Canadian & US Evidence

Professor. Paruch
Fall 2018
 Class 1 – Relevance

FRE 105: Limiting Evidence That Is Not Admissible Against Other Parties or for Other
Purposes
If the court admits evidence that is admissible against a party or for a purpose – but not against another
party or for another purpose – the court, on timely request, must restrict the evidence to its proper scope
and instruct the jury accordingly.

FRE 401: Test for Relevant Evidence

Evidence is relevant if: (low threshold)
(a) It has any tendency to make a fact more or less probable than it would be without the evidence
(probative); AND
(b) The fact is of consequence in determining the action (material)

FRE 402: General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:
• The United States Constitution;
• A federal statute;
• These rules; or
• Other rules prescribed by the Supreme Court
Irrelevant evidence is not admissible.
• Rule 402 contains an absolute rule and a rebuttable presumption
• The absolute rule is found in the second sentence of rule 402→ information that does not matter
is not admissible
o The rule admits no exceptions
o If the piece of information does not matter, it cannot be admitted into evidence and thus
cannot be presented to the tier of fact
o This part of the rule aligns with our intuition in resolving everyday issues
• The rebuttable presumption is found in the first sentence of the rule→ information that matters is
admissible unless there is some to her reason to exclude it
• Rule 402 acts as an initial gateway on a road to admissibility through which every piece of
evidence must pass before making its way to the trier of fact. The absolute rule in 402
makes it both the start and the end of the road for evidence that is deemed not to matter.

People v. Garcia
Ratio • Addresses the link between evidence of homosexuality and an interest in sexual
activity with children of the same gender

Defining Relevance

Advisory Committee Notes: “Relevance is not an inherent characteristic of any item of evidence but
exists only as a relation between an item of evidence and a matter properly provable in the case.”
• Relevance is contextual

Three Categories of Facts

o Direct evidence of an element of the action.
o Circumstantial evidence of an element.
 o Those facts that bear circumstantially on the evaluation of the probative value to be given
to other evidence in the case such as demonstrative evidence, the credibility of witnesses
etc.
o Testing reliability – tells you how much weight to give things
o Not evidence of an elements but evidence that we can weigh

• How does one determine whether something satisfied the probative worth prong of the relevance
definition?
• The Advisory Committee Note to Rule 401 provides as follows
o Does the item of evidence tend to prove the matter sought to be proved? Whether the
relationship exists depends upon principles evolved by experience or science applied
logically to the situation at hand
o Who’s Experience?
o The court must decide any preliminary question about whether a witness is qualified, a
privilege exists, or evidence is admissible
The trial judge alone will decide questions of relevance including the question whether a piece of
evidence has “a tendency” to make something more or less probable

Threshold Issue – When is it Admissible

1. Relevance
o Relevant evidence: Evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more or less probable than it would be
without the evidence. (FRE 401)
o The definition of relevance is best conceptualized as containing two separate requirements,
materiality and probative worth, both of which must be satisfied for evidence to be deemed
“relevant to determine”:
1) What is the cause
2) What are the elements of the cause of action
3) What is this being offered to prove?

A. Probative
o It has any tendency to make a fact more or less probable than it would be without the
evidence; and the fact is of consequence in determining the action
B. Materiality
o A material fact is one which is essential to the claim or offense and defenses, without which
the case or defense could not be supported. FRE 401(b) “The fact is of consequence in
determining the action.”
o To say that a piece of evidence is of consequence to the determination of the action
means that it is somehow significant
o Evidence is material only if it is offered to prove or disprove an element of a legally
cognizable claim, offense or defense that has been raised in the parties pleadings
o “Do we care” test, do we care about this evidence in light of the fact trying to prove?

** LOW THRESHOLD

• The absolute rule contained in Rule 402 makes it both the start and the end of the road for
evidence that is deemed not to matter

Relevance is broad → a lot of the rules are inclusionary

Two Types of Relevance
1. Logical Relevance
o Inferential Relevance
o Conditional Relevance
2. Pragmatic Relevance

(a) Inferential Relevance

The existence of a material fact can be inferred from a subsidiary or collateral fact, considered alone
or in conjunction with a series of facts.
• A brick is not a wall.
• Although the materiality prong of relevance requires a connection to some element of a claim,
offense, or defense, that connection need not be a direct one
• Evidence is material if it is logically related, either directly or through a chain of inferences to an
element of a claim, offense, or defense
o Therefore, although motive is not a necessary element of the crime of murder, evidence
of motive or the act thereof is nonetheless relevant, as the fact that the defendant had a
motive to commit a murder does have some tendency to make it more likely that the
defendant in fact committed the acts, whereas the absence of motive has some tendency
to make it less likely that the act was committed
• When dealing with evidence the relevance of it is dependent on a chain of inferences

US v. Dillon
Issue • When DC determining if should admit evidence of flight, must look at:
o Whether the proffered evidence in fact tends to prove guilt and not merely the terror
that may befall an innocent person confronted by the criminal justice system and
whether the evidence, even if probative of guilty, is so prejudicial that its admission
offends Rule 403
Holding • For flight evidence to be admissible, the timing of flight must itself indicate the sudden
onset or sudden increase of fear in the D’s mind that he or she will face apprehension
for, accusation of, or conviction of the crime charged
• Flight immediately after the crime charged will tend to prove guilt
• Flight may be proven where it occurs after any event which would tend to spark a sharp
impulse of fear of prosecution or conviction in a guilty mind
• The commencement of an investigation may substitute for accusation as the
precipitating event in this case; a guilty D is almost as unequivocally put on notice of
his peril by a convicted co-conspirator who is on the verge of testifying before a grand
jury about their common crime
• Held DC did not abuse its discretion in admitting evidence of flight at Dillon’s trial
Ratio Ratio: The probative value of flight evidence depends upon four inferences:
(1) Defendant’s behavior to flight
(2) Flight to consciousness of guilt
(3) Consciousness of guilt to guilt concerning the crime
(4) Consciousness of guilt of crime charged to actual guilt of the crime charged

State v. Wisdom
Facts • D was indicted with Wilard (aiding and abetting) for murder in the first degree
• In the course of the examination of witness Hill, he was asked to tell what
happened down at the morgue by the dead body of Drexler, when the witness
Willard and D were there; prior to the inquest
 • Hill testified that “they told us to put our hands-on Mr. Drexler” and that he and
Willard did so but the D would not do it;
• Officer McGrath corroborated this statement
• This was a test to see how they would react due to the superstition that if a
murder touches the dead body it will bleed to show his guilt;
Ratio Relevance centers on the importance of Defendant’s belief, or consciousness of guilt.
However unreasonable it was, it is one of the circumstances of the case that the jury could
weight as many intelligent people infer in equally baseless notions.

Conditional Relevance
Best understood by thinking about the condition of fact and the conditionally relevant piece of
evidence as each being one blade in a pair of scissors. For the purpose of cutting something, one
blade of a pair of scissors alone serves no purpose. In addition to determining whether the
evidence is material and whether it has probative worth, the judge can also decide whether there
is sufficient evidence to satisfy the condition or conditions of fact on which the relevancy of the
conditionally relevant piece of evidence is based.
o Rule 104(b): Relevance that depends on fact

o When the relevance of evidence depends on whether a fact exists, proof must be
introduced sufficient to support a finding that the fact does exist. The court may admit
the proposed evidence on the condition that the proof be introduced later.

Huddleston v. U.S.
Facts • D charged with selling stolen goods
• P sought to release evidence of D’s prior thefts (stolen TVs)
Issue • Can this evidence be entered?
• Conditional Fact: Whether the appliances and TV’s were stolen
Holding • NO – prosecution failed to establish that the TVs were in fact stolen
• Burden is on prosecution to prove this preliminary fact by a preponderance of the
evidence. Evidence of a similar act will be admitted if there is sufficiently evidence to
support a finding by the jury that the defendant committed the similar act
Ratio If the relevance of evidence depends on whether a fact exists, then proof must be
introduced to support a sufficient finding that the fact does exist for the Judge to hear
the evidence and make the determination that a reasonable jury could find, by
preponderance of the evidence, of the preliminary fact

US v. Evans
Facts • In two separate cases, the government charged the defendant with being an alien
in the US after deportation, as well as misrepresenting his identity and
citizenship to fraudulently obtain supplemental social security benefits, acquire
food stamps, make a claim of citizenship, and apply for a passport. Evan’s
defense was that he is a citizen of the US and he had a delayed birth certificate.
He was convicted of all charges in both cases and this court holds that the court
erred in excluding the birth certificate.
Issue • Was the exclusion of Evans’ birth certificate valid pursuant to rule 401(a)?
Holding • Court has not previously considered whether a trial court can exclude evidence pursuant
to Rule 401(a) without relying on some substantive basis outside of 104(a), such as
 another rule of evidence, a federal statute, or the US constitution. The Court holds that it
cannot.
• To the extent that the district court here invoked an umbrella gate-keeping authority to
exclude Evan’s birth certificate so as to avoid a “miscarriage of justice,” it exceeded the
scope of authority under Rule 401(a). It should not have been excluded under 401(b).
• Even if evidence passes the threshold under 401 and 402, it could still be excluded
under 403 by performing a cost-benefit analysis in which the trial court balances the
benefit of the evidence against the cost of its admission.
Ratio TEST: Would a reasonable jury find the exists of this preliminary fact? If so, then
meet conditional relevance requirement

2.Pragmatic Evidence
FRE 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other
Reasons.
o The court may exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence
o Primary purpose is to avoid unfair prejudice – the likelihood that decisions will be made for
improper reasons
o The secondary purpose of Rule 403 is to promote efficiency and judicial economy
o Confusion or misleading the jury occurs when the evidence would unduly distract the jury from
the main issues
o Waste of Time: When the evidence is cumulative or would cause undue delay in proceedings
- Abuse of discretion standard of review applies to the 403 balancing

Unfair Prejudice
o Unfair prejudice is defined as “an undue tendency to suggest a decision on an improper basis,
commonly… an emotional one”
o Excessive Emotionalism – arouses hostility, passion, anger, punitive impulses or sympathy
o Limiting instruction will not be effective
o Undue weight – excessive focus (e.g. informing jury why police had initially targeting
Defendant)
o Demonstrative evidence: gruesome photographs display of wounds, courtroom demonstration

Old Chief v. US
Facts • Old Chief was arrested after a fracas involving at least one gunshot. Before trial
he moved for an order requiring the government to refrain from mentioning at
trial and bringing into evidence any testimony from any witness regarding the
prior criminal convictions of the defendant except to state that the defendant has
been convicted of a crime punishable by imprisonment exceeding one year. He
said it would unfairly tax the jury’s capacity to hold the government to its
standard of proof
Issue • Two Issues: Relevancy of prior conviction and whether introduction of the evidence
was unfairly prejudicial to defendant
Holding • The introduction of evidence of a prior conviction is inadmissible under Fed. R. Evid.
403 in a case involving possession of a firearm by a person with a prior felony
conviction (“assault causing serious bodily harm”) where the defendant has offered to
stipulate to that element of the crime. This is because it was irrelevant.
 Ratio - A party’s concession may be pertinent to the court’s discretion to exclude evidence on the
point conceded. Rule 403 AC Notes that when a court considers whether to exclude on
grounds of unfair prejudice, the availability of other means of proof may be an appropriate
factor.
- While the prosecution is entitled to prove its case free from any defendant’s option to
stipulate the evidence away rests on good sense; however, when the point at issue is a
defendant’s legal status, 403 bars its inclusion.
The introduction of evidence of a prior conviction is inadmissible under FRE 403 in a
case involving possession of a firearm by a person with a prior felony conviction where
the defendant has offered to stipulate to that element of the crime.

Campbell v. Keystone Aerial Surveys

Facts • Wrongful death and survival action by widow Melva Campbell regarding
deceased husband Thomas Campbell’s death in an airplane crash
• Appeal regarding DC’s refusal to admit evidence of the suicide of their son
Thomas Moises Campbell and evidence regarding the condition of the
deceased’s body after the crash
• DC refused by using discretion under Rule 403 to admit evidence relating to
Thomas’ suicide as it carries the risk that the jury would confuse the mental
anguish suffered by family members as a result of young Thomas’ suicide with
that resulting from Campbell’s death was substantial
• The probative value of this evidence to show the degree of mental anguish
suffered by other family members as a result of Campbell’s death was weak
• Circuit Court upheld DC relating to refusing to admit evidence relating to
Thomas’ suicide, DC refused evidence relating to details of Campbell’s death
(decapitation and badly burned body) as it would be unduly prejudicial and
could inflame the jury
Issue • Would admitting the evidence of the letter and photos prejudicial to the jury?
Holding • Court held YES, it would be unduly prejudicial
Ratio • Any prejudice from the testimony of the bare facts would not give to the “undue” prejudice
required under Rule 403.
• Although the photos have some probative value, it was within the district court’s discretion
to exclude the evidence after weighing that probative value against the risk of presenting
these photographs to the jury
• Any prejudice from the testimony of the bare facts would not give to the “undue” prejudice
required under Rule 403. Some pieces of evidence that speak to the same thing will not have
the same potential to inflame the jury. Photos of the dad’s charred body had too much
potential to inflame the jury.

US v. Caldwell (Distinguish from old chief)

Facts • Caldwell appeals his convictions of knowing possession of child pornography
• During the Gov’t’s case-in-chief, it offered and published to the jury 3 clips of
the child pornography
• All 3 videos were entered into evidence and published to the jury over the
defendant’s Rule 403 objection
Issue • Was showing the 3 videos unduly prejudicial to the plaintiff?
Holding • Court held that the trial court did not abuse discretion when it showed the jury the 3
video excerpts of child pornography on defendant’s computer
 Ratio - Use this case to distinguish from Old Chief because the proffered evidence speaks to the
heart of the actual crime.
- While all relevant evidence tends to prejudice the party against whom it is offered, Rule
403 excludes relevant evidence when the probative value of that evidence is substantially
outweighed by the unfairly prejudicial natures of the evidence. When one party stipulates to
a disputed fact, the stipulation conclusively proves that fact. Any additional evidence
offered to prove that fact, while still relevant could potentially violate Rule 403.

DISTINCT from Old Chief – In OC the prior felony was a different case, here the evidence
is direct evidence of this case.
DISTINCT from Campbell: Caldwell dealt with crime against children and courts are more
willing to allow evidence that they may normally exclude
o In this case, the evidence was very relevant because it showed (1) the
flesh and blood of the children and (2) the knowing element of the crime
(reflected how likely it was the D knew the video depicted child
pornography)

Kalispell v. Miller
Facts • Dumke called the police to check on Benware who was upset and playing with
her gun, but Miller later called the police and told them it was a prank
• Miller charged with misdemeanor of obstructing a peace officer because Miller
made an untruthful claim that Dumke’s call was a prank and that Benware was
with them the whole time, since Benware was later found in an accident that
night
• Miller appealed to the DC arguing the TC erred in allowing multiple references
to Miller’s homosexuality into evidence as it was unrelated to the element of the
charged crime and therefore irrelevant; she also states that admission of this
evidence was highly prejudicial, had no probative value, and constituted
reversible error
Issue •
Holding • Miller’s sexual orientation and the existence of an intimate relationship with Benware
was not probative or relevant evidence relating to the crime Miller was charged with
Ratio • Mere prejudice is not enough. Must be undue prejudice.
• Ford case rule: if there is no need for purposes of proof of a crime to introduce to a
jury a potentially inflammatory personal trait, then it may be error to do so

People v. Murray (Motions in Limine)

Facts •
Issue •
Holding •
Ratio

Rule 105: An Alternative to Exclusion

• FRE 105 allows for the giving of a limiting instruction; Rule 105 must always be considered as an
alternative to outright exclusion under Rule 403 when the basis for exclusion is unfair prejudice
• Consideration should be given to the probable effectiveness or lack of effectiveness of a limiting
instruction
• A limiting instruction involves the judge telling jurors that they may use the evidence only for one
purpose but not for another
• A drop of ink cannot be removed from a glass of milk

If the court admits evidence that is admissible against a party or for a purpose – but not against another
party or for another purpose – the court, on timely request, must restrict the evidence to its proper scope
and instruct the jury accordingly.

Relevance of Probabilistic Evidence

To be relevant, evidence need not prove or disprove the point for which it is being offered with any
particular threshold of certainty: any tendency to prove or disprove the point suffices
Evidence related to probability stats require an adequate foundation in evidence and adequate proof of
statistical independence. Example of prosecutor’s fallacy
• A prosecutor collected evidence and has an expert testify that the probability of finding
this evidence if the accused were innocent is tiny. It is concluded that the probability of
accused being innocent must be comparably tiny
• At its heart the fallacy involves assuming that the prior probability of a random match is
equal to the probability that the defendant is innocent. For instance, if a perpetrator is
known to have the same blood type as a defendant and 10% of the population share that
blood type, then to argue on that basis alone that the probability of the defendant being
guilty is 90% makes the prosecutor's fallacy (in a very simple form).
• Defendants fallacy: Only a chance the sample came from the defendant. Argue that only
a small chance that it came
• DNA is not sufficient to convict

FOR EXAMPLE
• What is the likelihood that a Caucasian woman with a blond ponytail would be accompanied by a
Black male with a beard and mustache riding in a partially yellow car?
• Characteristics and Probabilities
o Partially yellow car 1/10
o Man with mustache 1/4
o Girl with ponytail 1/10
o Girl with blond hair 1/3
o Negro man with beard 1/10
o Interracial couple in car 1/1000
= 1/12,000,000 →The likelihood of all of them happening together BUT
this is all mathematically based. This proves to be a problem

People v. Collins
Facts • Malcolm and Janet Collins charged with second degree robbery and appealed
• The prosecution experience difficulty in establishing the identities of the
perpetrators of the crime so the prosecutor called a mathematics instructor from
a state college as a witness to establish that, assuming the robbery was
committed by a Caucasian woman with a blond ponytail who left the scene
accompanied by a Negro with a beard and mustache, there was an overwhelming
 probability that the crime was committed by any couple answering such
distinctive characteristics
• Using the product rule, the prosecutor stated that there is a 1 in 12 million
chance the defendants were innocent and that another equally distinctive couple
actually committed the robbery; he later stated that these numbers were
conservative and that in reality it was more like 1 in a billion chance they were
innocent
• The prosecutions introduction and use of mathematical probability statistics
injected 2 fundamental prejudicial errors to the case: 1) the testimony itself
lacked an adequate foundation both in evidence and in statistical theory; and 2)
the testimony and the manner in which the prosecution used it distracted the jury
from its proper and requisite function of weight the evidence on the issue of
guilty, encouraged the jurors to rely upon a logically irrelevant expert
demonstration, and placed the jurors and defense counsel at a disadvantage in
sifting relevant fact from inapplicable theory
Issue • Whether evidence of mathematical probability has been properly introduced and used
by the prosecution in a criminal case
Holding • The court erred in admitting over defendant’s objection the evidence pertaining to
mathematical theory of probability and in denying defendant’s motion to strike such
evidence pertaining to the mathematical theory of probability and in denying
defendant’s motion to strike such evidence; allowing the mathematical evidence
distorted the role of the jury and disadvantaged the defense counsel to the extent that a
result more favourable to the defendant may have been reached absent this error
Ratio Introduction of evidence related to mathematical probability statistics require an
adequate foundation in evidence and adequate proof of statistical independence.

“Prosecutor Rule”: multiplying all of the factors will give you a chance of how often
that scenario will be repeated

US v. Chilchilly
Facts • C was convicted by a jury of aggravated sexual abuse and murder, C appeals,
challenging admissibility of testimony relating to his DNA test. DNA analysis
conducted by the government indicated a match between a sample of C’s blood
and sperm found on the victim.
Issue • Did the court abuse its discretion in admitting the DNA evidence?
Holding • No
• Re: Concern #1 → The FBI matching statistic does not represent source probability.
Rather, the test results reflect the statistical probability that a match would occur
between a randomly selected member of the database group and either the evidentiary
sample or the defendant → This equation of random match probability with source
probability is known as the prosecutor's fallacy.
• [Source probability is the probability that the particular defendant caused whatever harm
in this case vs. statistical probability that someone of the same group (i.e. a native
American) caused whatever harm → therefore, it’ll be hard for the jury to come up with
other reasons if it’s already been shown that the particular defendant is probably the
source of the harm]
 • Re: Concern #2 → As to the second concern, there is little chance in this case that the
jury could have mistakenly equated source probability with guilt because it is clear that
the evidentiary sample was criminally linked with the victim.
Ratio With DNA evidence, two general tendencies should be guarded against:

1. That jury will accept DNA evidence as a statement of source probability (i.e.
likelihood that D is the source of the sample) – prosecutors should state that the
probability is just the probability of a random match

2. That once jury settles on source probability, it will equate source with guilt, ignoring
the possibility of non-criminal links between D and victim

Class 4 – Authentication (89-107)

Authentication lays the foundation to demonstrate that the evidence is what it purports to be

Rule 901 → Requirement of Authentication or Identification

The standard for authenticating evidence is set forth in Rule 901(a): (a) In General. To satisfy the
requirement of authenticating or identifying an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims it is.

(b)Examples. The following are examples only – not a complete list- of evidence that satisfies the
requirement.
(1) Testimony of a Witness with Knowledge → Testimony that an item is what it is claimed to
be.

(2) Nonexpert Opinion About Handwriting → A nonexpert’s opinion that handwriting is genuine,
based on a familiarity with it that was not acquired for the current litigation.

