r s h a ve p a s s e d s i n c e t h e wi t n e s s ’ s c on vi c t i on o r r e le a s e fr o m c on fi n e m e n t
fo r i t , wh i c h e v e r i s la t e r . E vi d e n c e o f t h e c on vi c t i on i s a d m i s s i b le on ly i f :
( 1 ) i t s p r ob a t i ve va lu e , s u p p or t e d b y s p e c i f i c fa c t s a n d c i r c u m s t a n c e s ,
s ubs t a nt i a l l y out w e i g hs i t s p r e j u di c i a l e f fe c t ; a n d
( 2 ) t h e p r op on e n t gi ve s a n a d ve r s e p a r t y r e a s on a b le wr i t t e n n ot i c e o f t h e i n t e nt
t o u s e i t s o t h a t t h e p a r t y h a s a fa i r op p or t u n i t y t o c on t e s t i t s u s e .
 Reverse 403 reasoning; establishes a rebuttable presumption against admission
( c ) Ef f e c t of a P a r d o n, Ann ul m e nt , or Ce r t i f ic a t e of Re ha bi l i t a t i on . E vi d e n c e o f a
c on vi c t i on i s n ot a d m i s s i b le i f :
( 1 ) t h e c on vi c t i on h a s b e e n t h e s u b j e c t o f a p a r d on , a n n u lm e n t , c e r t i fi c a t e o f
r e h a b i li t a t i on , or ot h e r e q u i va le n t p r o c e d u r e b a s e d on a fi n d i n g t h a t t h e p e r s on
h a s b e e n r e h a b i li t a t e d , a n d t h e p e r s on h a s n ot b e e n c on vi c t e d o f a la t e r c r i m e
p u n i s h a b le b y d e a t h or b y i m p r i s on m e n t for m or e t h a n on e ye a r ; or
( 2 ) t h e c on vi c t i on h a s b e e n t h e s u b j e c t o f a p a r d on , a n n u lm e n t , or ot h e r
e q u i va le n t p r oc e d u r e b a s e d on a fi n d i n g o f i n n o c e n c e .
 Convictions pardoned or annulled are excluded if the witness has no subsequent felony convictions.
 Convictions pardoned or annulled based on a finding of innocence are not admissible.
( d) J u ve ni l e Adj u di c a t i ons . E vi d e n c e o f a j u v e n i le a d j u d i c a t i on i s a d m i s s i b le u n d e r
t h i s r u le on ly i f :
( 1 ) i t i s o ffe r e d i n a c r i m i n a l c a s e ;
( 2 ) t h e a d j u d i c a t i on wa s o f a wi t n e s s ot h e r t h a n t h e d e fe n d a n t ;
( 3 ) a n a d u lt ’ s c on vi c t i o n for t h a t o f fe n s e w o u ld b e a d m i s s i b le t o a t t a c k t h e
a d u lt ’ s c r e d i b i li t y; a n d
( 4 ) a d m i t t i n g t h e e vi d e n c e i s n e c e s s a r y t o fa i r ly d e t e r m i n e gu i lt or i n n oc e n c e .
 Juvenile adjudications are only admissible with respect to a witness other than a criminal defendant and only
if necessary for a fair determination of guilt or innocence in a criminal case.
( e ) P e nd e n cy of a n Ap pe a l . A c on vi c t i on t h a t s a t i s fi e s t h i s r u le i s a d m i s s i b le e ve n i f
a n a p p e a l i s p e n d i n g . E v i d e n c e o f t h e p e n d e n c y i s a ls o a d m i s s i b le .
 Pendency of an appeal does not affect admissibility.
 SUMMARY
o Evidence that a witness other than a criminal defendant has been convicted of a felony is admissible
subject to Rule 403 weighing.
 403 weighing done with reference to prejudice to the defendant, not the witness.
o Evidence that a witness has been convicted of a crime that requires proof of an act of dishonesty or
a false statement is admissible.
 Crimes requiring proof of dishonesty include: perjury, false statements, fraud,
embezzlement, false pretense.
 Applies to both felonies and misdemeanors.
 NO 403 WEIGHING.
o Time limit for admissibility is 10 years from the date of conviction or release from incarceration
(whichever is later). Older convictions may be admitted if:
 Probative value substantially outweighs prejudicial effect.
 Advance notice given.
o This rule is the single greatest factor in determining whether the defendant testifies or not
 609 Tests for Admitting Prior Convictions [“Important—KNOW THIS”]
o [These functionally replace 403]
o Crimes requiring proof of (or admission to) dishonest acts or false statements shall be admitted.
o Felony convictions for witnesses other than the defendant admitted subject to 403.
o Felony convictions for a testifying defendant admitted if probative value outweighs prejudicial
effect.
o Any of the above that is more than 10 years old (counted from later of date of conviction or release
from confinement) admitted only if probative value substantially outweighs prejudicial effect, and
notice is given.

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 o Juvenile adjudications admitted only if necessary for a fair determination of guilt or innocence.
o [Don’t forget, the only place to bring in the details of prior criminal history is 404(b)]
 Weighing the Probative Value Against the Prejudice of Past Convictions
o Test from Gordon, 383 F.2d 936 (D.C. Cir. 1967):
 (1) The nature and seriousness of the prior conviction.
 (*) Focus on the probative worth of the prior conviction with respect to veracity.
 (2) How recent or remote the prior conviction is and whether the defendant has led a legally
blameless life since.
 (3) The similarity between the past crime and the charged conduct.
 (4) The importance of the defendant’s testimony.
 (5) The centrality of the credibility issue.
 [If it’s a swearing contest, it’s likely to be admitted]
o 4.4 (US v. Valencia)
 Defendant was convicted for distributing cocaine after testifying on his own behalf
 Prosecutor admitted into evidence that the defendant had a prior conviction for possession
for sale and purchase for sale of cocaine.
 Inadmissible under 404(b): not unique enough to be an MO
 Under the Gordon test, it is too similar; inadmissible
 Also, it tells us very little about the veracity of the defendant
 US v. Brewer
o Extensive criminal history and now arrested for kidnapping and grand theft
o These are all violent offenses, but have nothing to do with truthfulness, aside from historical relic
o Time factor: all are within the 10 year period from release date
o Court excludes the kidnapping conviction because it would be deadly to defendant
o Others are brought in because they are not related enough and the other convictions are brought in
 Ex. 4.3
o Defendant took the stand in 2012 on charges of grand theft
On cross, did you shoot a man in the arm in Inadmissible: no mention of a conviction; not
2006 probative enough of honesty
A witness testified that he saw the defendant 608 limits to reputation testimony; also not
shoot a man in the arm in 2006 very probative
Evidence that the defendant was convicted of Maybe; probative value of a crime many years
assault and battery with a dangerous weapon; ago is low; however, serious crime that is
served 5 years for shooting in 2006 dissimilar to current crime
On cross, did you jump a turnstile and were Probably not
sentenced to 3 months
Evidence that defendant was convicted of lying Possibly admitted
to a federal investigator; 2 years
b. Rehabilitating a witness
 If one party has:
o Offered opinion or reputation testimony of the witness's bad character for truthfulness 608a
o Elicited on cross evidence of specific acts of the witness probative of untruthful character 608b
o Offered evidence of a past conviction of the witness 609
 The other party may use 608 to rehabilitate the witness's character for truthfulness.
 Committee's Note on 608(a): evidence of bias or interest does not qualify as an attack on the witness's
character for truthfulness under 608(a)
 As soon as you impeach a witness, the other side can rehabilitate
 Most important thing is understanding whether it was character based or bias/inconsistency
o US v. Bonner: example of a bias based attack

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 Answers on pg. 309
1. No, because honesty not challenged
2. Probably not, because the witness seemed calm about
the challenge and took it as evidence of a mistake
3. Yes, the question had no bearing on the particular
testimony and was only used to try to discredit the
witness in general
4. Yes, because honesty has been challenged and specific
instance testimony can be requested on cross

c. Extrinsic Evidence
 Extrinsic evidence will not be admitted on a collateral matter
 Arises in two contexts
 In the context of Character evidence
o Litigant reaches a dead end when:
 405(a) ask witness if he has heard about a specific instance of the person (usually
defendant) of the witness's testimony
 608(b) ask for honesty of witness himself
o Extrinsic evidence that tends to prove both a collateral matter and something else may well be
admissible
 Evidence tending to show bias, prejudice, or motive to lie is not extrinsic
 In the context of contradicting specific testimony
o Counterprooof is admissible if it contradicts on a matter that counts but not otherwise
 4.8
o The defendant’s alibi witness is on the stand
o Prosecutor: didn’t you state on a bank loan application that you had no outstanding debt when you
still owed $82k in student loans? “No.” Prosecutor may not offer any further (extrinsic) evidence
without a conviction.
o Prosecutor: aren’t you in business with the defendant’s father? “No.” Prosecutor may offer extrinsic
evidence because it would be evidence of bias which is a central and not collateral issue.

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 vii. Propensity Evidence in Sexual Assault Cases
 Cover criminal cases involving charges of sexual assault or child molestation and civil cases involving claims
arising from sexual assault or child molestation.
 Make evidence of other acts of sexual assault or child molestation potentially admissible in cases of the same
type.
 Require notice to the defendant.
 Do not require that the other acts yield convictions or charges.
 Impose no time limit or “statute of limitations.”
 403 Weighing of Evidence Under 413-415
o Prejudice:
 Danger of unfair considerations
 Possibility of jury confusion
 Delay by mini-trial
o Probative Value
 Similarity of other acts and charged acts
 Closeness in time
 Frequency of other acts
 Presence or absence of intervening events
 Need for evidence beyond the testimony of defendant and victim
1. Rule 413. Similar Crimes in Sexual-Assault Cases
( a ) P e r m i t t e d Us e s . In a c r i m i n a l c a s e i n wh i c h a d e fe n d a n t i s a c c u s e d o f a s e x u a l
a s s a u lt , t h e c ou r t m a y a d m i t e vi d e n c e t h a t t h e d e fe n d a n t c om m i t t e d a n y ot h e r s e x u a l
a s s a u lt . Th e e vi d e n c e m a y b e c on s i d e r e d o n a n y m a t t e r t o wh i c h i t i s r e le v a n t .
( b) Di s c l os u r e t o t he D e f e nda nt . I f t h e p r os e c u t or i n t e n d s t o o f fe r t h i s e vi d e n c e , t h e
p r os e c u t or m u s t d i s c los e i t t o t h e d e fe n d a n t , i n c lu d i n g wi t n e s s e s ’ s t a t e m e n t s or a
s u m m a r y o f t h e e x p e c t e d t e s t i m on y. Th e p r os e c u t or m u s t d o s o a t le a s t 1 5 d a ys b e fo r e
t r i a l or a t a la t e r t i m e t h a t t h e c ou r t a llo ws fo r g o od c a u s e .
( c ) Ef f e c t on O t h e r Ru l e s . Th i s r u le d oe s n ot li m i t t h e a d m i s s i on or c o n s i d e r a t i on o f
e vi d e n c e u n d e r a n y ot h e r r u le .
( d) De f i ni t i on of “ Se xu a l As s a ul t . ” In t h i s r u le a n d Ru le 4 1 5 , “s e x u a l a s s a u lt ” m e a n s
a c r i m e u n d e r fe d e r a l la w or u n d e r s t a t e la w ( a s “s t a t e ” i s d e fi n e d i n 1 8 U. S. C. § 5 1 3 )
i n v o lvi n g :
( 1 ) a n y c on d u c t p r oh i b i t e d b y 1 8 U.S. C. c h a p t e r 1 0 9 A;
( 2 ) c on t a c t , wi t h ou t c on s e n t , b e t we e n a n y p a r t o f t h e d e fe n d a n t ’ s b od y — or a n
ob j e c t — a n d a n ot h e r p e r s on ’ s ge n i t a ls or a n u s ;
( 3 ) c on t a c t , wi t h ou t c on s e n t , b e t we e n t h e d e fe n d a n t ’ s ge n i t a ls or a n u s a n d a n y
p a r t o f a n ot h e r p e r s on ’ s b od y ;
( 4 ) d e r i vi n g s e x u a l p le a s u r e or gr a t i fi c a t i on fr om i n fli c t i n g d e a t h , b od i ly i n j u r y,
or p h ys i c a l p a i n on a n ot h e r p e r s on ; o r
( 5 ) a n a t t e m p t or c on s p i r a c y t o e n g a ge i n c on d u c t d e s c r i b e d i n s u b p a r a gr a p h s
(1)–(4).
2. Rule 414. Similar Crimes in Child Molestation Cases
( a ) P e r m i t t e d Us e s . In a c r i m i n a l c a s e i n wh i c h a d e fe n d a n t i s a c c u s e d o f c h i ld
m o le s t a t i on , t h e c ou r t m a y a d m i t e vi d e n c e t h a t t h e d e fe n d a n t c o m m i t t e d a n y ot h e r c h i ld
m o le s t a t i on . Th e e vi d e n c e m a y b e c on s i d e r e d on a n y m a t t e r t o wh i c h i t i s r e le va n t .
( b) Di s c l os u r e t o t he D e f e nda nt . I f t h e p r os e c u t or i n t e n d s t o o f fe r t h i s e vi d e n c e , t h e
p r os e c u t or m u s t d i s c los e i t t o t h e d e fe n d a n t , i n c lu d i n g wi t n e s s e s ’ s t a t e m e n t s or a
s u m m a r y o f t h e e x p e c t e d t e s t i m on y. Th e p r os e c u t or m u s t d o s o a t le a s t 1 5 d a ys b e fo r e
t r i a l or a t a la t e r t i m e t h a t t h e c ou r t a llo ws fo r g o od c a u s e .
( c ) Ef f e c t on O t h e r Ru l e s . Th i s r u le d oe s n ot li m i t t h e a d m i s s i on or c o n s i d e r a t i on o f
e vi d e n c e u n d e r a n y ot h e r r u le .
( d) De f i ni t i on of “ Chi ld” a nd “ Chi l d M ol e s t a t i on. ” In t h i s r u le a n d Ru le 4 1 5 :
( 1 ) ”c h i ld ” m e a n s a p e r s on b e lo w t h e a ge o f 1 4 ; a n d
( 2 ) ”c h i ld m o le s t a t i on ” m e a n s a c r i m e u n d e r fe d e r a l la w or u n d e r s t a t e la w ( a s
“s t a t e ” i s d e fi n e d i n 1 8 U.S .C . § 5 1 3 ) i n v o lvi n g :

28
 ( A) a n y c on d u c t p r oh i b i t e d b y 1 8 U.S .C . c h a p t e r 1 0 9 A a n d c om m i t t e d
wi t h a c h i ld ;
( B ) a n y c on d u c t p r oh i b i t e d b y 1 8 U.S. C. c h a p t e r 1 1 0 ;
( C) c on t a c t b e t we e n a n y p a r t o f t h e d e fe n d a n t ’ s b od y — or a n ob j e c t —
a n d a c h i ld ’ s g e n i t a ls or a n u s ;
( D) c on t a c t b e t we e n t h e d e fe n d a n t ’ s ge n i t a ls or a n u s a n d a n y p a r t o f a
c h i ld ’ s b od y ;
( E) d e r i vi n g s e x u a l p le a s u r e or gr a t i fi c a t i on fr o m i n fli c t i n g d e a t h , b od i ly
i n j u r y, o r p h ys i c a l p a i n on a c h i ld ; or
( F ) a n a t t e m p t or c on s p i r a c y t o e n g a ge i n c on d u c t d e s c r i b e d i n
s u b p a r a gr a p h s ( A) – ( E) .
3. Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
( a ) P e r m i t t e d Us e s . In a c i vi l c a s e i n v o lv i n g a c la i m fo r r e li e f b a s e d on a p a r t y’ s
a lle ge d s e x u a l a s s a u lt o r c h i ld m o le s t a t i on , t h e c ou r t m a y a d m i t e vi d e n c e t h a t t h e p a r t y
c om m i t t e d a n y ot h e r s e x u a l a s s a u lt o r c h i ld m o le s t a t i on . Th e e vi d e n c e m a y b e
c on s i d e r e d a s p r o vi d e d i n Ru le s 4 1 3 a n d 4 1 4 .
( b) Di s c l os ur e t o t h e O p p on e nt . I f a p a r t y i n t e n d s t o o f fe r t h i s e vi d e n c e , t h e p a r t y
m u s t d i s c los e i t t o t h e p a r t y a g a i n s t wh om i t wi ll b e o f fe r e d , i n c lu d i n g wi t n e s s e s ’
s t a t e m e n t s or a s u m m a r y o f t h e e x p e c t e d t e s t i mon y. Th e p a r t y m u s t d o s o a t le a s t 1 5
d a ys b e fo r e t r i a l or a t a la t e r t i m e t h a t t h e c ou r t a llo ws fo r g o od c a u s e .
( c ) Ef f e c t on O t h e r Ru l e s . Th i s r u le d oe s n ot li m i t t h e a d m i s s i on or c o n s i d e r a t i on o f
e vi d e n c e u n d e r a n y ot h e r r u le .

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 viii. Rape Shield Law
 Be on the look out for the intersection of 608 and 412
 A big issue is prior false accusations: Commented [KS5]: Why??
o Question whether they're false and whether they're sexual
o A complaint about an event that happened is sexual
o A completely made up account of something that never occurred is not sexual
o State v. Smith
 False accusations against cousin later recanted
 It was a question of how false and whether the victim actually recanted
 Court rules that it was straight up impeachment
 “Here, by attempting to introduce evidence that the victim had accused her cousin of
molestation and then retracted the accusation, defendant was not seeking to prove that the
victim had engaged in prior sexual behavior or that she had an unchaste character. Rather,
defendant sought to prove for impeachment purposes that the victim had, in the past, made
false allegations regarding sexual activity”
o 5.4 (State v. Alvey)
 Prior event: victim allegedly ran out of a room to a room full of her sisters and said that her
boyfriend raped her
 Sisters laughed it off because they knew that it didn’t really happen like that
 In a future case with the same victim, defendant wants to raise this issue
 Barred by 412(a)(1): it is evidence of sexual behavior, with a mix of potential
untruthfulness
o Circuits have reached no consensus about a defendant's right on cross to expose a victim's past false
complaints to demonstrate a general propensity to lie about sexual crimes. [for a variety of
approaches, see pgs. 343-344]
 Whether a defendant has a 6th right to cross his accusers about their past lies depends on
where he is an on the facts of his case. Until the SC clears this judicial thicket, the
constitutional status of defense attacks on accusers' truthful character will vary from circuit
to circuit.
1. Rule 412. Sex-Offense Cases: The Victim
( a ) P r ohi bi t e d Us e s . T h e fo llo wi n g e vi d e n c e i s n ot a d m i s s i b le i n a c i vi l or c r i m i n a l
p r oc e e d i n g i n v o lvi n g a ll e g e d s e x u a l m i s c on d u c t :
( 1 ) e vi d e n c e o f fe r e d t o p r o ve t h a t a vi c t i m e n g a ge d i n ot h e r s e x u a l b e h a vi o r ; or
( 2 ) e vi d e n c e o f fe r e d t o p r o ve a vi c t i m ’ s s e x u a l p r e d i s p os i t i on .
 Bars:
o Evidence of an alleged victim’s other sexual behavior.
 Including sexual experiences, use of contraceptives, pregnancy, abortion, sexually
transmitted diseases, posing nude, and sexual fantasies.
 Applies to both subsequent and prior behavior, but not to behavior that is
contemporaneous with or intrinsic to the incident at issue [i.e., foreplay].
o Evidence of an alleged victim’s sexual predisposition.
 Including dress, lifestyle, and some forms of speech.
 Applies in all civil and criminal cases “involving alleged sexual misconduct.”
 Although called the “rape shield,” it applies even where no sex crime is charged. (One example in the ACN
is a kidnapping case.)
 5.1 (People v. Jovanovic)
o Defendant and victim sent emails talking about sadomasochism, with the victim suggesting that she
encouraged her dominants to inflict greater pain in the sexual encounters
o Defendant on trial for rape and kidnapping
o If the emails could be regarded as foreplay, then admitted (in the case it was admitted)
o If instead, as Griffin thought, it spoke more of propensity and sexual predisposition, then it does not
say enough about what happened at the time of the sex
 How probative is what people say online they’ll be willing to do in real life?
( b) E xc e pt i o ns .