(3) Comparison by an Expert Witness or the Trier of Fact → A comparison with an authenticated
specimen by an expert witness or the trier of fact.

(4) Distinctive Characteristics and the like → The appearance, contents, substance, internal
patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

(5) Opinion About a Voice → An opinion identifying a person’s voice — whether heard firsthand
or through mechanical or electronic transmission or recording — based on hearing the voice at
any time under circumstances that connect it with the alleged speaker.

(6) Evidence About a Telephone Conversation → For a telephone conversation, evidence that a
call was made to the number assigned at the time to:
(A) a particular person, if circumstances, including self-identification, show that the
person answering was the one called; or
(B) a particular business, if the call was made to a business and the call related to
business reasonably transacted over the telephone.

(7) Evidence About Public Records → Evidence that:

(A) a document was recorded or filed in a public office as authorized by law; or
(B) a purported public record or statement is from the office where items of this kind are
kept.
 (8) Evidence About Ancient Documents or Data Compilations → For a document or data
compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(C) is at least 20 years old when offered.

(9) Evidence About a Process or System → Evidence describing a process or system and showing
that it produces an accurate result.

- Any one of these pieces of evidence plus additional evidence can be used to legitimize or authenticate
evidence attempted to be introduced

Ricketts v. City of Hartford

Facts • P appeals DC decision which dismissed his complaint charging numerous deprivations of
his constitutional rights
• Numerous police officers were chasing Moore (a black man suspected of an assault and
attempted robbery)
• The chase passed by the soccer field, which P (Ricketts) was on, where the police tried to
subdue Moore. Ricketts, who thought the police were going to kill Moore tried to interfere,
was tackled by the police and arrested
• Ricketts claims one officer Davis grabbed Ricketts across his neck from behind with a
baton preventing him from breathing. The tape recording of the officers’ radio transmissions
reveals that someone said, “Run him over” and “don’t give up Rob” (which is Davis’
nickname) and Ricketts contends the voice is of Davis.
• Based on Davis’ testimony, who denied it was his voice, the excluded the tape from
evidence ruling that Ricketts failed to authenticate that it was Davis on the tape based on
Rule 901(a)
Issue - Did the DC correctly rule that Ricketts failed to properly authenticate the tape?
Holding • Pursuant to the Sliker case, the judge’s discretion to exclude a tape on authentication
grounds is limited to a determination whether sufficient proof has been introduced so a
reasonable juror could find in favor of authenticity or identification
• Held: DC’s determination that it was not satisfied that the voice on the tape was that of
Davis’ is inconsistent with these principles
Ratio - So long as a jury is entitled to reach a contrary conclusion, it must be given the opportunity
to do so
- The jury did hear Davis’ testimony and the DC erred in excluding the tape on
authentication grounds without making a finding that no rational juror could have concluded
that Davis made the statement at issue
- Test: If a reasonable juror could find in favour of authenticity, then the judge should
give the opportunity to the jury to determine the matter of authenticity or
identification

B. Authentication of Physical Objects

US v. Cardenas (chain of custody)

Facts • Cardenas and Rivera-Chacon were arrested in the underground parking lot in the area of
the Regent Hotel; Villas was also arrested and indicted with them
• Various officers were on site inspecting different pieces of evidence like handguns
• Officer Garcia found a brown paper bag containing a plastic sack that was not inspected
and a handed it to Gunter. Gunter showed it to Officer Mares who did not inspect it; Garcia
 accompanied Gunter to the station with the seized evidence and Officer Mares assisted
Gunter in tagging the evidence. Gunter (unobserved) carried the sealed evidence bags to
the evidence room
• The evidence technician testified that no brown bag was submitted to her
• D alleges the plastic sack containing cocaine was improperly admitted into evidence on
the ground that the government failed to provide a sufficient chain of custody
Issue - Does a failure to sustain a chain of custody deem the evidence inadmissible?
Holding Held: No break in chain
• Evidence accounted for when Garcia seized it, then gave it to Gunter who
showed it to Mares. Garcia then accompanied Gunter to submit the evidence.
The evidence was sealed and tagged, and Gunter was alone briefly when it was
to be submitted but there is no evidence of tampering with the evidence
Reasoning • When evidence is not readily identifiable and is susceptible to alteration by
tampering or contamination, the TC requires more stringent foundation
entailing a chain of custody of the item with sufficient completeness to render it
improbable that the original item has either been exchanged with another or
been contaminated or tampered with.
• Before admitting or excluding real evidence, the TC must consider the nature of
the evidence, the surrounding circumstances, including presentation, custody
and probability of tampering or alteration
• If after considering these factors the TC determines that the evidence is
substantially in the same condition as when the crime was committed the court
may admit it
• The cocaine, not uniquely identifiable, requires a sufficient chain of custody to
support its admission
• Deficiencies in the chain of custody go to the weight of the evidence not its
admissibility
• Once admitted, the jury evaluates the defects and may accept/disregard the
evidence
Ratio - Trial Court only has to find that the reasonable probability is that the evidence was
not altered in any material aspect, not look at every possibility
- A break in the chain of custody does not speak to admission of evidence but rather,
the weight of the evidence

US v. Abreu
Facts • D charged with possession of a shotgun and failure to register the shotgun
• D claims admission of shotgun into evidence was erroneous because of the
foundation problems and in particular because of gaps in the chain of custody
Issue - Was the gap of the chain of custody sufficient to deem admission of the evidence
erroneous?
Holding • Held: The admission of the shotgun satisfied Rule 901(a) and there was no abuse of
discretion
Reasoning • Rule 901(a) governs admissibility of evidence; TC must conclude that it was reasonably
probable that the evidence had not been altered since the occurrence of the crime
• Evidence is properly admitted if it is readily identifiable by a unique feature or other
identifying mark
• If evidence is not readily identifiable or susceptible to alteration a testimonial tracing of
the chain of custody is necessary to prove the item was not exchanged or tampered with
 • Gaps in chain of custody factor into the weight of evidence rather than its admissibility
• The shotgun was seized by Glynn and he inaccurately identified it as a SS Christy
shotgun when it was a SS Kresge shotgun; he stated the shotgun was in the same condition
as when he seized it
• Sherman measured the seized shotgun and testified it was in the same condition as when
he measured it and identified it as a SS Kresge
• D argues the discrepancy in the name Glynn identified indicated the gun was lost and the
chain of custody had a missing link
• The error in Glynn’s testimony was mitigated by Sherman’s and Detective Williams’
clear ID of the gun and testimonial tracing the chain of custody from the seizure to trial
Ratio Considerations for 901(a) admissibility:
1) Trial court must conclude that it was reasonably probably that the evidence had
not been altered since the occurrence of the crime
2) Evidence is properly admitted if it is readily identifiable by a unique feature or
other identifying mark; if not readily identifiable, a chain of custody is necessary to
prove the item wasn’t exchanged or tampered with
3) Gaps in the chain of custody speak to weight of evidence rather than admissibility

C. Authentication of Written Documents

Can be authenticated by lay witness testimony FRE 901(b)(2), expert opinion FRE 901(b)(3) or
comparison by trier of fact FRE 901(b)(4).

US v. Scott (non-expert handwriting identification)

Facts • Scott engaged in white collar crimes using the identities of others
• Jury convicted Scott of conspiring to make and of making false claims to an agency of the
United States
• Scott filed 20 false income tax returns in 1996 seeking refunds in the names of at least 12
people
• IRS agent Donahue testified that certain documents in evidence were in Scott’s
handwriting; Donahue had followed Scott thru a number of IRS investigations
• Donahue testified that he had seen examples of Scotts handwriting during these prior
investigations and he saw Scott sign a document in his presence
Issue • Scott made 2 objections to Donahue’s testimony:
1) He objected that Donahue had acquired familiarity with Scott’s handwriting for
purposes of the litigation and thus could not testify as a lay witness under 901(b)(2)
2) He objected that despite Donahue’s exposure to Scott’s handwriting, Donahue
nevertheless lacked sufficient familiarity with that handwriting to testify
Holding • DC overruled Scott’s objections but required Donahue to refer to the documents in
general terms in order to avoid undue prejudice to Scott
• Scott argues that Rule 901(b)(2) governs and that the evidence was inadmissible
because Donahue came to know Scott’s handwriting thru his criminal investigation of
Scott
• 901(b) illustrates 2 ways of authenticating or identifying thru the testimony of a witness
the handwriting on a document as being written by a particular person
o The handwriting may be identified thru a lay witness who has familiarity
o The handwriting may be identified as the alleged authors by an expert
• DC held that Rule 701 and 901 do not apply
• This court held both must be satisfied
 Donahue became familiar with Scott’s handwriting over the course of several
o
years, he did not do so for the purpose of testifying but to solve a crime
Ratio GET RATIO

US v. Jones (Distinctive Characteristics)

Facts • Jones stole a credit card application from the mailbox of her son-in-law’s aunt and
uncle, and fraudulently applied for the credit card under their names and made 20
charges to the card
• She was convicted of mail fraud, using a fictitious/false name in order to carry on a
scheme to defraud by mail, etc.
• One of the government’s primary arguments at trial was that Jones’ signature was on 1)
the credit card application 2) a post office box registration form for the post office box
to which the card was sent 3) two Howard Johnson’s motel registration forms
• To prove these items contained Jones’ signature, Sperry testified as an expert witness
for the government. He compared the 3 signatures at issue with documents purportedly
written by Jones and concluded her signature was on all of them
• D refused to stipulate to the admissibility of a third document used by Sperry, a card
allegedly sent by Jones to Bruce Cronin, whose son is married to Jones’ daughter
• The card was admitted into evidence thru Cronin, who testified that while he was not
familiar with Jones’ signature, he knew the card was sent by Jones based on its content
• D asserts that DC erred by allowing into evidence the card allegedly written by Jones
to Cronin because it had not been properly authenticated; she also states that Cronin
was a non-expert who was unfamiliar with Jones’ handwriting, so he could not testify
about the genuineness of the card
Issue - Was the third piece of evidence, the third credit card, properly authenticated as to
belonging to Jones?
Holding • Held: DC did not abuse its discretion by finding that the card allegedly written by
Jones to Cronin met the authentication requirements in Rule 901
Reasoning • Rule 901(b)(2) “nonexpert opinion” does not apply because Cronin himself admitted
he was not familiar with Jones’ handwriting
• P states 901(b)(4) “Distinctive Characteristics and the Like” should apply and this
court agrees: a document may be shown to have emanated from a particular person by
virtue of its disclosing knowledge of facts known peculiarly to him.
• Cronin expressed the opinion that the card was written by Jones because the card was
signed Kathie Jones and because the card contained references to Cronin’s daughter-in-
law and granddaughter that no one else could have written
Ratio Just shows an example of the application of 901(b)(4) and authentication by
distinctive characteristics → the card could have only been written by Jones due to
the contents of the letter

US v. Kairys (Ancient Document Rule)

Facts • Denaturalization proceedings against Kariys
• Kariys’ argument focuses on the accuracy and admissibility of a German ID
card is; the gov’t relied on the card to establish its version of the defendant’s
identity
• DC admitted the card under Rule 901(b)(8)
• D argues the admission of the document was error claiming that it is a forgery
fraught with inaccuracies
 • Gov’t counters that the D failed to produce any substantive evidence that the
document was anything other than it was purported to be – the D’s Nazi SS
personal card
• Rule 901(b)(8) governs admissibility of ancient documents and states that a
document is admissible if it is in a condition that creates no suspicion about its
authenticity, was in a place where if authentic, it would likely be, and it is at
least 20 years old when offered
Issue • The issue of admissibility is whether the document is a German identity card
from the German SS records located in the Soviet Union archives and is over 20
years old
Holding • Held: the admission of the evidence was not an error
Reasoning • There was sufficient evidence in the record that the document was a German SS
identity card; it matched other authenticated German identity cards in form; it was
found in the Soviet archives and its paper fiber was consistent with that of documents
more than 20 years old
Ratio - Chain of custody not important for ancient documents
- Whether the contents of the document correctly identify the D goes to its weight and
is a matter for the trier of fact

D. Authentication of Audio Recordings, Photographs, and Video Recordings

US v. Rembert
Facts - According to testimony of victim witness Mary Simon, Rembert reached in window with a
knife while Mary was trying to get money out of the ATM and demanded her pin
- Another victim witness (McGee) was going to ATM, it was closed, she hit her car into a
wall and three men helped (one being appellant), she was driving them to a bus stop after
and one threatened her with a butcher’s knife demanding a drive to Virginia → went to
ATM, only took out $10
- When going to another bank, they spotted John Lynn using the ATM, the appellant jumped
out with a knife and began stabbing Lynn demanding and obtained his Wallet, keys and card
code → failed to steal car and money from ATM
- Brought McGee and her car back to Washington near where she was abducted
- Each eye witness identified Rembert and Simon identified Rembert in a series of ATM
surveillance when they were taking McGee
Issue - Should the video and photographic copies of surveillance cameras by the supervisor of the
ATM machine in Seat Pleasant be admitted into evidence?
Holding App argues: 1) The evidence was portrayed as “pictorial testimony” and under this theory, a
sponsoring witness who has personal knowledge of the scene depicted must testify that the
photograph fairly and accurately portrays the scene → this did not happen in this trial
2) Only other option was admission through the “silent witness” model where the
admissibility of a photograph is based on the reliability of the process by which it’s made →
Witness didn’t speak to reliability of cameras, their purpose, quality, etc…

Judge: Agrees that the evidence in this case doesn’t meet any of those models, however
interprets the preface to 901(a) to mean “by way of illustration ONLY, and not by way of
limitation.” This means that there’s room for general application of rule 901(a).
 - He cites Blackwell and Stearns, both cases basically accepted the same idea that
photographs, together with such other circumstantial or indirect evidence as bears
upon the issue, may serve to explain and authenticate a photograph sufficiently to
justify its admission into evidence
- the circumstantial evidence provided by victim witnesses together with testimony as to the
loading of the cameras and security of the film, and the internal indicia of date, place and
event gives the district court ample discretion to admit evidence
Ratio Contents of photographic evidence admitted need not be merely illustrative but can be
admitted as evidence independent of testimony of any witness as to the events depicted,
upon a foundation sufficient to meet the requirements of 901(a).
- That foundation can be witness testimony alongside the photographs and the
reliability of the process to which those photographs are taken

US v. Tropeano** Review
Facts - Barroso appeals from guilty conviction conspiring to commit securities and wire fraud
(violation of 18 USC §371)
- Barroso claims he was duped by the Tropeano brothers into unknowingly facilitating their
crimes
- Gov’t introduced 5 taped phone convos in which Barroso urged employees of a transferee
brokerage to execute and settle sales from a transferred account quickly
- Lied about having authority to transfer the customer accounts, bolstered his claim
of power over an account by claiming to know the owner and that he’s a friend of
the owner’s son → account holder testified that Barroso had no authority to transfer
funds and that he had no son which directly undermines his defense that he was
duped
- Barroso challenges admission of the evidence stating that the gov’t failed to produce
sufficient evidence as a matter of law as to the authenticity of the 5 tapes
- District court admitted tapes over defendant’s objection
Issue Was admission of the tapes a failure as a matter of law due to lack of authenticity?
Holding Court cites 901(b)(1) which is testimony of a witness with knowledge and 901(b)(5) opinion
about a voice. The people that authenticated tapes had firsthand knowledge of convo and
each identified voice on the tapes

Barroso argues: Gov’t needed to establish a chain of custody for the tapes relying on
Fuentas which sufficiently authenticated tapes by an unbroken chain of custody.
- However, the court says that by authenticating tapes through establishing a chain of
custody in the absence of testimony by a contemporaneous witness to the recorded
conversation does not imply, as the appellant suggests, that such a witness cannot provide
equally sufficient authentication without proof of a chain of custody (AKA having one
doesn’t negate the other, the strength of each individual evidence can be sufficient on
its own)
- Barroso can still challenge reliability through cross-examination but tapes should be
admissible
- Barroso was free to challenge the tapes’ reliability by cross-examination of the brokers
concerning their familiarity with Barroso’s voice and the tape-recording system
- Any doubts raised by such a challenge would go to the weight to be given to the tapes by
the jury not to their admissibility
Ratio Admission of tapes does not need an unbroken chain of custody and a lack of a
contemporaneous witness, but rather, a witness can provide equally sufficient
authentication without a chain of custody
E. Authentication of Telephone Conversations

US v. Khan
Facts - Defendants were convicted of conspiring, and participating in a racketeering enterprise
designed to defraud the New York State Medicaid system (18 USC §1962(c)) & mail fraud
(18 USC §1341) & money laundering (USC §1956(a))
- One defendant argues that the substance of 2 phone calls with DSS reps and reports of
those calls were admitted improperly
Issue - Were telephone calls admitted improperly?
Holding - Court reaffirms district court’s admission
- Williams objected to the admission of testimony on the grounds that there was insufficient
information to demonstrate she was the person making the calls
- Rule 901(b)(6) states that a mere assertion of identity by a person talking on the
telephone is not itself sufficient to authenticate a person’s identity, additional
evidence may be provided to prove such. The question became whether the
circumstances adequately established that Williams was more likely than not
the caller. The court believes that they do.
1) Call in question was made in response to a call by Hale to a number Williams had
provided
2) Hale left a message for Williams and received a call the same day
3) There was no question that Williams was seeking the Medicaid provider number
indicating a strong interest in returning the call
4) Williams provided her dad’s address as the address where the Medicaid payments should
be sent → all of these are sufficient to admit the telephone calls
Ratio Although asserting someone’s identity by just speaking to them on the phone isn’t
sufficient to admit evidence, providing circumstantial evidence of the identity of that
person may be sufficient to support a finding for admission.

First State Bank of Denton v. Maryland Casualty Co.

Facts - Milles’ residence, insured by Maryland Casualty Co, was destroyed by fire. The insurance
company decided they had set fire intentionally and did not pay the policy. They brought
suit to recover the policy but died before trial. First State Bank of Denton continued the
claim as executor
- At trial insurance company introduced evidence showing that the house was unoccupied
for several weeks before the fire, but the neighbor had seen a light in the home a few hours
before the flames struck
- The company also introduced testimony of a witness who right before the fire started saw a
pickup truck leaving the road which accesses the residence; Mills owned a pickup truck
- The company also introduced evidence showing that Mills was not at his new home during
the fire using a police dispatch call to the residence; someone answered and said Mills’
residence but did not answer to Mr. Mills when asked by dispatcher
Issue Was there sufficient evidence to support admission of the dispatch call?
Holding Court relies on US v. Register which says: “all that is necessary in authenticating a phone
call is that the proponent offer “sufficient authentication to make a prima facie case that
would allow the issue of identity to be decided by the jury.”
- Since the number was assigned by the telephone company, it is assumed to be reasonably
accurate paired with the evidence supports the prima facie standard in register
 - Evidence was reliable authentication; there is little doubt the dispatcher actually reached
the Mills home; the trial court did not abuse discretion by overruling the authentication
objection

Rule 901(b)(6) treats self-identification as insufficient in an incoming call but sufficient in an outgoing
call.

Authentication of an audiotape requires two separate levels of authentication: 1) that the audiotape
accurately reproduces the conversation that took place; and 2) the identity of the people allegedly
speaking on the tape.

F. Authentication of Electronic Communications

Parker v. State
Facts - Defendant Parker appeals from a conviction of Assault 2nd degree on the grounds that the
court erred in admitting statements posted on her Facebook profile (relied on Griffin v.
State)
- Under Maryland, social media evidence may only be authenticated through the
testimony of the creator, documentation of the internet history, or hard drive of the
purported creator’s computer, or information obtained directly from the social
networking site
- Without showing these exact requirements, the evidence cannot be admitted
- State wants Texas approach where a proponent can authenticate social media evidence
using any type of evidence so long as he or she can demonstrate to the trial judge that a jury
could reasonably find that the proffered evidence is authentic (this is a lower hurdle than the
Maryland approach)
- Superior court adopted Texas approach and admitted the evidence
- Parker claimed self-defense, however, posts on her Facebook suggest a different turn of
events and discredits her defense → posts were taken from her profile
Issue - Should social media evidence be held to a higher scrutiny than the Texas approach and
other evidence?
Holding - Court says no, this degree of scrutiny is in line with rule 109 & Delaware rule 901
- Court used testimony from Brown (other person in altercations), and circumstantial
evidence to authenticate the Facebook entries
- Pursuant to rule 901(b), authentication of social media evidence can include: 1) testimony
from a witness who states that the evidence is what it is claimed to be;
2) distinctive characteristics of the evidence itself, such as appearance, contents, substance,
etc…taken in conjunction with circumstances that can authenticate the documentary
evidence; OR
3) evidence that shows that the documentary evidence is accurately produced through a
process or system → these are not exhaustive ways
- Although the risk of forgery exists, these posts are usually given in conjecture with
additional evidence for a jury to make such a determination of legitimacy
- The premise of accepting the Texas approach is that it’s the jury and not the trial
judge’s responsibility to resolve any factual issue on the authentication of social media
evidence → trial judge should just determine the ability to reach that stage

1) FB post referenced the altercation (not mentioning names) on the same day as the conflict
and referenced a fight with a second woman
 2) Brown’s testimony added supporting authenticating evidence → brown saw it through a
mutual friend’s profile where she “shared” the post and published it on her own FB page
- These two were sufficient to find that a reasonable juror could determine that the proffered
evidence was authentic

G. Shortcuts for Authenticating Evidence

- Rule 902 lists 14 categories of evidence that are deemed to be “self-authenticating,” meaning that they
require no extrinsic evidence of authenticity in order to be admitted, this includes:
- Certain domestic and foreign public docs, certified copies of public records, official
publications, newspapers and periodicals, trade inscriptions and the like, acknowledged
documents, commercial paper, and certified business records
- These exist because there is a small likelihood that the docs aren’t what they appear to be versus the
costs of making the parties comply with Rule 901
- Jury must still be persuaded of the evidence and opposing party can dispute the authenticity
- Rule 902(13) includes electronic evidence by an electronic process or system that produces an accurate
result & 902(14) “data copied from an electronic device, storage medium or file, if authenticated by a
process of digital identification”
- However, identification pursuant to 901 and 902 is still required to find identity of the author
- Parties can stipulate authenticity voluntarily

Character Evidence

A. Evidence of Character
- For something to be relevant, it need only have SOME tendency to prove the point for which it is
offered
- However, Rule 404(a) puts some barrier to providing evidence of an accused

CHARACTER EVIDENCE

• Character evidence is past instances of behaviour (i.e past violent behaviour)

• Although not an indication of future occasion, it may be relevant for it only need to have some
tendency to prove the point for which it is offered (have some correlation)
• FRE 404 – Character Evidence: Crimes or Other Acts
• FRE 405 – Method of Proving Character
• FRE 412, 413, 414, 415 – Specific rules that govern the admissibility of character evidence in sexual
offense/sexual assault cases.

Three Major Concerns

• The admissibility of character evidence will depend upon:
1. The purpose for which the character evidence is offered.
2. Whether the action is a civil or a criminal case (different rules apply)
3. The method used to prove character – The rules limit the use of extrinsic evidence to
prove character.
• The admissibility of character evidence for its truth must be distinguished from the admissibility
of character evidence to impeach a witness under the 608/609 Rules.
• Character and impeachment look very similar.
• If we’re dealing with evidence pertaining to the element of a cause of action
(somehow) → Character evidence

Purposes for Offering Character Evidence

 o To serve as circumstantial evidence of how a person most likely acted on a specific occasion
o This use is generally prohibited, subject to important exceptions
o To prove character when a person’s character is an element of the criminal charge, civil claim or
a defense
o Character evidence is generally admissible for this purpose (i.e. felon in possession,
negligent entrustment, habitual offender)
▪ Civil Cases: Defamation, child custody, wrongful death, negligent entrustment
o To prove motive, intent or similar points

FRE 404: Character Evidence

Summary: Allowable Character Evidence under FRE 404(a)

o Pertinent character trait of defendant offered by defendant
o Pertinent character trait of victim offered by accused
o Similar character trait of defendant offered in rebuttal to character trait of victim
o Character trait of victim offered by prosecution in rebuttal
o Trait of peacefulness of victim offered by prosecution in homicide case to rebut evidence that
victim was the first aggressor

Other Relevant Rules

Rules 401 through 415 refine concepts of relevance and prejudice as applied to particular types of
evidence when offered for specific purposes. Some are just applications of 401 and 403 with the
balancing being done by the drafters of the rule instead of each judge
• FRE 404 – types of character evidence, whether admissible or not
 • FRE 405 – how to prove character
• FRE 412, 413, 414, 415 – specific rules on character and sexual assault
• If it tests the veracity of a witness: Impeachment

Exceptions
**For criminal cases – not civil
1. Rule 404(a)(2)(A) gives D the option of introducing evidence of his own pertinent
character traits and if the evidence is admitted, the prosecutor may offer evidence to
rebut it (KNOWN AS MERCY RULE)
• Pertinent = relevant, i.e. has some tendency to prove or disprove an element of
the offenses charged or defenses claimed (US v. John)
o Character for truthfulness is pertinent only if the crime itself involves
an element of dishonesty or false statement, such as criminal fraud.
o Where a violent act is an element of an offense, a person’s character for
violence is pertinent
o Law abidingness is always pertinent

• HOWEVER, Once D opens the door through 404(a)(2)(A) or 404(a)(2)(B), P

may introduce character evidence to rebut that offered by D.
o A defendant may offer evidence of the defendant’s pertinent trait, and if
the evidence is admitted, the prosecutor may offer evidence to rebut it
o Not any evidence is subject to the open door→ must be the same trait
o Also, cannot attack victim character and be shielded from the disclosure
of equally relevant evidence concerning the same character trait of the
accused

2. Rule 404(a)(2)(C) provides that, in some instances, the D cannot, without introducing
character, open the door to the prosecutions use → In a homicide case, the prosecutor
may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that
the victim was the first aggressor

3. Rule 404(b)(1) bars evidence of other crimes, wrongs, or acts when offered to prove a
person’s character → Character evidence can be admitted if it is introduced for
other purposes, such as (Refer below)
▪ To prove character when character itself is the ultimate issue in the case;
▪ To serve as circumstantial evidence of how a person most likely acted;
▪ To impeach the credibility of a witness.
4. Rule 404 and 406 bars only character evidence→ habit evidence is allowed (habit=
generalized description of one’s disposition)
▪ 406: Person’s habit or an organization’s routine practice may be admitted to
prove that on a particular occasion the person or organization acted in accordance
with the habit or routine practice.
5. Rule 412 to 415 address admissibility of character evidence in sex offense cases that
differs from 404

GENERAL RULE: State can’t show D’s prior trouble with the law, specifically criminal even though
such facts might logically be persuasive that he is by propensity a probable perpetrator **NOT
ABSOLUTE IN CRIMINAL (ABSOLUTE IN CIVIL)
FRE 405: Methods of proving character evidence

• Rule 405 provides permissible means of proving character

• Allows evidence of character to be offered not only by way of testimony as to

(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it
may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On
cross-examination of the character witness, the court may allow an inquiry into relevant specific instances
of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential
element of a charge, claim, or defense, the character or trait may also be proved by relevant specific
instances of the person’s conduct.

CAN’T use specific instances of prior conduct as a means of proving character unless:
(1) Character is an essential element of a charge
(2) When a witness gives reputation or opinion testimony, the court may allow inquiry into
relevant specific instances of the persons conduct on cross examination
▪ Must be qualified to give such an opinion by showing such acquittance with the
defendant, the community in which he has lived and the circles in which he has
moved, as to speak with authority of the terms in which he is regarded

Criminal Cases
o Prosecution may not initiate presentation of character evidence of bad conduct
o Defendant – may introduce evidence of her good character
o Only opinion or reputation testimony
o Prosecutor
o Cross exam of character witness, inquiry may be made of specific instances
o Limited to inquiry (may not be proven by extrinsic evidence)

Application of Mercy Rule

 Rule 404(a). Character evidence generally
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove
that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in
a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is
admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged
victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of
peacefulness to rebut evidence that the victim was the first aggressor.
- You’ll need to show that either of the three above exist in order for character to be admitted
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance with the
character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the prosecutor
intends to offer at trial; and
(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.
- The State may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among
his neighbors, even though such facts might be logically persuasive that he is by propensity a probable
perpetrator of the crime
- This is to prevent swaying a jury in a particular way

Michaelson v. US (pertinent trait)

Facts • D convicted of bribing a federal agent and claimed entrapment
 • D called 5-character witnesses to prove they knew him for 30 years and that he was
honest; D puts his own character on the table
• Witness asked if he knew that D was arrested for receiving stolen goods
o This questioning can make it seem like the witness doesn’t know the D well or
that D is guilty
• Court instructs jury that they are only to use the evidence to evaluate the witness’
testimony to evaluate guilt
• Judge says this is the price the D must pay for trying to make himself look good when
the law tries to protect the D from discussing issues of character; his own fault for
bringing it up
Issue Can prosecution bring up specific instances to rebut the defendant’s character witnesses?
Yes (D opened door)
Holding • Supreme Court established that a reputation witness for the defense may be cross-
examined as to whether he has heard of certain facts that tend to reflect negatively on
D’s reputation; this line of cross-examination is allowed for the very specific purpose of
impeaching the witness’ credibility
• If that reputation witness has not heard of a fact that is likely to have caused a negative
community impression of the D, the government has shown that the witness’ knowledge
of D’s reputation is shallow and unreliable
• If the reputation witness has heard of this fact but nevertheless testifies that the D’s
reputation is good, then the government has shown that the witness is either lying or is
applying a lowered standard by which he assesses the D’s good reputation
Ratio - Rule 405 deviates from common law in the sense that it allows evidence of character to be
offered not only by way of testimony of reputation, but also in the form of opinion
- However, rule 405, consistent with common law bars the use of evidence of specific
instances of prior conduct as a means of proving character
- If someone is on trial for violent conduct, the witness can testify that they heard of the
accused’s violent conduct, or that in their opinion know that the accused is a violent person
– however, they cannot introduce material evidence of examples of violent conduct
- However, rule 405 allows reference to specific instances in two situations:
1) 405(b) provides that when character is an essential element of a charge, claim or defense,
proof of character may be made not only through the use of reputation and opinion evidence,
but also with evidence of specific instances of the person’s conduct
2) 405(a) after giving an account of an individual’s character, on cross examination of that
character witness, the court may allow an inquiry into relevant specific examples

1) Character of Accused and Victim

- Normally, rule 404 bars prosecution from introducing evidence of the defendant’s character for the
purpose of showing action in conformity therewith
- Ex: In a murder case, can’t show evidence of Defendant’s past that exemplifies their violent character
for the purpose of showing he was violent at that time. On the other side, the prosecution can’t show
evidence of the victim’s peaceful character to show that the defendant was the likely aggressor

Rules 404(a)(2)(A) and 404(a)(2)(B) allow the defendant the option of introducing evidence of
“pertinent” character traits of himself or the victim. However, once the defendant brings this evidence
forward based on these two exceptions, the same exceptions will apply to the prosecution

Notes:
- You can allow evidence of a “pertinent” trait of character. This has been interpreted to be similar to
relevancy meaning it must have some tendency to prove or disprove an element of the offenses charged or
defenses claimed (US v John; US v Angelini)
- Character for truthfulness is only relevant if that is a core component of the crime such as criminal fraud
(US v. Hewitt)

2. Character as an Element of a Crime, Claim, or Defense

- If character is an actual element of a crime, claim or defense, then you are allowed to use character
evidence to prove such an element
- For ex: if truth is raised as a defense, character evidence may be introduced and is not barred by rule 404
- If entrapment is raised as a defense, part of the prosecution’s job is to show “predisposition to commit”
the crime which involves evidence of the defendant’s character

3. Proving Character and Challenging Such Proof

When showing character evidence:
1) Witness to testify from hearsay – Witness cannot testify about defendant specific acts or courses of
conduct or his possession of a particular disposition or of benign mental and moral trait
- The witness is allowed to summarize what he has heard in the community

US v. Hewitt
- Reputation witness can be cross-examined to show the witness’ credibility
- If the reputation witness testifies as to D’s good reputation, upon cross-examination, the prosecutor can
ask the witness whether he has heard certain facts that tend to reflect negatively on D’s rep
Facts • Hewitt & Chesser convicted of aiding and abetting the use of an explosive to commit
a felony
• Hewitt alleges the trial judge committed reversible error in allowing the prosecutor to
cross-examine one of Hewitt’s reputation witnesses improperly
• At trial Hewitt called 4 reputation witnesses to testify about Hewitt’s good reputation
in the community
• The prosecution cross-examined each of the 4 witnesses by asking them whether they
had heard that the witness had been indicted, arrested, and was to go to trial for 2
counts of theft
• The first three witnesses testified that they had heard of the trial and the fourth said
she had not
Issue Can the witnesses be cross-examined regarding D’s reputation?
Decision Yes
Reasoning In Michaelson, the Supreme Court established that reputation witnesses for the defense
may be cross-examined as to whether he has heard of certain facts that tend to reflect
negatively on defendant’s reputation. This is allowed for impeaching the witness’s
credibility.
1) If the reputation witness has not heard of a fact that is likely to have caused a
negative community impression of the defendant, the government has shown that
the witness’ knowledge of defendant’s reputation is shallow and unreliable.
2) If the reputation witness has heard of this fact but nevertheless testifies that the
defendant’s reputation is good, then the government has shown that the witness is
either lying or is applying a lowered standard by which he assesses the
defendant’s good reputation.

Sam is on trial for cutting off someone’s dick. Sam calls Stas as a witness to testify to
 Sam’s good character (she’s a cool chick). Prosecution comes up and says: did you know
that Sam sucks dick for money? OPTIONS:
(1) Stas says NO → then his testimony and knowledge of his reputation is
shallow and unreliable
(2) Stas says YES → then prosecution has shown that Stas is either lying or
applying a lowered standard by which he assess a defendant’s good
reputation

Ratio A reputation witness for the defense may be cross-examined as to whether he has heard
of certain facts that tend to reflect negatively on the defendant’s reputation. This line of
cross-examination is allowed for the very specific purpose of impeaching the witness’s
credibility.

United States v Krapp

• After opinion testimony a prosecutor, can, on cross, ask “did you know X about D?”
• Inquiry into specific acts in cross examination must be based in good faith
• Can be excluded under 403 if it carries prejudicial effect or there is insufficient proof that the
event took place.
Facts • Krapp was a postal worker and failed to report $2200 worth of missing stamps and
was charged with 3 counts of making false record entries with intent to mislead,
deceive or defraud the US
• At trial Krapp presented a character witness who testified that Krapp had a
reputation as an honest and trustworthy person
• On cross-examination asked the witness: are you aware that Krapp’s husband with
her knowledge omitted cash income that he had on their tax returns? Krapp’s
attorney objected before witness could answer requesting a mistrial on the basis that
the question was improper, the court did not grant a mistrial
• Krapp argues the mistrial should have been granted because the question was asked
without good faith and served only to prejudice the jury
Issue Should this question be allowed?
Decision NO – “did you know” questions are fine, but too prejudicial under 403
Reasoning Questions to rule the propriety aka “Did you know questions”

STEPS:
(1) Must be a good faith basis in asking the “did you know...” question
(2) Before an attempt at impeachment of a character witness with a ‘did you know
type’ question, the trial judge should have opportunity out of the hearing of the
jury to rule on the Qs – otherwise you’d risk mistrial

Can be admitted if used to undermine witness’s credibility – not admitted for propensity
- BUT can be excluded under 403 if prejudicial effect or if insufficient proof that it took
place

Ratio Inquiry into specific acts in cross examination must be based in good faith

- Even if the inquiry is made with good faith, if its prejudice outweighs its probative
value, then the judge may disallow it
Huddleston v. US (Conditional Facts)
Facts • Petitioner charged with one count of selling goods in interstate commerce and one
count of possessing stolen property in interstate commerce
• The 2 counts related to 2 portions of a shipment of stolen Memorex videocassette
tapes that petitioner was alleged to have possessed and sold knowing that they were
stolen
• Evidence at trial showed that a trailer containing over 32,000 blank Memorex
videocassette tapes was stolen from the overnight express yard
• Petitioner contacted Karen Curry to seek her assistance to sell a large number of
blank Memorex videocassette tapes and assured her they were not stolen
• Curry arranged for the sale of 5000 tapes which Petitioner delivered to various
purchasers who all thought the sale was legitimate
• DC allowed government to introduce evidence of similar acts under Rule 404(b)
concluding that such evidence had clear relevance as to petitioner’s knowledge
• The evidence was of similar instances where petitioner tried to sell televisions and
appliances to other people that were also stolen goods
• Petitioner testified that all the goods were provided by Leroy Wesby who told him
that the merchandise was obtained legitimately and that he sold for Wesby on a
commission basis and had no idea they were stolen goods
Issue • Issue at Court of Appeals: whether the TC must make a preliminary finding before
similar act and other Rule 404(b) evidence is submitted to the jury
Decision • Held: such evidence should be admitted if there is sufficient evidence to support a
finding by the jury that the D committed the similar act
Reasoning • Petitioner argues the DC erred in admitting the similar acts testimony
• Threshold inquiry a court must make before admitting similar acts evidence under
404(b) is whether that evidence is probative of a material issue other than character
• The government’s theory of relevance was that the TVs were stolen and proof that
petitioner had engaged in a series of sales of stolen merchandise from the same
suspicious source would be strong evidence that he was aware that each of these
items including the tapes were stolen; so the sale of the tvs was a similar act only if
they were stolen; introducing prior acts to establish knowledge of the stolen tapes
• Petitioner argues the evidence should not have been admitted because the
government failed to show the TVs were in fact stolen;

Conditional fact: if reasonable juror could find on preponderance of evidence in order to

admit evidence to jury
• Held: jury could have determined that the goods were stolen based on
evidence produced: no bill of sale, low price of TVs and large quantity for
sale, and other stolen merchandise: appliances and tapes;
Ratio • Protection against unfair prejudice does not come from a requirement of a
preliminary finding by the TC but comes from 4 sources:

Four factors to determine if

evidence should be entered for
character evidence:
 1. Is the evidence being offered for a proper purpose (requirement
of FRE 404(b))
2. Is the evidence relevant for that purpose (FRE 402) →
▪ Only relevant if the jury can reasonably conclude that the
act occurred and that the defendant was the actor
▪ Don’t weigh credibility – just weigh, by the preponderance
of evidence that the jury could find conditional fact
3. Is the probative value substantially outweighed by its potential
for unfair prejudice (FRE 403)
4. Was the jury instructed that the similar acts evidence is to be
considered only for the proper purpose for which it was admitted
(from the FRE 105) * Upon request
This standard establishes a clear, recognizable standard for courts and lawyers and is
consistent with the due process owed under the federal and state const.

State v. Terrazas (“Clear and Convincing” Standard for conditional facts)

Issue • What standard for prior bad acts must be proved to be admissible against the
Defendant in a criminal case?
Holding • This court accepts the Hughes test of substantial evidence
Ratio Two Standards: Difference between Huddleston and Hugh
Huddleson: Requires a jury to be able to find the conditional fact by a preponderance of
evidence
Hughes: Find conditional fact by substantial evidence sufficient to take the case to a jury

This court: for prior bad acts to be admissible in a criminal case, the person introducing
evidence must prove by clear and convincing evidence that the prior bad acts were
committed, and the D committed the acts
o Because of high probability of prejudice, the court must ensure the
evidence against the D directly establishes that the D took part in the
collateral act and to shield the accused from prejudicial evidence based
upon highly circumstantial inferences
o Applying the standard establishes a clear, recognizable standard for
courts and lawyers and is consistent with the due process owed under the
federal and state constitutions

United States v Smalls

D charged with murder of prison cell mate – made to look like asthma attack. P wants to introduce EV
that D threatened ex-wife in similar fashion (also had asthma) & charged with domestic assault. EV
admitted.

FRE 404 (b) allows EV that tends to show D’s identity as perpetrator of the charged offense b/c the D
preceded by a unique modus operandi (signature quality) evident in prior crimes. A signature quality
must be “unusual and distinctive”.

Examples of elements relevant to signature quality:

• geographic location
• unusual quality of the crime
• skill necessary to commit the acts
 • use of distinctive device

United States v Miller

D charged with INTENT to distribute coke. Prosc. wants to admit EV that he had been convicted of
possession of coke with INTENT to distribute in past under FRE 404 (B). Even though intent is a 404
(b) exception this is not allowed because it is propensity EV. Does not pass 403 balancing.

FRE (B) is NOT a rule of automatic admission whenever bad acts EV can be plausibly linked to
“another purpose” such as knowledge or intent listed in the rule. FRE 401 requirement of relevance and
the unfair prejudice balancing inquires of FRE 403 still apply fully. Rule 404 (b) requires a case-by-
case determination, not a categorical one. TJ must balance the relevance of the proposed use of the EV
in the case – and the EV’s relevance to that proof – against the high risk that the EV will also tend to
establish bad character and propensity to commit the charged crime. When intent is not meaningfully
disputed by the offense and bad acts EV is relevant to intent only b/c it implies a pattern or propensity
to so intend, the trial CT abuses its discretion by admitting it.

Whether the intent element is general or specific for a charged crime, all bad acts MUST be balanced
for probative value and unfair prejudice.

ASK: exactly how would the proffered EV work in the mind of a juror to establish the fact that the
prosc. is trying to prove. If answer is “he did it before, he will again” then this is propensity EV.

US v. Curtin
Facts • Kevin Eric Curtain arranged to meet 14-year-old for sex (undercover police
officer). Arrested with personal assistant which showed texts of 140 stories
about adults having sex with children. Indicted on one count of travel with intent
to engage in a sexual act with a juvenile in violation of 18 USC §2423(b) and
one count of coercion and enticement in violation of 18 USC §2422(b).
• Curtin argues that the stories amounted to inadmissible character evidence,
introduced only for propensity purposes and their probative value greatly
exceeded their prejudicial value in violation of FRE 403.
Issue • Subjective intent: did he intend to hook up sexually with a minor or with a 30 to
40-year-old woman who liked to engage in sex acts while pretending she was a
child having incestuous sex with her daddy?
Holding The stories were not of marginal relevance, the stories were at the core of the only
material fact the defense sought to dispute – Curtin’s intent. The evidence probative of
Curtin’s intent and credibility of his innocence defense.
• The government was not required to have read every word of these stories when
exercising its balancing discretion pursuant to FRE 403.

United States v Saenz

D charged with assault with dangerous weapon with intent to do bodily harm. D wants his knowledge
of the victims prior acts of violence admitted to show self-defense (that he believed use of force was
necessary).

FRE 404 (B) does NOT apply when a D seeks to introduce EV that he knew of a victim’s other acts to
show D’s state of mind.