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 ( 1 ) Cr i m i na l Ca s e s . Th e c ou r t m a y a d m i t t h e fo llo wi n g e vi d e n c e i n a c r i m i n a l
case:
( A) e vi d e n c e o f s pe c i f ic i ns t a n c e s o f a vi c t im ’ s s e x u a l b e h a vi or , i f
of f e r e d t o pr o v e t ha t s o m e o ne ot he r t ha n t h e d e f e nda nt w a s t he s ou r c e
of s e m e n , i n j u r y, or ot h e r p h ys i c a l e vi de nc e ;
 5.2
o Defendant charged with rape; claimed he was not there the night of the alleged rape; fingerprints on
the victim’s bedroom bureau
o Defendant wants to bring in evidence that the defendant and the victim had consensual sex a month
prior to the alleged rape to explain the presence of the fingerprints
o A common way to permit the evidence would be to excise the testimony that it was consensual sex
and merely that he had a consensual reason to have left the fingerprint
o Purposivist would admit as “someone other than the defendant”
o Textualist would bar all-together
o Compulsory process would probably allow the evidence because without it, the trial would be
fundamentally unfair
( B ) e vi d e n c e o f s pe c i f ic i ns t a nc e s o f a vi c t i m ’ s s e x u a l b e h a vi or w i t h
r e s pe c t t o t he pe r s o n a c c us e d o f t h e s e x u a l m i s c on d u c t , i f of f e r e d b y
t h e d e fe n d a n t t o pr o ve c o ns e nt or i f o f fe r e d b y t h e p r os e c u t or ; a n d
 403 still applies
 Does not extend to evidence of a victim’s alleged sexual preference or predisposition.
 cannot talk about a third party's consensual acts with the victim
 if there is an ongoing consensual sexual relationship between defendant and victim, usually admitted
 Can exclude via 403 distraction or unfair prejudice against prosecutor by diminishing the standing of the
victim
( C) e vi d e n c e wh os e e x c lu s i on wo u ld vi o la t e t h e d e fe n d a n t ’ s
c o ns t i t ut i ona l r i gh t s .
 Confrontation Clause, Compulsory Process, or Due Process rights.
 Extends to substantive evidence and impeachment.
 Inability to impeach the witness is often sufficient to trigger the constitutional claim
 **Note: This clause is arguably superfluous, as 412 (and all the Rules of Evidence) are subordinate to the
Constitution.
 Some examples and cautions: Constitutional issues most commonly arise with regard to a Sixth Amendment
right to expose bias or a motive to fabricate charges.
 Olden extends to prototypical witness bias raised on cross examination; attacks on a witness’s general
character for credibility are outside the constitutional guarantee.
 There may also be an adequate basis to establish bias by exploring the personal relationship/friendship
without questioning on sexual history per se.
 In the Stephens case, an almost evenly divided court rejected the argument that the defendant’s right to testify
in his own defense trumped protection of the victim, but the same evidence might have come in on cross
examination of the victim if there were a claim that she had some bias against him because of the rude
remarks.
 Alternative explanations for a child victim’s sexual sophistication may also be allowed pursuant to this
exception.
 Consensual acts of prostitution may require evidence that the complainant is a prostitute, but evidence of
prostitution cannot be offered only to impugn character where consent is not in issue.
 One common argument is that complainant’s sexual history bears on defendant’s perception of consent where
a reasonable mistake as to consent provides a defense (in a jurisdiction where the substantive rape law
requires a culpable mental state).This will rarely be admitted, however, because it is generally considered
unreasonable to base consent on prior conduct with other parties. And re Knox, note that the facts didn’t
admit any possibility of mistake as to consent because the important issue was whether the victim was asleep
or awake. Of course there is no good argument that one has a constitutional right to introduce irrelevant
evidence.
( 2 ) Ci v i l Ca s e s . In a c i vi l c a s e , t h e c ou r t m a y a d m i t e vi d e n c e o f fe r e d t o p r o v e
a vi c t i m ’ s s e x u a l b e h a vi o r or s e x u a l p r e d i s p os i t i on i f i t s p r ob a t i ve v a lu e

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 s u b s t a n ti a ll y ou t we i gh s t h e d a n g e r o f h a r m t o a n y vi c t i m a n d o f u n fa i r p r e j u d i c e
t o a n y p a r t y. Th e c ou r t m a y a d m i t e vi d e n c e o f a vi c t i m ’ s r e p u t a t i on onl y i f t h e
vi c t i m h a s p la c e d i t i n c on t r o ve r s y.
 Burden on the proponent.
 Heightened reverse 403 applies. Commented [KS6]: What does this mean?
 Harm to the victim is on the scales.
 Cf. evidence of workplace conduct for a work-place sexual harassment would probably come in, but conduct
outside of work would not. Reputation can come in, but only if victim brings up first.
( c ) P r o c e du r e t o De t e r m i ne Adm i s s i bi li t y .
( 1 ) M o t i o n. I f a p a r t y i n t e n d s t o o f fe r e vi d e n c e u n d e r Ru le 4 1 2 ( b ) , t h e p a r t y
must:
( A) fi le a m ot i on t h a t s p e c i fi c a ll y d e s c r i b e s t h e e vi d e n c e a n d s t a t e s t h e
p u r p os e fo r wh i c h i t i s to b e o f fe r e d ;
( B ) d o s o a t le a s t 1 4 d a ys b e fo r e t r i a l u n le s s t h e c ou r t , fo r g o od c a u s e ,
s e t s a d i ffe r e n t t i m e ;
( C) s e r ve t h e m ot i on on a ll p a r t i e s ; a n d
( D) n ot i fy t h e vi c t i m o r , wh e n a p p r op r i a t e , t h e vi c t i m ’ s gu a r d i a n or
r e p r e s e n t a t i ve .
( 2 ) H e a r i ng . Be fo r e a d m i t ti n g e vi d e n c e u n d e r t h i s r u le , t h e c ou r t m u s t c on d u c t
a n i n c a m e r a h e a r i n g a n d gi v e t h e vi ct i m a n d p a r t i e s a r i gh t t o a t t e n d a n d b e
h e a r d . Un le s s t h e c ou r t or d e r s ot h e r wi s e , t h e m ot i on , r e la t e d m a t e r i a ls , a n d t h e
r e c or d o f t h e h e a r i n g m u s t b e a n d r e m a i n s e a le d .
 Notice in the form of a written motion at least 14 days in advance of trial.
 In camera hearing including all parties and the victim or alleged victim.
 Sealing of the motion and record of the hearing (generally, but not always, ordered).
( d) De f i ni t i on of “ Vi c t i m . ” In t h i s r u le , “ vi c t i m ” i n c lu d e s a n a lle g e d vi c t i m .

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 III. Reliability
September 29, 2016—November 17, 2016
1. Hearsay
i. Hearsay Practice
 Answers to the “Hearsay Quiz,” CB 403-406, are at CB 1081-1085.
 Suggested answers to “Defining Assertions: Problems,” CB 400-403, will be posted on Sakai after class.
 CALI exercises titled “Hearsay From Square One: The Definition of Hearsay” and “The Concept of
Hearsay” are worth doing, either now or for review.
ii. Hearsay Chart:


iii. Introduction
 Our focus here is on how do we know that the statement is true
o Fundamentally concerned with whether we have what we need to determine the statement is true
o If you feel that a statement is really true, there's probably an exception for it.
 Normal, non-hearsay evidence has four sources of unreliability:
o Ex. “I saw John pull the trigger.”
o Perception: the witness saw Tom, but thought it was John
o Memory: the witness saw and recognized Tom, but now
thinks it was John
o Narration: the witness means to say Tom, but says John.
o Sincerity: The witness means to deceive
 Hearsay is an out-of-court statement offered to prove the truth of the
matter asserted in the statement
 Hearsay Chain of Inferences
o Chain of inference:
 (1) Declarant said something >>

33
  (2) Declarant believed what he or she said >>
 (3) Declarant’s belief evidences the truth of the statement.
o Two sets of reliability risks
 (1)>>(2) (connecting statement to belief): Risk of faulty narration or insincerity
 (2)>>(3) (connecting belief to truth): Risk of faulty memory or perception
 Questions for Hearsay:
o Is it a “statement” and intended as an assertion?
o What is that statement being offered to prove?
o Ask:
 Is the party offering the statement to prove (the truth of) what it says or was meant to say?
 Does it matter whether the statement is “true”?
 Did the declarant assert--that is, did she mean to communicate--that fact?
 Do we need to enter the declarant's mind to determine its truth?
 If the answer to both questions is yes, the statement is hearsay.
 Dangers of Hearsay
o No opportunity for cross examination to expose problems of perception and memory, to
evaluate candor, to unearth bias, and to explore ambiguities.
o In the absence of viva voce testimony, the jury is not able to observe the demeanor of the
original declarant.
o The original declarant is not under oath.
o Cf. Trial of Sir Walter Raleigh
 Cautions Regarding Applying the Hearsay Rules
o Distinguish the testifying witness from the hearsay declarant.
o Refer to the “matter asserted” in the statement at issue, not the matter asserted by the proponent
of the evidence in the case.
o “Out of court” encompasses statements from trial x offered at trial y and other statements under
oath. It also refers to statements made by the testifying witness on other occasions, including in
other courtrooms.
o Victims are not parties in criminal cases.
o Judges determine fit with exemptions/exceptions under 104(a), but except with regard to
admissions, hearsay declarants must have “personal knowledge” just like witnesses, and that is a
104(b) determination.
1. Rule 802. The Rule Against Hearsay
He a r s a y i s n ot a d m i s s i b le u n le s s a n y o f t h e fo l lo wi n g p r o vi d e s ot h e r wi s e :
 a fe d e r a l s t a t u t e ;
 t h e s e r u le s ; or
 ot h e r r u le s p r e s c r i b e d b y t h e Su p r e m e C ou r t .
 Rule 805: Double Hearsay
o Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule.
2. Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
Th e fo l lo wi n g d e fi n i t i on s a p p ly u n d e r t h i s a r t i c le :
( a ) S t a t e m e nt . ” St a t e m e n t ” m e a n s a p e r s on ’ s or a l a s s e r t i on , wr i t t e n a s s e r t i on , or
n on ve r b a l c on d u c t , i f t h e p e r s on i n t e n d e d i t a s a n a s s e r t i on .
 Written, spoken, or nonverbal.
o A nonverbal statement includes any wordless behavior with communicative intent (nodding,
holding up a number of fingers, pointing).
 7.2 bringing in testimony that the defendant made the money symbol with his fingers to
show that the defendant was short on cash
 Statement must be intended as an assertion.
o Nonassertive statements include social pleasantries and reflexive reactions: “I’m fine, how are
you?”
o A question is an assertion if offered for the truth of its content: “What is your name?” if offered
to show that the speaker did not know the person’s name.

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 o Implied assertions are hearsay if offered to prove the truth of the implied assertion: “The dog
needs a bath” if offered to prove that the dog is dirty.
 Examples of state of mind testimony
o Clip of A Place in the Sun
 “I won’t leave until you promise to marry me!”
 We don’t care about whether or not she would have left without his promise
 We only care about the effect on the listener.
 Not hearsay.
o 7.5 US v. James
 Defendant recounted what the victim told her about his vicious crimes
 It was permitted to establish a self-defense theory; the evidence informs the jury about
the defendant’s state of mind
o 7.6 State v. Getz
 A had possession of B’s horses
 A asked C to help A sell the horses which he “bought” (actually stole) from B
 C wants to introduce A’s statement to show that C did not have a mens rea for selling
stolen goods
 Admitted, non-hearsay
o 7.9 Wright v. Tatham
 A captain was seen inspecting his ship and then leading his family onto it
 The ship sank and the owner wants to collect insurance proceeds over the insurance
companies claims that the ship was unseaworthy
 The witness of the captain may testify because the testimony gets us in the head of the
captain
 Admitted, non-hearsay, subject to 403 weighing
o 7.10 Amchitka Blast Site
 An expert said that the site was safe and led his family to tour it
 Testimony about the expert’s actions would be testimonial and
 Thus barred, hearsay
 The expert used his family as a means of further conveying his confidence in the safety of
the site
 Even documents signed “under the pains and penalties of perjury” are hearsay: they are out-of-court
statements made to prove the truth of the very thing to which the document testifies; it has all the dangers
of hearsay (7.1)
( b) De c l a r a nt . ” De c la r a n t ” m e a n s t h e p e r s on wh o m a d e t h e s t a t e m e n t .
 A majority of courts say that machines cannot generate hearsay: computer generated statements are not
o Nevertheless, remember that there are two levels of human statements with regard to machines
 Programmer
 Interpreter of the output
( c ) H e a r s a y . ” He a r s a y” m e a n s a s t a t e m e n t t h a t :
( 1 ) t h e d e c la r a n t d oe s n ot m a ke wh i le t e s t i fyi n g a t t h e c u r r e n t t r i a l or h e a r i n g ;
and
( 2 ) a p a r t y o f fe r s i n e vi d e n c e t o p r o v e t h e t r u th o f t h e m a t t e r a s s e r t e d i n t h e
statement.
 Out-of-court statement (“not ma[de] while testifying at the current trial or hearing”):
o By someone other than the testifying witness, or by the witness herself, if made in a setting other
than the pending court proceeding.
o Includes a statement under oath at trial x offered as evidence in trial y.
 Offered to prove the truth of the matter asserted in the statement.
 It is hearsay for a witness to recount which person in a lineup s/he identified (though there’s an exception
for it coming later)
( d) St a t e m e nt s T ha t Ar e Not H e a r s a y . A s t a t e m e n t t h a t m e e t s t h e fo llo w i n g c on d i t i on s
i s n ot h e a r s a y:
 Categories of Admissible Out-of-Court Statements
o Statements not offered for their truth:

35
  Statements offered to demonstrate their effect on the listener:
 notice, duress, reasonable fear
 Statements offered to show the speaker’s state of mind:
 knowledge, confusion
 Verbal acts:
 allegedly defamatory words, fraudulent claims
 Performative utterances:
 “I now pronounce you”; “I hereby cancel”; “The price is set at”
 Statements offered as circumstantial evidence:
 The fact that someone spoke after an accident to demonstrate that they were
alive; the fact that someone spoke in a foreign language to demonstrate
knowledge of that language. . .
o Statements “exempt” from the definition of hearsay under 801.
o Statements that fit within one of the exceptions to the hearsay prohibition under 803 (with respect
to which the availability of the declarant is immaterial).
o Statements that fit within one of the exceptions to the hearsay prohibition under 804 (applicable
only when the declarant is unavailable).
o Statements that fit under the (rarely used) residual exception in 807.
 Rule 602: Personal Knowledge
o A witness may testify to a matter only if evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter. Evidence to prove personal knowledge may
consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony
under Rule 703.
( 1 ) A De c l a r a nt - W i t ne s s ’ s Pr i o r St a t e m e nt . Th e d e c la r a n t t e s t i fi e s a n d i s
s u b j e c t t o c r os s -e x a m i n a t i on a b ou t a p r i or s t a t e m e n t , a n d t h e s t a t e m e n t :
( A) i s i n c on s i s t e n t wi t h t h e d e c la r a n t ’ s t e s ti m o n y a n d wa s gi v e n u n d e r
p e n a lt y o f p e r j u r y a t a t r i a l, h e a r i n g, or ot h e r p r o c e e d i n g or i n a
d e p os i t i on ;
 See FRE 613 below
 This part introduces substantive evidence
 Inconsistent
o Tension between prior statement and in-court testimony is sufficient
 Tension is enough; does not require flat contradiction
 A change in what you say you know now and knew before is enough
o Changes in knowledge, specificity, and memory constitute inconsistencies
 7.20 State v. Robinson
 Changes in memory is the hardest question of “inconsistent”
 Judge must determine if it is inconsistent under preponderance of the evidence
104(a)
 Faking memory loss is easily inconsistent
 Real memory loss seems could be consistent
o Tend to call it inconsistent anyways to get the evidence in, because they
do not have reliability concerns; still has the witness, even though cross
cannot be very effective
 Under oath
o Grand jury testimony qualifies
 We need a witness to cross-examine, but only a declarant from a grand jury
o But not statements to law enforcement
 Not talking about law enforcement interviews, even though the report may say under
penalty of perjury
 Subject to cross examination
o Submitting to questioning as to the circumstances under which the prior statement was made is
sufficient
 Absence of substantive responses is not sufficient to remove
o Even if the testimony is to lack of memory and is not responsive as to the content of the statement.

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 Sometimes called the prosecutor's rule and is used to address a turn-coat witness
o “Lock in” a witness: have them testify in a grand jury, before they turn, so if the witness turns,
prosecutor can bring the transcript as substantive
o You put every single witness on so that when one turns, can just bring grand jury testimony as
substantive evidence
 US v. Barrett
o Buzzy is a convicted thief testifying against Bucky for the government pursuant to a deal
 Testifying that Bucky stole stamps from a museum
o Third party Thomas Delaney allegedly said that Buzzy knew Bucky was not involved
 Eaves dropping waitress witness
o The conversation at the restaurant does not come in independently under 801(d)(1)(A)
 Can (only) be used to impeach Delaney
o Defendant needs a good faith basis to bring evidence of this conversation
 Commonwealth v. Troisi Clip
o Dispute over who paid the cab’s fare
o Cabbie says the guy paid to the investigator and in court said the girl
o Opposing party can bring in prior statement for impeachment
o Pro-party can ask for a limiting instruction
The evidence in question is the detective's statement that Raymond told him
that she saw Davis shoot

The evidence was only introduced to impeach the witness

The judge should rule for the defendant because the only evidence on which
the jury could find guilt would be the detectives statement which is not
admissible for substantive consideration.

There's no evidence, period. Defendant gets directed verdict

 Impeachment by Silence
What's wrong with looking at coconspirator: it's not during the
conspiracy…this is the moment of arrest, so not a conspiracy

Stuff said during an arrest doesn't go very far

Adoptive admission? Circumstances did not call for a response

Silence via Impeachment?

Majority (see Fletcher): rejects that an arrest implicitly induces silence

 Salinas: Salinas and the 5th are not co-extensive
o Salinas is a suspect and volunteers for an interview
o Answers questions readily for an hour until he is asked about a shotgun they have linked to him
and have taken to ballistics
o He stops talking altogether and fidgets
o He resumes answering when they turn to other questions
o Should the jury be allowed to consider the silence?
 Prosecutor uses vigorously
 Court splits three ways
 Alito: silence can be used in non-custodial pre-Miranda; could have pleaded the
5th; no compulsion
 Thomas: No compulsion here; comments about silence is not testimonial; is not
testimony

37
  Bryer: no one needs to explicitly name and claim a right for you to have a right;
circumstances made reliance on 5th implicit

( B ) i s c on s i s t e nt wi t h t h e d e c la r a n t ’ s t e s t i m on y a n d i s o f fe r e d :
( i ) t o r e b u t a n e x p r e s s or i m p li e d c h a r ge t h a t t h e d e c la r a n t
r e c e n t ly fa b r i c a t e d i t or a c t e d fr om a r e c e n t i m p r op e r i n flu e n c e
or m ot i v e i n s o t e s t i fyi n g ; or
( i i ) t o r e h a b i li t a t e t h e d e c la r a n t 's c r e d i b i li t y a s a wi t n e s s wh e n
a t t a c ke d on a n ot h e r gr o u n d ; or
 Consistent with present testimony
o Repair function.
o Trivial variations don’t matter, but it is not a vehicle for introducing new points not covered in
the testimony.
 To rebut
o Impeachment by a charge of fabrication for bias or undue influence.
o Attack can be express or implied.
o Statement offered to rebut a fabrication must have been made before the alleged motive to
fabricate arose. (Tome)
o Since 2014, exemption available if declarant’s credibility has been attacked on another ground,
including faulty memory or inconsistency.
 Subject to cross examination
o Witness must be reasonably responsive when questioned on the making of the statement.
 Tome v. US Commented [KS7]: Return to case. I’m not quite sure
o Tome is charged with abusing his 4 year old daughter how helpful my current notes are.
o Divorce 1988; father primary physical custody
o Wife has summer with girl in 1990

38
 o Girl made 7 out-of-court statements concisely: babysitter, social worker, mother, care giver,
pediatrician
 At trial, she testified very poorly (minute long pauses in court)
o Supreme Court is concerned:
 Out of court
 Consistent
 Witness is subject to cross
o What are we missing?
 The girl could just want to stay with mom and got coached
 But, generally young children have trouble maintaining a story for so long
o What is the danger of not having a pre-motive requirement?
 Reliability
 The entire emphasis of the trial could shift to out-of-court statements
 Point of the rule is to bolster a witness who has been attacked in a specific way
o The breadth of the out-of-court testimony seems quite relevant; but hearsay only cares about
reliability
o [End of the story: the Government found the repetition troubling; statements to the pediatrician
were admissible]
( C) i d e n t i fi e s a p e r s on a s s om e on e t h e d e c la r a n t p e r c e i ve d e a r li e r .
 Statement of identification
o Requires some form of “that’s the one”: line up, show up, photo array, identification from
composite sketch, voice identification.
o Think of the clip from The Wire about the witnesses who changed on the stand
o Identification is usually better before, over the in-court identification
 Subject to cross examination
o Not much more than physical presence required. (Owens)
o US v. Owens
 Victim was beaten and sustain a serious head injury
 In a moment of lucidity in the hospital, he IDd the defendant; can no longer remember
any detail other than being sure of his ID at the time
 802 is not necessarily violated on its own with traumatic memory loss
 Goal of cross is to show that the witness is not to be believed for some reason.
Highlighting a memory loss achieves at least in a small way this goal.
 If the witness says s/he doesn't remember, the person who wants the remembered info is
the one bringing the witness. Otherwise, it leaves all the power with the witness
 Constitutional requirement is an opportunity to make a cross
 The floor requirement to fit within the rule: they must remember making the earlier
identification
 A declarant can satisfy the limits of cross when the declarant…even if can no longer
recall, but floor has to remember some of the earlier circumstances of the earlier
declaration
 Brennan's Dissent:
 But it's really two different people; we need something to ensure the accuracy of
the out-of-court statement
 Quality of the ID itself is weak; we have no idea about the circumstances around
the past-ID
 So, what's a court supposed to do?
 Court must ask questions
 Preponderance of the evidence: what is the defense lawyer getting out of the
cross
 [The memory loss has a self-impeaching quality]
 Why require in court identification?
o In court is mostly useless: suggestion vs intimidation; also, peoples appearances change over time;
also, victims memory fades--durable myth that we don't forget a face
o What’s wrong with out-of-court

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  Mistakes are made in ID
 Victims see defendants in compromising/suggestive situations
 There's an inverse correlation with confidence and accuracy
 In violent crime, victims have weapon blindness; focused on weapon rather than person
bearing it
o Moderate stress has top performance
 High stress reduces performance
 Does identifying a photograph or police sketch or police computer-composite count?
o Commonwealth v. Weichell
o Defendant had a one second view of the perpetrator and created a composite image with a police
computer program and identified the finished product as the perpetrator
o Most: Generally considered this an ID for this rule
o Some courts have said they are like photographs
o Others (dissent): sketch is problematic from a reliability standpoint
o Problem is the sketch is a back and forth dialectic to build the sketch; between law enforcement
and declarant/witness
( 2 ) A n Op p o s i ng Pa r t y ’ s St a t e m e nt . Th e s t a t e m e n t i s o f fe r e d a ga i n s t a n
op p os i n g p a r t y a n d :
( A) wa s m a d e b y t h e p a r t y i n a n i n d i vi d u a l or r e p r e s e n t a t i ve c a p a c i t y;
 (A) Direct admissions
 7.11
o Plaintiff is suing for injuries sustained in a rough landing that supposedly prevented her from
working
o Plaintiff billed 104 hours a week for the six weeks following the flight
o Defendant may offer her billing hours against her as a statement that is not hearsay
( B ) i s on e t h e p a r t y m a n i fe s t e d t h a t i t a d op t e d o r b e li e ve d t o b e t r u e ;
 (B) Adoptive admissions
o Accomplished by words or conduct manifesting endorsement
o Or by silence if the circumstances warrant a response
 Did the party hear and understand the statement or accusation?
 Did anything prevent her from refuting it?
o Reasonable fear of violence?
o Some other motive to stay silent?
o Miranda: A party may adopt an admission during non-custodial interrogation and possibly
during custodial interrogation pre-Miranda warnings, but NOT during custodial interrogation
after Miranda warnings have been given.
 Did the circumstances call for a response?
 Did the party fail to respond?
 7.13 US v. Beckham (drug deal on a porch)
 7.14 Franklin v. Duncan
o Jailhouse meeting with daughter who implicated father’s guilt
o Father said that he could not talk
o By not claiming innocence, he implies that he knew and accepted his guilt
o However, he was being monitored, so he was not at liberty to speak
( C) wa s m a d e b y a p e r s o n wh om t h e p a r t y a u t h or i z e d t o m a k e a s t a t e m e n t
on t h e s u b j e c t ;
 (C) Authorized admissions
o Statements by a spokesperson on behalf of a party
o Including statements by the agent to the principal
( D) wa s m a d e b y t h e p a r t y’ s a ge n t or e m p lo ye e on a m a t t e r wi t h i n t h e
s c op e o f t h a t r e la t i on s h i p a n d wh i le i t e x i s t e d ; o r
 (D) Vicarious admissions
o Statement by an employee
o Related to a matter within the scope of employment
 Statement made by an authorized spokesperson (801(d)(2)(C)).

40
 Statement made by an agent or employee (801(d)(2)(D)):
o During the course of employment.
o About a matter within the scope of the employee’s duties.
 Advisory committee: this is a generous avenue of admissibility; employee is the best situated to provide
this information; employee is not going to be rash, because that could be a job killer
 Mahlandt v. Wild Canid Survival & Research Center
o Sophie the wolf owned by the organization cared for by the trainer bit a boy
o Both the organization and the trainer are being sued
o Three pieces of evidence used to show that it was the wolf that bit the boy
 A note the trainer gave the president of the organization
 Comes in against both
 Trainer orally told president about the biting
 Comes in against both
 Board meeting minutes where the trainer was absent
 Admissible against org as own words, not admissible against trainer because he
was not there and he's not a board member
 7.15 Pappas v. Middle Earth Condominium
o Victim slipped on ice and broke his ankle
o Victim’s friend called condominium’s number on the fridge, someone showed up shortly
thereafter with salt and a shovel and said that the day shift were supposed to do it, but left early for
the day
o Admissible against the condominium
 Example of bootstrapping: he showed up after she called, so he’s an employee even
though no one ever figured out exactly who it was
 This is certainly within the course of his duties: question: is the person supposed to know
what he's talking about
 Generally, the person does not need to be authorized to speak on the matter, though some
jurisdictions require prior authorization
( E) wa s m a d e b y t h e p a r t y’ s c o c on s p i r a t or d u r i n g a n d i n fu r t h e r a n c e o f
t h e c on s p i r a c y.
Th e s t a t e m e n t m u s t b e c on s i d e r e d b u t d oe s n ot b y i t s e lf e s t a b li s h t h e
d e c la r a n t ’ s a u t h or i t y u n d e r ( C) ; t h e e x i s t e n c e or s c op e o f t h e r e la t i on s h i p
u n d e r ( D) ; or t h e e x i s t e n c e o f t h e c on s p i r a c y o r p a r t i c i p a t i on i n it u n d e r
( E) .
 (E) Coconspirator admissions
o Statement by a coconspirator
o During the pendency of the conspiracy
o In furtherance of the conspiracy
 Statement by a coconspirator of a party
o Court evaluates these questions under 104(a), preponderance of the evidence
o Court must find that a conspiracy existed, but this finding does not turn on a formal conspiracy
charge.
o Statement must be made by a coconspirator: someone who “knew of the venture and intended to
associate with it.”
o Statement must be made during the conspiracy.
o Statement must be in furtherance of the conspiracy.
 This rule as modified makes clear that the contested statement may be used as evidence of the liability,
existence of a relationship, or existence of a conspiracy, but cannot be sufficient on its own to establish
these facts.
 Note: Confessions to police are NOT in furtherance of a conspiracy, so are not admissible under the
conspiracy exception.
 Bootstrapping works here too: person calls and defendant shows up with the money (Bourjaily v. US)
 7.16 US v. Aboumoussalem
o Federal agent exchanges a picture for a briefcase full of heroin
o N translates for courier-Y

41
 o All translations are double hearsay. Is no less admissible as long as each layer fits within the
exception
o Conversation is about the smuggling of heroin
o Issue in almost all cases is that I didn't know what was in the suitcase.
o Y allegedly made a statement that when packing the heroin it made his nose bleed
o If it were just Y who spoke in English, would be admissible because Y could defend himself.
o Second layer is N's translation, going through 801(d)(2)
 Can't be an adoptive admission because Y does not speak English
 Spokesman--straightforward argument; plausible
 Vicarious admission--still okay
 Coconspirator--strongest argument
 Court could find that a conspiracy existed
 Statement is made by a conspirator
 Is during the conspiracy
 In furtherance of the conspiracy
o Exchanging a picture for a briefcase cannot be anything but a drug deal…really!
b. Hearsay quiz
1. This is plainly an assertion; perhaps a persuasive
assertion, but an assertion nonetheless. Hearsay

2. First, without knowing more, this sounds like weak

evidence (403). Second, Laci telling them that her husband
had a boat would have been inadmissible to show that he
had bought a boat. Third, the assumption is that if she knew,
she would have said. The assumption, another way, is that
she would not keep the purchase of the boat from the two.
The evidence is to prove that she did not know.

Wait…is inaction a statement admissible in court? Not

Hearsay because nothing was communicated?

3. The prosecutor is using documents with a recipe to show

that the defendant could produce an illegal substance. The
evidence is not the contents of the document itself, but that
the defendant had it. Not hearsay.

4. The shots fired by the dying man may or may not have
been an assertion.

5. The words are intended to place a bet. The words assume

the fact the prosecutor is trying to prove, but does not intend
to assert it. (Perhaps, the speaker was trying to assert that it
was a gambling den.)

42
However, there could be a major concern that the caller was
police themselves. The statement is ripe for being an indirect
statement.

6. This is an implied assertion.

7. The speakers intent was to reassure the defendant.

It was not intended to communicate to anyone that the
defendant assisted. It is like the phrase “close the
door.” Both knew he helped.

8. These very well could have been assertions by a

suicidal man. We have to assume the fact in
contention: that he went.

43
 ANSWERS on 1031

1. Hearsay

2. Hearsay; gestures were assertions

3. Not Hearsay ONLY IF it was only offered to show

owner's belief

4. The words themselves are…I don't know…that it

said Wyoming is not used to prove what was said, but
the car's licensure. NH

5. It is a machine, which cannot make assertions. NH

44
 6. H; nonverbal account intended to communicate

7. H

8. H

9. H, offered to prove the truth of the content of the

statement

10. H

11 NH, involuntary

12 NH

13 He intended to assert the exact opposite of what

the prosecutor is using the evidence for. But, the
inferences depend on the truth of the account. H

14 H

15 NH

45
 16 H; it depends on the truth of the statement

17 NH, like “close the door” example

18 NH, did not need to tell friend he had a 45

19 If that is an unusual shelving arrangement or

sufficiently unique, NH. Also, defendant presumably
said so assuming the other knew he had been there at
some point. He did not feel the need to communicate
that part, the thing the prosecutor wanted to prove

20

c. Exceptions to Hearsay

46
 
2. Rule 613. Witness
( a ) Sh ow i ng or Di s c l os i ng t he St a t e m e nt Dur i ng E xa m i na t i o n. Wh e n e x a m i n i n g a
wi t n e s s a b ou t t h e wi t n e s s ’ s p r i or s t a t e m e n t , a p a r t y n e e d n ot s h o w i t or d i s c los e i t s
c on t e n t s t o t h e wi t n e s s . Bu t t h e p a r t y m u s t , on r e q u e s t , s h o w i t or d i s c lo s e i t s c on t e n t s
t o a n a d v e r s e p a r t y’ s a t t or n e y.
( b) E xt r i ns i c E vi d e n c e of a P r i o r I n c ons i s t e nt St a t e m e nt . Ex t r i n s i c e vi d e n c e o f a
wi t n e s s ’ s p r i or i n c on s i s t e n t s t at e m e n t i s a d m i ss i b le on l y i f t h e wi t n e s s i s gi ve n a n
op p or t u n i t y t o e x p la i n or d e n y t h e s t a t e m e n t a n d a n a d v e r s e p a r t y i s gi v e n a n
op p or t u n i t y t o e x a m i n e t h e wi t n e s s a b ou t i t , or i f j u s t i c e s o r e q u i r e s . T h i s s u b di vi s i on
( b ) d o e s n ot a p p ly t o a n op p os i n g p a r t y’ s s t a t e m e n t u n d e r R u le 8 0 1 ( d ) ( 2 ) .
a. True Exceptions
 True exceptions; despite the hearsay, it’s coming in
 Two groups:
o Apply only when unavailable (though we'd really like them to be available) (restricted exceptions)
o Other, we don't care if they're available or not (unrestricted exceptions)
3. Rule 804. Hearsay Exceptions; Declarant Unavailable
( a ) Cr i t e r i a f o r B e i ng Una va i l a bl e . A d e c la r a n t i s c on s i d e r e d t o b e u n a v a i la b le a s a
wi t n e s s i f t h e d e c la r a n t :
( 1 ) i s e x e m p t e d fr om t e s t i fyi n g a b ou t t h e s u b j e c t m a t t e r o f t h e d e c la r a n t ’ s
s t a t e m e n t b e c a u s e t h e c ou r t r u le s t h a t a p r i vi l e g e a p p li e s ;
( 2 ) r e f us e s t o t e s t i f y a b ou t t h e s u b j e c t m a t t e r d e s p i t e a c ou r t or d e r t o d o s o ;
( 3 ) t e s t i fi e s t o n ot r e m e m be r i ng t h e s u b j e c t m a t t e r ;
( 4 ) c a n n ot b e p r e s e n t or t e s t i fy a t t h e t r i a l or h e a r i n g b e c a u s e o f de a t h or a t h e n -
e x i s t i n g i n fi r m i t y, p h ys i c a l i l l ne s s , or m e n t a l i lln e s s ; or
( 5 ) i s a bs e nt f r om t h e t r i a l or h e a r i n g a n d t h e s t a t e m e n t ’ s p r op on e n t h a s n ot
b e e n a b le , b y p r oc e s s or ot h e r r e a s on a b le m e a n s , t o p r oc u r e :
( A) t h e d e c la r a n t ’ s a t te n d a n c e, i n t h e c a s e o f a h e a r s a y e x c e p t i o n
u n d e r Ru le 8 0 4 ( b ) ( 1 ) or ( 6 ) ; or
( B ) t h e d e c la r a n t ’ s a t t e n d a n c e or t e s t i m on y, i n t h e c a s e o f a h e a r s a y
e x c e p t i on u n d e r Ru le 8 0 4 ( b ) ( 2 ) , ( 3 ) , or ( 4 ) .

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 Bu t t h i s s u b d i vi s i on ( a ) d oe s n ot a p p l y i f t h e s t a t e m e n t ’ s p r op on e n t
p r oc u r e d or wr on g fu ll y c a u s e d t h e d e c la r a n t ’ s u n a v a i la b i li t y a s a wi t n e s s
i n or d e r t o p r e v e n t t h e d e c la r a n t fr om a t t e n d i n g or t e s t i fyi n g .
 ***Note that declarant is not considered unavailable if the proponent of the statement contrives
declarant’s unavailability.
 More stringent against the government than an individual, because government has many more means
( b) T he E xc e pt i o ns . Th e fo llo wi n g a r e n ot e x c l u d e d b y t h e r u le a ga i n s t h e a r s a y i f t he
de c l a r a nt i s u na va i l a bl e a s a wi t n e s s :
( 1 ) Fo r m e r Te s t i m o ny . T e s t i m on y t h a t :
( A) wa s gi ve n a s a wi t n e s s a t a t ri a l, h e a r i n g , or la w fu l d e p os i t i on ,
wh e t h e r gi v e n d u r i n g t h e c u r r e n t p r oc e e d i n g or a d i ffe r e n t on e ; a n d
( B ) i s n o w o f fe r e d a ga i n s t a p a r t y wh o h a d — or , i n a c i vi l c a s e , wh os e
p r e d e c e s s or i n i n t e r e s t h a d — a n op p or t u n i t y a n d s i m i la r m ot i ve t o
d e v e lop i t b y d i r e c t , c r o s s -, or r e d i r e c t e x a m i n a t i on .
 Testimony at a prior trial, hearing, or deposition is not excluded by the hearsay rule if:
o The declarant is unavailable.
o There was a prior opportunity for cross-examination. [CRITICAL]
 Grand Jury testimony does NOT involve cross-examination, so it CANNOT be brought
in here
 Also, the party against whom the testimony is being offered had to have had the same
motivation in crossing the witness in the prior instance (this is often what bars the
testimony)
 US v. Duenas
 Arrested on drug charges
 In a statement admitted, but then said had not gotten Miranda and voluntariness
 Officer Smith testifies in the suppression hearing, but dies between hearing and
case
 Judge admitted under 804b1
 Did defendant have same motivations at the hearing and at the trial?
o No, because the hearing was about the circumstances about the
statement; trial was about the content of the statement
 Predecessors in interest rarely, but can satisfy the same motivation requirement
o “Strong hearsay”: highly reliable hearsay; we have all of our dangers ticked off (we’re only
missing demeanor)
 ***Note the distinction between civil and criminal:
o In a criminal case, the party against whom the statement is offered must have had the
opportunity and a similar motive to develop the testimony.
o In a civil case, a predecessor in interest with similar motives suffices.
( 2 ) St a t e m e nt Und e r t he B e l i e f o f I m m i ne n t De a t h . In a p r os e c u t i on fo r
h om i c i d e or i n a c i vi l c a s e , a s t a t e m e n t t h a t t h e d e c la r a n t , wh i le b e li e vi n g t h e
d e c la r a n t ’ s d e a t h t o b e i m m i n e n t , m a d e a b ou t i t s c a u s e or c i r c u m s t a n c e s .
 Must be a prosecution for homicide or a civil case (i.e., a will dispute).
 Personal knowledge required.
 Statement must be made while declarant believed that death was imminent.
o Fear of death is not enough
o “The hush of death's impending presence”
o “Settled and hopeless expectation”
o When your words are scarce you are going to spend them well
 Statement must concern the cause or circumstances of impending death.
 Justified by:
o Reliability: Notions of spiritual and psychological pressure.
o Necessity: Exceptional need for the evidence in homicide case.
( 3 ) St a t e m e nt Ag a i ns t I nt e r e s t . A s t a t e m e n t t h a t :
( A) a r e a s on a b le p e r s on i n t h e d e c la r a n t ’ s p os i t i o n wou ld h a ve m a d e on l y
i f t h e p e r s on b e li e ve d i t t o b e t r u e b e c a u s e , wh e n m a d e , i t wa s s o

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 c o nt r a r y t o t he d e c l a r a nt ’ s p r op r i e t a r y or p e c u n i a r y i nt e r e s t or h a d s o
gr e a t a t e n d e n c y t o i n v a li d a t e t h e d e c la r a n t ’ s c la i m a ga i n s t s om e on e e ls e
or t o e x p os e t h e d e c la r a n t t o c i vi l or c r i m i n a l li a b i li t y; a n d
( B ) i s s upp or t e d by c or r o b or a t i ng c i r c um s t a n c e s t h a t c le a r l y i n d i c a t e
i t s t r u s t wor t h i n e s s , i f i t i s o f fe r e d i n a c r i m i n a l c a s e a s on e t h a t t e n d s t o
e x p os e t h e d e c la r a n t t o c r i m i n a l li a b i li t y.
 A statement contrary to pecuniary, proprietary, or penal interests is not excluded by the hearsay rule if:
o The declarant is unavailable.
o A reasonable person in the declarant’s position would not have made the statement unless
believing it to be true.
 Parse the self-inculpatory and blame-shifting parts of a statement.
o Williamsom v. US
 Is the confession truly self-inculpatory or trying to curry favor with law enforcement or
shift blame?
o 7.24
 Officer comes to the door and asks mom for son regarding an armed truck robbery
 Mom says son, did you rob that truck, don’t lie to me!
 It was Magnolia’s idea
 Both son and Magnolia are indicted for armed robbery; son pleads the 5 th; is the officer’s
recount of what the son said admissible
 If Barton is a party in the case, it’s admissible under 801. Full stop! Any party's own
admission is admissible.
 Problem is the blame shifting: you could probably get in “ask Magnolia” reveals he was
involved
 But, the whole point of the statement is blame-shifting
 So, will not come in!
 His words would not come in, but the mother or officer could come in a diluted form:
effectively acknowledged his involvement.
 Otherwise have to have two trials, because it cannot be admitted against Magnolia
 It is harder to argue something is against your interest when made to a friend or family
member
 Note that corroborating circumstances are required when statements against interest are offered in
criminal cases.
 Only question really: Would the defendant have made the statement if it had not been true?
( 4 ) St a t e m e nt o f Pe r s o na l o r Fa m i l y H i s t o r y . A s t a t e m e n t a b ou t :
( A) t h e d e c la r a n t ’ s o wn b i r t h , a d op t i on , le gi t i m a c y, a n c e s t r y, m a r r i a ge ,
d i v or c e , r e la t i on s h i p b y b lo o d , a d op t i on , or m a r r i a ge , or s i m i la r fa c t s o f
p e r s on a l or fa m i ly h i s t or y, e v e n t h ou gh t h e d e c la r a n t h a d n o wa y o f
a c q u i r i n g p e r s on a l kn o w le d ge a b ou t t h a t fa c t ; or
( B ) a n ot h e r p e r s on c on c e r n i n g a n y o f t h e s e fa c t s , a s we ll a s d e a t h , i f t h e
d e c la r a n t wa s r e la t e d t o t h e p e r s on b y b lo o d , a d op t i on , or m a r r i a g e or
wa s s o i n t i m a t e ly a s s oc i a t e d wi t h t h e p e r s on ’ s fa m i ly t h a t t h e d e c la r a n t ’ s
i n for m a t i on i s li ke l y t o b e a c c u r a t e .
( 5 ) [ Ot he r Ex c e p t i o ns . ] [ T r a n s fe r r e d t o Ru le 8 0 7 . ]
( 6 ) St a t e m e nt Of f e r e d A g a i ns t a Pa r t y T ha t W r o ng f ul l y Ca us e d t he De c l a r a nt ’ s
Una v a i l a b il it y . A s t a t e m e n t o f fe r e d a ga i n s t a p a r t y t h a t wr on g fu ll y c a u s e d — or
a c q u i e s c e d i n wr on g fu ll y c a u s i n g — t h e d e c la r a n t ’ s u n a va i la b i li t y a s a wi t n e s s ,
a n d d i d s o i n t e n d i n g t h a t r e s u lt .
1. Rule 803. Exceptions to the Rule Against Hearsay
Th e fo llo wi n g a r e n ot e x c lu d e d b y t h e r u le a ga i n s t h e a r s a y, r e g a r d le s s o f wh e t h e r t h e
d e c la r a n t i s a v a i la b le a s a wi t n e s s :
( 1 ) Pr e s e nt S e ns e I m p r e s s i o n. A s t a t e m e n t de s c r i b i n g or e x p la i n i n g a n e ve n t or
c on d i t i on , m a d e wh i le o r i m m e d i a t e l y a ft e r t h e d e c la r a n t p e r c e i ve d i t .
 Requires:
o Description or explanation of an event or condition.

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 o While the declarant is perceiving the event or condition or immediately thereafter.
o By a declarant who perceived (generally saw or heard) the event or condition.
 Justified by immediacy:
o No risk of memory failure.
o Minimal possibility of deception.
 Only part admitted is the description of the event right then
 Only risk: misperception (because of excitement)
( 2 ) Ex c i t e d Ut t e r a n c e . A s t a t e m e n t r e la t i n g t o a s t a r t li n g e ve n t or c on d i t i on , m a d e
wh i le t h e d e c la r a n t wa s u n d e r t h e s t r e s s o f e x c i t e m e n t t h a t i t c a u s e d .
 Requires:
o External stimulus.
o Excited reaction (determined by a subjective test).
o A statement “relating to” the stimulus.
 Justified by:
o Reliability: Memory is fresh and excitement minimizes reflection and fabrication.
o Necessity: Reluctance to silence a victim’s cries.
 The statement itself can evidence the level of excitement
 Test: subjective with objective assumptions (everybody would be objectively excited and some witness are
more excited than others for longer or shorter) Victim will be excited for longer than a bystander
 A victim is not usually going to remain excited after more than a few minutes to a half hour
o However, as always, the witness may only testify to things that s/he could actually know
o Cf. Dog Mauling where the witness was behind a door and only heard screaming, which she could
only presume came from one person versus another
 Intervening conversations usually break the excitement-chain
 There is often overlap between present sense impression and excited utterance
 7.32 Commonwealth v. Puleio Commented [KS8]: Balancing question
o Witness heard a gunshot, after someone ran in and asked, she called an ambulance and then went
outside, shouted asking who fired the shot, and heard B respond with the defendant’s name
o Double hearsay: was the witness excited, was B excited
o We know nothing about Eaton's state of mind, though there was a shot fired immediately before.
Objective assumption about the objectively exciting thing of someone shooting another person.
o We don't know whether she had personal knowledge though.
( 3 ) Th e n- Ex i s t i ng M e n t a l , Em ot i o na l , o r Ph y s i c a l Co nd i t i o n. A s t a t e m e n t o f t h e
d e c la r a n t ’ s t h e n -e x i s t i ng s t a t e o f m i n d ( s u c h a s m ot i ve , i n t e n t , or p la n ) or e m ot i on a l,
s e n s or y, or p h ys i c a l c on d i ti on ( s u c h a s m e n t a l f e e li n g, p a i n , or b od i ly h e a lt h ) , b u t n ot
i n c lu d i n g a s t a t e m e n t o f m e m or y o r b e li e f t o p r o ve t h e fa c t r e m e m b e r e d or b e li e ve d
u n le s s i t r e la t e s t o t h e v a li d i t y o r t e r m s o f t h e d e c la r a n t ’ s wi ll.
 Requires:
o A statement of intention, emotion, sensation, or physical condition.
o Forward-looking (with the exception of wills cases).
o Offered to prove only the declarant’s future conduct (limitation on Hillmon).
 Justified by:
o Minimal possibility of misperceiving your own state of mind.
o Only present conditions allowed, so no memory problem.
o Necessity.
o (Juries know that intentions are not always actualized)
 Only talking about present conditions, because there is no better way of getting this information
 Acceptable Hillmon Chain of Inference
o Walters’ letters state his intention to go away with Hillmon>>
o Walters did intend to go away with Hillmon>>
o Walters in fact went away with Hillmon
o We only admit forward looking intentions
 Unacceptable Shephard Chain of Inference
o Mrs. Shepard said that Dr. Shepard poisoned her>>
o Mrs. Shepard thought that Dr. Shepard had poisoned her.>>

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 o Dr. Shepard actually poisoned her.
o This is a backward looking intention.
 7.33 US v. Pheaster
o Victim says that he's going to pick up free marijuana from Z
o Can admit testimony to show that he was intending to go to the parking lot
o Can admit that he was coming right back to show that he was not intending to disappear
o Inadmissible to show Z’s intention to be in the parking lot
( 4 ) St a t e m ent M a d e f o r M e d i c a l Di a g no s i s o r T r e a t m e nt . A s t a t e m e n t t h a t :
( A) i s m a d e fo r — a n d i s r e a s on a b l y p e r t i n e n t t o — m e d i c a l d i a gn os i s or
treatment; and
( B ) d e s c r i b e s m e d i c a l h i s t or y; p a s t or p r e s e n t s ym p t o m s or s e n s a t i on s ; t h e i r
i n c e p t i on ; or t h e i r ge n e r a l c a u s e .
 Made for purposes of:
o Diagnosis or
o Treatment.
 Describing:
o Medical history.
o Symptoms.
o Present pain or sensation (may fit under 803(3) as well).
o Cause of the injury or condition only if necessary for diagnosis or treatment.
 Only admissible if knowing the cause is essential for diagnosis or treatment
 ID attacker or assailant is tricky
 Domestic violence: in contemporary situation, it is job of doctor to remove patient from
the damaging situation which requires knowledge of who the abuser is (often mandatory
reporter)
 Sexual assault: possible exposure to STD
 Very difficult part of the exception
 Not only to physicians
o Can even be family members; a parent's only goal is going to be the health of their child
 7.37 Husband victim of arsenic poisoning from a deranged worker at Downtown Deli Commented [KS9]: Would the testimony saying where
told wife who told a nurse; all admitted it came from come in?
o Can include statements between care-givers
 7.37 However, doctor announcing the diagnosis to the wife is not admissible because it
was not made in order to assist diagnosis or treatment
 7.34 Elder Abuse
o Elder said caretaker pushed him and he had fallen and hit his head
o Told lawyer and doctor
o Lawyer: inadmissible because it would have been a past statement (unless he told his lawyer in
order to get care, or if it were an excited utterance)
o Doctor regarding the injury: textbook admissible
o Doctor regarding the injurer: inadmissible as irrelevant to diagnosis; might be able to admit since
the injurer was his caretaker
o Identity of the assailant often come in for caretaker inflicted injuries (though courts are split) (7.35
State v. Reidhead)
 US v. Iron Shell
o 9 year-old girl attempted rape victim
o A lot is admissible; it is hard for younger children to maintain a false story
o We get a test: “A two-part test flows naturally from this dual rationale: first, is the declarant’s
motive consistent with the purpose of the rule; and second, is it reasonable for the physician to
rely on the information in diagnosis or treatment.”
( 5 ) R e c o r d e d Re c o l l e c t io n. A r e c o r d t h a t :
( A) i s on a m a t t e r t h e wi t n e s s on c e kn e w a b o u t b u t n o w c a n n ot r e c a ll we ll
e n ou gh t o t e s t i fy fu ll y a n d a c c u r a t e ly;
( B ) wa s m a d e o r a d op t e d b y t h e wi t n e s s wh e n t h e m a t t e r wa s fr e s h i n t h e
wi t n e s s ’ s m e m or y ; a n d