Notes:
 o Two reason why a judgment of acquittal is not generally admissible to rebut
inferences that may be drawn from evidence that was the basis of a previous trial:
• (1) judgments of acquittal are hearsay
• (2) judgments of acquittal are not generally relevant because they do not prove
innocence
o Rule 404(b) applies to both criminal and civil whereas the Rule 404(a)(2) exceptions
are only in criminal
o Rule 404(b)(1) refers to other acts and is not limited to bad acts -- can introduce
evidence of other, lawful acts where relevant for some reason other than propensity
o There must be similarity bettwen the other acts and the charged acts in order to or
evidence of prior acts to be relevant
o The more remote in time a prior crime, wrong, or act, the less probative it is of an
individuals intent, knowledge (US. V. Verduzco)
▪ Relevant date is the date when the individual was released from incarceration
from committing that offence
o Under Rule 404(b), evidence of someone eleses conduct that tends to engate the
defendants guilt is admissible under Rule 404(b)
o Court can’t let all evidence in that is unduly prejudicial
o Courts look at cases with children differently (not in opinion)
•
Summary of Rules
• Article IV of the Rules of Evidence deals with the relevancy of evidence
• Rule 401 and 402 establish the broad principle that relevant evidence – evidence that makes the
existence of any fact at issue more or less probable - is admissible unless the rules provide
otherwise
• Rule 403 allows the trial judge to exclude relevant evidence if its probative value is substantially
outweighed by a danger of unfair prejudice
• Rule 404 through 412 address specific types of evidence that have generated problems (i.e Rule
404(b) introduces extrinsic evidence that is character)
• IF general use, only 402 and 402
Character in Sex Offenses
*** Rules 413 through 415 establish exceptions to the general prohibition on character evidence in cases
involving sexual assault and child molestation
413, 414 = CRIMINAL
415 = CIVIL

Rule 412 – Sex Offense Cases:

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving
alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior;
or (2) evidence offered to prove a victim’s sexual predisposition.

(b) Exceptions –
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone
other than the defendant was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with respect to the person
accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the
prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.

(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior
or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim
and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the
victim has placed it in controversy.

FRE 412 – Procedure to Determine Admissibility

Procedure to Determine Admissibility.
(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must: (A) file a motion
that specifically describes the evidence and states the purpose for which it is to be offered; (B) do so
at least 14 days before trial unless the court, for good cause, sets a different time; (C) serve the motion
on all parties; and (D) notify the victim or, when appropriate, the victim’s guardian or representative.

(2) Hearing. Before admitting evidence under this rule, the court must conduct an in-camera hearing
and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the
motion, related materials, and the record of the hearing must be and remain sealed.
(d) Definition of “Victim.” In this rule, “victim” includes an alleged victim.

FRE 413 – Similar Crimes in Sexual-Assault Cases

(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may
admit evidence that the defendant committed any other sexual assault. The evidence may be considered
on any matter to which it is relevant. → You can use specific instances in sex assault cases

Rule 414 – Similar Crimes in Child-Molestation Cases

(a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may
admit evidence that the defendant committed any other child molestation. The evidence may be
considered on any matter to which it is relevant.

Rule 415 – Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual assault or
child molestation, the court may admit evidence that the party committed any other sexual assault or child
molestation. The evidence may be considered as provided in Rules 413 and 414.
Johnson v. Elk Lake School District (FRE 415 Test)
Facts • Johnson claims her guidance counselor sexually harassed and abused her
• At trial Johnson attempted to introduce the testimony of Radawanksi, a teacher’s
associate at the high school’s restaurant training program and a friend of the
accused, Stevens, regarding an incident in which Stevens allegedly assaulted her
in the office of another teacher
• The DC excluded this evidence because Radawanski gave conflicting
descriptions of the incident and could not definitively prove intent
Issue • Was the exclusion of witness testimony valid?
Holding • This court held the exclusion of the evidence was justifiable for the differences between
Stevens’ alleged assaults of Radwanski and Johnson: the former occurred in another
teacher’s office with that teacher present, involved an adult co-worker of the accused
and consisted of a bizarre incident; the latter is said to have taken place with no one else
present in Stevens’ office, involved a minor and allegedly involved Stevens making
more direct sexual advances upon a much younger female
• These dissimilarities reduced the probative value of the testimony
Ratio • The uncertainty of the testimony regarding intent, the dissimilarities between the
similar and alleged acts, and the isolated nature of the incident reduced
significantly the probative value of the testimony

In admitting evidence under Rule 413, 414, & 415, the court must apply the Huddleston
standard. The court should examine all of the evidence in the case to decide whether the jury
could reasonably find the conditional fact (whether the D committed the prior bad act) by a
preponderance of the evidence. The court must assess these factors:
• Closeness in time
• Frequency of events
• Need for evidence beyond testimony of the victim and the defendant
• Presence or lack of intervening actions

Other Relevancy Rules: Policy Based Limits

HABIT

FRE 406 – Habit; Routine practice

Rule 406 states that evidence of an individual’s habit or an organization’s routine practice is potentially
admissible to prove action in conformity therewith [subject to exclusion under Rule 403]. Habit describes
one’s regular response to a repeated specific situation. It is the person’s regular practice of meeting a
particular kind of situation with a specific type of conduct – AC Notes: “adequacy of sampling and
uniformity of response

• The court may admit this evidence regardless of whether it is corroborated or whether there was
an eyewitness
• ROUTINE DOES NOT EQUAL HABIT! Ex. Man goes to bar every Saturday night (not
admissible as habit).

Must distinguish between character or habit

• Character → is a generalized description of one’s disposition, or of one’s disposition in respect
to a general trait [i.e. honesty, temperance or peacefulness]
• Habit → more specific – describes one’s regular response to a repeated specific situation – the
person’s regular practice of meeting a particular kind of situation with specific type of conduct –
doing of the habitual acts may become semi-automatic
o Key factors → adequacy of sampling and uniformity of response

Reason for distinguishing

• Character = sum of one’s habits
• Someone investigating whether X did something would be greatly helped in his inquiry by
evidence as to whether he was in the habit of doing it

Three things the courts look to when determining if something is a habit:

1. Specificity
o the more specific an action is the more likely it is going to be considered habit
2. Regularity
o the more regular a given scenario the more likely it is going to be considered habit
▪ something you do as a reaction to a specific situation
3. Unreflective (Automatic)
o the more semi-automatic the behaviour the more likely it is going to be a habit

The extent to which instances must be multiplied and consistency of behavior maintained in order to rise
to the status of habit inevitably gives rise to a difference of opinion.

US v. Yazzie
Facts • Yazzie and Jones convicted of second-degree murder and aiding and abetting
second degree murder
• At trial, the strength and credibility of Jones’ and Yazzie’s claim of self defense
rested on portraying Briggs as a violent man, one habitually instigating fight and
carrying knife or a gun
• Jones now targets the DC’s limitation of the testimony of 2 of their witnesses on
the ground its interpretation unduly constricted Rule 406 and impeded their
defense
• Jones insists evidence of habit was essential to establish Briggs routinely was the
aggressor in encounters he provoked
Issue • Was the exclusion of evidence abuse of the district courts discretion?
Holding • Because character evidence is highly susceptible to enumerated shortcomings in Rule
403, it is categorically excluded under FRE 404 EXCEPT in 3 instances:
o One is relevant here [404(a)(2)(B) – permits evidence of the victim’s character
but 405 limits the permissible methods of proof
 ▪ However, these limitations DO NOT burden proof of habit
o Habit (one’s regular practice of meeting a particular kind of situation with a
specific type of conduct), under FRE 406, is admissible to show a person acted in
accordance with the habit or routine practice

Application to this case:

o District court found that the notion that Briggs routinely started fights, picking on
weak people he met in bars and beating them up was evidence of character
o Although Jones was correct in stating that Rule 406 does not require an individual
‘to act in a give way every minute in every situation’ the extent to which these
actions must be multiplied, and their consistency of behavior gives rise to a
difference of opinion
o Resolving the inconsistencies is within the district courts discretion
• Court was correct including habitual evidence of placing a gun or knife on his person;
however, that Briggs routinely started fights did not represent a sufficiently semi-
automatic reaction and is character evidence rather than habit.
• There was no abuse of discretion in this case
Ratio • Habit, one’s regular practice of meeting a particular kind of situation with a specific
type of conduct, is admissible to show a person acted in accordance with the habit or
routine practice
• Habit evidence may offer a backdoor to proving character for, although evidence an
individual routinely acted in a particular manner may be offered to show he acted in
conformity on an occasion, those routine practices may also coalesce to provide specific
instances proving character
• The court found that Cowen’s testimony was about the victim’s character not
habit and allowed the testimony;

Rule 407 – Subsequent Remedial Measures

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of
the subsequent measures is not admissible to prove:
• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if disputed —
proving ownership, control, or the feasibility of precautionary measures.
• The first sentence of Rule 407 categorically bars the use of evidence of SRM when offered to
prove negligence, culpable conduct, a defect in a product or its design, or the need for a warning
or instruction
• A persuasive justification for this rule is to encourage, or at least not discourage, people from
taking steps to improve safety – though the second sentence allows for admission regarding
impeaching, though the court retains the ability to exclude such evidence under Rule 403
• Evidence of measures taken by the defendant prior to the event causing injury or harm do not
fall within the exclusionary scope of Rule 407 even if they occurred after the manufacture or
design of the product

Diehl v. Blaw-Knox
Facts • Products liability case
• P was severely injured as a laborer on a road crew for IA Construction; his legs
became trapped under the rear wheels of a machine manufactured by Blaw-Knox
 • P claims the machine was defective in design for 3 reasons:
o Lacked a bumper or any other enclosure of the rear wheels
o The backup alarm was inaudible, particularly because it was placed on
the front of the machine and
o It lacked proper warnings
• P introduced evidence of IA mechanic redesigning the machine shortly after the
accident to prevent similar accidents from occurring in the future
• D filed a motion in limine prior to trial to prohibit the P from introducing
evidence of the IA redesign, the DC granted the D’s motion and rejected the P’s
motion seeking an order allowing them to introduce the evidence at trial
Issue • Whether Rule 407 excludes evidence of subsequent remedial measures taken by
a non-party such as IA
Holding • Held: Rule 407 does not apply to evidence of subsequent remedial measures taken by a
non-party, thus the DC erred to exclude evidence of the IA redesign under that rule
• The admission of remedial measures by a non-party necessarily will not expose that
non-party to liability and therefore will not discourage the non-party from taking the
remedial measures in the first place
• The Rule recognizes that manufacture’s will be discouraged from improving the safety
of their products if such changes can be introduced as evidence that their previous
designs were defective. This policy is not implicated where the evidence concerns
remedial measures taken by an individual or entity that is not a party in the law suit.
Ratio • FRE 407 does not apply to SRM taken by a non-party – it hardly makes
sense to speak of a party’s fault being admitted by someone other than the
party.

Anderson v. Malloy (Exception to FRE 407)

Facts • The Andersons where guest at a motel. Linda Anderson was assaulted and raped
after an assailant forcibly entered the room. The Andersons filed suit alleging
that the Df - negligently failed to provide them with reasonably safe lodging and
fraudulently misrepresented the level of security to the motel guests.
• The Trial Court refused to admit evidence that the Df - installed safety chains
and peep holes in the entrance doors of the motel rooms.
Issue • Whether subsequent remedial measures can be admissible if precautionary
measures are controverted? Yes
Holding • The plaintiffs assert on appeal that the defendants controverted the feasibility of the use
of peep holes and safety chains.
• Thus, the plaintiffs argue that the evidence comes within the exception of rule 407.
• Court says that the defendant controverted the feasibility
o With this testimony the defendants controverted the feasibility of the installation
of these devices, because the defendant Malloy in effect testified that these
devices were not "capable of being utilized or dealt with successfully."
• Court says Plaintiffs have every right to rebut inference
o The plaintiffs were entitled to show affirmatively that these devices were feasible,
and furthermore to impeach the credibility of the defendants by showing that,
although the defendants testified that they had done everything necessary for a
secure motel, and that chain locks and peep holes would not be successful,
 • They in fact took further security measures after Linda Anderson was raped, and in fact
installed the same devices that they testified could not be used successfully.
• Court held that the trial court committed prejudicial error in the ruling discussed above;
accordingly, vacated the judgment of the district court, and remand the case for a new
trial.
Ratio •

Sims v. Great American Life Ins. Co.

Facts • Mr. Sims died when the speeding car he was driving sailed off a rural road; prior
to death, he obtained life insurance from Great American Life Insurance
Company
• Mrs. Sims made a claim on this policy but after an investigation the company
denied the claim under its non-accidental death provision concluding that Sims
committed suicide
• Mrs. Sims filed a suit against the company alleging breach of K and bad faith for
its failure to pay her husband’s life insurance policy
• A jury found the death was accidental and awarded Mrs. Sims compensatory and
punitive damages;
Issue • Are FRE governed by Erie Doctrine? Were the wrong rules applied?
Holding • FRE are not subject to Erie doctrine
Ratio • Where a conflict arises between the Federal Rules of Evidence and state law, the
courts will apply the Federal Rules unless the state law reflects substantive
concerns or policies.
• Erie is inapplicable to the Federal Rules of Evidence.
• The Rules of Evidence expressly provide for the application of state law in
numerous circumstances.
o In 401, for example, a dual inquiry is required (1) whether the evidence is
probative or factually relevant to the proposition asserted and (2) whether
the proposition for which the evidence is offered is properly probable –
the first inquiry is a procedural question of evidence and the second is a
substantive question regarding the materiality of the evidence

FRE 408 – Compromise Offers and Negotiations

(a) Prohibited uses. Evidence of the following is not admissible - on behalf of any party – either to prove
or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement
or a contradiction:
(1) furnishing, promising, or offering – or accepting or offering or promising to accept - a
valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations about the claim, except when offered
in a criminal case and the negotiations related to a claim by a public office or agency in the
exercise of regulatory, investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias
or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution.

Notes:
 • Rule 408 does not apply to business communication. Rather only compromise
negotiations.
o Communications between the parties after litigation has been threatened or
commenced will be deemed to be compromise negotiations.
o Don’t need to reach point of threatened litigation before Rule 408 kicks in →
enough that an actual dispute or a difference of opinion exits
• Only applies if claim is disputed
• Rule 408 abrogates common law limitation → 2006 amendment create an exception
when evidence is offered in a criminal case and when the negotiations related to a claim
by a public office in the exercise of its regulatory, investigative or enforcement authority
• Rule 408 does not prevent docs from being admitted into evidence if otherwise
admissible simply because such docs were disclosed to the other party for the first time
during comprise negotiations
• It excludes evidence only when offered for certain purposes but not when offered for
others (Not bar: proving a witness’s bias or prejudice, negating a contention of undue
delay or proving an effort to obstruct a criminal investigation
• Rule 408 protections cannot be waived unilaterally (protect both parties from having
the fact that negotiations took place disclosed to the jury).

FRE 409 – Offers to Pay Medical and Similar Expenses

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned
by an injury is not admissible to prove liability for the injury.

FRE 411 – Liability Insurance

Evidence that a person was or was not insured against liability is not admissible upon the issue whether
the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence
of insurance against liability when offered for another purpose, such as proof of agency, ownership, or
control, or bias or prejudice of a witness.

US v. Roti
Facts • Saddled with a judgment of more than $400k on account of a guarantee of his
small corporation’s debts, Roti decided to hide his assets from creditors
• He was convicted of bankruptcy fraud and concealing assets from the
bankruptcy trustee
• Roti pinned the crime on his lawyer saying his lawyer put him up to it and that
he should be acquitted because the lawyer managed the scheme’s details
• Roti proposed to offer evidence that after the fraud was uncovered, he filed suit
against the lawyer
• The suit was taken over by Roti’s trustee in bankruptcy and settled for $15k
• Roti alleges the settlement shows the lawyer’s recognition of his culpability for
Roti’s predicament
• DC held that Rule 408 barred introduction of evidence about the settlement and
Roti’s principal argument on appeal is that decision was mistaken because 408
does not apply in criminal prosecutions
Issue • Does FRE 408 bar evidence of settlements in only civil cases, or both crim and
civil?
 Holding • Originally deemed Rule 408 was inapplicable to criminal prosecutions because its text
did not specifically mention criminal litigation. However, in 2006, the SC promulgated
an amendment to Rule 408 → Rule 408(a)(2) creates a partial exception for criminal
cases
Ratio • Rule 408 applies to both criminal and civil litigation. A party cannot waive
protection of the Rule unilaterally because it protects both parties.

FRE 410 – Pleas, Plea Discussions, and Related Statements

The FRE seek to facilitate plea bargaining by providing confidentiality for statements made in plea
bargaining. Policy rationale: to foster plea bargaining. Law enforcement officials can avoid the rule’s
effects by refusing to negotiate unless the accused waives his rights under the rule. SCOTUS has upheld
such waivers, despite arguments that Congress did not intent 408 to be waivable (US v. Mezzanatto).
• Question becomes: is this a plea discussion? Determining this is a fact-intensive inquiry.
Some courts say that if there is a reasonable belief on the part of defendant, then 410 applies.

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the
defendant who made the plea or participated in the plea discussions:
• (1) A guilty plea that was later withdrawn;
• (2) A nolo contendere plea; [defendant neither admits or denies]
• (3) A statement made during a proceeding on either of those pleas under Federal Rule
of Crim. Proc. 11 or a comparable state procedure; or
• (4) A statement made during plea discussion with an attorney for the prosecuting
authority if the discussions did not result in a guilty plea or they resulted in a later
withdrawn guilty plea.

(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
• (1) In any proceeding in which another statement made in the course of the same plea
or plea discussions has been introduced, if in fairness the statement ought to be
considered together; or
• (2) In a criminal proceeding for perjury or false statement, if the defendant made the
statement under oath, on the record and with counsel present.

Note:
• Bars evidence only when offered against the criminal defendant who made the plea or
participated in the plea discussions, although it can be invoked by that individual in
criminal and civil proceedings
• Criminal defendants have the right to withdraw guilty pleas under a variety of
circumstances and to insist that the issue of guilt be determined by a jury

US v. Greene (8th Cir) → Authority to make plea agreement

Agents of the state must have EXPRESS authority from the offer of the prosecuting attorney to engage in
plea discussions. If the person offering to plead you out has no authority to do so, the evidence of the fake
plea discussions will be admitted.
Facts • Greene indicted in federal court in Iowa on 5 counts of drug-related charges –
was convicted – appeals his sentence and conviction – gov’t agents searched
Greene’s house in Oct 1991 but didn’t arrest him until April 1992
 • Greene sought to suppress certain statements he made to the agent at the time of
the initial search – argued they were made in the course of plea negotiations and
therefore excludable
• Trial court allowed the statements b/c it found that there was no actual authority
given by the prosecuting gov’t attorney to the DEA agent to negotiate a plea
agreement
Issue • Did the trial court err in their exclusion of this evidence?
Holding • Court must determine if there is authority – actual authority may be either express or
implied → refers to authority created by acts of a principal (in this case, the prosecuting
attorney) that would reasonably lead another (here, the DEA agent) to believe that the
other was authorized to act for the principal
• Conclusion → DEA agent did not have any apparent authority to negotiate a plea
agreement, either on account of some conduct by the prosecuting attorney or because
the DEA agent represented himself as having the authority to negotiate a plea agreement
Ratio • D should have plea negotiations with prosecuting attorney and no one else.
Statements made to a law enforcement agent who has express authority to act for
the prosecuting government may be covered under Rule 610.
Notes:
• Rule 410 does not provide for the exclusion of pleas and plea bargaining that take place in a
jurisdiction outside of the United States

US v. Mezzanatto
Facts • D charged with possession of meth with intent to deliver
• The prosecutor told D he must be honest, and must waive his rights under the
FRE – “if we cannot reach a plea, we can use your statements against you”
• At trial, D testified and stated he did not know the package he delivered
contained meth
• Prosecution used the evidence from his failed plea negotiation against him
Issue • Can plea negotiations be used to impeach a witness rather than exclude
evidence? Yes
Holding • SC held that the D can knowingly waive rights of criminal procedure and evidence –
and therefore he did in this case
• This would have been decided differently if the prosecutor used this evidence in their
case in chief (instead of impeachment, as in this case)
• It is different than waiving his rights even if he did not take the stand
• In this case, D contradicted his earlier statements (during plea) while on the stand and
the prosecution used this evidence to impeach him
Ratio • A criminal defendant may knowingly and voluntarily waive many of the most
fundamental protections afforded by the Constitution. Absent some indication
that the agreement was entered into unknowingly or involuntarily, an agreement
to waive the exclusionary provisions of the plea statement rules is valid and
enforceable.

United States v Greene

FRE 410 has a limited reach. Statements made to DEA agent during search of home and after arrest did
not fall under FRE 410 finding that the DEA agent lacked actual or apparent authority.
 Plea dealings or any discussions made during plea discussions cannot be admitted to evidence. You
must have express authority from the prosecution to engage in a plea discussion. If they do not have the
express authority to do so, the evidence of the fake plea discussion will be admitted.