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 ( C) a c c u r a t e l y r e f le c t s t h e wi t n e s s ’ s kn o wle d g e .
I f a d m i t t e d , t h e r e c or d m a y b e r e a d i n t o e vi d e n c e b u t m a y b e r e c e i v e d a s a n
e x h i b i t on ly i f o f fe r e d b y a n a d ve r s e p a r t y.
 Requires:
o Firsthand knowledge by the witness.
o A statement written or adopted by the witness at or near the time of the event described.
o Testimony as to the witness’ lack of present recollection.
o Confirmation by the witness that the record is accurate.
 Contemporaneous confirmation of accuracy
 Permits:
o Reading the statement to the jury.
o But not admitting it as an exhibit.
 See also 801(b)(1)(C) Owen on Confrontation requirements
o Johnson v. State:
 1998 Texas murder case
 The witness will not verify the accuracy of the previous statement, which precludes the
statement from evidence
 In order to bring in a prior, consistent statement, the witness must at least say
that he remembers telling the truth when he spoke last (witness is using a
loophole)
 The end of the document has a boilerplate self-verification of the statement, but it is
useless
 What else could the prosecutor could have done?
 Locked-him-in at the grand jury stage
 804b1: call him unavailable, can bring in whatever he said (as long as similar
prior motive to cross)
 See also FRE 612: “past recollection recorded” vs “present recollection refreshed”
( 6 ) R e c o r d s o f a R e g ul a r l y Co nd u c t e d Ac t i v i t y . A r e c or d o f a n a c t , e v e n t , c on d i t i on ,
op i n i on , or d i a gn os i s i f:
( A) t h e r e c or d wa s m a d e a t or n e a r t h e t i m e b y — or fr om i n fo r m a t i on
t r a n s m i tt e d b y — s om e o n e wi t h kn o wle d ge ;
( B ) t h e r e c or d wa s ke p t i n t h e c ou r s e o f a r e g u la r ly c on d u c t e d a c t i vi ty o f a
b u s i n e s s , or ga n i z a t i on , oc c u p a t i on , or c a lli n g, wh e t h e r or n ot fo r p r o fi t ;
( C) m a ki n g t h e r e c or d w a s a r e gu la r p r a c t i c e o f t h a t a c t i vi t y;
( D) a ll t h e s e c on d i t i on s a r e s h o wn b y t h e t e s t i m on y o f t h e c u s t od i a n o r a n ot h e r
q u a li fi e d wi t n e s s , or b y a c e r t i fi c a t i on t h a t c om p li e s wi t h Ru le 9 0 2 ( 1 1 ) or ( 1 2 )
or wi t h a s t a t u t e p e r m i t t i n g c e r t i fi c a t i on ; a n d
( E) t h e op p on e n t d o e s n ot s h o w t h a t t h e s ou r c e o f i n fo r m a t i on or t h e m e t h od or
c i r c u m s t a n c e s o f p r e p a r a t i on i n d i c a t e a la c k o f t r u s t wor t h i n e s s .
 Requires:
o Record of a business (broadly defined).
 However, is the point of the report was litigating or railroading? (Palmer v. Hoffman)
o Regularly maintained.
o Made promptly after the events described.
o Made by a person with knowledge or based on information transmitted by a person with
knowledge.
o Supported by testimony or certification by a records custodian.
 Does not apply if source, method, or circumstances call trustworthiness into question. [Safety valve
exception to the exception]
 Usually comes in by stipulation and rarely requires cross
 Police reports do NOT come in here
( 7 ) Ab s e nc e o f a R e c o r d o f a Re g ul a r l y Co nd u c t e d A c t i v i t y . E vi d e n c e t h a t a m a t t e r i s
n ot i n c lu d e d i n a r e c or d d e s c r i b e d i n p a r a gr a p h ( 6 ) i f:
( A) t h e e vi d e n c e i s a d m i t t e d t o p r o v e t h a t t h e m a t t e r d i d n ot oc c u r or e x i s t ;
( B ) a r e c o r d wa s r e gu la r ly k e p t fo r a m a t t e r o f t h a t ki n d ; a n d

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 ( C) t h e op p on e n t d o e s n ot s h o w t h a t t h e p os s i b le s ou r c e o f t h e
i n for m a t i on o r ot h e r c i r c u m s t a n c e s i n d i c a t e a la c k o f t r u s t wo r t h i n e s s .
( 8 ) Pub l i c Re c o r d s . A r e c or d or s t a t e m e n t o f a p u b li c o f fi c e i f:
( A) i t s e t s ou t :
( i ) t h e o f fi c e ’ s a c t i vi t i e s;
( i i ) a m a t t e r ob s e r ve d wh i le u n d e r a le g a l d u t y t o r e p o r t , b u t n o t
i n c lu d i n g, i n a c r i m i n a l c a s e , a m a t t e r ob s e r v e d b y la w -e n fo r c e m e n t
p e r s on n e l; or
( i i i ) i n a c i vi l c a s e or a g a i n s t t h e go ve r n m e n t i n a c r i m i n a l c a s e , fa c t u a l
fi n d i n gs fr om a le ga ll y a u t h or i ze d i n ve s t i ga t i on ; a n d
( B ) t h e op p on e n t d oe s n ot show that t h e s ou r c e of
i n for m a t i on o r ot h e r c i r c u m s t a n c e s i n d i c a t e a la c k o f t r u s t wor t h i n e s s .
 Encompasses records of public offices or agencies:
o (A) Setting forth the activities of the office or agency.
o (B) Setting forth matters observed and reported according to a legal duty (excluding police
reports in criminal cases).
o (C) Setting forth factual findings resulting from an official investigation (in civil cases and
against the government in criminal cases).
 Does not apply if sources of information or other circumstances call trustworthiness into question.
o With so many similar transactions, no one is ever going to remember any one in particular
 Be careful of factual findings versus opinions
o Evaluative reports are most tricky
o Beech Aircraft Corporation. v. Rainey
 Crash of a navy aircraft pilot
 Pilot error or products liability case
 Report in issues is a JAG report
 JAG has some facts and some conclusions, one of which is that, although not conclusive,
the most probable cause is pilot error
 Legislative history:
 House judiciary committee: never
 Senate: of course it should be admitted
 Court: admissible, unless there are significant negative factors
 Factors: timing; official who is preparing; hearings and at what level; contrary
facts; motivations in accident (basically same question is it “railroading”
 Thus, fine to include as a public record
 Police reports are usually only admissible against the government (and don’t try to sneak them in under
803(6))
 US v. Hayes
o IRS tax examiners report
o Distinction between chemist report type doc and examiner doc
o The same confrontation rights are not worried about
o The question here is whether or not someone filed a tax return
 Fits more squarely within the business exception
 It is resistant to distortion in a way that an investigatory report is not
 US v. Weiland
o Penitentiary packet: like med charts
o Question is: is this routine and non-adversarial?
o Fingerprints and photographs are resistant to distortion in the same way
( 9 ) Pub l i c R e c o r d s o f Vi t a l St a t i s ti c s . A r e c o r d o f a b i r t h , d e a t h , o r m a r r i a g e , i f
r e p o r t e d t o a p u b li c o f fi c e i n a c c o r d a n c e wi t h a le ga l d u t y.
( 1 0 ) Ab s e nc e o f a P ub l i c R e c o r d . T e s t i m on y — or a c e r t i fi c a t i on u n d e r Ru le 9 0 2 —
t h a t a d i li g e n t s e a r c h fa i le d t o d i s c los e a p u b li c r e c or d or s t a t e m e n t i f:
( A) t h e t e s t i m on y or c e r t i fi c a t i on i s a d m i t t e d t o p r o ve t h a t
t h e r e c or d or s t a t e m e n t d oe s n ot e x i s t ; or

53
 a m a t t e r d i d n ot oc c u r or e x i s t , i f a p u b li c o f f i c e r e gu la r l y k e p t a r e c or d or
s t a t e m e n t for a m a t t e r o f t h a t ki n d ; a n d
( B ) i n a c r i m i n a l c a s e , a p r os e c u t or wh o i n t e n d s t o o f fe r a c e r t i fi c a t i on p r o vi d e s
wr i t t e n n ot i c e o f t h a t i n te n t a t le a s t 1 4 d a ys b e fo r e t r i a l, a n d t h e d e fe n d a n t d oe s
n ot ob j e c t i n wr i t i n g wi t h i n 7 d a ys o f r e c e i vi n g t h e n ot i c e — u n le s s t h e c ou r t
s e t s a d i ffe r e n t t i m e fo r t h e n ot i c e or t h e ob j e c t i on .
( 1 1 ) R e c o r d s o f Re l i g i o us Or g a ni z a t i o ns Co nc e r ni ng Pe r s o na l o r Fa m il y H i st o r y . A
s t a t e m e n t o f b i r t h , le gi t im a c y, a n c e s t r y, m a r r i a g e , d i v or c e , d e a t h , r e la t i o n s h i p b y b lo od
or m a r r i a g e , or s i m i la r f a c t s o f p e r s on a l or fa m i ly h i s t or y, c on t a i n e d i n a r e gu la r l y k e p t
r e c or d o f a r e li gi ou s or g a n i z a t i on .
( 1 2 ) C e r t i f i c a t e s o f M a rr i a g e , Ba p t i s m , a nd Sim il a r Ce r e m o ni e s . A s t a t e m e n t o f fa c t
c on t a i n e d i n a c e r t i fi c a t e :
( A) m a d e b y a p e r s on w h o i s a u t h or i z e d b y a r e l i gi ou s or ga n i z a t i on or b y la w t o
p e r fo r m t h e a c t c e r t i fi e d ;
( B ) at t e st i n g t h a t t h e p e r s on p e r fo r m e d a m a r r i a ge or s i m i la r c e r e m on y or
administered a sacrament; and
( C) p u r p or t i n g t o h a ve b e e n i s s u e d a t t h e t i m e o f t h e a c t or wi t h i n a r e a s o n a b le
t i m e a ft e r i t .
( 1 3 ) Fa m i l y Re c o r d s . A s t a t e m e n t o f fa c t a b ou t p e r s on a l o r fa m i ly h i s t o r y c on t a i n e d i n
a fa m i ly r e c or d , s u c h a s a Bi b le , ge n e a lo g y, ch a r t , e n gr a vi n g on a r i n g, i n s c r i p ti on on
a p or t r a i t , or e n gr a vi n g on a n u r n or b u r i a l m ar k e r .
( 1 4 ) R e c o r d s o f Do c um e nt s T ha t Af f e c t a n I nt e r e s t i n Pr o p e r t y . Th e r e c or d o f a
d oc u m e n t t h a t p u r p or t s t o e s t a b li s h or a f fe c t an i n t e r e s t i n p r op e r t y i f :
( A) t h e r e c or d i s a d m i t t e d t o p r o ve t h e c on t e n t o f t h e o r i gi n a l r e c or d e d
d oc u m e n t , a lo n g wi t h i t s s i gn i n g a n d i t s d e li v e r y b y e a c h p e r s on wh o p u r p or t s
t o h a ve s i gn e d i t ;
( B ) t h e r e c or d i s ke p t i n a p u b li c o f fi c e ; a n d
( C) a s t a t u t e a u t h or i z e s r e c or d i n g d o c u m e n t s o f t h a t ki n d i n t h a t o ffi c e .
( 1 5 ) St a t e m e nt s i n Do c um e nt s Tha t Af f e c t a n I nt e r e s t i n Pr o p e r t y . A s t a t e m e n t
c on t a i n e d i n a d o c u m e n t t h a t p u r p or t s t o e s t a b li s h or a f fe c t a n i n t e r e s t i n p r op e r t y i f
t h e m a t t e r s t a t e d wa s r e le va n t t o t h e d oc u m e n t ’ s p u r p os e — u n le s s la t e r d e a li n gs wi t h
t h e p r op e r t y a r e i n c on s i s t e n t wi t h t h e t r ut h o f t h e s t a t e m e n t or t h e pu r p or t o f t h e
d oc u m e n t .
( 1 6 ) St a t e m e nt s i n An c i e nt Do c um e nt s . A s t at e m e n t i n a d oc u m e n t t h a t i s a t le a s t 2 0
ye a r s o ld a n d wh os e a u t h e n t i c i t y i s e s t a b li s h e d .
 Dallas County v. Commercial Union Assurance Co.
o Courthouse fire; question whether there Commented [KS10]: Whether what?
o Evidence is a 58 year old newspaper article reporting a fire in the dome of the courthouse tower
o Is not an ancient document Commented [KS11]: What? It seems precisely like an
o But, there is nothing else that seems to answer this question ancient document.
 Necessity does not mean impossibility
 Cited: Learned Hand, 2nd circuit: “I think it fair to insist that to reject such a statement is
to refuse evidence about the truth of which no reasonable person should have any doubt
whatever, because it fulfills both the requisites of an exception to the hearsay rule,
necessity and circumstantial guaranty of trustworthiness.”
( 1 7 ) M a r k e t R e p o r t s a n d Si m il a r Co m m e r ci a l P ub l i c a t i o ns . M a r ke t q u ot a t i on s , li s t s ,
d i r e c t or i e s , or ot h e r c o m p i la t i on s t h a t a r e ge n e r a ll y r e li e d on b y t h e p u b li c or b y
p e r s on s i n p a r t i c u la r oc c u p a t i on s .
( 1 8 ) St a t e m e nt s i n Le a r ne d Tr e a t i s e s , Pe r i o d i c a l s , o r Pa m p hl e t s . A s t a t e m e n t
c on t a i n e d i n a t r e a t i s e , p e r i od i c a l, or p a m p h le t i f:
( A) t h e s t a t e m e n t i s c a lle d t o t h e a t t e n t i on o f a n e x p e r t wi t n e s s on c r os s -
e x a m i n a t i on or r e li e d on b y t h e e x p e r t on d i r e c t e x a m i n a t i on ; a n d
( B ) t h e p u b li c a t i on i s e s t a b li s h e d a s a r e li a b le a u t h or i t y b y t h e e x p e r t ’ s
a d m i s s i on or t e s t i m on y, b y a n ot h e r e x p e r t ’ s t e s t im on y, or b y j u d i c i a l n ot i c e .
I f a d m i t t e d , t h e s t a t e me n t m a y b e r e a d i n t o e vi d e n c e b u t n ot r e c e i v e d a s a n
exhibit.

54
 ( 1 9 ) R e p ut a t i o n Co nc e r ni ng Pe r s o na l o r Fa m il y H i st o r y . A r e p u t a t i on a m on g a
p e r s on ’ s fa m i ly b y b lo o d , a d op t i on , or m a r r i a ge — or a m on g a p e r s on ’ s a s s oc i a t e s or
i n t h e c om m u n i t y — c on c e r n i n g t h e p e r s on ’ s b i r t h , a d op t i on , le gi t i m a c y, a n c e s t r y,
m a r r i a g e , d i v or c e , d e a t h , r e la t i on s h i p b y b lo o d , a d op t i on , or m a r r i a ge , o r s i m i la r fa c t s
o f p e r s on a l o r fa m i ly h i s t or y.
( 2 0 ) R e p ut a t i o n Co nc e r ni ng Bo und a r i e s o r Ge ne r a l H i s t o r y . A r e p u t a t i on i n a
c om m u n i t y — a r i s i n g b e fo r e t h e c on t r o ve r s y — c on c e r n i n g b ou n d a r i e s o f la n d i n t h e
c om m u n i t y or c u s t om s t h a t a ffe c t t h e la n d , or c on c e r n i n g ge n e r a l h i s t or i c a l e ve n t s
i m p or t a n t t o t h a t c om m u n i t y, s t a t e , or n a t i on .
( 2 1 ) R e p ut a t i o n Co n c e r ni ng C ha r a c t e r . A r e p u t a t i on a m on g a p e r s on ’ s a s s oc i a t e s or i n
t h e c om m u n i t y c on c e r n i n g t h e p e r s on ’ s c h a r a c t e r .
( 2 2 ) J ud g m e nt o f a Pr e v i o us Co n v i c t i o n . E vi d e n c e o f a fi n a l j u d gm e n t o f c on vi c t i on
i f:
( A) t h e j u d gm e n t wa s e n t e r e d a ft e r a t r i a l o r gu i lt y p le a , b u t n ot a n o lo
c on t e n d e r e p le a ;
( B ) t h e c on vi c t i on wa s for a c r i m e p u n i s h a b le b y d e a t h or b y i m p r i s on m e n t for
m or e t h a n a ye a r ;
( C) t h e e vi d e n c e i s a d m i t t e d t o p r o v e a n y fa c t e s s e n t i a l t o t h e j u d gm e n t ; a n d
( D) wh e n o f fe r e d b y t h e p r os e c u t or i n a c r i m i n a l c a s e fo r a p u r p os e ot h e r t h a n
i m p e a c h m e n t , t h e j u d g m e n t wa s a ga i n s t t h e d e fe n d a n t .
Th e p e n d e n c y o f a n a p p e a l m a y b e s h o wn b u t d o e s n ot a f fe c t a d m i s s i b i li t y.
( 2 3 ) J ud g m e nt s I n v o l v i ng P e r s o na l , Fa m i l y , o r Ge ne r a l H i s t o r y , o r a Bo u nd a r y . A
j u d gm e n t t h a t i s a d m i t t ed t o p r o v e a m a t t e r o f p e r s on a l, fa m i ly, or ge n e r a l h i s t or y, or
b ou n d a r i e s , i f t h e m a t t e r :
( A) wa s e s s e n t i a l t o t h e j u d gm e n t ; a n d
( B ) cou ld b e p r o ve d b y e vi d e n c e o f r e p u t a t i on .
( 2 4 ) [ Ot he r Ex c e p t i o ns . ] [ Tr a n s fe r r e d t o Ru le 8 0 7 .]
2. Rule 807. Residual Exception
( a ) I n G e ne r a l . Un d e r t h e fo l lo wi n g c i r c u m s t an c e s , a h e a r s a y s t a t e m e n t i s n ot e x c lu d e d
b y t h e r u le a g a i n s t h e a r s a y e v e n i f t h e s t a t e m e n t i s n ot s p e c i fi c a ll y c o v e r e d b y a h e a r s a y
e x c e p t i on i n Ru le 8 0 3 o r 8 0 4 :
( 1 ) t h e s t a t e m e n t h a s e q u i va le n t c i r c u m s t a n t i a l gu a r a n t e e s o f t r u s t wo r t h i n e s s ;
( 2 ) i t i s o ffe r e d a s e vi d e n c e o f a m a t e r i a l fa c t ;
( 3 ) i t is m or e p r ob a t i v e on t h e p oi n t for wh i c h i t i s o ffe r e d t h a n a n y ot h e r
e vi d e n c e t h a t t h e p r op on e n t c a n ob t a i n t h r ou gh r e a s on a b le e f fo r t s ; a n d
( 4 ) a d m i t t i n g i t wi ll b e s t s e r ve t h e p u r p os e s o f t h e s e r u le s a n d t h e i n t e re s t s o f
j u s ti c e .
( b) Not i c e . Th e s t a t e m e n t i s a d m i ss i b le on ly i f, b e fo r e t h e t r i a l o r h e a r i n g, t h e
p r op on e n t gi ve s a n a d ve r s e p a r t y r e a s on a b le n ot i c e o f t h e i n t e n t t o o f fe r t h e s t a t e m e n t
a n d i t s p a r t i c u la r s , i n c l u d i n g t h e d e c la r a n t ’ s n a m e a n d a d d r e s s , s o t h a t t h e p a r t y h a s a
fa i r op p or t u n i t y t o m e e t i t .
 For hearsay not “specifically covered” by FRE 803 & 804 exceptions.
 It is not a catchall; rarely implicated and applied
 Four conditions:
o Statement has “equivalent circumstantial guarantees of trustworthiness.”
o Statement is offered as evidence of a material fact.
o Statement is more probative than other evidence that can be procured through reasonable efforts.
o The purposes of the rules and the interests of justice are served by admission.
3. Rule 612. Writing Used to Refresh a Witness
( a ) Sc o pe . Th i s r u le gi ve s a n a d ve r s e p a r t y c e r t a i n op t i on s wh e n a wi t n e s s u s e s a wr i t i n g
t o r e fr e s h m e m or y :
( 1 ) wh i le t e s t i fyi n g ; or
( 2 ) b e fo r e t e s t i fyi n g , i f t h e c ou r t d e c i d e s t h a t j us t i c e r e q u i r e s t h e p a r t y t o h a ve
t h os e op t i on s .

55
 ( b) Ad v e r s e P a r t y ’ s O pt i o ns ; De l e t i ng Un r e l a t e d M a t t e r . Un le s s 1 8 U. S. C. §
3 5 0 0 p r o vi d e s ot h e r wi s e i n a c r i m i n a l c a s e , a n a d v e r s e p a r t y i s e n t i t le d t o h a ve t h e
wr i t i n g p r od u c e d a t t h e h e a r i n g, t o i n s p e c t i t , t o c r os s -e x a m i n e t h e wi t n e s s a b ou t i t,
a n d t o i n t r od u c e i n e vi d e n c e a n y p or t i on t h a t r e la t e s t o t h e wi t n e s s ’ s t e s t i m on y. I f t h e
p r od u c i n g p a r t y c la i m s t h a t t h e wr i t i n g i n c lu d e s u n r e la t e d m a t t e r , t h e c ou r t m u s t
e x a m i n e t h e wr i t i n g i n c a m e r a , d e le t e a n y u n r e la t e d p or t i on , a n d or d e r t h a t t h e r e s t b e
d e li v e r e d t o t h e a d ve r s e p a r t y. An y p or t i on d e l e t e d o ve r ob j e c t i on m u s t b e p r e s e r ve d
fo r t h e r e c or d .
( c ) F a i l ur e t o P r od uc e or De l i ve r t he W r i t i ng . If a wr i t i n g i s n ot p r od u c e d or i s n ot
d e li v e r e d a s or d e r e d , t h e c ou r t m a y i s s u e a n y a p p r op r i a t e or d e r . Bu t i f t h e p r os e c u t i on
d oe s n ot c om p ly i n a c r i m i n a l c a s e , t h e c ou r t m u s t s t r i ke t h e wi t n e s s ’ s t e s t i m on y or —
i f j u s t i c e s o r e q u i r e s — d e c la r e a m i s t r i a l.
 Witness says recollection would be jogged by something; a little artificial, but is often used to get live, first
hand account
 Tool
 Most common use of this technique: police officers get shown details (very artificial and stylized) of a
crime scene report; court does not really care that it is probably just short term memory
 Rafki case: anything can be used to refresh
 7.38 Rathbun v. Brancatella:
o Menandier shouts the license plate number of a car fleeing in a hit-and-run to Sullivan who
records it on the back of an envelope
o Double hearsay: Menandier’s speech comes in as an excited utterance and present sense
impression
o To get Menandier to “remember,” can show him the envelope, but cannot enter the envelope itself
into evidence
o Sullivan looks at the envelope and still doesn’t remember the plate number
 Counsel may enter the envelope anyways in this stylized way Commented [KS12]: Does this admit the envelope
o A witness may only receive his/her own notations?? itself, or only Sullivan’s short term memory recollection
 See also FRE 803(5): “past recollection recorded” vs “present recollection refreshed” of it
Commented [KS13]: Is this true?