WITNESS QUALIFICATION, COMPETENCY AND EXAMINATION

Competency
Competency covers:
1) Who is qualified to testify as a witness
2) Disqualifications of jurors as witnesses
3) The continuing, but less rigid, importance of the oath
4) Direct and Cross-Examination
- Methods of examinations
- Scope of Questioning on Cross-Examination
5) Opinion testimony of lay witnesses (as distinguished from expert witness opinion testimony)

Basic Requirement: the ability to observe, to recollect, to communicate, and the top ability to understand
the oath obligation (desire to tell the truth). Witness competency is a matter of status and not ability
• 601 (Competency), 602 (Personal Knowledge), and 603 (Oath or Affirmation Requirement)
• If diversity case, state laws of competency apply (Rule 601)
o Federal: Children are competent
o State: Vary

Theory
• The theory of the common law was to admit to the witness stand only those presumably honest,
appreciating the sanctity of an oath, unaffected as a party by the result, and free from any of the
temptations of interest
o Over time, through a combination of legislative action and modifications in the common
law, the rigid competency rules of the common law were steadily relaxed

o The rules have been modified to allow for testimony by most people – every person is a
competent to be a witness

▪ “The truth is more likely to be arrived at by hearing the testimony of all persons
of competent understanding who may seem to have knowledge of the facts
involved in the case, leaving the credit and weight of such testimony to be
determined by the court, rather than by rejecting witnesses as incompetent.

FRE 601: Competency to Testify in General

Exceptions to 601:
Congress amended the rule to provide that in civil cases, state law governs the witness’ competency
regarding claims or defenses for which state law supplies the rule of decision (due to concern that state
Dead Man’s statutes would be disregarded)
▪ Dead Man’s Statutes: render persons interested in the outcome of a suit incompetent
to testify and apply only where the testimony involves a transaction or
communication with a deceased person and typically involve claims against the
deceased person’s estate
▪ Judges and Jurors: Judges (FRE 606(a)) and jurors (FRE 606(b)) are deemed
incompetent to testify in federal court in certain instances

Therefore … Common Law Disqualifications:

Religious beliefs (FRE 610), Infancy, Insanity, Conviction of Crime (TODAY they are qualified, but they
can be impeached), Bias or Interest (TODAY they are qualified, but they can be impeached), Judge as a
Witness (FRE 605: presiding judge may not testify as a witness), Juror as a Witness (FRE 606: Jurors as
Incompetent to Testify), Dead Man Statutes

Equitable Life Assurance Soc. Of US v. McKay

Facts • David McKay died in November of 83, he was married to Carolyn at that time
and had also previously been married to Marjorie
• He had 6 life insurance policies, 4 of them named his children as the
beneficiaries
• 5th policy was first for the wife but later was changed to his children, Carolyn
asserts this was done without her knowledge when she signed the form as a
witness
• 6th policy was intended to be for the wife, but the agent made it out for the
children
• DC granted summary judgment for decedent’s children, holding that there was
no genuine issue of material fact b/c the Washington State Deadman’s Statute
barred the testimony of Carolyn and the agent and they are the 2 witnesses who
would testify that the decedent intended Carolyn to be the beneficiary of the 2
policies
Issue • Whether the Washington Dead Man’s Statute is substantive or procedural?
Holding • The deadman statute from the forum state applies
Ratio • FRE 601 Competency to Testify in Trial requires that the competency of
witnesses must be determined by state law. Dead man statute applies.
• Dead Man Statute: designed to prevent perjury in civil case by prohibiting a
witness who is an interested party from testifying about communications or
transactions with a deceased person against the decedent’s estate unless there is a
waiver

Legg v. Chopra
Facts • Medical malpractice action against Dr. Chopra in connection with a surgical
procedure performed on P that resulted in substantial, continued blood loss to the
P
• DC granted summary judgment to Ds holding P failed to create an issue of fact
that Ds fell below the standard of care
 • DC refused to consider the testimony of P’s medical expert
• P argues DC erred in applying FRE 601 and not state law in deciding the
evidentiary question of whether the expert was qualified
Issue • Did the DC err in applying federal, and not state law?
Holding • The DC did not err because the court was in proper adherence to the Eerie Doctrine
o State law applies to substantive law and Fed applies to procedural law
Ratio Erie tells us that state law governs substantive issues and federal law governs
procedural issues. Rules of evidence are deemed to be rules of procedure, and
therefore the FRE rather than the state evidentiary law are held to apply.
• However, in this case, if a witness is deemed competent to testify to the
substantive issue in the case, such as the standard of care, his or her
testimony should then be screened by 702 to determine if it is otherwise
admissible expert testimony.

Rule 610 – Religious Beliefs or Opinions

- Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose
of showing that by reason of their nature the witness' credibility is impaired or enhanced.
- Can’t use someone’s religious beliefs or opinions to impeach/enhance witness’ credibility

FRE606 – Juror’s Competency as a Witness

(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called
to testify, the court must give a party an opportunity to object outside the jury’s presence.
(b) During an Inquiry into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or
indictment, a juror may not testify about any statement made or incident that occurred during the
jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s
mental processes concerning the verdict or indictment. The court may not receive a juror’s
affidavit or evidence of a juror’s statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.

Tanner v. United States

Facts • Tanner and Conover were convicted of conspiring to defraud the US and of
committing mail fraud.
• Tanner’s attorney had received an unsolicited telephone call from one of the
jurors who told him that several of the jurors had consumed alcohol and drugs
during the lunch breaks at various times throughout the trial.
• District court found that the juror testimony on intoxication was inadmissible
under FRE 606(b) to impeach the jury’s verdict. New trial was denied.
• Affirmed by 11th Cit
Issue • Whether the District Court was required to hold an evidentiary hearing,
including juror testimony, on juror alcohol and drug use during the trial
Holding • District court did not err in deciding that an additional post-verdict evidentiary hearing
was unnecessary
• Firmly established common-law rule in the US that prohibits the admission of
juror testimony to impeach a jury verdict.
 • Courts use an internal/external distinction to identify those instances which a
juror testimony impeaching a verdict would be admissible
• The key is to differentiate between an internal and external distinction, it is not a
location distinction but rather based on the nature of the allegation.
o Extrinsic = prejudicial information that has been brought to the jury’s attention
o Intrinsic= bias from other jurors/ in this case alcohol
▪ Can impeach only in situations in which an ‘extraneous influence’
was alleged to have affected the jury → FRE 606(b)
Lower federal courts treated allegations of the physical or mental incompetence of a juror as
‘internal’ rather than ‘external’ matters.

The legislative history demonstrates that Congress specifically understood, considered and
rejected a version of FRE 606(b) that would have allowed jurors to testify on juror conduct
during deliberations, including juror intoxication → juror intoxication is not an ‘outside
influence’ about which jurors may testify to impeach their verdict.

Rationale: 4 Protections:
• (i) Voir Dire Process
• (ii) Ability of the court and counsel to observe jurors during the trial
• (iii) Ability of jurors to make pre-verdict reports of misconduct
• (iv) Availability of post-verdict impeachment through non-juror evidence
of misconduct.

Application to this case:

• petitioners argue that substance abuse constitutes an improper ‘outside influence’
about which jurors may testify under Rule 606(b)
• The language of the Rule cannot easily be stretched to cover this circumstance
• Note → during the trial the jury is observable by the court, by counsel and by court
personnel – jurors are also observable by each other and may report inappropriate juror
behaviour to the court before they render a verdict
Ratio • Holding that FRE 606(b) prevents the admission of testimony by jurors
describing the use of drugs and alcohol during the trial even though the
misconduct occurred before the jury deliberations began

Pena-Rodriguez v. Colorado
Facts • Two jurors told the defense lawyer, who then told the judge, that one juror had
made pretty clear during deliberations that he believed Mexican men were prone
to machismo violence, and the fact he was Mexican pretty much argued for
conviction
• Lawyers got sworn affidavits of these statements
• Court refused prosecution’s motions for a new trial, COA affirmed this decision
Issue • Does a criminal defendant’s 6th amendment right to a fair and impartial jury
supersede Rule 606(b), if a juror expresses racial animus?
Holding • Kennedy said that if a juror relied on racial animus to convict, courts must consider
whether the bias denied the defendant the right to- a fair and impartial jury
• The no-impeachment rule protects jurors from scrutiny, and it gives jury verdicts
stability and finality
 • 606(b) is given great weight through jurisprudence but also placed heavy importance on
preventing racial bias
• Holding that courts have discretion to inquire into racial or ethnic bias in jury
deliberations that could impact a defendant’s 6th Amendment right to a fair trial
assuming certain conditions are met
Ratio • To overcome Rule 606(b), the court must have proof that racial bias casts
serious doubt on the juror’s fairness and impartiality

FRE 605 Competency of Judge as Witness

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in
order to preserve the point.

United States v. Berber-Tinoco

Holding Berber argues that the district court violated FRE 605 when the judge made interjections
based on his own knowledge during the suppression hearing.

The judge violated FRE 605 when he interjected his own observations regarding the
location of the stop signs along the road and the narrowness of the road and the speed limit
that was posted on the road.

• The judge provided a personal conjecture, rather than a judicially noticed fact →
judicial notice = is a rule in the law of evidence that allows a fact to be introduced into
evidence if the truth of that fact is so notorious or well known, or so authoritatively
attested, that it cannot reasonably be doubted.
Ratio • Judge can’t bring in own personal knowledge

FRE 603 – Oath Affirmation to Testify Truthfully

• Before testifying, a witness must give an oath or affirmation to testify truthfully. It must
be in a form designed to impress that duty on the witness’ conscience
• Oath requirement: must take an oath but don’t have to swear to God. The court will find
some way for you to speak the truth
United States v. Ward
Facts • Grand jury indicted Ward on 3 counts each of tax evasion and failure to file
income tax returns.
• Ward chose to represent himself at trial.
• Ward filed a “motion to challenge the oath” which proposed an alternative oath
that replaced the word ‘truth’ with the phrase ‘fully integrated honesty’.
• District court overruled Ward’s objections to the magistrate’s order.
• The judge continued to refuse the changing of the language of the Oath.
• Jury convicted Ward of all counts.
Issue • Did the Trial judge err? Yes
Holding → In determining whether Ward’s own peculiar notions are protected as religious beliefs,
the test is to decide whether the beliefs professed are (1) sincerely held and (2) whether
they are, in Ward’s own scheme of things, religious.

Application to this case:

 • Are Ward’s beliefs sincere? → he strongly professes innocence of the crimes
charged, yet he preferred to risk conviction and incarceration rather than
abandon his version of the oath → Therefore, Ward professes beliefs that are
protected by the First Amendment
• There is no constitutionally or statutorily required form of oath → FRE 603
only requires that a witness give an oath or affirmation to testify truthfully in a
form designed to impress that duty on the witness’s conscience
• His own oath superimposed on the traditional one would have taken nothing away from
the commitment to tell the truth under penalties of perjury and, indeed, in the
defendant’s mind imposed upon him a higher duty
Ratio • FRE 603 requires only that a witness [give an oath or affirmation to testify
truthfully in a form designed to impress that duty on the witness’s conscience]
• There is no constitutional or statutory requirement of the oath and the court
abused its discretion from preventing him from testifying.

DIRECT AND CROSS EXAMINATION OF WITNESSESS

In a typical case, each party takes turns presenting his case. The proponent = the party who bears the
burden of persuasion (the government in criminal cases and the plaintiff in a civil) will go first and
present his case in chief
• Has control: can call a witness and introduce documentary and physical evidence in the order (no
need to present in a topical or chronological order
o Must, during his case in chief, present sufficient evience to establish each of the elements
of the claims
• After proponent, the opposing will present case in reply
• Once the opposing party is complete, the initial party can present his case-in-rebuttal: much
narrower and purpose is to meet the evidence introduced by the opposing party (i.e impeach
witness)
• Once complete, the opposing party has the opportunity to present his case-in-rejoinder (meant to
meet the evidence presented in case-in-reply)
** Sometimes it changes

Within each case, the examination of each witness follows → witness is subject to direct examination
then cross examined by the opposing party
• Cross Examination is limited to the scope of cross-examination to matters testified to on direct
examination plus any matters bearing on the witness’s credibility
• If the cross-examining party has a use for the witness that extends to matters not raised by the
calling party on direct examination, then the cross examination party should call the witness
during the case-in-reply
• Once complete, goes back and forth to narrower rounds of re-direct and re-cross examination
(designed to clarify testimony)

Form of Examination of Witnesses (Questioning)

• Leading Questions- Questions that suggest the answer
o Generally barred on direct examination but permitted on cross (not absolute)
o Opposed to open end questions
• Improper Questions and Answers (All objectionable)
 o Misleading
▪ i.e. “do you still beat your wife?”
o Argumentative (can’t argue or badger)
▪ “Why were you driving so recklessly?”
o Assuming Facts not in Evidence (you must lay foundation first)
▪ “After D consumed 5 beers (assumed), he got in his car, didn’t he?”
o Cumulative (Asked and Answered)
▪ Asking over and over again
o Calls for Speculation (when answer is not based on witness’ own knowledge)
▪ Something that is not the witness’ knowledge is asking for speculation
o Lack of Foundation (haven’t asked enough foundational Q)

Exceptions to no leading questions on direct examination:

• Courts will often allow the use of leading questions on undisputed preliminary matters
• Leading questions may be used when a party calls a hostile witness
• Allows for leading questions when used to develop the witnesses’ testimony

FRE 611: Mode and Order of Examining Witnesses and Presenting Evidence

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order
of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
** Under (a), court can require evidence be in an order require witness to testify in a particular order,
decide extent of re-direct and re-cross or allow a party to reopen case when inadvertently ailed to
introduce evidence on a particular element. Also answer in a narrative opposed to Q and A (a party
preceding pro se need not be required to ask and answer own questions)

(b) Scope of Cross-Examination.

Cross-examination should not go beyond the subject matter of the direct examination and matters
affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct
examination.
** Allow any relevant matter on cross without regard to the scope of the direct examination, subject to
courts discretion

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to
develop the witness’s testimony. Ordinarily, the court should allow leading questions: (1) on cross-
examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an
adverse party.
** when allowed to cross beyond the scope of direct, questioning shall proceed “as if on direct
examination” → leading questions are allowed only in the instances in which they would be allowed on
direct

CANNOT ENTER NEW EVIDENCE ON CROSS EXAMINATION

FRE 611 gives the trial judge discretion to permit inquiry that goes beyond the scope of direct
examination
• U.S. practices as a general rule limits the scope of cross-examination to matters testified
to on direct examination plus any matters bearing on witness credibility.
 o When this is allowed, the questioning shall proceed “as if on direct examination”
meaning that leading questions are allowed only in the instances in which they
would be allowed on direct
• Exceptions to no leading questions on direct examination:
o Courts will often allow the use of leading questions on undisputed preliminary
matters
o Leading questions may be used when a party calls a hostile witness
o Allows for leading questions when used to develop the witnesses’ testimony

FRE 612. Writing Used to Refresh a Witness’s Memory

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh
memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to
have those options.

(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in
a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to
cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s
testimony (limited to impeaching the witness’ credibility by showing that the witness just parroted
verbatim what was on paper and isn’t actually a testimony). If the producing party claims that the writing
includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and
order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved
for the record.

(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered,
the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the
court must strike the witness’s testimony or — if justice so requires — declare a mistrial.

** Not reading it into evidence, rather only using it to refresh memory

United States v. Riccardi

Facts • D charged with illegally moving chattel
• P relied on the testimony of a witness who made notes but could not remember
what she wrote in her notes (notes were a long list)
• Witness was able to refresh her memory, but still could not remember
• P submitted list of chattels and had witness read off the list
Issue • Can the list be entered into evidence?
Holding • Yes, assuming it satisfies the hearsay requirement
Ratio A trial witness may refresh her recollection by examining a document created well after the
transaction about which she is testifying. However, if the writing does not refresh the
witness’s recollection and the witness instead testifies about the contents of the writing, the
writing is then subject to the ordinary rules governing the admission of a witness’s out-of-
court statements.

Discusses the common law distinction between past recollection recorded and present
recollection revived).
• Before attempting to refresh a witness’ memory, a foundation must first be laid
showing that it is necessary and that the item proposed will likely assist in
refreshing the witness’ memory)
 Present recollection revived: where the witness’ memory is revived, and he presently
recollects the facts and swears to them. His capacities for memory and perception may be
attacked and tested; his determination to tell the truth investigated and revealed; protections
of lack of memory merely undermine the probative worth of his testimony (testimony is
evidence, not the document)

Past recollection recorded: (Exception to Hearsay) witness who cannot directly state the
facts from present memory and who must ask the court to accept a writing for the truth of its
contents because he is willing to swear for one reason or another, that its contents are true

Nutramax Laboratories, Inc. v. Twin Laboratories, Inc.

Facts • This case arises from a motion to produce various documents that were allegedly
used by the plaintiffs in witness preparation for depositions. 

Issue •
Holding As a threshold matter, three elements must be met before Rule 612 is applicable:
(1) A witness must use a writing to refresh his or her memory
(2) for purpose of testifying; and
(3) the court must determine that, in the interest of justice, the adverse party is entitled to see
the writing.

The third element requires the court to apply a balancing test designed to weigh the policies
underlying the work product doctrine (protects legitimate efforts to prepare a case, which
include preparation of witnesses for deposition and trial testimony) against the need for
disclosure to promote effective cross-examination and impeachment:

The court identifies several factors:

1) Statue of the witness: there is greater need to know what materials were
reviewed by expert and designee witness preparation for deposition since the
substance of their testimony may be based on sources beyond personal
knowledge
2) The nature of the issue in dispute: whether a witness is testifying generally
about the transactions which are the subject of the litigation
3) When the events took place: whether the events about which the witness will
testify took place recently of years ago. The greater the passage of time the
greater the need to know.
4) When the documents were reviewed: FRE 612 only applies to use of
documents to refresh recollection for purpose of providing testimony.
5) The number of documents reviewed: whether a witness reviewed hundreds of
docs or just a few critical ones.
6) Whether the witness prepared the documents reviewed: there may be greater
need for disclosure if the witness did not prepare the documents himself
7) Whether the documents reviewed contained, in whole or part, pure attorney
work product: Strategy, theory, etc.
8) Whether the documents reviewed previously have been disclosed to the party
taking the deposition:
9) Whether there are credible concerns regarding manipulation, concealment or
destruction of evidence: if the court believes that there may have been
 inappropriate conduct affecting either testimonial or documentary evidence the
case.
Ratio As a threshold matter, three elements must be met before Rule 612 is applicable:
(1) A witness must use a writing to refresh his or her memory;
(2) for purpose of testifying; and
(3) the court must determine that, in the interest of justice, the adverse party is entitled to
see the writing.

FRE 602 – Lack of Personal Knowledge

• A witness may not testify to a matter unless evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter. Evidence to prove personal knowledge
may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of
rule 703, relating to opinion testimony by expert witnesses.

Kemp v. Balboa
Facts • Prisoner contests the evidence supporting the verdict against him. A nurse
testified that Kemp failed to pick up his medication from the prison infirmary on
seven separate occasions; her only knowledge of the subject came from her
reviewing medical charts, which someone else had prepared.
Issue • Did the lower court err? Yes
Holding • Unlike an expert witness, a lay witness may testify only about matters within
his or her personal knowledge – FRE 602 → excludes testimony concerning
matter the witness did not observe or had no opportunity to observe

Application to this case:

- The nurse had no personal knowledge of whether P took the medication that
day b/c she was not on duty. Her only knowledge of P’s intake was from the
chart she reviewed (prepared by someone else). Thus, she had no recollection
that was capable of being refreshed.
- When it developed on cross-examination that the nurse had no personal
knowledge that the prisoner had failed to pick up his medication, it became
apparent that FRE 602 barred that testimony and that it should not have been
admitted
- Court should have struck the testimony since the error was NOT harmless

• Medical records are generally admissible under hearsay

Ratio Lay witnesses can ONLY testify about matters in their personal knowledge

Notes:
• FRE602 makes clear that the witness’ own testimony can suffice to establish that the
witness has personal knowledge of the matters to which he is testifying
• Threshold of FRE602 is low – testimony should not be excluded for lack of personal
knowledge unless no reasonable juror could believe that the witness had the ability and
opportunity to perceive the event that he testifies about
• Generally, a witness cannot testify about what some other person said, wrote or otherwise
communication. However, numerous exceptions to the hearsay rule. In such cases, a
 witness who testifies as to what some third person said or wrote, need only personal
knowledge of the fact that the statement was made (don’t need personal knowledge)

FRE 614 - Calling and Interrogation of Witnesses by the Trial Judge

(a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and
all parties are entitled to cross-examine witnesses thus called.
(b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.
(c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at
the time or at the next available opportunity when the jury is not present.

US v. Martin
Facts • During Martin’s trial for bank robbery he asserted as a part of his defense that
because he was financially secure, he had no motive to rob the bank. As Martin’s
responses to the prosecutor were somewhat ambiguous and contradictory, the
district judge questioned Martin further on some of the points raised. The
defense moved for a mistrial arguing that the court’s comments made an
impression on the jury.
Issue • (1) Whether by his conduct the trial judge conveyed to the jury a bias regarding
the defendant’s honesty or guilt
• (2) Whether the complaining party can show serious prejudice resulting from the
trial court’s comments or questions
Holding • No, the judge acted appropriately

The judge sought clarification of Martin’s answers; he was firm, not harsh or abusive in any
way. The judge also sought clarification from other witnesses, including witnesses for the
prosecution. Made a limiting instruction.

Under FRE 614 → a judge generally is free to interrogate witnesses to ensure that issues are
clearly presented to the jury
- Occasional questioning of witnesses is one means a judge may use to assist a
jury in understanding the evidence
- This should not include questions which indicate the judge’s belief about a
witness’ honesty, especially when a criminal defendant testifies on his own
behalf → the questioning must remain IMPARTIAL

In reviewing challenges to a judge’s questions to a witness at trial is whether:

• Whether by his conduct the trial judge conveyed to the jury a bias regarding the
defendant’s honesty or guilt

• Whether the complaining party can show serious prejudice resulting from the
trial court’s comments or questions

Ratio Under FRE 614(b), a judge is generally free to interrogate witnesses to ensure that
issues are clearly presented to the jury. It just must remain impartial.

FRE 701. Opinion Testimony by Lay Witnesses

At common law, only those witnesses who qualified as experts could testify in the form of an opinion.
Mere lay witnesses, by contract, could testify only about facts ad could not render opinions.

Rule 701 modifies this rule allowing lay witnesses to sometimes testify in the form of opinion.

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and
(b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Lay Witness’ Opinion Testimony is Generally Admissible Regarding:

• General appearance or condition of a person
• State of emotion
• Speed of moving object
• Rational (or irrational) nature of another person’s conduct
• Intoxication

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that
is:
(a) Rationally based on the witness’s perception;
(b) Helpful to clearly understanding the witness’s testimony or to determining a fact in
issue; and
(c) Not based on scientific, technical, or other specialized knowledge within the scope of
FRE 702

Asplundh Manufacturing Division v. Benton Harbor Engineering

Holding FRE 701 = movement away from the courts’ historically skeptical view of lay opinion
evidence → this rule reflects the fact that FRE 701’s liberalization of the admissibility of
opinion evidence is rooted in the modern trend away from fine distinctions between fact
and opinion and toward greater admissibility, tempered with an understanding that the
adversary process, and more specifically, cross-examination, will correct any problems.
- Where the opinion is rationally based on personal knowledge it can be
helpful to the jury in identifying an individual, the speed of the vehicle, the
mental state or responsibility of another, whether another was healthy, the
value of another’s property, and other situations in which the differences
btw facts and opinion blur.
▪ The prototypical example of the type of evidence contemplated by the
adoption of Rule 701 relates to the appearance of persons or things,
identity, the manner of conduct, competency of a person, degrees of light
or darkness, sound, size, weight, distance, and an endless number of
items that cannot be described factually in words apart from inferences.
•
• Rule 701’s requirement that the opinion be “rationally based on the [witness’s]
perception” demands more than that the witness have perceived something
firsthand; rather, it requires that the witness’ perception provide a truly
rational basis for his or her opinion.
 Ratio Rule 701’s requirement that the opinion be “rationally based on the [witness’s] perception”
demands more than that the witness have perceived something firsthand; rather, it requires
that the witness’ perception provide a truly rational basis for his or her opinion.

Clifford v. Commonwealth
Facts -The appellant was convicted on charges of trafficking a controlled substance. A
police officer, Darin Smith, heard a conversation involving appellant, and
undercover police officer, and an informant via surveillance equipment from a
nearby apartment.
-The conversation was recorded and the trial judge determined that the recording
was inaudible and it was not admitting into evidence and not played for the jury.
Smith was still allowed to testify to what he heard over the receiver.

-Smith testified that he heard the undercover officer enter the apartment. He heard
four other voices. He identified one “black males” voice (the appellant was African
American) and testified that he had spoken to black males on numerous occasions as
a police officer. He then testified to incriminating statements made by the “black
male”

-He was asked to demonstrate how a black male sounds different by his voice on
cross examination and compare to white men. Appellant argues that Smith should
not have been permitted to express his opinion that the fourth voice he heard
sounded like a black male. KRE 701 allows a non-expert witness to express an
opinion which is based on the perception of the witness and helpful to a
determination of a fact in issue. A corollary to this is the “collective facts rule,”
which permits a lay witness to resort to a conclusion or an opinion to describe an
observed phenomenon where there exists no other feasible alternative by which to
communicate that observation to the trier of fact.
-People v. Sanchez – human experience has taught us to discern the variations in the
mode of speech of different individuals.
Issue •
Holding -COURT HELD that they see no reason why a witness could not identify a voice as
belonging to a particular nationality in question, so long as the witness is personally
familiar with the general characteristics, accents, or speech patterns of the
race/nationality. It was ultimately permitted.
-DISSENT – a person’s race cannot be ascertained simply be the sound of his voice,
his pronunciation of certain words and his accent. While it may be indicative of
certain things, it shouldn’t be of the colour of his skin.
• Race, being a skin colour, should be perceived by sight. This is common sense.
It was improper to permit officer Smith to testify that the fourth voice on the tape
“sounded black.” It was also improper because the defendant was the only black
male sitting at the defense table.
• Smith did not ever hear the appellant’s voice and the appellant did not testify at
trial, so there was no way to connect the appellant to the particular type of accent
described by Smith.
 • Smith’s testimony that the voice sounded African American does not increase
the probability that the appellant was the speaker, because there was no showing
that the appellant spoke in the way described. It was extremely prejudicial and
should have been excluded under KRE 403.

IMPEACHMENT AND REHABILITATION OF WITNESSES

• To attempt to prove that a witness has not told the truth or has been inconsistent, by introducing
contrary evidence, including statements made outside of the courtroom in depositions or in
statements of the witness heard by another.
o Cannot be used by the trier of fact to prove any SUBSTANTIVE part of the party’s case
o Can use: specific untruthful acts, prior convictions, prior inconsistent statements, etc…

Impeachment: Attacking a witness’ credibility

o Character for truthfulness (FRE 608)
o Conviction of crime (FRE 609)
o Specific instances of misconduct – bad acts
o Prior inconsistent statements
o Bias or interest
o Sensory deficiencies
o Impeachment on a collateral matter
- Rehabilitation

Methods include: showing inconsistent testimony, or witness is biased or motivated in a way that might
affect his testimony, that the witness’s sensory or mental capacities impaired their ability to accurately
perceive the events or that the witness has an untruthful character or by introducing evidence that
specifically contradicts a portion or all of his testimony

To rehabilitate the credibility of a witness, you may use prior consistent statements, re-examination of the
witness designed to put the impeaching evidence in context and showing the witness has truthful
character

Critical distinction among the methods of impeachment is whether the party seeking to impeach a witness
is limited to raising the impeaching matter in the course of examining the witness or whether she may also
introduce extrinsic evidence of the impeaching matter

FRE 607 – Who May Impeach

Any party, including the party that called the witness, may attack the witness’s credibility.

FRE 608(a) Reputation or Opinion Evidence

A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for
having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about
that character. But evidence of truthful character is admissible only after the witness’s character for
truthfulness has been attacked.
o Whitmore sets 3 factors to consider: In order to offer reputation evidence a party must
establish that the character witness is qualified by having an (1) acquaintance with the
witness, (2) his community and the (3) circles in which he has moved, as to speak
with authority on the terms in which generally the witness is regarded
FRE 608(b) Specific Instances of Conduct
Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific
instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But
the court may, on cross-examination, allow them to be inquired into if they are probative of the character
for truthfulness or untruthfulness of:
(1) The witness; or
(2) Another witness whose character the witness being cross-examined has testified about. By
testifying on another matter, a witness does not waive any privilege against self-incrimination for
testimony that relates only to the witness’s character for truthfulness.
o Maske → 3 views of 608:
▪ Broad – any conduct indicating bad character can be accepted
▪ Narrow – only will consider crimes involving deception or fraud
▪ Middle - the middle view is “that behavior seeking personal advantage by
taking from others in violation of their rights reflects on veracity

Notes for 608(b):

1. Acts inquired into must be probative of truthfulness
2. Counsel must act in good faith – the inquirer must have a reasonable basis for
believing the witness may have committed the bad acts
3. No extrinsic evidence is permitted

US v. Whitmore (Untruthful Character and Conduct)

Facts • Whitmore was charged with unlawful possession of a firearm and simple
possession of a controlled substance which a jury convicted him of on both
counts
• Officer Russell, while patrolling the Fort Davis neighborhood directed a crowd
gathered at a bus stop to disperse
• Everyone complied except for Whitmore; when Russell exited his car to
approach Whitmore, he fled the scene
• As Russell was pursuing Whitmore, he noticed he was holding his right hand
close to his body at the waist; Russell couldn’t catch Whitmore but officer Soto
who was patrolling the area saw Whitmore and started chasing him
• Soto also noticed Whitmore was holding his hand near his waist; Soto saw
Whitmore throw a gun towards an apartment building next to an alley Whitmore
ran into; Soto apprehended him and found the gun which showed signs of being
thrown against a building (scuff marks)
• The police found a small bag of cocaine in Whitmore’s left pocket
• At trial, Whitmore defended on the ground that Soto had fabricated the story
about the gun and had planted the gun in the window well, as a means of
attacking the credibility of Soto’s witness testimony
o D called 3 defense witnesses to testify regarding Soto’s character for
truthfulness under Rule 608(a)
o The first testimony was excluded because the foundation of the testimony
was too remote in time to be relevant and the person was not personally
acquainted with Soto
 o The second testimony was excluded because the person did not know
Soto’s reputation within the entire court community and did not live in
Soto’s neighborhood and because it was inherently biased and unduly
prejudicial
o The third testimony was also excluded b/c the witness did not live in the
same neighborhood he was testifying about and because it was unfairly
prejudicial compared to its probative worth
o D also tried to impeach the witness by cross-examining him on 3
subjects, but these were also excluded because they could unfairly
prejudice the jury and that one of the document’s being relied on was
hearsay (driver’s license suspended, failed to pay child support, lied on
stand under oath)
Issue • Did the DC err in excluding all of this impeachment evidence?
Holding • Held: the DC abused its discretion in excluding these testimonies
• The court agreed with Whitmore that the proposed cross-examination was
strongly probative of Soto’s character for untruthfulness and that given the
critical nature of Soto’s evidence against Whitmore, the DC should have allowed
it; nothing is more probative of a witness’ character for untruthfulness than
evidence that the witness has previously lied under oath
• DC erred in excluding the entire line of cross-examination on the ground that its
probative value was substantially outweighed by the risk that the jury might
blindly follow the prior judge’s lead or be otherwise distracted from the
substance of Whitmore’s trial
• The DC could have adequately guarded against any risk of unfair prejudice or
undue delay by limiting cross-examination by giving the limiting instructions to
the jury and by setting reasonable parameters on the government’s rehabilitation
of Soto
• Not allowing evidence of the suspension of his license was also wrong and not
paying child support was wrong; the general rule is that the questioner must be
in possession of some facts which support a genuine belief that the witness
committed the offense or the degrading act to which the question relates
• Specific instances can be inquired into but cannot provide evidence of specific
instances
• Evidence goes to character for truthfulness or untruthfulness
Ratio In order to offer reputation evidence under Fed. R. Evidence, a party must establish that the
character witness is qualified, must meet three requirements under Whitmore → by having
an (1) acquaintance with the witness, (2) his community and the (3) circles in which he
has moved, as to speak with authority on the terms in which generally the witness is
regarded

US v. Manske
Facts • D was indicted as part of an ongoing investigation of cocaine trafficking; before
trial, the government had persuaded Pszeniczka and Knutowski to plead guilty to
charges including distribution of cocaine and with their cooperation successfully
prosecuted Menting and Tushoski for similar crimes;
• They also pointed Manske as their drug source, which he denied
 • At trial, both testified that between 1993-1996 the D was their primary supplier
of cocaine
• Manske was able to impeach Knutowski, Pszeniczka, Colburn and Campbell
with the fact that they were receiving leniency from the government in return for
their testimony and with their extensive history of drug use and drug dealing
• Manske also sought to cross-examine Pszeniczka about past acts of witness
intimidation which the government acknowledged had taken place, arguing that
these acts were probative of his truthfulness
• DC barred D from inquiring into these areas and kept this evidence form the
jury; D was not able to delve into acts of witness intimidation and potential
subornation of perjury which Pszenieczka had previously engaged in
• Jury convicted the D, he appealed primarily on the grounds that the DC’s
limitation of his cross-examination of the government witnesses were improper
• The government sought to keep out nearly half a dozen incidents where
Pzeniczka or people acting on his behalf allegedly threatened potential witnesses
in an effort to keep them form incriminating him
• The government argued that under 608(b) this evidence related to specific
instances of conduct not probative of truthfulness or untruthfulness; rather they
argued the evidence was just to show his propensity for violence and therefore
could not be admitted
Issue • Did the DC err in disallowing such impeachment evidence?
Holding • Held: it was legally erroneous for the DC to conclude that the threat evidence
was irrelevant under 608(b)
• Behaviour seeking personal advantage by taking form others in violation of their
rights reflects on veracity
• Threatening to cause physical harm to a person who proposes to testify against
you is at least as probative of truthfulness as receiving stolen tires of stolen
railroad ticket
• Since Pszienczka had no problems intimidating potential witnesses in previous
legal proceedings it is not hard to see why he would hesitate to obtain an
advantage in Manske’s trial by giving false testimony against Manske; the
advantage he hoped to obtain was leniency from the government in return for his
testimony
• He had already been given 10 years off his sentence for cooperation in a prior
prosecution and acknowledge that if the remaining 30 years of his sentence were
not reduced, he would likely die in prison
Ratio A witness’ specific instances of conduct may only be raised on cross-examination if they are
probative of truthfulness or untruthfulness. Threatening to cause physical harm to a person
who proposes to testify against you is at least as probative as receiving stolen property.
(1) Broad View: Virtually any conduct indicating bad character indicates
untruthfulness, including robbery and assault
(2) Narrow View: A crime bearing on veracity only if it involves falsehood or
deception, such as forgery or perjury
(3) Middle View: That behavior seeking personal advantage by taking from others in
violation of their rights reflects on veracity
Rule 609 – Impeachment by Evidence of a Criminal Conviction
(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of
a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more
than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the
witness is not a defendant; [unless the “probative value is substantially outweighed by the danger
of unfair prejudice . . . “] and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value
of the evidence outweighs its prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily
determine that establishing the elements of the crime required proving- or the witness’s admitting - a
dishonest act or false statement.

609 (b) – Time Limit

Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have
passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of
the conviction is admissible only if:
(1) Its probative value, supported by specific facts and circumstances, substantially outweighs its
prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the
party has a fair opportunity to contest its use.

609 (c) – Effect of pardon, annulment, or certificate of rehabilitation

Evidence of a conviction is not admissible under this rule if:
(1) The conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or
other equivalent procedure based on a finding of the rehabilitation of the person convicted, and
that person has not been convicted of a subsequent crime which was punishable by death or
imprisonment in excess of one year, or
(2) The conviction has been the subject of a pardon, annulment, or other equivalent procedure
based on a finding of innocence.

609 (d) Juvenile Adjudications

Evidence of a juvenile adjudications is admissible under this rule only if:
(1) It is offered in a criminal case;
(2) The adjudication was of a witness other than the defendant;
(3) An adult’s conviction for that offense would be admissible to attach the adult’s credibility; and
(4) Admitting the evidence is necessary to fairly determine guilt or innocence.

609 (e) Pendency of an Appeal

A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency
is also admissible.

Solving Problems under 609 (steps):

Look at Type of Crime:
- For crimes involving dishonesty
o Evidence of any crime will be admitted if conviction of the crime requires
proof or admission of an act of dishonesty or false statement. Indictments,
admissions and jury instructions may be used. [609(a)(2)]
- For Felonies not involving dishonesty
 o Accused in criminal cases – government need only show that the
impeachment value is greater than the prejudicial effect [609(a)(1)(B)]
o Other witnesses other than the accused – felony convictions are admissible,
but courts retain discretion under Rule 403 to exclude if probative value is
substantially outweighed by danger of unfair prejudice. [609(a)(1)(A)]
Means of Proof
Prior convictions may be proved by admissions on direct or cross examination of the witness, or by
introducing the record of the judgment.

US v. Jefferson
Facts • Jefferson is indicted on charges of conspiracy to violate the Racketeer Influenced
and Corrupt Organizations Act; at issue is his prior convictions for bribery and
obstruction of justice
Issue • Did the DC err by not admitting prior dishonest acts?
Holding • Held: DC Abused its discretion in excluding evidence of Jefferson’s convictions
for impeachment purposes
• 609(a)(2): crimes qualifying under this rule are not subject to the 403 balancing
and must be admitted; this rule contains mandatory language and requires that
the TC admit evidence of such crimes to allow a party to impeach an adversary
witness’ credibility
• His prior convictions of bribery involved dishonesty hence it is automatically
admissible under 609(a)(2)
• His prior convictions of obstruction of justice are admissible also if it readily can
be determined that establishing the elements of the crime required proof or
admission of an act of dishonesty or false statement by the witness
• Where deceitful nature of the crime is not apparent from the statute and the face
of the judgment a proponent may offer information such as an indictment or jury
instructions to show that the factfinder had to find an act of dishonesty or false
statement in order for the witness to be convicted
• The indictment for his prior conviction of obstruction of justice involves
dishonesty/false statement because the counts specifically state that he
knowingly and corruptly attempted to persuade another to lie to the authorities =
thus a factfinder had to find an act of dishonesty to convict him
Ratio Ordinarily the statutory elements of the crime will indicate whether it is one of dishonesty or
false statement. Where it is not apparent from the statute and the face of the judgment, a
proponent may look to indictments or jury instructions that the factfinder had to find an act
of dishonesty or false statement in order for the witness to have been convicted.

US v. Browne
Facts • Brown was indicted by grand jury for armed bank robbery and carrying a firearm
during a commission of a crime of violence
• Jury found him guilty of both counts
• DC denied Browne’s motion for a new trial and sentenced him to 30 years in
prison
Issue • Whether the DC’s ultimate decision to admit evidence of Browne’s prior robbery
conviction pursuant to Rule 609 was erroneous
 Holding Rule 609: evidence of prior felony convictions is admissible for the purpose of attacking the
credibility of a witness if the prejudicial effect of the evidence is outweighed by its
probative value

5 factors a DC should consider in balancing the probative value of evidence of a D’s

prior convictions against evidence’s prejudicial effect:
a. Impeachment value of the prior crime [robbery = high probative]
b. Point in time of the conviction and the witness’ subsequent history
[close in time = probative]
c. Similarity between the past crime and the charged crime [likely
unfair prejudice – “once a robber, always a robber” – may work
against admitting the evidence]
d. Importance of the D’s testimony [value of impeachment evidence is
high because D claims he didn’t do it]
• Centrality of the D’s credibility [D’s credibility central to the issue – D detailed
an alibi which hinged almost entirely on his credibility.]
Ratio There are 5 factors to consider RE: 609(a)(1)(B)

US v. Cathey
Facts • Cathey was convicted by a jury on 3 counts of willful attempt to evade or defeat
his federal income tax
• D testified and on cross-examination the prosecution impeached his credibility
by eliciting the fact of his prior military conviction
• The prior conviction was more than 16 years old when offered into evidence, so
609(b)’s standard of admissibility for convictions over 10 years old applies
Issue • Can the larceny in prior military conviction be admitted?
Holding • Held: no basis for concluding that the prior conviction falls within the
exceptional circumstances caveat to the general prohibition against the use of a
conviction more than 10 years old
• The presumption against admissibility is that the passage of time dissipates the
probative value of a prior conviction
• When a party wishes to use an over-age conviction the trial judge must consider
whether the witness already has been impeaching1 and if so, the probative value
of the prior conviction decreases accordingly
• Nothing suggests exceptional circumstances justifying the use of Cathey’s prior
conviction; the D’s credibility has already been well impeached by the
government’s cross-examination during which he had been caught in various
contradictions and numerous misstatements
Ratio Probative value = (1) the nature of the past crime and (2) the remoteness of the
conviction
Sets standard for 609(b) re: 2 factors to consider re: probative value of conviction over 10
years

NOTES:
• Rule 609 includes not only those convictions that follow a jury trial, but also those that
are based on a plea of guilty or a plea of nolo contendere
 • Under 609, a party seeking to impeach through the use of a prior conviction normally
does so by asking the witness to verify he was convicted, but unlike 608(b), if the witness
denies the prior or says he can’t remember, the party seeking to impeach him can
introduce extrinsic evidence of the conviction → Party is free to bring out the prior
convictions of his own witness in order to remove the sting
• Unlike FRE 608(b), if the witness denies the prior conviction or claims that he cannot
remember, the party seeking to impeach him can introduce extrinsic evidence of the
conviction, which is normally done through the use of a written record of conviction
• General rule = convictions based on juvenile adjudications = inadmissible but in criminal
cases, the trial court has discretion to admit such evidence when the witness is someone
other than the accused if the conviction would otherwise be admissible under FRE 609
and the courts find that it’s a conviction that has been reversed on appeal is not
admissible
• The relevant START date for calculating the 10-year period = the date on which the
person is released from prison
o A person is NOT deemed to be in ‘confinement’ when she is on parole or
probation

Impeachment for Bias or Interest

• Evidence that a witness is biased or has an interest in the outcome of a case is relevant to show that
the witness has a motive to be untruthful.
• Bias is a term “used to describe the relationship between a party and a witness which might lead the
witness to slant, unconsciously or otherwise, his testimony in favor of or against a party.” → United
States v. Abel.
• Extrinsic evidence is always allowed to prove bias. However, most courts require that the witness
be asked about the facts that demonstrate bias.

** The Rules do not by their terms deal with impeachment for “bias” although they do expressly
treat impeachment by character evidence and conduct (FRE 608), conviction of a crime (FRE 609) and
by showing of religious beliefs or opinion (FRE 610). The Confrontation Clause also requires a
defendant to have some opportunity to show bias on the part of a prosecution witness.