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4. Confrontation Clause of the 6th Amendment and Crawford and
Testimonial Hearsay
In a ll c r i m i n a l p r os e c u t i on s , t h e a c c u s e d s h a ll e n j o y t h e r i gh t . . . t o b e c on fr on t e d wi t h
t h e wi t n e s s e s a ga i n s t h i m .
i. History
 Incorporated in the states since Pointer v. Texas
 CA vs. Green
o The confrontation clause is not coextensive with the hearsay exceptions
 Ohio v. Roberts
o What happens when a witness does not testify and is not produced, gets past hearsay
o 2 Tests:
 Necessity: Government must demonstrate the unavailability of the witness
 Reliability: needs indicia of reliability
o Certain hearsay exceptions are firmly rooted and get past the constraints
 Not residual and not statements against interest
 Includes business/med records, excited utterances, dying declarations
 Emphasizes spontaneity
 Maryland v. Craig
o Court permits child victim to testify on closed circuit TV with a normal cross examination
o Scalia wants face-to-face
ii. Crawford v. Washington
 Facts:
o Crawford was accused of stabbing a man he thought tried to rape his wife
o Key question is whether victim had a weapon
o Wife made statement recorded out of court statement that victim did not have a weapon
o Recording came in as a statement against interest (as an accomplice)
 Procedure: Under old test: are there guarantees of trustworthiness?
 DC
o Is it actually blameshifting
o She had direct knowledge
o Neutral law enforcement question
 CA reverses
 WA SC reverses and upholds DC
 US Supreme Court gives a new test
 Reasoning:
 New category: testimonial
o Narrowest definition would be in consideration of trial by affidavit
 Custodial testimony
 Things you'd expect to be used in trial
o Formal even if not formalized; will it be used in court later on
 More content based; could it have a stamp on it
o Broadest which lower courts got hung up on
 Statement the witness an objective observer would think would be brought against him
[?]
 Some things are definitely testimonial
o Grand jury testimony
o Pre-trial testimony
o Police offer received
 Concern officers would abuse
o Dying declarations are just so formally rooted
 Nontestimonial
o Business records and statements in furtherance of a conspiracy
 Concurrence:

57
 o This distinction between testimonial and nontestimonial is no more historical than Roberts
o Confrontation is a functional right
o Failure to define testimonial will leave lower courts in the dark
iii. Things you get out of cross
 Exposes inconsistency
 Crucible of cross exposes perjury
 Exposes uncertainty
 Exposes bias
 [In cross, try to get witness to commit, then contradict]
 To Kill a Mockingbird clip:
o In court experiment shows the witness is left-handed
o Shows bias and inconsistencies
 My Cousin Vinney
o Need thicker glasses scene
iv. Out-of-Court Statements Admissible Against Criminal Defendants If:
 Not offered for their truth.
 Cross-examined at trial.
 Made by an unavailable declarant, and the defendant had a past opportunity to cross-examine.
 Confrontation right forfeited by wrongdoing, where that wrongdoing was perpetrated with the intent to
prevent testimony.
 Or the statement is non-testimonial . . .
 [Not a substantive issue, but procedural] Commented [KS14]: What does that mean?
v. Testimonial Statements Include:
 Solemn declarations . . . “for the purpose of establishing or proving some fact” (Crawford & Davis).
 Prior testimony at a preliminary hearing, before a grand jury, or at a former trial (Crawford).
 Statements produced “with the involvement of government officers” or “with an eye toward trial”
(Crawford).
 Statements made to police when the circumstances objectively indicate that there is no “ongoing
emergency, and that the primary purpose of the interrogation is to establish or prove past facts
potentially relevant to later criminal prosecution” (Davis).
 Affidavits reporting the results of forensic analysis (Melendez-Diaz).
vi. Non-Testimonial Statements Include:
 Casual, offhand, or overheard remarks (Crawford).
 Statements in furtherance of a conspiracy (Crawford).
 At least some business records (Crawford).
 Statements made “in the course of police interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency”
(Davis, Bryant).
 [In sum, if you could really get something from cross-examining someone, then the statement would
probably be testimonial]
vii. Case Studies
 Davis v Washington:
o [listened to audio of 911 call with police operator]
o [used to be that as soon as the crime scene is secured conversation becomes testimonial]
o [another old line is when police started collecting identifiers]
o By getting the birthday, police can get pictures and warrants etc for knowing how to approach a
hot situation
o The primary purpose test is weak because the questions usually have a dual purpose
o When she said “he's running [away] now” she saw a shift
o Also, “stop talking and answer my questions”
o Non-testimony has spontaneity
o When is it a public safety emergency? Surely not for every crime scene investigation

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 o We're going for excited utterance
o Is it a call for help or a desire to bear witness?
o Is it a structured question?
o Has the crime itself ended?
 Hammond v. Indiana: woman appears frightened, but sitting calmly on the porch
o Whose purpose? Either. (Focus on the declarant's motives, though it is colored, of course, by the
questioning)
o Is testimony
 Giles v. CA
o Forfeiture is where a defendant makes a witness unavailable so all of the witness’s otherwise-
hearsay statements come in Commented [KS15]: Is this a correct definition of
o Limits forfeiture to when defendant designed to limit the availability of a witness forfeiture?
o Evidence: prior statements to police
o Very divided Supreme Court decision
o Forfeiture doctrine is very similar to 804b6/Confrontation Clause: only forfeit if intentionally
cause absence of witness in question
o Alito and Thomas: this isn't formal testimony, so confrontation does not apply
o Souter and Ginsburg: admissibility turns on the finding of guilt which is circular
o Scalia v Breyer on originalism
o A victim's rights group opposed to Crawford because precluded evidence in domestic violence
cases
o Common ground and loophole: can infer an intent to silence, especially in domestic violence
 8.1 RETURN Commented [KS16]: Look at book (don’t have a
o grand jury testimony is definitely testimonial, so cannot bring in unless it fits within an exception picture)
o 6 different attacks, lots of visits, and phone calls
o Shows a pattern of behavior
o One problem is that she only becomes unavailable when she does not testify
o If she does skip, was it because of the defendant's action
o Can look at witness's demeanor (cf. looking at her husband blowing kisses as she's on the stand)
o Standard: preponderance of the evidence before the judge
o Were the kisses manipulative? Most courts would say yes
 Michgan v. Bryant
o Covington is the victim bleeding out at a gas station
o Shot through a door 6 blocks away
o [Prosecutor failed to bring up the dying declaration]
o Brought as an excited utterance
o 6-2
o Court holds: Primary purpose was to establish facts of an event that has already occurred (so
testimony)
 But scene is still hot (emergency)
 Covington's primary purpose is to get help
o Majority seems concerned with the reliability of the testimony
o Scalia's dissent is that the majority is bringing in reliability questions
o Thomas: this is not formal
o Scalia: primary purpose of the interrogation was
 Reliability tells us nothing about whether the Confrontation Clause applies
 Declarant's intent is the only one that matters
 What would you have gotten out of crossing Covington?
 How did you know who shot you? (Questions about perception)
 8.2 RETURN Commented [KS17]: Look at book (don’t have a
o Victim immediately names the attacker without prompting picture)
o Is hearsay because is offered for its truth
o Does not fit within 801(d) because declarant is unavailable
o Look at dying declaration and excited utterance

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  Dying declaration is better because it was around at time of 6th so probably avoids
Confrontation issues
 Big question: is she crying for help or accusing someone?
 She couches her cry for help with defendant's name
 For it to be a dying declaration, victim has to know she's going to die--maybe not, but
does say she doesn't want to die
 Seems non-testimonial
 Melindez-Diaz Commented [KS18]: Did the court admit the evidence
o An affidavit from a chemist as to the drugs in question was presented to the court in place of live as a business record?!
testimony
o Defendants wanted the opportunity to challenge when there seemed a good chance
o Now, very few get called, even after this rule
o Most cases have government offer and if defendant doesn't demand he appear, affidavit is
sufficient
 Bullcoming v. New Mexico
o Blood Alcohol case
o Certificate of .21 BAC
o Analyst is on unpaid leave, so our witness is a different technician from the same lab
o Comes in as a “business record”
o Analyst explains the method
o Supreme Court: report is testimonial
o So, what is the next question: has the witness been available for cross (either in court or prior to
court)
o Is an equivalent expert sufficient for cross? Nope, because the point of the cross here is to find
human error, which the other expert could not have known
o Footnote 6:
 “[6] To rank as “testimonial,” a statement must have a “primary purpose” of
“establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.”
Davis v. Washington. See also Bryant. Elaborating on the purpose for which a
“testimonial report” is created, we observed in Melendez-Diaz that business and public
records “are generally admissible absent confrontation . . . because—having been created
for the administration of an entity’s affairs and not for the purpose of establishing or
proving some fact at trial—they are not testimonial.” Id.”
 Williams v Illinois
o Rape victim, vaginal DNA swab
o Technically the DNA report was only informing the expert, and not being offered for its truth.
o Majority is willing to say not testimonial because it is not being offered for its truth
o Thomas: it doesn't have a stamp, so it is not testimonial
o Breyer dissent: things are only testimonial if they bear a real risk of unreliability
o Kagan: cross ferrets out human error
o [When they talk about why this is an important procedural right, it is always in terms of reliability]
 Ohio v. Clark
o Clark (Dee) is caring for his girlfriend's children
o Child has been hurt and describes the person who has hurt her to her teacher
o Issue is mandatory reporters who have a legal obligation to report child harm
o Both children have been harmed; older boy tells everyone that Clark did it; incompetent to testify
in court
o State rule that permits their statements as hearsay exceptions; but rule does not address the 6th
o Because mand. rept., knew would have role in prosecution
o Supreme Court: must focus on declarant, who, here, would have been too young to have formed a
prosecutorial purpose; informal, spontaneous statements in a safety-context; goal is resolve
ongoing child abuse
o Scalia and Ginsburg: only thing that matters is child's perspective; either acting as a witness or not
o Take-away question: primary purpose of assisting a prosecution
 8.4 Victim wrote an if-I-die letter
o Question in the case of whether this looks like the Cobam letter in Raleigh's case:

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 o (this isn't a dying declaration, though court put it there)
o What is the goal: helping in an investigation (not an ongoing emergency)
o It seems formal/solemn, not structured questioning (for Thomas)
o It does look a lot like Raleigh
o You would get a lot of value out of cross
 8.5 State v. Rivera
o Defendant is charged with V's murder
o Glanville confessed to nephew in a private conversation that he and defendant had killed V.
o Looking at statement against interest, but also implicates someone else. Not quite classic blame
shifting.
o Assume in as exception.
o Is it blocked by 6th?
 Not testimonial: not formal enough; is solemn (because of confession to murder)
 Informal because with nephew
o Anything intended to be a weaker substitute for impossible live testimony is testimonial.
viii. Analysis of Out-of-Court Statement Post-Crawford
 Hearsay statement?
o Out-of-court words or conduct intended as an assertion?
o Offered for its truth?
 Within an exception (803, 804) or exemption (801)?
 If an exception/exemption applies, but it’s offered against the defendant in a criminal case, the
Confrontation Clause is implicated.
 Post-Crawford: Ask, is the statement testimonial?
 If testimonial, the declarant must:
o Testify at trial and be subject to cross-examination.
o Be unavailable and subject to a past opportunity to cross-examine.
o Or forfeiture must apply.
 Even assuming the hearsay and constitutional challenges are met >> still can resort to discretionary 403
weighing.
ix. Hearsay Exceptions Post-Crawford
 801(d)(1): Unaffected because subject to cross.
 801(d)(2): Unaffected because no constitutional right to confront yourself.
 803(1): Depends on whether circumstances indicate it’s testimonial.
 803(2): Depends on whether circumstances indicate it’s testimonial.
 803(3): Depends on whether circumstances indicate it’s testimonial.
 803(4): Generally non-testimonial, but careful where the medical record functions as a report of factual
findings.
 803(5): Unaffected because subject to cross.
 803(6)-(8): Generally non-testimonial, unless prepared for purposes of litigation. Look to the distinction
between routine and investigative reports. Forensic reports do implicate the Confrontation Clause. Other
police reports, and evaluative reports, are already inadmissible against criminal defendants.
 804(b)(1): The former testimony exception has the Crawford requirements embedded.
 804(b)(2): The dying declaration exception appears to survive Crawford (according to the dicta there), even
if the declaration is testimonial.
 804(b)(3): Statements against interest are not treated categorically. They are often testimonial, but between
confidantes, will sometimes come in as non-testimonial.
 804(b)(6): As with the hearsay objection, the wrongdoing may extinguish Confrontation Clause rights, but
only if it is undertaken with the purpose of silencing the declarant (Giles).
x. Bruton Doctrine
 Bruton
o First instance of reluctance to believe in limiting instructions
o When there is a codefendant's confession used against the other defendant,
o Armed postal robbery

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 o Evans is a defendant and confesses that he and Bruton robbed
o Both are tried together
o Prosecutor offers confession, but court tells jury to disregard against Bruton
o Both are convicted
o Evans had been held for a week without a lawyer, so his confession was excluded on 5th
o Evans acquitted, but Bruton remained convicted
o Limiting instructions cannot and do not protect a defendant when a codefendant confesses
 Jury cannot separate the confession into two boxes
o Dissent: no reason to believe that this limiting instruction is any worse than any other limiting
instruction
 8.8 Dog O’ War
o A sent a letter to B referring to the dogs as the “Dog O’ War” operation
o Evidence is being offered to prove that they knew the dogs were dangerous
o Admissible against A as own words
o If it can be considered in furtherance of the conspiracy, admissible against B under the
coconspirator exception
 The letter seems to say that things are going as planned: made to keep the other
conspirator on board
 8.9 US v. Edwards
o Woman testified that she dropped off two co-defendants at site where they lit a fire that killed
firefighters
o Court changed references to the defendants to neutral pronouns
o Close, but probably good under Bruton
o The woman's lawyer probably has an objection, because it sounds like she is being evasive,
prejudicing the jury against her.
o The unnamed codefendants have an objection because it implicates the codefendants despite the
safe guards
5. Compulsory Process Clause Commented [KS19]: Just the whole thing…
In a ll c r i m i n a l p r os e c u t i on s , t h e a c c u s e d s h a ll e n j o y t h e r i gh t ...t o h a v e c om p u ls or y
p r oc e s s fo r ob t a i n i n g wi t n e s s e s i n h i s fa v or .
 Chambers v. Mississippi Commented [KS20]: Return because I’m not getting it
o Requires the admission of hearsay otherwise inadmissible under state law under certain stringent
conditions
o A state cannot violate a defendant’s rights under the Fourteenth Amendment to the United States
Constitution by restricting a defendant from examining a witness through the strict application of
evidence rules.
o Defendant made a written confession and three oral confessions
o Recanted written in court as compelled
o Mississippi law prevented the three oral to bring to impeach recantation because statements
against interest is only for against pecuniary interest
o Defendant does not get to cross him because defendant called him as witness
 Also cannot impeach own witness
o Looking for pervasive assurances of trustworthiness
 Admits the oral confessions because otherwise would deprive defendant of a fair trial
 Orals had lots of assurances
o The Court held that the confession by McDonald fall under hearsay exception rules and are
therefore admissible. All three confession fall squarely under the declarations against interest
exception. Even if state evidentiary rules do not except declarations against penal interests, the
confessions were still spontaneous, made right after the crime and were made to close
acquaintances. Other evidence and the other confessions corroborated each confession and
strengthened their reliability.
 Holmes v. South Carolina
o Convicted of a rape-murder based on various physical evidence
o Alternative perp who confessed
o SC: third party guilt rule limits

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 o Court: here is a state evidentiary rule that operates arbitrarily, does not function against the
purpose it proposes to address, and goes all the way to prevent defendants from offering a
complete defense
 Seems to address both compulsory process clause claims (close relationship to Due Process, so be sure to
have a good fairness argument)
o In Chambers: look for ?? Commented [KS21]: 
o In Holmes: look for what was would otherwise be good, being arbitrarily applied against the
purpose of the rule and is arbitrarily extended against this defendant
6. Lay and Expert Testimony
i. Rules of Lay Testimony
1. Rule 701. Opinion Testimony by Lay Witnesses
I f a wi t n e s s i s n ot t e s t i fyi n g a s a n e x p e r t , t e s t i mon y i n t h e fo r m o f a n op i n i on i s li m i t e d
t o on e t h a t i s :
( a ) r a t i on a ll y b a s e d on t h e wi t n e s s ’ s p e r c e p t i on ;
 NB: Firsthand knowledge requirement of FRE 602.
( b) h e lp fu l t o c le a r u n d e r s t a n d i n g o f t h e wi t n e s s ’ s t e s t i m on y o r t h e d e t e r m i n a t i on o f a
fa c t i n i s s u e ; a n d
 Reliable
 Material
 Necessary
( c ) n ot b a s e d on s c i e n t i fi c , t e c h n i c a l, or ot h e r s p e c i a li z e d kn o wle d ge wi t hi n t h e s c op e
o f Ru le 7 0 2 .
 Opinion based on everyday life rather than specialized knowledge.
 Added in the 2000 Amendment to prevent an end-run around Daubert.

 Fact versus opinion

o First hand observations versus inferences drawn from those observations
o Lay witnesses can offer opinions (tall, angry, etc.)
o One frequently repeated pop culture reference to Bob Dylan, Subterranean Homesick Blues: “You
don't need a weatherman to know which way the wind blows” cited in 200 court opinions
o You don't need an expert as often as you think you need one
 701 is the codification of an intuition about when it makes sense for a lay witness to give an opinion
 9.1
o A insurance claims investigator testified about what the defendant said
o The investigator told the defendant that he had found kerosene-soaked rags under the defendant’s
truck
o Defendant said, “Look, I’m just a poor man.”
o Admissible:
 The adjustor had first-hand knowledge
 Helps determine a fact in issue
 Is based on everyday life
o In the committee notes, the classic opinion testimony in this rule is the emotional affect of the
object of the testimony
 9.2 US v. Yazzie
o Defendant sold cigarettes to a minor, but the statute permits an affirmative defense the defendant
reasonably believed the minor to be of age
o Defendant wanted to introduce witnesses familiar with the minor who would testify that the minor
looked of age at the time of the sale
o Admissible
 Does the proposed witness have enough knowledge to proffer that the girl appeared 20-
21?
 The jury has little other opportunity:
 Could look at her now or a picture
 Does it help to have other witness describe how she looked?

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  Yes, to add dimensions.
 Yes, this is helpful (probably a minimum)
 Is it based on technical knowledge?
 Nope
 In a case where the precise age of a child is important (child pornography) (strict
liability), a doctor would be needed to testify
 9.3 US v. Paiva
o Witness found white powder in the defendant’s shoes
o Witness had experience with cocaine
o She saw the substance and tasted it; testified that it was cocaine
o Admissible
 The witness has firsthand knowledge.
 It is helpful to the jury because this is the only way of knowing that this is cocaine. If
there was a drug analysis, this would not be helpful enough
 This does not require specialized knowledge; we don't need an expert. If the purity were
in question, that would probably require an expert
 US v. Ganier
o Computer specialist trying to testify about the destruction of needed computer functions
o Tried to bring him in as a lay witness
o Court barred because he should have been brought in as an expert
o Because specialized knowledge was necessary to interpret the computer program's output
ii. Rules of Expert Testimony
 Our standard is 104(a) (preponderance of the evidence) (reviewed on appeal for abuse of discretion)
 US v. Johnson
o Dueling experts?
o It is up to jury to resolve which is correct, not the court
1. Rule 702. Testimony by Expert Witnesses Commented [KS22]: Committee notes are critical here.
A wi t n e s s wh o i s q u a li f i e d a s a n e x p e r t b y kn o wle d g e , s ki ll, e x p e r i e n c e , t r a i n i n g, or Be sure to go over them carefully
e d u c a t i on m a y t e s t i fy i n t h e for m o f a n op i n i on or ot h e r wi s e i f:
( a ) t h e e x p e r t ’ s s c i e n ti fi c , t e c h n i c a l, or ot h e r s p e c i a li z e d kn o wle d ge wi l l h e lp t h e t r i e r
o f fa c t t o u n d e r s t a n d t h e e vi d e n c e or t o d e t e r m i n e a fa c t i n i s s u e ;
( b) t h e t e s t i m on y i s b a s e d on s u f fi c i e n t fa c t s or d a t a ;
( c ) t h e t e s t i m on y i s t h e p r od u c t o f r e li a b le p r i n c i p le s a n d m e t h od s ; a n d
( d) t h e e x p e r t h a s r e li a b ly a p p li e d t h e p r i n c i p le s a n d m e t h od s t o t h e fa c t s o f t h e
c a s e .7 0 4
 Permissible when:
o Scientific, technical, or any other specialized knowledge will assist the trier of fact,
o The witness is qualified by knowledge, skill, experience, training, or education, and
 (*) Not qualified generally but qualified specifically to give the opinion rendered.
o Daubert/Kumho Tire requirements are met. (702(b)-(d))
 Approach to Questions Concerning Expert Testimony
o (1) Does the witness qualify as an expert in the relevant field (FRE 702)?
o (2) Will the expert’s analysis assist the jury (FRE 702)?
o (3) Is the testimony on a proper topic for expert opinion (FRE 702 & 704)?
o (4) Does the expert’s opinion rest on proper data (FRE 703)?
o (5) Daubert analysis:
 (a) Is the methodology reliable?
 (b) Does the expert’s analysis “fit” the issues in the case?
 9.6 US v. Plunk
o Question is whether the detective qualifies as an expert. He had listened to hundreds of wire-
tapped phone calls between drug dealers. His job is to decode them.
o A question is whether he is familiar about this particular gang or this location. Is he an expert
here?
 Probably enough so.
o The quantity of taps is probably sufficient but ask:

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  What's your methodology?
o Likely admissible
 9.7 Chesebrough-Pond’s, Inc. v. Fabergé
o Issue of similarity between “Match” and “Macho”
o Don’t need an English professor/expert to determine whether the two names are too similar
o All you’d asking is that the jury surrender their common sense at the feet of an expert
 9.8 Tyus v. Urban Search Management
o All-white ad campaign for housing
o What part is inaccessible to the common experience of a juror?
 The special harm done to minority (black, here) population
o Admissible
o Experts that can say how and to what extent some act does something beyond what would be
expected in common experience is a value add and can be admitted.
o State v. Kinney
 Expert testifies about rape-trauma syndrome and how rape victims often act differently
 However, cannot talk about the rate of false reporting because it is too prejudicial: the
jury will take it as applying to this victim in particular.
 9.9 Rosenfeld v. Oceania Cruises, Inc.
o Slip and fall on a cruise ship
o Floor-safety expert can only describe the mechanics, what can be measured, and anything special
about slipperiness on a ship
o What slippery is and means is in the ordinary experience of a jury
2. Rule 703. Bases of an Expert
An e x p e r t m a y b a s e a n op i n i on on fa c t s or d a t a i n t h e c a s e t h a t t h e e x p e r t h a s b e e n
m a d e a wa r e o f o r p e r s on a ll y ob s e r v e d . I f e x p e r t s i n t h e p a r ti c u la r fi e ld wo u ld
r e a s on a b ly r e ly o n t h os e ki n d s o f fa c t s o r d a t a i n for m i n g a n op i n i on on t h e s u b j e c t ,
t h e y n e e d n ot b e a d m i s s i b le fo r t h e op i n i on t o b e a d m i t t e d . Bu t i f t h e fa c t s or d a t a
wo u ld ot h e r wi s e b e i n a d m i s s i b le , t h e p r op on e n t o f t h e op i n i on m a y d i s c los e t h e m t o t h e
j u r y on ly i f t h e i r p r ob a t i ve va lu e i n h e lp i n g t h e j u r y e va lu a t e t h e op i n i on s u b s t a n t i a lly
ou t we i gh s t h e i r p r e j u d i c i a l e f fe c t .
 Experts may rely on:
o Facts or data learned by firsthand observation.
 Ie. treating physician or accident reconstruction expert.
o Facts or data gathered from the trial itself.
 Testimony the expert has actually heard, or
 A hypothetical question summarizing facts in evidence.
o Facts or data acquired secondhand through reading or through talking with others (including
inadmissible hearsay), provided that other experts would reasonably rely on such information.
 Otherwise inadmissible bases of expert testimony cannot be disclosed to the jury unless
the probative value substantially outweighs prejudicial effect.
 Learned treatises are admissible (813(18))
 In re Melton:
o Would a reasonable expert rely on this piece of inadmissible hearsay? If yes, the expert may rely
on that evidence to form his opinion.
 9.13 US v. Webb
o Expert had interviewed hundreds of inmates about how they concealed weapons before they were
arrested
o Testifying in this case where the defendant hid a weapon in the engine compartment
o Is this a properly qualified expert: yes, that's probably plenty
o Is there a proper basis for the expert's opinion? There's lots of first hand experience. Those
conversations he's had are not admissible in court, but he is justified on relying on them.
 Old Frye Test
o General acceptance test; do other members of this community use this test
o Fyre was charged with murder and submitted himself to a proto-polygraph test
o Wanted to use both as a consciousness of innocence and as proof of actual innocence

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 o Truth is inherently spontaneous and has physical manifestations (same reasoning is in excited
utterance and other in-the-moment exceptions)
o Lie detection is not sufficiently accepted to have gained general acceptance
o This is still the rule: “We think the systolic blood pressure deception test has not yet gained such
standing and scientific recognition among physiological and psychological authorities as would
justify the courts in admitting expert testimony deduced from the discovery, development, and
experiments thus far made.”
o On to Daubert:
 Supreme Court: Frye standard is too austere and is inconsistent with liberal tendency of
FRE
 Must show that there is some scientific knowledge and the deployment of that knowledge
will (fit) answer the question in the case
 Daubert Analysis
o Enumerated Daubert factors (exemplary rather than exhaustive):
1. Whether the technique or theory can be or has been tested.
2. Whether the technique or theory has been subjected to peer review and publication.
3. What the known or potential rate of error of the technique or theory is when applied.
4. Whether standards are maintained to control the technique’s operation.
5. Whether the technique or theory has been generally accepted in the relevant scientific
community.
o Illustrative Additional Daubert Factors
 [usually the first five factors will get you to the answer, but if not, here are some more]
 Whether the opinion was developed independently of the litigation.
 The extent of the analytical gap between data and the opinion.
 The expert’s consideration of alternative explanations.
 Whether the expert is applying the same rigor as a witness as would be applied as a
professional in the field.
 Whether the field of expertise itself is known to be reliable.
 The qualifications and professional stature of the expert.
o Codification of Daubert
 702 (b): The testimony is based on sufficient facts or data.
 702 (c): The testimony is the product of reliable principles and methods.
 702 (d): The expert has reliably applied the principles and methods to the facts of the
case.
o On remand, Court of Appeals nods towards the Daubert factors, but says makes “fit” central
 He finds more important that this research was done for the purpose of the litigation
 Fit in n. 17: Evidence must speak clearly and directly to an issue in dispute in the case,
and that it will not mislead the jury
 Rejects the evidence of an increase in incidence of birth defects
o Supreme Court was trying to lower the bar, but did they succeed?
 General acceptance generally carries the day; still the Frye test
 Among tort plaintiffs, is this better for plaintiffs or defendants?
 Defendants because now the plaintiff has to get past all these prongs
 Sometimes it has helped defendants
 Tort cases decisions at summary judgment doubled
 Frye had been a pretty lax standard because experts used to be certified by own small
community
o Kumho Tire Co. v. Carmichael
 Expert looks for four different signs of over-deflection: if at least two, manufacturing
defect
 Trial: Daubert applies, his methods are not reliable (he's just looking at the tires);
summary judgment
 Appellate: this isn't science, is experience based expertise, so no concern for Daubert
 Supreme Court: Daubert factors applies to all kinds of expertise
 Bryer gives 4 reasons
 What were they? Commented [KS23]: ??

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 The evidence in question is whether this hedonic value equation is admissible
to prove the value of a victim's life to himself.

Perhaps it is a better way of valuing life for the purposes of wrongful death.

(a) the expert’s . . . specialized knowledge will help the trier of fact . . . 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.
This just seems fishy and inadmissible

CLASS:
Is an expert in the relevant field
Will it assist the jury? Yes, in putting a dollar value.
Does it rest on proper data? He got the data from where? Probably okay

Daubert:
We have no idea what the life is worth; it can't be tested
No error rate
Peer review? Probably
Are there standards which control the operation of the method? Yes
General acceptance? Maybe
Results in a split decision, so onto Kuhmo tire

Logical deficiencies in the method?

No account for regulations or advertising influences on pricing
Presumes consumers are capable of making the calculation of price, in addition
to how much the device will actually reduce risk; willingness to pay is not a
calculation consumers can make
Seems to fit the issues in the case well, but method is not individualized

Court: rejected on fit grounds

 Polygraph Evidence:
 Parks & Recreation clip
o What are the factors you want to know before letting lie detection in?
o What does it mean to say that a person passed a lie detector test?
 It means that they did not deviate from the baseline
 Also, come back to 403
o Prejudice from aura of infallibility
 And from polygrapher trying to tell the jury what to think of honesty
o Can we test lie detection?
 Not really; we can only test using known truth and falsity; from control questions
o Do we have peer review?
 Polygraphy has lots of peer-review journals
o Error rates?
o General acceptance?
o Most courts conclude it does not pass Daubert, but it is not a categorical rule
 In the rare case a Defendant wants to proffer it, we still go to 403
 There are a number of limits if admitted:
o Government must know about it in advance
o Government can administer its own exam
o Generally only when a defendant requests and takes the stand
(otherwise, the defendant would get to testify without cross)

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  9.15 Polygraph Consent II
o Defendant wants to introduce evidence that he willingly submitted to a polygraph test
o It is being offered to prove that he had a consciousness of innocence. It matters only that the
defendant thought it was reliable.
o Prosecutor would go to 403 claiming unfair prejudice
 Jury gap filling: jury will presume that the defendant passed
 Would bring in defendant's testimony without being subject to cross
 We know nothing about why the defendant submitted to it (could have known it would
not be admitted, could have been a sociopath)
o Usually courts will only admit if the defendant will testify
o For a compulsory process claim must be Necessary and Reliable Commented [KS24]: What does this mean?
 US v. Scheffer
o Defendants do not have a right to bring in polygraph evidence
o But, it also cannot be excluded per se
o Always a judgment by the judge
3. Rule 704. Opinion on an Ultimate Issue
( a ) I n G e ne r a l — No t Aut om a t i c a l l y O bj e c t i o na bl e . An op i n i on i s n o t ob j e c t i on a b le
j u s t b e c a u s e i t e m b r a c e s a n u lt i m a t e i s s u e .
( b) E xc e pt i o n. In a c r i m i n a l c a s e , a n e x p e r t wi t n e s s m u st n ot s t a t e a n op i n i on a b ou t
wh e t h e r t h e d e fe n d a n t d i d or d i d n ot h a ve a m e n t a l s t a t e or c on d i t i on t h a t c on s t i t u t es
a n e le m e n t o f t h e c r i m e c h a r ge d or o f a d e fe n s e . Th os e m a t t e r s a r e for t h e t r i e r o f fa c t
a lon e .
 704 is a carve out as a result of Reagan's would-be assassin prohibiting opinions about mental states
 Judges only testify about legal standards
 Can have experts about foreign law
 Be careful any time the expert is telling the jury what to do
 9.10 State v. Montgomery
o Expert witness can say what is required to make meth and someone else can say that the
defendants gathered these and those ingredients
o Witness may not testify as to the intent of the defendants
 Hygh v. Jacobs
o Expert cannot say that the officer made an “unjustified use of deadly force”
o The court defines deadly force and what is and isn’t justified
o Expert can only say that the force used was more than was necessary to achieve a certain result
 9.11 Nimely v. City of New York
o Officer/defendant shot a victim in the back; claims it was in self-defense and happened as the
victim was turning, though the officer didn’t realize it at the time
o Judging the credibility of the defendant is for the witness
o Can testify about possible scenarios that would explain the officer’s actions, but not that the
officer should be believed because the officer would know there’d be an investigation into the
shooting
 State v. Batangan
o In a different case, where there are difficult child situations, an expert can say what a child in that
situation might do in general, but not in this case.
 State v. Guilbert
o Overturned bar on expert testimony regarding reliability of eye-witness testimony
 9.12 Patterson v. US
o Lots of evidence that the defendant committed a crime
o Eye-witness testimony on top of it all; defendant tries to introduce an expert to talk about the
unreliability of eye-witness identification
o Yes, it might be helpful, but it also won’t be very helpful and would be a time waste (403)
4. Rule 705. Disclosing the Facts or Data Underlying an Expert
Un le s s t h e c ou r t or d e r s ot h e r wi s e , a n e x p e r t m a y s t a t e a n op i n i on — a n d gi ve t h e
r e a s on s fo r i t — wi t h ou t fi r s t t e s t i fyi n g t o t h e u n d e r lyi n g fa c t s or d a t a . Bu t t h e e x p e r t
m a y b e r e q u i r e d t o d i s c los e t h os e fa c t s or d a t a o n c r os s -e x a m i n a t i on .

68
7. Authentication and Best Evidence
 “Don’t make this section harder than it needs to be”
i. Authentication
 Once it is admissible, you must prove that this is the thing you showed was admissible; this particular thing
is what we said we were going to bring
o Documentary corollary to credibility
o In fear of forgeries
o It's all about reliability
 Authentication poses questions of conditional relevance (104(b))
o Operates parallel to all other rules on hearsay and relevance, etc
o Parties don't argue about this much
o It's not about whether the judge thinks so, but if the jury could conclude its authentic
o Technically the judge is only screening and the jury will decide whether to rely on it
o No fixed rules about how to show; (b) is illustrative not exhaustive
o Some documents self-authenticate
 Chain of custody:
o Common method of authentication
o Continuous log of whoever has touched the evidence
o Very easy and straightforward
o Often will get a stipulation to it
o Breaks in the chain are not often fatal; could go to weight, but does not mean not admissible
1. Rule 901. Authenticating or Identifying Evidence
 10.3 US v. Mitchell
o Anonymous note left in the seat of a get-away car gave the license plate number of the new get-
away car
o Prosecutor is saying that it was a note left at a car
 Authenticate it by where it was found
 The best person to testify is the officer that found the note
o That's all you need because you're not claiming it's from any person in particular
o The problem with the note is Confrontation Clause
 State v. Small
o Prosecutor is saying that the call is from the defendant as statement against interest, but we need to
authenticate that it is the defendant first
o Lots of circumstantial evidence indicates that it was the defendant who answered the phone which
implicated him in the crime
 However, the judge must be sure that the circumstantial evidence that is necessary to
admit the phone call will be admissible to the jury (because it is a 104(b) standard)
 Simms v. Dixon
o Anyone present at a photographed time and location can testify that the photo is accurate
o You do NOT need the photographer
 For surveillance footage (a silent witness), usually a person at the surveillance company would testify to
the use of the camera and storage of footage
o Undercover cameras and increasingly dashcams
o Is there time and date stamping?
o Any evidence of tampering?
o Can someone talk about the ability of the equipment?
o Is the camera installed properly?
o Has it been maintained securely?
o Need to find the right witnesses to talk about how “we” deal with the footage.
( a ) I n G e ne r a l . T o s a t i sf y t h e r e q u i r e m e n t o f a u t h e n t i c a ti n g or i d e n t i fyi n g a n i t e m o f
e vi d e n c e , t h e p r op on e n t m u s t p r od u c e e vi d e n c e s u ffi c i e n t t o s u p p or t a fi n d i n g t h a t t h e
i t e m i s wh a t t h e p r op on e n t c la i m s i t i s .
( b) E xa m pl e s . T h e fo llo wi n g a r e e x a m p le s on l y — n ot a c om p le t e li s t — o f e vi d e n c e
t h a t s a t is fi e s t h e r e q u i r e m e n t :

69
 ( 1 ) Te s t i m o ny o f a W i t ne s s wi t h K no wl e d g e . T e s t i m on y t h a t a n i t e m i s wh a t i t
i s c la i m e d t o b e .
( 2 ) No ne x p e r t Op i ni o n Ab o ut H a nd wr i t i ng . A n on e x p e r t ’ s op i n i o n t h a t
h a n d wr i t i n g i s ge n u i n e , b a s e d on a fa m i li a r i t y w i t h i t t h at wa s n ot a c q u i r e d fo r
t h e c u r r e n t li t i ga t i on .
 10.2 US v Samet
o Postal worker became very familiar (an kind of expert) with the defendant’s handwriting because
she assisted the government in preparing a RICO claim against him
o 2nd circuit interpreted it as investigation and not preparation for litigation
o Griffin said that it could go either way
( 3 ) Co m p a r i s o n b y a n E x p e r t W i t ne s s o r t he Tr i e r o f Fa c t . A c o m p a r i s o n wi t h
a n a u t h e n t i c a t e d s p e c i m e n b y a n e x p e r t wi t n e s s or t h e t r i e r o f fa c t .
( 4 ) Di s t i nc t i v e C ha r a c t e r i st i c s a nd t he Li k e . Th e a p p e a r a n c e , c o n t e n t s ,
s u b s t a n c e , i n t e r n a l p a t t e r n s , or ot h e r d i s t i n c t ive c h a r a c t e r i s t i c s o f t h e i t e m ,
t a ke n t o ge t h e r wi t h a ll t h e c i r c u m s t a n c e s .
 Authentication of Documents (1)-(4)
o Testimony of a witness with firsthand knowledge of the writing.
o Handwriting:
 Based upon familiarity not acquired for purposes of litigation.
 Comparison by jury with exemplar.
 Comparison by expert with exemplar.
o Circumstantial evidence:
 Context (reply to a duly authenticated communication).
 Content (facts peculiarly known to the writer).
 Other distinctive characteristics (language patterns).
( 5 ) Op i ni o n Ab o ut a Vo i c e . An op i n i on i d e n t i fy i n g a p e r s on ’ s v oi c e — wh e t h e r
h e a r d fi r s t h a n d or t h r ou gh m e c h a n i c a l o r e le c t r on i c t r a n s m i s s i on or r e c or d i n g
— b a s e d on h e a r i n g t h e v oi c e a t a n y t i m e u n d e r c i r c u m s t a n c e s t h a t c o n n e c t i t
wi t h t h e a lle g e d s p e a k e r .
 Voice identification based on experience:
o Knowledge can be firsthand or from a recording.
o Requisite familiarity may be acquired either before or after the speaking being identified.
 Most common rule for wiretaps
( 6 ) E v i d e nc e Ab o ut a T e l e p ho ne Co nv e r s a t i o n . For a t e le p h on e c on v e r s a t i on ,
e vi d e n c e t h a t a c a ll wa s m a d e t o t h e n u m b e r a s s i gn e d a t t h e t i m e t o :
( A) a p a r t i c u la r p e r s on , i f c i r c u m s t a n c e s , i n c lu d i n g s e lf -i d e n t i fi c a t i on ,
s h o w t h a t t h e p e r s on a n s we r i n g wa s t h e on e c a lle d ; or
( B ) a p a r t i c u la r b u s i n e s s , i f t h e c a ll wa s m a d e t o a b u s i n e s s a n d t h e c a ll
r e la t e d t o b u s i n e s s r e a s o n a b ly t r a n s a c t e d o v e r t h e t e le p h on e .
 Technology has outpaced this rule
 Incoming calls require more than assertion of identity:
o Content of statements.
o Reply technique.
o Voice identification.
 Outgoing calls to individuals:
o Calling of a number assigned by the telephone company.
o Self-identification or other circumstances that indicate the person contacted.
 Outgoing calls to businesses:
o Number assigned to the place of business by the telephone company.
o Conversation related to business reasonably transacted over the phone.
( 7 ) E v i d e nc e Ab o ut P ub l i c Re c o r d s . E vi d e n c e t h a t :
( A) a d oc u m e n t wa s r e c or d e d or fi le d i n a p u b li c o f fi c e a s a u t h or i z e d b y
la w; or
( B ) a p u r p or t e d p u b li c r e c or d o r s t a t e m e n t i s fr o m t h e o f fi c e wh e r e i t e m s
o f t h i s ki n d a r e ke p t .

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 ( 8 ) E v i d e nc e Ab o ut A nc i e nt Do c um e nt s o r Da t a Co m p i l at i o ns . For a d o c u m e n t
or d a t a c om p i la t i on , e vi d e n c e t h a t i t :
( A) i s i n a c on d i t i on t h a t c r e a t e s n o s u s p i c i on a b ou t i t s a u t h e n t i c it y;
( B ) wa s i n a p la c e wh e r e , i f a u t h e n t i c , i t wou ld li ke l y b e ; a n d
( C) i s a t le a s t 2 0 ye a r s o ld wh e n o f fe r e d .
 Offered 20 years or more after document created.
 Document in a condition that creates no suspicion about authenticity.
 Document found in a place where, if authentic, it is likely to be.
 US v. Stelmokas
o Naturalized citizen as a displaced person failed to disclose he was a part of the Nazi air-force via
Lithuania.
o Prosecuted to strip of naturalization based on documents found in Berlin, Lithuania's capital, and
somewhere else.
o Experts say that they appear authentic and would be located where they were found if they were
authentic
o Defendant claimed they were planted to frame him
o Court: why would someone do this, he's not well known, and really there is no reason to think so
 The documents were not available until 1990!
( 9 ) E v i d e nc e Ab o ut a Pr o c e s s o r Sy s t e m . E vi d e n c e d e s c r i b i n g a p r o c e s s or
s ys t em a n d s h o wi n g t h a t i t p r od u c e s a n a c c u r a t e r e s u lt .
( 1 0 ) M e t ho d s Pr o v i d e d b y a St a t ut e o r Rul e . A n y m e t h od o f a u t h e n t i c a t i on or
i d e n t i fi c a t i on a llo we d b y a fe d e r a l s t a t u t e or a r u le p r e s c r i b e d b y t h e S u p r e m e
C ou r t .
2. Rule 902. Evidence That Is Self-Authenticating
 Is a 104(a) determination
Th e fo llo wi n g i t e m s o f e vi d e n c e a r e s e l f -a u t h e n t i c a t i n g; t h e y r e q u i r e n o e x t r i n s i c
e vi d e n c e o f a u t h e n t i c i t y i n or d e r t o b e a d m i t t e d :
( 1 ) Do m e s t i c P ub l i c Do c um e nt s T ha t Ar e Se a l e d a nd Si g ne d . A d o c u m e n t t h a t b e a r s :
( A) a s e a l p u r p o r t i n g t o b e t h a t o f t h e Un i t e d St a t e s ; a n y s t a t e , d i s t ri c t ,
c om m on we a lt h , t e r r i t o r y , or i n s u la r p os s e s s i on o f t h e Un i t e d St a t e s ; t h e fo r m e r
Pa n a m a Ca n a l Z on e ; t h e Tr u s t Te r r i t or y o f t h e Pa c i fi c Is la n d s ; a p o li t i c a l
s u b d i vi s i on o f a n y o f t h e s e e n t i t i e s ; or a d e p a r t m e n t , a ge n c y, or o f fi c e r o f a n y
entity named above; and
( B ) a s i gn a t u r e p u r p or t i n g t o b e a n e x e c u t i on or a t t e s t a ti on .
( 2 ) Do m e s t i c P ub l i c Do c um e nt s T ha t Ar e No t S e a l e d b ut Ar e Si g ne d a n d C e r t i f i e d . A
d oc u m e n t t h a t b e a r s n o s e a l i f:
( A) i t b e a r s t h e s i gn a t u r e o f a n o f fi c e r or e m p lo ye e o f a n e n t i t y n a m e d i n Ru le
9 0 2 ( 1 ) ( A) ; a n d
( B ) an ot h e r p u b li c o f fi c e r wh o h a s a s e a l a n d o f fi c i a l d u t i e s wi t h i n t h a t s a m e
e n t i t y c e r t i fi e s u n d e r s e a l — or i t s e q u i v a le n t — t h a t t h e s i gn e r h a s t h e o f fi c i a l
c a p a c i t y a n d t h a t t h e s i g n a t u r e i s ge n u i n e .
( 3 ) Fo r e i g n P ub l i c Do c um e nt s . A d oc u m e n t t h a t p u r p or t s t o b e s i gn e d o r a t t e s t e d b y a
p e r s on wh o i s a u t h or i z e d b y a fo r e i gn c ou n t r y’ s la w t o d o s o. T h e d o c u m e n t m u s t b e
a c c om p a n i e d b y a fi n a l c e r t i fi c a t i on t h a t c e r t i fi e s t h e ge n u i n e n e s s o f t h e s i gn a t u r e a n d
o f fi c i a l p os i t i on o f t h e s i gn e r or a t t e s t e r — or o f a n y fo r e i gn o f fi c i a l wh os e c e r t i fi c a t e
o f g e n u i n e n e s s r e la t e s t o t h e s i gn a t u r e or a t t e s t a t i on or i s i n a c h a i n o f c e r t i fi c a t e s o f
ge n u i n e n e s s r e la t i n g t o t h e s i gn a t u r e or a t t e s t a t ion . T h e c e r t i fi c a t i on m a y b e m a d e b y a
s e c r e t a r y o f a Un i t e d St a t e s e m b a s s y or le ga t i o n ; b y a c on s u l g e n e r a l, vi c e c on s u l, or
c on s u la r a gen t o f t h e Un i t e d St a t e s ; or b y a d i p lo m a t i c or c on s u la r o f fi c i a l o f t h e fo r e i gn
c ou n t r y a s s i gn e d or a c c r e d i t e d t o t h e Un i t e d St a t e s . If a ll p a r t i e s h a ve b e e n gi ve n a
r e a s on a b le op p or t u n i t y t o i n v e s t i ga t e t h e d oc u m e n t ’ s a u t h e n t i c i t y a n d a c c u r a c y, t h e
c ou r t m a y, fo r g o od c a u s e , e i t h e r :
( A) or d e r t h a t i t b e t r e a t e d a s p r e s u m p t i ve ly a u t h e n t i c wi t h o u t fi n a l
c e r t i fi c a t i on ; or