US v. Abel
Facts - A and 2 others were indicted for robbing a savings and loan – A went to trial,
other 2 pleaded guilty – one of them, Ehle, agreed to testify against A and
identify him as a participant in the robbery.
- A informed the court that he would counter E’s testimony with that of Mills.
M planned to testify that after the robbery, E had admitted to M that E
intended to implicate the respondent falsely.
- Prosecution would counter with E’s testimony that A, E and M were all part
of the Aryan Brotherhood [a secret prison gang that required its members to
always deny the existence of the organization and to commit perjury, theft
and murder on each member’s behalf]. A argued this was too prejudicial.
- Court allowed prosecutor to cross-examine M about the gang and if M
denied it, he could use E’s rebuttal testimony. Court found that the probative
value of E’s rebuttal testimony outweighed its prejudicial effect. Court told
prosecutor he can’t use the term “Aryan Brotherhood.
 • Jury convicted respondent – A appealed – Court of Appeals reversed.
Issue • Did the COA err by reversing the admissions?
Holding • YES - Evidence showing M’s and A’s membership in the prison gang was
sufficiently probative of M’s possible bias towards respondent to warrant its
admission into evidence. Court of Appeal erred.
•
It is permissible to impeach a witness by showing his bias under FRE 609
- bias = the relationship between a party and a witness which might lead the
witness to slant, unconsciously or otherwise, his testimony in favour of or
against a party
- evidence that is probative to the bias of a witness can be admissible even if it
is prejudicial

Application to this case:

Even though court found that you can be impeached due to damaging evidence of belonging
to Aryan brotherhood the court found that it was more relevant b/c showed bias for not
wanting to tell truth.
• E’s testimony about the prison gang certainly made the existence of M’s bias
towards respondent more probably – thus it was relevant to support that
inference
• M and A’s membership in the AB supported the inference that M’s
testimony was slanted or perhaps fabricated in A’s favour
•
• The limiting instruction the court gave [i.e. can’t use the word AB] did not
prevent all prejudice to respondent from E’s testimony but they did ensure that
the admission of this highly probative evidence did not unduly prejudice
respondent = no abuse of discretion under FRE 403
Ratio There is no rule of evidence which provides that testimony admissible for one purpose (to
show bias) and inadmissible for another purpose is thereby rendered inadmissible.

Firemen’s Fund Ins. Co. v. Thien

Facts • A small aircraft crashed; the plane was owned by Mid-Plains Corp; both the pilot
and passenger (Benedict) were killed
• Benedict worked to the company and reported to Thien
• Benedict’s parents and his son brought a wrongful death action against Mid-
Plains, Thien and Richard Lund (defendant for the pilot)
• Fireman’s Fund Insurance Company, Mid-Plain’s liability insurer, denied
coverage to Thien and Lund because at the time of the accident, Benedict was a
Mid-Plains employee acting within the scope of his employment and fell under
an exclusionary clause in the policy
• The insurance company brought action against Thien and Lund seeking
declaratory judgment that the exclusionary clause applied to liability coverage of
Thien and Lund for Benedict’s death
• The jury found that the insurance company was not obliged to indemnify Thien
and Lund for any liability from Benedict’s death; the Benedicts now appeal
 • The Benedicts (his widow and son) argue that the DC erred in excluding
evidence of the Benedict’s religious beliefs, offered to show that the Benedicts
were biased witnesses
Issue • Did the district court abuse discretion?
Holding • Held: DC did not abuse its discretion in excluding detailed examination of the
nature of the Benedicts’ religious beliefs
• Under Rule 610, evidence of a witness’ religious beliefs or opinions is not
admissible to attack or support the witness’ credibility
• However, an inquiry for the purpose of showing interest or bias because of them
is not within the prohibition; thus, disclosure of affiliation with a church which is
a party to the litigation would be allowable under the rule
• The evidence excluded by the court was not probative of their bias towards
Thien
• The Benedicts proposed to introduce testimony regarding a religious tenet
against participating in civil litigation as the reason why Martina and Chis were
not parties to the state court wrongful death action and why Chad delayed in
joining that action; this does not show they are biased witnesses nor is it
relevant; introducing this evidence is just an attempt to undermine their
credibility and prejudice the jury against them by painting them as religious
extremists
Ratio FRE 610 → evidence of a witness’s religious beliefs or opinions is not admissible to attack
or support the witness’s credibility BUT an inquiry for the purpose of showing interest
or bias b/c of the religious belief IS admissible
NOTES:
• Virtually anything can be admitted that might cause a witness to shade his testimony
• In Thien, what is relevant is not the particular religious denomination that the party and
the witness belong to, but instead the fact that they are affiliated with the SAME religious
denomination
• FRE 610 bars evidence of a person’s religious beliefs not only when offered to impeach a
witness’ credibility but also when offered to suggest that those beliefs ENHANCE a
witness’s credibility
•
United States v Davis
Facts Davis (d) was found with kg cocaine in his car’s backseat. At trial, the judge allowed the
prosecution to introduce, over Davis’s objection, Davis’s two prior convictions for
possessing cocaine. The judge admitted the convictions, not as evidence of Davis’s
propensity to possess cocaine, but as evidence of Davis’s knowledge that the substance in
the back of his car was, in fact, cocaine. The prosecution did not demonstrate at trial that the
cocaine in Davis’s car was similar in appearance, texture, or form to the cocaine that was the
subject of Davis’s prior possession convictions. Davis was convicted of possessing cocaine
with intent to distribute. Davis appealed.
Rule Evidence of a criminal defendant’s prior conviction for possessing drugs is not relevant
to prove the defendant’s knowledge with respect to a drug-distribution charge
stemming from a different incident.
Holding Evidence of a defendant’s prior crimes is not admissible to prove the defendant’s bad
character or his propensity to commit crimes in conformity with that character. This
evidence may be admissible for another purpose, such as proving the defendant’s
 knowledge. However, evidence of a defendant’s prior conviction for possessing drugs is not
relevant to prove the defendant’s knowledge with respect to a separate distribution charge
stemming from a different incident. Drug possession and drug distribution are two different
matters that involve different levels of knowledge about the drugs. Additionally, the large
quantities of drugs that are necessary for distribution are generally packaged differently than
the smaller amounts that are packaged and sold to individual end users. In this case, the
district court abused its discretion by admitting Davis’s prior cocaine-possession convictions
into evidence. The prosecution did not establish that the prior convictions had any bearing
on Davis’s knowledge about the cocaine in his backseat. Indeed, the prosecution did not
attempt to demonstrate that the packaging, texture, and appearance of the cocaine that Davis
was previously found guilty of possessing were at all similar to the cocaine in his backseat.
Moreover, given that cocaine in distribution quantities is often packaged differently than the
smaller amount that Davis was previously convicted of possessing, there is no indication that
Davis’s prior possession of cocaine had any bearing on his knowledge of what was in the
backseat of his car. As a result of the foregoing, the prior convictions were only relevant to
establish that Davis had the propensity to commit drug crimes. This is an impermissible
purpose under Federal Rule of Evidence 404(b). Accordingly, the judgment of the district
court is reversed.

Sensory Perception
Showings of defects in perception and recollection, may be shown on cross examination or by the use of
extrinsic evidence.

US v. Pryce
Facts • Police raided Briscoe’s apartment where they found Thomas and Pryce along
with crack, $2000 and a pistol; they also found Briscoe’s son Reginald Chandler
and his cousin Anthony Chandler
• The police arrested the other 2 Ds (Antonio and Gaskins) in a nearby apartment
and charged them with involvement in the drug ring;
• At trial, the government offered as its principal witnesses the police officers who
conducted the raid and Briscoe and the 2 Chandlers
• The testimony suggested that Thomas and Pryce were the leaders of the
operation while the other 2 Ds were bit players with lookout and enforcement
roles
• TC prohibited defense counsel from cross-examining Anthony Chandler on his
past hallucinations
• Just before his cross-examination, Gaskin’s lawyer told the court that he had
access to a psychiatric report, stating that Anthony had been seeing and hearing
nonexistent events
• TC ruled that any cross-examination of Anthony on his mental condition would
have to related to questions about that condition as it existed in the time-frame of
the event, in December
• The court barred defense counsel form asking any questions about his condition
in December, much less as a basis for impeaching his responses about December
Issue • Was this restriction by the DC wrong?
Holding • Held: such evidence must not be kept from the jury
• This restriction was an abuse of the TC’s discretion to limit cross-examination
on matters affecting credibility and violated the confrontation clause
 • Hallucination in September are relevant to a witness’ ability to discern reality in
December;
• Physical impairments have long been subject of impeachment and courts have
extended this to evidence of mental illness that do not directly impair a witness’
perception, reasoning that such evidence also affects a witness’ credibility
• The tendency to hallucinate is so like a direct physical impairment as to fall
within the old rule of physical impairments
Ratio Holding that questions regarding hallucinations in September were relevant to a witness’
ability to “discern reality” the following December

US v. DiPaolo
Facts A witness against DiPaolo had a prior history of alcohol abuse. At issue was whether or not
this could be used to impeach the witness.
Holding • General Alcohol abuse is not admissible
• It is within the proper scope of cross-examination to determine whether a
witness was under the influence of drugs or alcohol at the time of observation of
events in dispute, or at the time the witness is testifying.
• However, a general habit of intemperance tells us nothing of the witness’
testimonial incapacity unless it involves actual intoxication at the time of the
event observed or at the time of testifying

Evidence of alcohol use is not admissible absent a showing that the witness was under the
influence at the time she observed the events in question or at the time she was testifying
• Wigmore: General intemperance tells us nothing of the witness’ testimonial
incapacity unless it involves actual intoxication at the time of the event observed
or at the time of testifying
Ratio Evidence of alcohol use is not admissible absent a showing that the witness was under the
influence at the time she observed the events in question or at the time she was testifying

Notes & Questions

• Under common law, the mentally incapacitated were deemed incompetent to testify in
modern times, the mentally incapacitated are deemed competent to testify, with the fact
of their mental incapacity going to the weight rather than admissibility of their testimony
• Federal courts appear to have found mental instability relevant to credibility only where,
during the time frame of the events testified to, the witness exhibited a pronounced
disposition to lie or hallucinate, or suffered from a severe illness that dramatically
impaired her ability to perceive and tell the truth

• Courts limit the admissibility of evidence of drug use to situations in which it is shown
that the drug use impact the witness’s ability to perceive, recall and report his
observations - district court may refuse cross-examination on the issue where memory or
mental capacity is not legitimately at issue and the evidence is offered solely as a general
character attack

Impeachment by Contradiction & Collateral Evidence Rule

Extrinsic evidence of facts that contradict a witness’ testimony can be admitted suggesting a witness’
mistake or lie provided the witness’ testimony is a material issue in the case or the testimony is relevant
as to credibility.

Collateral Evidence Rule

The use of extrinsic evidence to impeach a witness on a collateral matter (those that are not relevant to a
material issue in the case or on the issue of credibility) is generally prohibited.
- Collateral = related but not in a direct or close way
- Beauchamp defines what collateral is

United States v. Boswell

-Boswell was charged with being a felon in possession of two firearms. He testified at trial and
admitted to having a number of felony convictions, but denied ever possessing any guns
subsequent to his first conviction, and said “I don’t mess with weapons.”
-the government asked to ask Boswell about a tattoo of a revolver on his neck. They asked why
he had that tattoo if he didn’t like guns. Boswell argues this should have been inadmissible under
401 for irrelevancy. Government says it was relevant to impeach his credibility. Bowell choice to
testify and by doing so thrust his credibility. Into issue. The government was entitled to impeach
him in a number of ways, including by contradiction. Boswell opened the door for government to
cross examine him on his testimony that he doesn’t associate with guns. 401 is a low threshold
and this is thus relevant.

US v. Beauchamp
Facts • D was indicted and charged with utterings and publishing a forged treasury
check and aiding and abetting others in uttering and publishing the check in
violation of a law
• Evidence indicated that the IRS mailed a tax refund check to Francisca and
Domingo Franco, but they never received their check; instead D deposited the
Francos’ check in a checking account he had opened 2 days earlier
• He forged their signatures on the back of the check and his name and address
were on the back of the check; no other deposits were made, and the account was
closed when it reached a zero balance
• Special Agent Rivera contacted D regarding an investigation into the fraud and
D admitted to having signed his name on the back of the check but stated that he
had been handed the check by a Hispanic man as partial payment for a car
• D said an acquaintance of his, Massey, had brought the Hispanic man to D to
buy the car; D claimed the man identified himself as the payee on the refund
check
• Massey testified that D went to Massey’s wife’s house and told Massey that he
was in trouble about a check;
• D was denied permission to call witness Amaral (the landlady of a home where
Massey said he lived) d sought to introduce her testimony to impeach Massey’s
testimony that he lived at that address; she testified that his brother and sister
lived there but not Massey;
• The court would not allow this testimony stating D was merely seeking to
impeach Massey on a very collateral matter
 • Jury found D guilty; D appealed
Issue • Did DC court err in excluding the evidence as a collateral matter?
Holding • Held: to the extent Amaral’s testimony merely went to Massey’s credibility by
demonstrating a contradiction on an immaterial matter, it was clearly excludible
Ratio Well established that a party may not present extrinsic evidence to impeach a witness by
contradiction on a collateral matter → often said that when a witness testifies to a collateral
matter, the examiner ‘must take the answer’ [i.e. cannot disprove it by extrinsic evidence]

Matter is considered collateral if ‘the matter itself is not relevant in the litigation to
establish a fact of consequence – i.e. not relevant for a purpose other than mere
contradiction of the in-court testimony of the witness → extrinsic evidence to disprove a fact
testified to by a witness is admissible when it satisfies the Rule 403 balancing test and is not
barred by any other rule of evidence

Application to this case:

• The landlady’s testimony went to the credibility by demonstrating a
contradiction on an immaterial matter = excludible

• Extrinsic evidence to disprove a fact testified to by a witness is admissible when

it satisfies Rule 403 balancing test and is not barred by any other rule of
evidence

FRE 613: Impeachment by Prior Inconsistent Statement

A witness’s prior inconsistent statement can be admitted at trial as substantive proof of the matter asserted
within the prior inconsistent statement
To impeach the credibility of a witness, a party may show that the witness has, on another
occasion, made statements that are inconsistent with his present testimony.
Use can be made of a witness’s prior inconsistent statement even when the statement does not
satisfy the requirements of Rule 801 because it was not made in a trial, hearing, deposition or
other proceeding
(a) Showing or Disclosing the Statement During Examination. When examining a witness about
the witness’s prior statement, a party need not show it or disclose its contents to the witness. But
the party must, on request, show it or disclose its contents to an adverse party’s attorney
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior
inconsistent statement is admissible only if the witness is given an opportunity to explain or deny
the statement and an adverse party is given an opportunity to examine the witness about it, or if
justice so requires. This subdivision (b) does not apply to an opposing party’s statement under
Rule 801(d)(2)

** relaxing of the common law rule

****Under 613 – it can ONLY be used for the purpose of proving the person said one thing at one point in
time and another thing at another point in time
- i.e. if someone is a witness to a crime, and they give the police a statement as an observer
▪ And then later on, the change their pov
▪ Under some conditions, that prior statement can be used as substantive evidence to
convict
- I.E. There are many times women who have been battered often change their statements.

NOTES:
 • under certain circumstances, a witness’ prior inconsistent statement can be admitted at trial as
substantive proof of the matter asserted within that prior inconsistent statement
o FRE 801(d)(1)(A)
• Whether a party wishes to use a prior inconsistent statement merely to impeach a witness,
or also as substantive evidence under FRE 801, she must comply with the requirements of
FRE 613
• A statement is not hearsay if: the declarant testifies and is subject to cross-examination about a
prior statement and the statement... is inconsistent with the declarant’s testimony and was given
under penalty of perjury at a trial or other proceeding or in a deposition.
i.e. you give a statement to police that a red car went through

US v. Ince
Facts • Appellant Ince was convicted by a jury for assault with a dangerous weapon,
with intent to do bodily harm
• Shots were fired at a rap concert; Ince and Neumann & 2 friends hopped in their
van and drove off;
• The military police stopped everyone that came form the concert and took signed
unsworn statements from Neumann who stated that Ince admitted to firing the
shots but said he no longer had the gun
• At trial, the government called Neumann to the stand; when her memory
supposedly failed her, the prosecution attempted to refresh her recollection with
a copy of the signed statement that she had given the military officer on the night
of the shooting; she still testified she could no longer recall the details of her
conversation with Ince
• At the second trial, the government called Neumann again, she acknowledged
that she had given the military police a signed statement describing what Ince
had told her after the shooting; but she repeatedly testified she could no longer
recall the details of Ince’s remarks; the military officer testified that Neumann
gave her statement within hours of the shooting
• The jury convicted Ince and he now appeals
Issue •
Holding • Held: the evidence is inadmissible; the testimony was highly prejudicial, devoid
of probative value as impeachment evidence; it was just the government’s tactic
to circumvent the hearsay rule and to infect the jury with otherwise inadmissible
evidence of Ince’s alleged confession
• One method of attacking the credibility of a witness is to show that he had
previously made a statement that is inconsistent with his present testimony; even
if the prior inconsistent statement would otherwise be inadmissible as hearsay it
may be admissible for the limited purpose of impeaching the witness
• At a criminal trial there are limits on the government’s power to impeach its own
witness by presenting his prior inconsistent statements b/c it can be used as a
way to admit statements that would otherwise be considered hearsay
• The TC must weight the testimony’s impeachment value against its tendency to
prejudice the D unfairly or confuse the jury
• The probative value of the military officer’s testimony for impeachment
purposes was low; the government was not surprised that she could not recollect
 what happened because she did this at the first trial as well; Neumann’s in-court
testimony did not damage the government’s case; thus, the prosecution had no
reason to attack her credibility

When the prosecution attempts to introduce a prior inconsistent statement to impeach its
own witness, the statement’s likely prejudicial impact often substantially outweighs its
probative value for impeachment purposes because the jury may ignore the judge’s
limiting instructions and consider the ‘impeachment’ testimony for substantive
purposes → HAVE TO KEEP FRE 403 IN MIND
• Thus, a trial judge should rarely, if ever, permit the gov’t to impeach its own
witness by presenting what would otherwise be inadmissible hearsay if that
hearsay contains an alleged confession to the crime for which the defendant is
being tried
Ratio • Witness’ prior statement, which contained a defendant’s alleged admission of
guilt, was inadmissible on FRE 403 grounds

Notes & Questions

• FRE 613(b) a witness can testify and then after he leaves the stand, extrinsic evidence of
the prior inconsistent statement can be introduced, and the witness can later be recalled to
the stand to explain or deny the statement
• FRE 613(b) is subject to two exceptions: when the statement is that of an opposing party
under Rule 801(d)(2) or if “justice so requires” – the latter exception is applicable only in
such narrow circumstances, such as where the examining attorney did not learn of the
inconsistent statement until after the witness left the stand, and the witness is no longer
available to be recalled

• Statements that fail to satisfy the requirements of Rule 801(d)(1)(A) can nonetheless be
used to impeach a witness; a statement admitted for impeachment purposes only is NOT
substantive evidence

• Rule 608(b) bars the use of extrinsic evidence to prove that the impeaching conduct
occurred, while 613(b) permits the use of extrinsic evidence of a witness’s prior
inconsistent statement

Additional Reasons Why You Should Never Put Your Guilty Lying Client on the Stand:
• If not given Miranda warning and police interrogate a person, then statements received in
violation of Miranda are not admissible in court;
• Harris v. New York:
o D took the stand and testified differently than his earlier statements to police
o His earlier statements could not come in because of his Miranda warnings, but then
he was cross-examined
• US v. Havens:
o 4th amendment (search and seizure violation); illegal S&S finds a t-shirt, basically
proving guilt
o Evidence was admitted because he lied on the stand
 o Evidence that would otherwise be barred from being admitted on a 4th
Amendment S&S ground can be used to impeach
• Michigan v. Harvey:
o Violation of assistance of counsel: if police do not allow witness to have assistance
present then statements made are not admissible;
o Statements made in violation of 6th Amendment right to counsel may be used to
impeach
• All three cases decided if D takes stand and testifies contrary to statements, they gave
even though protected you can use them to impeach; court says constitution does not
protect liars;
• When D takes stand, inconsistent statements made with evidence prior statements you lose
constitutional protection
• Jury hears these statements and D’s credibility is gone

Rehabilitation of Witness
FRE 608(a)(2)
. . . evidence of truthful character is admissible only after the character of the witness for truthfulness has
been attacked by opinion or reputation evidence or otherwise.

• A party is not permitted to bolster the credibility of a witness by offering evidence

designed to enhance the witness’ credibility before it has been attacked
• Rehabilitating a witness can be accomplished by: Re-examination of the witness in an
effort to refute or explain the impeaching fact
o For example → an expert on cross examination is asked and answers in the
affirmative: “isn’t it true that you are being paid $200/hour to be here today?” –
on re-direct examination, the proponent of the witness can bring out the fact that
this amount merely covers the lost earnings that the expert would have earned in
his regular job had he not taken the day off to come to court
• Although he cannot bolster his witness’ credibility, he can remove the sting of an
anticipated impeaching attack by bringing up the impeaching matter himself.

• Once an attack on a witness’ credibility has occurred, the opposing party is generally free
to rehabilitate the witness. This can be accomplished by re-examination of the witness in
an effort to refute or explain the impeaching fact.