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 ( B ) allo w i t t o b e e vi d e n c e d b y a n a t t e s t e d s u m m a r y wi t h o r wi t h o u t fi n a l
c e r t i fi c a t i on .
( 4 ) C e r t i f i e d Co p i e s o f P ub l i c Re c o r d s . A c op y o f a n o f fi c i a l r e c or d — or a c op y o f a
d oc u m e n t t h a t wa s r e c o r d e d or fi le d i n a p u b li c o f fi c e a s a u t h or i z e d b y la w — i f t h e
c op y i s c e r t i fi e d a s c or r e c t b y:
( A) t h e c u s t od i a n o r a n o t h e r p e r s on a u t h or i z e d t o m a ke t h e c e r t i fi c a t i on ; or
( B ) a c e r t i fi c a t e t h a t c o m p li e s wi t h Ru le 9 0 2 ( 1 ) , ( 2 ) , or ( 3 ) , a fe d e r a l s t a t u t e , or
a r u le p r e s c r i b e d b y t h e Su p r e m e C ou r t .
( 5 ) Of f i c i a l P ub l i c a t i o ns . A b o o k , p a m p h le t , o r ot h e r p u b li c a t i on p u r p or t i n g t o b e
i s s u e d b y a p u b li c a u t h o r i t y.
( 6 ) Ne ws p a p e r s a nd Pe r i o d i c a ls . Pr i n t e d m a t e r i a l p u r p or t i n g t o b e a n e ws p a p e r o r
p e r i od i c a l.
( 7 ) Tr a d e I ns c r i p t i o ns a nd t h e Li k e . An i n s c r i p t i on , s i gn , t a g , or la b e l p u r p or t i n g t o
h a v e b e e n a f fi x e d i n t h e c ou r s e o f b u s i n e s s a n d i n d i c a t i n g or i gi n , o wn e r s h i p , or c on t r o l.
( 8 ) A c k no wl e d g e d Do c um e nt s . A d o c u m e n t a c c om p a n i e d b y a c e r t i fi c a t e o f
a c kn o wle d gm e n t t h a t i s la wfu ll y e x e c u t e d b y a n ot a r y p u b li c or a n ot h e r o f fi c e r wh o i s
a u t h or i z e d t o t a ke a c kn o wle d gm e n t s .
( 9 ) Co m m e r c i a l Pa p e r a nd Re l a t e d Do c um e nt s . C om m e r c i a l p a p e r , a s i gn a t u r e on i t ,
a n d r e la t e d d oc u m e n t s , t o t h e e x t e n t a llo we d b y ge n e r a l c om m e r c i a l la w.
( 1 0 ) Pr e s um p t i o ns Und e r a Fe d e r a l St a t ut e . A s i gn a t u r e , d o c u m e n t , o r a n yt h i n g e ls e
t h a t a fe d e r a l s t a t u t e d e c la r e s t o b e p r e s u m p t i ve ly o r p r i m a fa c i e ge n u i n e o r a u t h e n t i c .
( 1 1 ) C e r t i f i e d Do m e s t i c Re c o r d s o f a Re g ul a r l y Co nd u c t e d A c t i v i t y . Th e or i gi n a l or a
c op y o f a d om e s t i c r e c or d t h a t m e e t s t h e r e q u i r e m e n t s o f Ru le 8 0 3 ( 6 ) ( A) -( C) , a s s h o wn
b y a c e r t i fi c a t i on o f t h e c u s t od i a n or a n ot h e r q u a li fi e d p e r s on t h a t c o m p li e s wi t h a
fe d e r a l s t a t u t e or a r u le p r e s c r i b e d b y t h e Su p r e m e C ou r t . Be fo r e t h e t r i a l or h e a r i n g,
t h e p r op on e n t m u s t gi ve a n a d ve r s e p a r t y r e a s on a b le wr i t t e n n ot i c e o f t h e i n t e n t t o o f fe r
t h e r e c or d — a n d m u s t m a k e t h e r e c or d a n d c e r t i fi c a t i on a va i la b le fo r i n s p e c t i on — s o
t h a t t h e p a r t y h a s a fa i r op p or t u n i t y t o c h a lle n g e t h e m .
( 1 2 ) C e r t i f i e d Fo r e i g n Re c o r d s o f a Re g ul a r l y Co nd u c t e d A c t i v i t y . In a c i vi l c a s e , t h e
or i gi n a l o r a c op y o f a fo r e i gn r e c or d t h a t m e e t s t h e r e q u i r e m e n t s o f Ru le 9 0 2 ( 1 1 ) ,
m od i fi e d a s fo l lo ws : t h e c e r t i fi c a t i on , r a t h e r t h a n c o m p lyi n g wi t h a fe d e r a l s t a t u t e or
Su p r e m e C ou r t r u le , m u s t b e s i gn e d i n a m a n n e r t h a t , i f fa ls e l y m a d e , wo u ld s u b j e c t t h e
m a k e r t o a c r i m i n a l p e n a lt y i n t h e c ou n t r y wh e r e t h e c e r t i fi c a t i on i s s i gn e d . Th e
p r op on e n t m u s t a ls o m e e t t h e n ot i c e r e q u i r e m e n t s o f Ru le 9 0 2 ( 1 1 ) .
ii. Best Evidence
 Parties in litigation always have an incentive to offer the best and most persuasive evidence they can
 The only remnant of the old rule is when a party is trying to prove the contents of an original
o Copies are not a problem
o When the writing itself is at issue, (when minor variations would be a problem)
o Safeguard against forgery
o Safeguard against presenting things out of context
o Almost all violations are found to be harmless error
1. Rule 1002. Requirement of the Original
An or i gi n a l wr i t i n g, r e c or d i n g, or p h ot o gr a p h i s r e q u i r e d i n or d e r t o p r o ve i t s c on t e n t
u n le s s t h e s e r u le s o r a f e d e r a l s t a t u t e p r o vi d e s o t h e r wi s e .
 Almost always documents; does not apply to physical objects
 Where the writing is inherently at issue in the litigation, ie.:
o Contract
o Copyright infringement
o Will
o Lease
o Written libel
o Child pornography
 Where the writing has independent probative value and is not merely an illustration of testimony.
 10.8 Meyers v. US

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 o Perjury trial
o Prosecutor offers someone who had been at the earlier proceeding instead of the transcript
o Transcript seems like the best evidence, but is it required?
o We are trying to prove it's a lie, so it seems like libel. Transcript is hearsay but admitted as
defendant's word and 803(8); 902 (self-authenticates)
o Perjury is making a particular statement under oath, so what we're trying to show dishonesty under
oath.
o However, we're not trying to prove the content of the perjury, just that a lie was being told under
oath, so not subject to the best evidence.
o Why wouldn't the government not use the transcript? Want the perceptions of the witness on non-
verbals
o 403 may get the judge to require the transcript so the witness is not “unfairly prejudicial”
 10.9
o A restaurant was gutted by fire and a neighbor wrote down the license plate of the get-away car
o Defendant objected when the neighbor testified as to the license plate number from memory, as
not using the best evidence
o This has nothing to do with the best evidence rule
o The goal is to prove that the defendant's number was what the witness saw. The goal is not to
prove the circumstances.
o In the alternative: refresh memory (would it refresh your recollection to see the card you wrote at
the time) and if you remembered that you wrote it down carefully; if yes, can read it into the
record, but the card cannot be given to the jury (past recollection recorded).
2. Rule 1001. Definitions That Apply to This Article
 Broad definition: letters, words, numbers, or their equivalent (including drawings)
 Encompasses almost anything recorded:
o Handwriting, typewriting, printing
o Computer files, disks, CDs
o Tape recordings
o Photographs
o X-rays
o Videotapes and motion pictures
 Rationale: prevent oral testimony about the contents of writing
o Because oral testimony is particularly bad about remembering the precise terms of a document;
failure of human testimony; risk of error
 10.10 US v. Bennett
o Customs officer saw on the GPS system that the boat had crossed international waters, but did not
record it in any way
o Is it a writing? Yes, a computer read out
o Does it have independent probative value? Yes, because he is testifying to what the GPS said. He
did not see the boat cross the waters.
o Exception? No
o So, court will not let him testify. Government should have been able to record the information. So
many ways the accuracy could have been preserved. Officer was negligent
 US v. Jackson
o Alleged pedophile
o The incriminating content is the writing
o No originals
o There is a cut and paste with edits and comments
o This seems to be just the manual reproduction the rule was designed to exclude
In t h i s a r t i c le :
( a ) A “wr i t i n g” c on s i s t s o f le t t e r s , wor d s , n u m b e r s , or t h e i r e q u i va le n t s e t d o wn i n a n y
fo r m .
 Seiler v. Lucasfilm
o Seiler claims Star Wars breached his copyright
o The drawing is a writing under 1001(1)

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 o He does not have the original
o The drawings in our book are reconstructions of what he drew before the movies
o Are these duplicates? No, not a mechanical reproduction [this rule has its basis in fears of
forgeries]
o Does it fit within any exceptions? The originals seems to have been lost or destroyed in bad faith
(1004)
( b) A “ r e c o r d i n g” c on s i s t s o f le t t e r s , wor d s , n u m b e r s , or t h e i r e q u i v a le n t r e c or d e d i n
any manner.
( c ) A “p h ot o gr a p h ” m e a n s a p h ot o gr a p h i c i m a g e or i t s e q u i va le n t s t or e d i n a n y fo r m .
( d) An “ or i gi n a l ” o f a wr i t i n g or r e c or d i n g m e a n s t h e wr i t i n g or r e c or d i n g i t s e lf or a n y
c ou n t e r p a r t i n t e n d e d t o h a v e t h e s a m e e f fe c t b y t h e p e r s on wh o e x e c u t e d or i s s u e d i t .
Fo r e le c t r on i c a ll y s t or e d i n for m a t i on , “or i gi n a l” m e a n s a n y p r i n t ou t — o r ot h e r ou t p u t
r e a d a b le b y s i gh t — i f i t a c c u r a t e ly r e f le c t s t h e i n for m a t i on . An “ o r i gi n a l” o f a
p h ot o gr a p h i n c lu d e s t h e n e g a t i ve or a p r i n t fr om i t .
 Writing or recording itself
 Any counterpart intended to have the same effect as the original:
o Multiple wet-ink contracts
o Carbon copies
o Negatives or any prints therefrom
o Any printout or output from computer data
( e ) A “d u p li c a t e ” m e a n s a c ou n t e r p a r t p r od u c e d b y a m e c h a n i c a l, p h ot o gr a p h i c ,
c h e m i c a l, e le c t r on i c , or ot h e r e q u i va le n t p r oc e s s or t e c h n i q u e t h a t a c c u r a t e l y
r e p r od u c e s t h e or i gi n a l.
3. Rule 1003. Admissibility of Duplicates
A d u p li c a t e i s a d m i s s i b le t o t h e s a m e e x t e n t a s t h e or i gi n a l u n le s s a ge n u i n e q u e s t i on
i s r a i s e d a b ou t t h e or i gi n a l’ s a u t h e n t i c i t y or t h e c i r c u m s t a n c e s m a ke i t u n f a i r t o a d m i t
t h e d u p li c a t e .
 Duplicates are admissible the same extent as originals, unless:
o (1) Genuine question about the authenticity of original.
o (2) Unfairness (ie. only segment of original reproduced).
 “Duplicate” generally includes any mechanical reproduction. (see also 1001(e))
4. Rule 1004. Admissibility of Other Evidence of Content
An or i gi n a l i s n ot r e q u i r e d a n d ot h e r e vi d e n c e o f t h e c on t e n t o f a wr i t i n g , r e c or d i n g, or
p h ot o gr a p h i s a d m i s s i b le i f:
( a ) a ll t h e or i gi n a ls a r e los t or d e s t r o ye d , a n d n ot b y t h e p r op on e n t a c t i n g i n b a d fa i t h ;
 (1) Originals lost or destroyed through no fault of proponent.
( b) a n or i gi n a l c a n n ot b e o b t a i n e d b y a n y a v a i la b le j u d i c i a l p r oc e s s ;
 (2) Originals exist but are not obtainable by any process or procedure.
( c ) t h e p a r t y a ga i n s t wh om t h e o r i gi n a l wou ld b e o f fe r e d h a d c on t r o l o f t h e or i gi n a l;
wa s a t t h a t t i m e p u t on n ot i c e , b y p le a d i n gs or ot h e r wi s e , t h a t t h e or i gi n a l wo u ld b e a
s u b j e c t o f p r o o f a t t h e t r i a l or h e a r i n g ; a n d fa i ls t o p r od u c e i t a t t h e t r i a l or h e a r i n g ; or
 (3) Opponent possesses the original and does not produce it.
( d) t h e wr i t i n g, r e c or d i n g, or p h ot o gr a p h i s n ot c los e ly r e la t e d t o a c on t r o lli n g i s s u e .
 (4) Writing, recording, or original not closely related to a controlling issue.

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 IV. Privileges
November 21, 2016—December 1, 2016
1. Introduction
1. Rule 501. Privilege in General
 Sources for Privilege Law
o Reason (policy arguments)
o Experience (consensus among the states)
o Constitutional values (i.e., Self-Incrimination Clause, Free Exercise Clause, Griswold-style privacy)
o The rules (not enacted but somewhat authoritative):
 required reports
 attorney-client
 psychotherapist-patient
 spousal
 clergy-penitent
 vote
 trade secrets
 state secrets
 informant identity
 Privileged Relationships
o Communications made in confidence.
o In an exchange where confidentiality is essential.
 i.e., clergy/penitent
 i.e., lawyer/client
o In a relationship society views as valuable.
 i.e., marriage
o Where injury to the relationship from disclosure is greater than the benefit to be gained from
receiving the information into evidence.
 Why not these relationships?
o Parent-child
o Sibling
 We do not need the law to protect sibling relationships, but confidentiality is essential for
communication to happen in certain relationships; without the confidentiality, the
communication will not take place
o Doctor-patient
 There will be frank communication no matter what; the need for immediate assistance
overrides need for confidentiality
o Accountant-client
o Journalist-source
 Exists in most states, but not in the federal government
 Problems:
 How to define who a journalist is
 Wikileaks
 Questions of national security
 Re. Judith Miller
 Three concurring opinions expressing the range of possibilities
 No privilege here because of national security interests
Th e c o m m on la w — a s i n t e r p r e t e d b y Un i t e d S t a t e s c ou r t s i n t h e li gh t o f r e a s on a n d
e x p e r i e n c e — g o ve r n s a c la i m o f p r i vi le ge u n le s s a n y o f t h e fo llo wi n g p r o vi d e s
ot h e r wi s e :
 t h e Un i t e d St a t e s C on s t i t u ti on ;
 a fe d e r a l s t a t u t e ; or
 r u le s p r es c r i b e d b y t h e Su p r e m e C ou r t .
Bu t i n a c i vi l c a s e , s t a t e la w g o ve r n s p r i vi le ge r e g a r d i n g a c la i m or d e fe n s e for wh i c h
s t a t e la w s u p p li e s t h e r u le o f d e c i s i on .

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  This is really the only rule
2. Attorney-Client Privilege
 Requires:
o An attorney-client relationship.
 Extends to communications with third parties (secretaries, paralegals, investigators) if
made for the purpose of obtaining legal advice.
 Includes corporate clients.
 Excludes, for example, friendly conversations and exchanges between business partners.
 People v. Gionis
 Defendant tells business associate/lawyer that he would take care of John Wayne's
daughter
 The opening disclosure by the attorney that he would not represent the defendant
because he knew both parties carries the day
 The legal parts of the conversation were anomalies; the whole thrust of the
conversation was non-legal
o A communication.
 Verbal or nonverbal.
 Transfers of property, identification of clients, and information about fees may not be
considered communications.
o Made in confidence.
 Confidence destroyed where client knew or should have known it would be overheard.
 Reasonable attempts to prevent eavesdropping demonstrate an expectation that the
communication is confidential (12.2 (McCafferty’s . Bank of Glen Burnie); dumpster diver
retrieves damaging communication)
 We are concerned with whether the client tried to keep the conversation confidential. (12.1
(Blackmon v. State))
 Inadvertent disclosures (12.3 Howell v. Joffe; conversation about sex-abuse)
 Is it actually inadvertent?
 Did the party take reasonable steps to prevent disclosure?
o How much is it your fault?
o This is a toss-up
 Did the party take steps to correct quickly after the fact?
o Tried to rectify right away
 Williams v. District of Columbia
 During discovery, party inadvertently sent a privileged two page email among a
total of 100 pages
 The took 2.3 years to claim the privilege
 They waived it
 Does someone’s identity count as privileged?
 12.4 Dietz v. Doe
o Client/defendant made an illegal turn that resulted in a fatal accident;
defendant drove away unscathed
o Attorney announced that he was representing the person who did this
o Cannot be compelled to reveal defendant’s identity because if he did, he
would open up his client to real liability
 12.5 Hughes v. Meade
o Defendant left attorney with a stolen typewriter to take to the police
o Defendant’s identity is unprotected because the attorney wasn’t doing
any legal work
 Payment is not a communication (12.6 Alexion v. US)

o For the purpose of facilitating professional legal services.
 Doesn’t apply to work that a non-lawyer could perform.
 Is there an attorney?

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 o Applies to licensed attorneys and individuals reasonably believed to be licensed attorneys.
o Extends to communications with representatives of the lawyer if made for the purpose of obtaining
legal advice.
o Applies even if the attorney is not ultimately retained.
o Applies even if the attorney is not paid, i.e. even in pro bono cases.
 Is there a client?
o Person who receives professional legal services from a lawyer, or that person’s representative.
o Applies to a corporate client where:
 the communication was made by employee to corporate counsel
 at the direction of supervisor
 for the purpose of obtaining legal advice
 concerning matters within the scope of the employee’s duties
o Applies to codefendants, according to the joint defense privilege. If an attorney is serving a
codefendant for a limited purpose, that attorney represents the codefendant for that purpose.
o Applies even after death (Swidler &Berlin v. US; attorney’s notes white house counsel’s
conversation pre-suicide)
 Is there a communication?
o Orally or in writing
o Or expressive nonverbal conduct
o No privilege prevents the attorney from testifying about observations, i.e.:
 appearance
 physical condition
 demeanor
 conduct
o Identification of the client’s photograph or handwriting is not privileged. (12.7)
o Cannot cloak preexisting documents with immunity by turning them over to an attorney.
 Is there confidentiality?
o Defined in terms of intent:
 Reasonable but not heroic precautions are required.
 But desire for confidentiality is not tantamount to taking precautions.
o Common law admitted eavesdropper testimony and intercepted letters. Modern-day sophistication
of eavesdropping and interception has changed this position.
o E-mails qualify if the parties took reasonable precautions to ensure confidentiality, but where there
is random monitoring of e-mail by an employer, or a message is left on several different servers and
is vulnerable to interception, the privilege may be defeated.
 Was the communication for the purpose of facilitating the provision of professional legal services?
o Privilege does not protect any work that happens to be performed by an attorney, such as conveying
property or clerical duties.
o Split in authority on:
o Preparing tax returns.
o Investigative work.
 Has there been a waiver?
o Who can waive the privilege?
 Belongs solely to the client and can only be waived by the client.
 Attorney generally has implied authority to waive on behalf of the client.
o What constitutes conduct inconsistent with a continuing desire to keep the communication
confidential?:
 Voluntary disclosure to third parties, excepting disclosures in furtherance of the rendition
of legal services, such as those to a spouse, parent, business associate, or joint client.
 An attack on the attorney’s competence.
 Failure to assert the privilege.
 Inadvertent disclosure.
 Does an exception apply?
o (1) Services of the lawyer were sought to enable the commission of a crime or fraud.
 Wrongdoing need not be that of the client.

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  Attorney need not know that a crime is being planned or committed.
 We only privilege socially desirable communications
 Attorney does not have to know he is being used for the privilege to fall
o (2) Communication is relevant to a dispute between claimants through the same deceased client.
 Usually in a will
o (3) Communication is relevant to a breach of lawyer or client’s duty.
 Especially once they are suing each other, the privilege falls
o (4) Communication concerns an attested document and the lawyer is an attesting witness.
o (5) Communication made by client bears on a matter of common interest between that client and
other clients who jointly retained or consulted the attorney, and the communication is offered in an
action between the clients.
 See also Morales v. Portuondo in Priest-Penitent privilege
1. Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver
Th e fo l lo wi n g p r o vi s i on s a p p ly, i n t h e c i r c u m s t a n c e s s e t ou t , t o d i s c los u r e o f a
c om m u n i c a t i on or i n for m a t i on c o ve r e d b y t h e a t t or n e y -c li e n t p r i vi le ge o r wor k -p r od u c t
p r ot e c t i on .
( a ) Di s c l os ur e M a d e i n a F e de r a l P r oc e e di ng o r t o a F e de r a l O f f i c e or Ag e nc y ; Sc o pe
of a Wa i ve r . Wh e n t h e d i s c los u r e i s m a d e i n a f e d e r a l p r oc e e d i n g or t o a fe d e r a l o f fi c e
or a ge n c y an d wa i v e s t h e a t t or n e y -c li e n t p r i vi le ge or wo r k -p r od u c t p r ot e c t i on , t h e
wa i v e r e x t e n d s t o a n u n d i s c los e d c om m u n i c a t i o n or i n for m a t i on i n a fe d e r a l or s t a t e
p r oc e e d i n g on ly i f:
( 1 ) t h e wa i ve r i s i n t e n t ion a l;
( 2 ) t h e d i s c los e d a n d u n d i s c los e d c o m m u n i c a t i on s or i n for m a t i on c on c e r n t h e
same subject matter; and
( 3 ) t h e y ou gh t i n fa i r n e s s t o b e c on s i d e r e d t o ge t h e r .
( b) I na d ve r t e nt Di s c l os ur e . Wh e n m a d e i n a fe d e r a l p r o c e e d i n g or t o a fe d e r a l o f fi c e
or a ge n c y, t h e d i s c los u r e d oe s n ot op e r a t e a s a wa i v e r i n a fe d e r a l or s t a t e p r oc e e d i n g
i f:
( 1 ) t h e d i s c los u r e i s i n a d ve r t e n t ;
( 2 ) t h e h o ld e r o f t h e p r i vi le ge or p r ot e c t i on t o o k r e a s on a b le s t e p s t o p r e v e n t
d i s c los u r e ; a n d
( 3 ) t h e h o ld e r p r om p t ly t oo k r e a s on a b le s t e p s t o r e c t i fy t h e e r r or , i n c lu d i n g ( i f
a p p li c a b le ) fo llo wi n g Fe d e r a l Ru le o f Ci vi l Pr oc e d u r e 2 6 ( b ) ( 5 ) ( B ) .
( c ) Di s c l os u r e M a de i n a St a t e P r oc e e di ng . W h e n t h e d i s c los u r e i s m a d e i n a s t a t e
p r oc e e d i n g a n d i s n ot t h e s u b j e c t o f a s t a t e -c ou r t o r d e r c on c e r n i n g wa i v e r , t h e
d i s c los u r e d o e s n ot op e r a t e a s a wa i v e r i n a fe d e r a l p r oc e e d i n g i f t h e d i s c los u r e :
( 1 ) wou ld n ot b e a wa i ve r u n d e r t h i s r u le i f i t h a d b e e n m a d e i n a fe d e r a l
p r oc e e d i n g ; or
( 2 ) i s n ot a wa i v e r u n d e r t h e la w o f t h e s t a t e wh e r e t h e d i s c los u r e o c c u r r e d .
( d) Co nt r ol l i ng Ef f e c t of a Co ur t O r de r . A fe d e r a l c ou r t m a y o r d e r t h a t t h e p r i vi le ge
or p r ot e c t i on i s n ot wa i ve d b y d i s c los u r e c on n e c t e d wi t h t h e li t i ga t i on p e n d i n g b e fo r e
t h e c ou r t — i n wh i c h e v e n t t h e d i s c los u r e i s a ls o n ot a wa i ve r i n a n y ot h e r fe d e r a l or
s t a t e p r oc e e d i n g.
( e ) Co nt r ol l i ng Ef f e c t o f a P a r t y Ag r e e m e nt . A n a gr e e m e n t on t h e e f fe c t o f d i s c los u r e
i n a fe d e r a l p r oc e e d i n g i s b i n d i n g on ly o n t h e p a r t i e s t o t h e a gr e e m e n t , u n le s s i t is
i n c or p or a t e d i n t o a c ou r t or d e r .
( f ) Co nt r ol l i ng Ef f e c t of t hi s Rul e . Not wi t h s t a n d i n g Ru le s 1 0 1 a n d 1 1 0 1 , t h i s r u le
a p p li e s t o s t a t e p r o c e e d i n gs a n d t o fe d e r a l c ou r t -a n n e x e d a n d fe d e r a l c ou r t -m a n d a t e d
a r b i t r a t i on p r o c e e d i n gs , i n t h e c i r c u m s t a n c e s s e t ou t i n t h e r u le . An d n ot wi t h s t a n d i n g
Ru le 5 0 1 , t h i s r u le a p p li e s e ve n i f s t a t e la w p r o v i d e s t h e r u le o f d e c i s i on .
( g ) De f i ni t i ons . In t h i s r u le :
( 1 ) ”a t t or n e y -c li e n t p r i v i le g e ” m e a n s t h e p r ot e c t i on t h a t a p p li c a b le la w p r o vi d e s
fo r c on fi d e n t i a l a t t or n e y -c li e n t c om m u n i c a t i on s ; a n d
( 2 ) ” wor k -p r od u c t p r ot e c t i on ” m e a n s t h e p r ot e c t i on t h a t a p p li c a b le la w p r o vi d e s
fo r t a n gi b le m a t e r i a l ( o r i t s i n t a n gi b le e q u i va le n t ) p r e p a r e d i n a n t i c i p a t i on o f
li t i ga t i on o r fo r t r i a l.

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2. Rule 503 (Proposed). Lawyer-Client Privilege
( a ) De f i ni t i ons . As u s e d i n t h i s r u le :
( 1 ) A “ c li e n t ” i s a p e r s on , p u b li c o f fi c e r , or c o r p or a t i on , a s s oc i a t i on , o r ot h e r
or ga n i z a t i on o r e n t i t y, e i t h e r p u b li c or p r i va t e , wh o i s r e n d e r e d p r o fe s s i on a l
le ga l s e r vi c e s b y a la wy e r , or wh o c on s u lt s a la w ye r wi t h a vi e w t o ob t a i n i n g
p r o fe s s i on a l le g a l s e r vi c e s fr o m h i m .
( 2 ) A “ la wye r ” i s a p e r s on a u t h or i z e d , or r e a s on a b ly b e li e ve d b y t h e c li e n t t o b e
a u t h or i z e d , t o p r a c t i c e la w i n a n y s t a t e or n a t i o n .
( 3 ) A “r e p r e s e n t a t i ve o f t h e la wye r ” i s on e e m p lo ye d t o a s s i s t t h e la wye r i n t h e
r e n d i t i on o f p r o fe s s i on a l le g a l s e r vi c e s .
( 4 ) A c om m u n i c a t i on i s “c on fi d e n t i a l ” i f n ot i n t e n d e d t o b e d i s c los e d t o t h i r d
p e r s on s ot h e r t h a n t h os e t o wh om d i s c los u r e i s i n fu r t h e r a n c e o f t h e r e n d i ti on
o f p r o fe s s i on a l le ga l s e r vi c e s t o t h e c li e n t or t h o s e r e a s on a b l y n e c e s s a r y fo r t h e
t r a n s m i s si on o f t h e c om m u n i c a t i on .
( b) G e ne r a l r ul e of pr i vi l e g e . A c li e n t h a s a p r i vi le ge t o r e fu s e t o d i s c los e a n d t o
p r e v e n t a n y ot h e r p e r s o n fr om d i s c los i n g c on fi d e n t i a l c om m u n i c a t i on s m a d e fo r t h e
p u r p os e o f fa c i li t a t i n g t h e r e n d i ti on o f p r o fe s s i on a l le ga l s e r vi c e s t o t h e c li e n t , ( 1 )
b e t we e n h i m s e lf or h i s r e p r e s e n t a t i ve a n d h i s la w ye r or h i s la wye r ’ s r e p r e s e n t a t i ve , or
( 2 ) b e t we e n h i s la w ye r a n d t h e la w ye r ’ s r e p r e s e n t a t i ve , or ( 3 ) b y h i m o r h i s la w ye r t o
a la w ye r r e p r e s e n t i n g a n ot h e r i n a m a t t e r o f c o m m on i n t e r e s t , or ( 4 ) b e t we e n
r e p r e s e n t a t i ve s o f t h e c li e n t or b e t we e n t h e c li e n t a n d a r e p r e s e n t a t i ve o f t h e c li e n t , or
( 5 ) b e t we e n la w ye r s r e p r e s e n t i n g t h e c li e n t .
( c ) W h o m a y c l a i m t h e pr i vi l e g e . Th e p r i vi le ge m a y b e c la i m e d b y t h e c li e n t , h i s
gu a r d i a n or c on s e r va t o r , t h e p e r s on a l r e p r e s e n t a t i ve o f a d e c e a s e d c li e n t , or t h e
s u c c e s s or , t r u s t e e , or s i m i la r r e p r e s e n t a t i ve o f a c or p or a t i on , a s s o c i a t i on , or ot h e r
or ga n i z a t i on , wh e t h e r o r n ot i n e x i s t e n c e . Th e p e r s on wh o wa s t h e la wye r a t t h e t i m e
o f t h e c om m u n i c a t i on m a y c la i m t h e p r i vi le ge b u t on l y on b e h a lf o f t h e c li e n t . Hi s
a u t h or i t y t o d o s o i s p r e s u m e d i n t h e a b s e n c e o f e vi d e n c e t o t h e c on t r a r y .
( d) E xc e pt i o ns . Th e r e i s n o p r i vi le ge u n d e r t h i s r u le :
( 1 ) F u r t h e r a nc e of c r i m e o r f r a u d. I f t h e s e r vi c e s o f t h e la w ye r we r e s o u gh t or
ob t a i n e d t o e n a b le or a i d a n yon e t o c om m i t or p la n t o c om m i t wh a t t h e c li e n t
kn e w or r e a s on a b l y s h ou ld h a ve kn o wn t o b e a c r i m e or fr a u d ; or
( 2 ) Cl a i m a nt s t hr o ug h s a m e de c e a s e d c l i e nt . As t o a c om m u n i c a t i on r e le v a n t
t o a n i s s u e b e t we e n p a r t i e s wh o c la i m t h r ou gh t h e s a m e d e c e a s e d c li e n t ,
r e g a r d le s s o f wh e t h e r t h e c la i m s a r e b y t e s t a t e or i n t e s t a t e s u c c e s s i on or b y i n t e r
vi v os t r a n s a c t i on ; or
( 3 ) B r e a c h of d ut y by l a w y e r or c l i e nt . As t o a c om m u n i c a t i on r e le va n t t o a n
i s s u e o f b r e a c h o f d u t y b y t h e la w ye r t o h i s c li e n t or b y t h e c li e n t t o h i s la wye r ;
or
( 4 ) Doc um e nt a t t e s t e d by l a w y e r . As t o a c om m u n i c a t i on r e le va n t t o a n i s s u e
c on c e r n i n g a n a t t e s t e d d oc u m e n t t o wh i c h t h e la w ye r i s a n a t t e s t i n g wi t n e s s ; or
( 5 ) J oi nt c l i e nt s . As t o a c om m u n i c a t i on r e le v a n t t o a m a t t e r o f c om m on i n t e r e s t
b e t we e n t wo or m or e c li e n t s i f t h e c om m u n i c a t i on wa s m a d e b y a n y o f t h e m t o
a la w ye r r e t a i n e d or c o n s u lt e d i n c om m on , wh e n o f fe r e d i n a n a c t i on b e t we e n
a n y o f t h e c li e n t s .
3. Proposed Rules
1. Rule 504 (Proposed). Psychotherapist-Patient Privilege
 Jaffe v. Redmond
o Officer charged with use of excessive force for killing someone she thought was about to stab
someone else
o Defendant went to a social worker for psychological help
o Under 501, the Supreme Court found a new privilege
 Reason: public interest in facilitating appropriate treatments
 Plus, if we don’t grant the privilege, there’d be a chilling effect that would
preclude the creation of this evidence anyways

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  Experience: all 50 states and DC, plus the proposed rules have recognized; not recognizing
would undermine the state's rules
 11.1 US v. Auster
o Patient/defendant threated people during counseling sessions with psychotherapist, even after the
therapist told him the therapist would have to tell the threatened person
o No privilege because
 There would be no chilling effect from denying the privilege
 Public policy: there is nothing socially valuable about this communication
( a ) De f i ni t i ons .
A “p a t i e n t ” i s a p e r s o n wh o c on s u lt s or i s e x a m i n e d or i n t e r vi e we d b y a
p s yc h ot h e r a p i s t .
A “ p s yc h ot h e r a p i s t ” i s (A) a p e r s on a u t h or i z e d t o p r a c t i c e m e d i c i n e i n a n y s t a t e
or n a t i on , or r e a s on a b ly b e li e ve d b y t h e p a t i e n t s o t o b e , wh i le e n ga g e d i n t h e
d i a gn os i s or t r e a t m e n t o f a m e n t a l or e m ot i on a l c on d i t i on , i n c lu d i n g d r u g
a d d i c t i on , or ( B ) a p e r s o n li c e n s e d or c e r t i fi e d a s a p s yc h o lo gi s t u n d e r t h e la ws
o f a n y s t a t e or n a t i on , w h i le s i m i la r l y e n g a ge d .
A c om m u n i c a t i on i s “c on fi d e n t i a l” i f n ot i n t e n d e d t o b e d i s c los e d t o t h i r d
p e r s on s ot h e r t h a n t h os e p r e s e n t t o fu r t h e r t h e i n t e r e s t o f t h e p a t i e n t i n t h e
c on s u lt a t i on , e x a m i n a t i o n , or i n t e r vi e w, or p e r s o n s r e a s on a b ly n e c e s s a r y fo r t h e
t r a n s m i s si on o f t h e c o m m u n i c a t i on , or p e r s on s wh o a r e p a r t i c i p a t i n g i n t h e
d i a gn os i s a n d t r e a t m e n t u n d e r t h e d i r e c t i on o f t h e p s yc h ot h e r a p i s t , i n c lu d i n g
m e m b e r s o f t h e p a t i e n t ’s fa m i ly.
( b ) G e n e r a l r u le o f p r i vi le g e . A p a t i e n t h a s a p r i vi le ge t o r e fu s e t o d i s c los e a n d t o
p r e v e n t a n y ot h e r p e r s o n fr om d i s c los i n g c on fi d e n t i a l c om m u n i c a t i on s , m a d e for t h e
p u r p os e s o f d i a gn os i s or t r e a t m e n t o f h i s m e n t a l or e m ot i on a l c on d i t i on , i n c lu d i n g d r u g
a d d i c t i o n , a m on g h i m s e lf, h i s p s yc h ot h e r a p i s t , o r p e r s on s wh o a r e p a r t i c i p a t i n g i n t h e
d i a gn os i s or t r e a t m e n t u n d e r t h e d i r e c t i on o f t h e p s yc h ot h e r a p i s t , i n c lu d i n g m e m b e r s
o f t h e p a t i e n t ’ s fa m i ly.
( c ) Wh o m a y c la i m t h e p r i vi le ge . Th e p r i vi le g e m a y b e c la i m e d b y t h e p a t i e n t , b y h i s
gu a r d i a n or c on s e r va t or , or b y t h e p e r s on a l r e p r e s e n t a t i ve o f a d e c e a s e d p a t i e n t . Th e
p e r s on wh o wa s t h e p s y c h ot h e r a p i s t m a y c la i m t h e p r i vi le ge b u t on ly o n b e h a l f o f t h e
p a t i e n t . Hi s a u t h or i t y s o t o d o i s p r e s u m e d i n t h e a b s e n c e o f e vi d e n c e t o t h e c on t r a r y.
( d ) Ex c e p t i on s .
( 1 ) Pr o c e e d i n gs fo r h os p i t a li z a t i on . Th e r e i s n o p r i vi le g e u n d e r t h i s r u le fo r
c om m u n i c a t i on s r e le va n t t o a n i s s u e i n p r o c e e d i n gs t o h os p i t a li z e t h e p a t i e n t for
m e n t a l i lln e s s , i f t h e p s y c h ot h e r a p i s t i n t h e c ou r s e o f d i a gn os i s o r t r e a t m e n t h a s
d e t e r m i n e d t h a t t h e p a t ie n t i s i n n e e d o f h os p i t a li z a t i on .
( 2 ) Ex a m i n a t i on b y or d e r o f j u d ge . I f t h e j u d g e or d e r s a n e x a m i n a t i on o f t h e
m e n t a l or e m ot i on a l c on d i ti on o f t h e p a t i e n t , c o m m u n i c a t i on s m a d e i n t h e c ou r s e
t h e r eo f a r e n ot p r i vi le ge d u n d e r t h i s r u le wi t h r e s p e c t t o t h e p a r t i c u la r p u r p os e
fo r wh i c h t h e e x a m i n a t ion i s or d e r e d u n le s s t h e j u d ge or d e r s ot h e r wi s e .
( 3 ) C on d i t i on a n e le m e n t o f c la i m o r d e fe n s e . T h e r e i s n o p r i vi le ge u n d e r t h i s
r u le a s t o c om m u n i c a t i on s r e le va n t t o a n i s s u e o f t h e m e n t a l or e m ot i on a l
c on d i t i on o f t h e p a t i e n t i n a n y p r oc e e d i n g i n wh i c h h e r e li e s u p on t h e c o n d i ti on
a s a n e le m e n t o f h i s c la i m or d e fe n s e , or , a ft e r t h e p a t i e n t ’ s d e a t h , i n a n y
p r oc e e d i n g i n wh i c h a n y p a r t y r e li e s u p on t h e c on d i t i on a s a n e le m e n t o f h i s
c la i m or d e fe n s e .
2. Rule 505 (Proposed). Husband-Wife Privilege
( a ) G e ne r a l r ul e of p r i vi l e g e . An a c c u s e d i n a c r i m i n a l p r oc e e d i n g h a s a p r i vi le g e t o
p r e v e n t h i s s p ou s e fr om t e s t i fyi n g a ga i n s t h i m .
( b) Wh o m a y c l a i m t he pr i vi l e g e . Th e p r i vi le g e m a y b e c la i m e d b y t h e a c c u s e d o r b y
t h e s p ou s e on h i s b e h a l f. Th e a u t h or i t y o f t h e s p o u s e t o d o s o i s p r e s u m e d i n t h e a b s e n c e
o f e vi d e n c e t o t h e c on t r a r y.
( c ) E xc e pt i o ns . Th e r e i s n o p r i vi le ge u n d e r t h i s r u le ( 1 ) i n p r o c e e d i n g s i n wh i c h on e
s p ou s e i s c h a r ge d wi t h a c r i m e a g a i n s t t h e p e r s on or p r op e r t y o f t h e ot h e r or o f a c h i ld
o f e i t h e r , or wi t h a c r i m e a g a i n s t t h e p e r s on or p r op e r t y o f a t h i r d p e r s on c om m i t t e d i n

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 t h e c ou r s e o f c om m i t t i ng a c r i m e a ga i n s t t h e ot h e r , or ( 2 ) a s t o m a t t e r s oc c u r r i n g p r i or
t o t h e m a r r i a g e , or ( 3 ) i n p r oc e e d i n gs i n wh i c h a s p ou s e i s c h a r ge d wi t h i m p or t i n g a n
a li e n fo r p r os t i t u t i on or ot h e r i m m or a l p u r p os e i n vi o la t i on o f 8 U. S. C. § 1 3 2 8 , wi t h
t r a n s p or t i n g a fe m a le i n i n t e r st a t e c om m e r c e fo r i m m or a l p u r p os e s or ot h e r o f fe n s e i n
vi o la t i on o f 1 8 U.S. C . § § 2 4 2 1 -2 4 2 4 , o r wi t h vi o la t i on o f ot h e r s i m i la r s t a t u t e s .
 Two common law spousal privileges
o (1) Privilege against adverse spousal testimony.
 Applies to any (and only) adverse testimony, not just confidential communications.
 Can concern events either before or during the marriage.
 A lawful marriage is required at the time of the testimony.
 The majority view is that it applies only in criminal cases.
 Testifying spouse holds the privilege.
 OLD law: Hawkins defendant-spouse could bar witness-spouse’s testimony
 Trammel v. US
o Wife is a coconspirator, takes government immunity to testify against
husband
o Controlling reasoning: If spouse is willing to testify against the other,
that relationship is almost certainly in disrepair and there is little marital
harmony for the privilege to save
o Who do we trust more about whether there is a marriage to preserve?
The witness spouse because the defendant has an ulterior motive for
asserting there is a good marriage
o Is there an injustice for the husband to be able to bar the wife from
testifying? Yes, the government would not have offered her immunity
and so she would be required to go to jail too.
o Prosecutors benefit most from this decision (not the witness or the
defendant)
o Yet, the damage is done once the spouse cooperates, not so much by
testifying, per se.
o (2) Privilege for confidential marital communications.
 Closely parallels the attorney-client privilege.
 Protects only against the disclosure of communications made:
 in confidence
 in the course of the marriage.
 Can be invoked after the marriage has ended.
 Applies in civil and criminal cases.
 Both spouses hold the privilege.
 Presence of or disclosure to a third party destroys confidentiality unless it is a young child.
 Allows and encourages a free and open exchange of spouses
 Exceptions:
 Crime-fraud exception (version of it)
 Domestic abuse
 Sue each other
 Commitment or competency proceedings
 Unique among privileges because both parties equally hold the privilege
 Both can refuse and prevent disclosure
 Most regard the whole conversation as privileged (rather than parsing who said what)
 What destroys the privilege?
 Usually, children; line is somewhere in late single digits
 If you say something with a teenager present, it's waived
 Thus, there's more carelessness
o However, waivers only apply to the spouse who waives
o Thus, it becomes very fact bound
3. Rule 506 (Proposed). Communications to Clergymen
( a ) De f i ni t i ons . As u s e d i n t h i s r u le :

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 A “c le r g ym a n ” i s a m i n i s t e r , p r i e s t , r a b b i , or o t h e r s i m i la r fu n c t i on a r y o f a r e li gi ou s
or ga n i z a t i on , or a n i n d i vi d u a l r e a s on a b ly b e li e ve d s o t o b e b y t h e p e r s on c on s u lt i n g
him.
A c om m u n i c a t i on i s “c on fi d e n t i a l ” i f m a d e p r i va t e ly a n d n ot i n t e n d e d fo r fu r t h e r
d i s c los u r e e x c e p t t o o t h e r p e r s on s p r e s e n t i n fu r t h e r a n c e o f t h e p u r p os e o f t h e
c om m u n i c a t i on .
( b) G e n e r a l r ul e of pr i vi l e g e . A p e r s on h a s a p r i vi le ge t o r e fu s e t o d i s c los e a n d t o
p r e v e n t a n ot h e r fr o m d i s c los i n g a c on fi d e n t i a l c om m u n i c a t i on b y t h e p e r s on t o a
c le r g ym a n i n h i s p r o fe s s i on a l c h a r a c t e r a s s p i r i t u a l a d vi s e r .
( c ) W h o m a y c l a i m t he pr i vi l e g e . Th e p r i vi le ge m a y b e c la i m e d b y t h e p e r s on , b y h i s
gu a r d i a n or c on s e r va t o r , or b y h i s p e r s on a l r e p r e s e n t a t i ve i f h e i s d e c e a s e d . Th e
c le r g ym a n m a y c la i m t h e p r i vi le ge on b e h a lf o f t h e p e r s on . Hi s a u t h or i t y s o t o d o i s
p r e s u m e d i n t h e a b s e n c e o f e vi d e n c e t o t h e c on t r a r y.
 Cf. Morales v. Portuondo
o Priest heard confession of killer; was the whole conversation actually a sacramental confession?
o Court tried to admit the confession to the priest and the confession to the pro-bono attorney
o Priest:
 Statement against interest
 Gets past hearsay on residual exception
 We need the statement of the priest:
 Waived privilege by trying to talk with other people and with the court; you don't waive
privilege by saying the same thing to someone else, but only by saying what he told the
priest
 If he goes into another privileged relationship and says, as he waived? Probably not
o Attorney?
 Nope, cannot get around this privilege
o Constitutional analysis (compulsory process)
 But, even if there was not, it was so necessary for the defendant's cases; the defendants
were denied a fair trial without it
 5th trumps all due process claims, but due process can trump most other
 Three prongs:
 It must be vital to the defense
o The alternative perpetrator's confession is vital to the defendant's defense
 Unavailable through other means
o Fornes is dead (and pleaded the 5th before)
 Bear sufficient indicia of reliability
o Against interest
o Corroboration with 4 people
o External corroboration
 Dead perpetrator (Ramirez) confessed to other people before he
committed suicide
o Is not trying to abuse the system
 For a compulsory process v. attorney-client, it's a weighing matter; must weigh
the interests
 Confrontation clause right: witness pleading 5th in the middle of a cross
 Court has to determine how far the clause got; court could call a mistrial if too
much of the evidence prejudices the jury without permitting the defendant to
confront his accuser
4. Rule 511 (Proposed). Waiver of Privilege by Voluntary Disclosure
A p e r s on u p on wh o m t h e s e r u le s c on fe r a p r i vi le g e a g a i n s t d is c los u r e o f t h e c on fi d e n t i a l
m a t t e r or c om m u n i c a t i o n wa i ve s t h e p r i vi le g e i f h e or h i s p r e d e c e s s or wh i le h o ld e r o f
t h e p r i vi le g e v o lu n t a r i l y d i s c los e s or c on s e n t s t o d i s c los u r e o f a n y s i gn i fi c a n t p a r t o f
t h e m a t t e r or c om m u n i c a t i on . Th i s r u le d o e s n ot a p p ly i f t h e d i s c los u r e i s i ts e lf a
p r i vi le ge d c om m u n i c a t i on

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V.Rules

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