• While the types of evidence used to rehabilitate a witness’ credibility are normally
subject only to the restrictions of relevancy and Rule 403, the use of at least one type of
evidence to rehabilitate a witness – evidence of character for truthfulness – is subject to
additional restrictions

FRE 608(b) Specific instances of conduct.

• Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to
prove specific instances of a witness’s conduct in order to attack or support the witness’s
character for truthfulness. But the court may, on cross-examination, allow them to be
 inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or (2) another witness whose character the witness being cross-examined
has testified about. By testifying on another matter, a witness does not waive any
privilege against self-incrimination for testimony that relates only to the witness’s
character for truthfulness.

US v. Dring
Facts • Dring was convicted of importing marijuana, possession with intent to distribute
and related conspiracy charges
• A fishing boat carrying 13,000 lbs of marijuana docked the San Francisco
harbor; undercover customs agents were stationed on the boat and on the pier
and witness the unloading of the marijuana;
• The agents saw a white male step out of a blue pickup truck to supervise the
transfer of the marijuana from the boat to the trailer
• At trial, the government presented circumstantial evidence and 5 eyewitnesses
who placed Dring at the pier that night
• Dring presented a defense of mistaken identity
• Lawrence, a tugboat caretaker who lived on the same pier the incident occurred,
testified that Dring was not the man he had spoken to on the pier
• 2 alibi witnesses testified that Dring had spent the night at his home
• Dring took the stand and denied any involvement in the drug smuggling
operation
• The government attacked Dring’s defense with contradiction evidence and one
rebuttal witness; DC precluded Dring from introducing character evidence of his
veracity
• Dring argues that the DC erred by barring the introduction of evidence as to his
truthful character
Issue • Did the DC err by disallowing Dring to introduce evidence to rehabilitate his
character?
Holding • Held: statements cited by Dring constituted direct attacks on his credibility; the
government did not introduce opinion or reputation testimony to attack his
general character for truthfulness; nor did it present evidence of prior misconduct
or corruption; the government merely emphasized inconsistencies between
Dring’s testimony and that of other witnesses; it observed that Dring, a criminal
defendant testifying on his own behalf, had a distinct pro-defense bias and
compelling interest in the outcome of the case; thus, the DC’s denial of
rehabilitative testimony was proper
• Rule 608(a): evidence of truthful character is admissible only after the character
of the witness for truthfulness has been attacked by opinion or reputation
evidence or otherwise
• Defense-initiated attacks on the character of a defense witness do not trigger
rehabilitative testimony under Rule 608(a)
• The purpose of 608(a) is to encourage direct attacks on a witness’ veracity in the
instant case and to discourage peripheral attacks on a witness’ general character
for truthfulness
 • The rule prohibits rehabilitation by character evidence of truthfulness after
direct attacks on a witness’ veracity in the instant case
o The rule permits rehabilitation after indirect attacks on a witness’ general
character for untruthfulness
• Opinion or reputation that the witness is untruthful specifically qualifies as an
attack under the rule and evidence of misconduct, including conviction of crime
and of corruption also fall within this category; evidence of bias or interest do
not
• Vigorous cross-examination or the presentation of contradiction evidence can
and should trigger rehabilitation where such evidence amounts to the kind of
indirect attack on truthfulness embodied by evidence of bad reputation, bad
opinion of character for truthfulness, conviction of crime or eliciting from the
witness on cross-examination acknowledgement of misconduct which was not
resulted in conviction
Ratio • Indirect attacks are subject to rehabilitation (Bias is a direct attack – it does not
trigger rehabilitation)
• Difference between a direct and indirect attack impeachment (truthfulness)
▪ Direct: lying at present in trial
• Even if it was made for a specific reason, not able to
rehabilitate
▪ Indirect: reputation/bias/etc.
• Ex. He is a liar there fore he always lies

HEARSAY
FRE 802 – Hearsay Rule:
Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme
Court pursuant to statutory authority or by Act of Congress.

As per rule 801(c) hearsay means a statement that: (1) declarant does not make while testifying at the
current trial or hearing and (2) a party offers in evidence to prove the truth of the matter asserted in the
statement
Declarant is defined in Rule 801(b) as the person who made the statement while the word statement is a
person’s oral assertion, written assertion or nonverbal conduct, if the person intended it as an assertion
(Rule 801(a))

COMBINING THE TWO: A persons oral, written or nonverbal assertion, other than one made while
testifying at the current trial or proceeding, offered in evidence to prove the truth of the matter asserted in
the statement, is not admissible unless a rule of evidence or other federal rule otherwise provides
• Needs to be an assertion
• About the current trial

Rationale for the Hearsay Rule

• Inferior form of proof
• Safeguards of the trial process
o Statements are made under oath
o Fact finder has the opportunity to observe the demeanor of the person making the
statement
 o Cross-examination

If witness – could be cross examined, would be under oath and she could be observed to weigh credibility
- Hearsay is an exclusionary evidence rule because of four weaknesses:
1) Faulty perception: Declarant may have misperceived the event in question. They could have
less than perfect hearing or vision, or her location relative to the event was not great/partially
obstructed
2) Faulty memory: Even if events were appropriately perceived, their recollection may not be
fully accurate
3) Faulty communication: Even if accurately perceived events and properly recollected them, it’s
possible that communicating that information to another could have been misunderstood by that
person or misspoken by the declarant
4) Insincerity: Could just be lying or exacerbating the events due to certain allegiances or dislikes

Who Qualified as a “Declarant”?

Terrell v. State
Facts - 3 black males (2 had revolvers) held up the desk clerk at Park Silver Motel
- Police noticed trail of coins leading from motel to an alley
- A K-9 dog arrived at the scene and started the dog on a track at the entrance to the alley.
The dog led them to a car that 3 people were in, including appellant Joel Terrell
- Motel owner came and identified the persons as those who robbed him
- Terence Cahill, a qualified expert in training dogs for law enforcement testified that his
German Shepard was trained for 15 weeks, and once a week for many weeks after trained in
tracking and showed an ability to follow a trail
Issue 1. Was the evidence of tracking by the German Shepherd properly admitted into evidence?
Holding - Some say that people’s life, liberty of a free citizen ought not to be put in jeopardy on the
testimony of dogs
- However, the dog handler is the one offering the reports about the dog’s progress which
leads to the minority view being that: a dog can’t be cross-examined, his trainer’s testimony
is hearsay and the accused is not confronted by his accuser, the dog
- This is problematic as the accused does not have an opportunity to confront and cross-
examine these witnesses who give evidence
- If the trainer follows the dog and gets an observation themselves, then that should not be
hearsay
- However, the Montana SC held in State v Storm that such evidence was a conclusion and
therefore hearsay
- In many trials, human evidence of the performance of a machine such as a radar or
breathalyzer are admitted, and the dog situation is akin to this. It’s the human testimony that
makes the trailing done by the animal competent; and its actions are described by human
testimony as it would describe the operations of a piece of intricate machinery (State v.
Dickerson)
Ratio Dogs can’t make a statement → it is the trainer who controls the dog and he should be
the one to be examined and cross examined.

US v. Washington
Facts - Washington was convicted of driving on the Baltimore-Washington Parkway while under
the influence of alcohol or drugs, and in violation of unsafe operation of a vehicle
- Expert was called to prove that a blood sample taken at the night of Washington’s arrest
contained PCP and alcohol and that Washington’s conduct and unsafe driving that night
was attributable to the presence of PCP and alcohol in the blood
 - Washington claims that Dr. Levine’s testimony is hearsay since it relied on the statements
of lab technicians who operated the machines
Issue - Was Dr. Levine’s testimony hearsay due to the finding arising from work by the lab
technicians?
Holding - Court said that the data Dr. Levine relied on did not constitute the statements of the lab
technicians, and were not hearsay statements
Reasoning - Since the lab technicians did not actually make the statements that Washington’s blood
contained PCP and alcohol, and just offered the raw data, the conclusions were determined
by Dr. Levine
- The court rejects the characterization of the raw data generated by the lab’s machines as
statements of the lab technician who operated the machine...raw data is a statement from
the machines themselves and not the technicians that operate it
- The court interprets the meaning of “declarant” in rule 801(b) stating that it includes ‘a
person’ and therefore ‘nothing “said” by a machine is hearsay.
- The concern about using raw data is not as a matter of hearsay, but rather, authentication.
The party raising such data must lay a foundation as to the reliability of the machine and its
functions, correctly adjusted or calibrated, and that the data put into the machine was
accurate
Ratio Only a PERSON may be a declarant and make a statement – therefore, nothing said
by a machine can be hearsay → any concerns about the reliability of machine-
generated information is addressed through the process of authentication

US v. Lizarraga-Tirado
Facts - Defendant arrested for illegal reentry and at trial defendant disputed that he had entered
the United States before his arrest
- He says that since he was arrested on a dark night in a remote location, the border guard
must have crossed the border accidentally before arresting him
- One of the arresting agents Garcia said she contemporaneously recorded the coordinates
of the defendant’s arrest using a GPS device
- The government introduced a Google Earth satellite image to illustrate location of those
coordinate
- Google Earth can place ‘tacks’ on a map based on coordinates entered
- Garcia testified that the GPS coordinates next to the tack marked approximately where
she was responding to on the night of the defendant’s arrest (clearly north of the border in
the US)
- Defendants cross-examined Garcia on whether she recorded to coordinates accurately
but could not cross-examine about the generation of the satellite images since they were
not produced by her and so the defendant’s counsel objects to the satellite image on
hearsay grounds
Issue 1) Is the satellite image, absent any labels or markers, hearsay?
2) Is the satellite image with tacks and markers hearsay?
Holding Evidence is not considered hearsay
Reasoning 1) No, it’s not hearsay since it makes no assertion and merely depicts a scene as it existed
at a particular time
2) If the tack is placed manually then it’s a classic hearsay restriction. However, a tack
placed on a google earth program and automatically labeled with GPS coordinated isn’t
hearsay
- Here, the relevant assertion is not made by a person, it’s made by the Google Earth
program. Although a person types in the coordinates, they have no role in figuring out
where the tack will be placed and is done through the computer program itself
 Ratio Same ratio as Washington, any automatically produced information by a machine is
not hearsay, when a human manually controls the information, then it may be
restricted

Statements that are NOT OFFERED for the truth of the matter asserted
What does it mean to be offered for the truth of the matter asserted? If the significance of an offered
statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and
the statement is not hearsay.
- Ask yourself: → Is the evidence at issue probative only if the trier of fact believes that the declarant was
speaking truthfully when she made the statement, OR
→ If the evidence that the statement was made is probative without regard to whether the declarant was
speaking truthfully when she made the statement
- If the former, the statement is hearsay, for if the probative worth of the statement turns on the credibility
of the person who made the statement, it is being offered into evidence to prove the truth of the matter
asserted. If the latter, it’s not hearsay because it’s not being offered to prove the truth of the matter
asserted

Impeachment
Elmer v. State
Facts - Appeals after jury found him guilty of three counts of capital sexual battery on a child
less than 12 years old
- He argued that the trial court erred by disallowing him from using prior inconsistent
statements to cross-examine the victim (court agreed and reversed)
- The main issue in the case was whether the sexual abuse began before or after the victim
was 12
- Victim testified that it happened before her 12th birthday, however, Elmer wanted to
introduce police report made in 1995 that included statements from CJ that suggested the
abuse commenced after she turned twelve
- State said that CJ’s statements to police were hearsay and Elman countered that the
evidence was offered to impeach CJ’s statements
Issue - Did the DC err by disallowing prior inconsistent statements on cross?
Holding - Court says it’s fundamental to our system that a party may impeach a witness by
introducing statements of the witness which are inconsistent with the witness’s present
testimony
- Citing Pearce v. State, the court says that the theory of admissibility is not that the prior
statement is true and the in-court testimony is false, but that because the witness has not
told the truth in one of the statements, the jury should disbelieve both statements → it is
for this reason that the admission of the evidence is not hearsay as it is not being offered to
show the truth of the matter asserted
Ratio Prior inconsistent statements is not hearsay because it is not trying to assert the truth
of the matter asserted, but rather, the falsity of both statements

Statements offered to show the effect on the listener

Kenyon v. State
Facts - Appeals judgement entered after conviction of grand larceny
- Kenyon and fiancée Kelly went on a trip around the US in the summer of 1997, they
were returning to their home in Oregon when their van broke down in Kansas
- They placed their van in storage because they couldn’t afford to fix it and hitchhiked to
Denver, Colorado eventually ending up in Cheyenne
 - They entered a furniture store and spoke with a store employee that gave them some
money and a trailer to stay in next to his home in exchange for some odd jobs
- Sanchez allowed Kenyon to use his truck to go to his worksite, a police officer stopped
Kenyon for speeding and noticed his license was suspended, they took him to Sanchez’s
home and explained the situation and disallowed him to use his truck anymore
- Crossfield had a family emergency so they took the truck and went to California,
Sanchez reported the truck as stolen
- Kenyon testified that Sanchez gave Crossfield permission to use the truck and the TC
excluded this challenged testimony on hearsay grounds
- Kenyon claims that the TC erred by excluding Crossfield’s statement because the
statement was not offered to prove the truth of the matter asserted – that Sanchez had, in
fact, given Crossfield permission to use the truck – but, rather, was offered to show its
effect on him
Issue Did Crossfield’s statement about Sanchez providing permission speak to the truth of the
matter asserted?
Holding - TC abused its discretion by refusing to allow Kenyon to testify concerning Crossfield’s
out-of-field statement that Sanchez gave them permission to use the truck
- The statement was not being offered for the truth of the matter asserted, and instead,
offered to show its effect on Kenyon’s intent and subsequent conduct.
Ratio Certain out of court utterances are not hearsay such as utterances and writings
offered to show effect on hearer or reader. When it is proved that the defendant
made a statement to X, with the purpose of showing the probable state of mind
thereby induced in X, such as being put on notice or having knowledge, or motive, or
to show the information which X had as bearing on the reasonableness or good faith
or voluntariness of the subsequent conduct of X, the evidence is not subject to attack
as hearsay

Verbal acts or legally operative facts

Schindler v. Seiler
Facts - Schindler brings action alleging Seiler had defamed him by informing a third party, Dr.
White, that Schindler was a “bad doctor” who had “paralyzed four patients.” Both Seiler
and White deny that Seiler made these statements
- Only evidence Schindler used to prove that they were made was his own testimony that
Dr. White had said to him “Joe Seiler is downstairs right now and just told me that you
paralyzed four patients”
- DC ruled that Dr. Schindler’s testimony about what Dr. White had said to him
was inadmissible hearsay and granted SJ in favour of defendants
- Schindler argues that the DC erred because his testimony is not being offered to prove
the truth of the matter asserted, that he did paralyze four patients, but that the statements
were, in fact, made
Issue Did the DC err in excluding Schindler’s testimony about White’s statements on hearsay
grounds?
Holding - No, the DC properly excluded such evidence as inadmissible hearsay
- Where a plaintiff attempts to introduce the testimony of an individual who did not
personally witness the alleged defamatory statement but was later told by another that the
statement was made, such testimony is rejected as hearsay
- Dr. White testified that seiler had not told him that Dr. Schindler had paralyzed four
patients or that Dr. Schindler was a bad doctor. Had Dr. White testified to the contrary,
that Seiler had said to him that Dr. Schindler was a “bad doctor” who had “paralyzed four
patients,” Dr. White’s testimony would be admissible
 - Dr. Schindler’s own testimony as to what Dr. White said to him is offered precisely to
prove the ultimate fact in question and the truth of the matter asserted therein: Seiler said
to Dr. White that dr. Schindler was a “bad doctor” who had “paralyzed four patients.” Dr.
Schindler had not asserted any other non-hearsay purpose for offering his testimony
Ratio Where a plaintiff attempts to introduce the testimony of an individual who did not
personally witness the alleged defamatory statement but was later told by another
that the statement was made, such testimony is rejected as hearsay

State v. Losson
Facts - Losson was convicted of mitigated deliberate homicide for shooting dead her husband
Rick
Issue - Did the DC err by admitting statements by Rick?
Holding - State offered 3 people that provided statements Rick said before he died, it was admitted
with limited instructions to jury
- Counselor testified Rick said his wife threatened to kill him in past, Rick’s boss testified
that Rick said, “Bari would kill him if he ever moved out,” and a Naval Reserves officer
testified about the possibility of returning to active duty because he was afraid of his wife
and thought she was going to kill him.
- State argued these are relevant because Losson claimed self-defense and so it’s relevant
to consider whether the victim feared the defendant because that would make it unlikely
that they would attack
- Court says it is relevant and moves to the question of whether it is inadmissible hearsay,
they say it isn’t
- Determining the distinction between hearsay and non-hearsay as it related to the state of
mind evidence is whether it directly proves the declarant’s state of mind or whether the
statement is evidence which circumstantially proves the declarant’s state of mind
- If circumstantially proved declarant’s state of mind, then it’s not speaking to the truth of
the matter asserted and the evidence is not hearsay
- First two statements are not hearsay because it wasn’t introduced for the truth of the
matter asserted for that evidence, but rather, that he feared Losson which is what the jury
was instructed to use the evidence for
- The third statement spoke to him being afraid that his wife would kill him which is direct
evidence of his fear and went to the heart of proving the truth of the matter asserted in the
statement or to prove that he was afraid of his wife
Ratio Determining the distinction between hearsay and non-hearsay as it related to the
state of mind evidence is whether it directly proves the declarant’s state of mind or
whether the statement is evidence which circumstantially proves the declarant’s state
of mind

Circumstantial Evidence of Memory or Belief

US v. Parry
Facts • Parry tried and convicted of conspiring to distribute PCP and possessing with
intent to distribute PCP
• At trial, government presented its case thru the testimony of 2 undercover
agents: Starratt and Driver
• They testified that Parry acted as a middleman in arranging 3 separate drug
transactions b/w the agents and individuals selling drugs
 • Parry argued that during each of these transactions he had proceeded upon the
good faith belief that he was working for the agents assisting them in locating
drug dealers
• Parry testified that he learned that Starratt was an agent before he met the agent
or engaged in any activities alleged in the indictment; he claims that there was
an implied agreement that he would lead the agents to drug sources
• To support this, he related a conversation he had with his mother shortly after
he met Starratt where he told her that the person was a narcotics agent; he
called his mother as a witness, but the court held that she could not testify to
any conversations she had with her son or that her son had with her;
Issue Did court err by excluding testimony of the conversation with his mom?
Holding - Yes, the court erred
Ratio • Parry’s statement to his mother is outside the scope of the hearsay prohibition;
when an out of court statement is offered for some purpose other than to prove
the truth of the matter asserted the value of the statement does not rest upon the
declarant’s credibility and is not subject to attack as hearsay
• Using an out of court utterance as circumstantial evidence of the declarant’s
knowledge of the existence of some fact rather than as testimonial evidence of
the truth of the matter asserted does not offend the hearsay rule

Verbal Objects or Markers

US v. Snow
Facts • Snow convicted for having knowingly possessed an unregistered firearm
• Government introduced evidence of the brief case in which the gun was found; affixed
to the brief case was a red tape with the lettering “Tri. Tron. Electronics” and “Bill
Snow”
• Appellant insists the tape is inadmissible hearsay b/c the tape is a statement made out
of court offered as an assertion to show the truth of the matter asserted therein, the
probative value of which rests upon the credibility of the out of court asserter

Issue - Was the tape an out of court statement to prove the truth of matter asserted and thereby
hearsay?
Holding • The tape is admissible; the name tape constitutes an evidentiary fact, other than
an assertion from which the truth of the matter asserted is desired to be
inferred; a mechanical trace is a type of circumstantial evidence and not
hearsay
• To exclude the name tape as hearsay it would be necessary to find that the tape
is a testimonial assertion of the proscribed sort which is not admissible under
any exception

What is a Statement?
- Just because it’s hearsay, doesn’t mean its excluded
- “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person
intended it as an assertion.
- Assertion = A positive declaration or averment; affirmation.
- Nonverbal conduct intended as an assertion: sign language, pointing someone out in a lineup
- Silence or failure to act may be evidence of an assertion if they intended it to be an assertion
- Whoever cites hearsay has burden of proving it
Miller v. Dillard
Facts • Ps were stopped by someone who claimed to be a security guard for Dillards in
the parking lot and accused them of stealing and searched them
• Ps sued Dillards
• Ps attempted to establish a duty flowing from Dillard’s by showing that the
security guard was an employee of Dillards; to prove this point, Ps relied on
statements made and questions asked by the security guard
• D counters that the statement of the person claiming to be a security guard is
inadmissible hearsay
Issue • Were the statements inadmissible hearsay
Holding • Held: the person’s showing of his badge constitutes hearsay and is inadmissible;
showing the badge was another way of asserting that he was regularly employed
as a law enforcement officer; his showing of the badge evidenced the truth of the
fact he asserted verbally contemporaneously therewith
• Hearsay can include nonverbal conduct if the person intended it as an assertion
Ratio Definition of “statement” for hearsay purposes expressly includes non-verbal conduct, if the
person intended it as an assertion.
• The security guard’s non-verbal act of showing the plaintiffs his badge was
clearly the equivalent of words, assertive in nature, and to be regarded as a
statement.

Implied Assertions
Wright v. Doe d. Tatham (Common Law Rule)
Facts • Tatham was the claimant and heir to the fortune of the deceased. The will,
however, had devised a portion of the property to Wright, a former servant. The
main issue was whether the deceased had the required testamentary capacity
when he wrote his will. Three letters written to the testator were submitted as
circumstantial evidence that the author believed the testator was of sound mind
and the issue was whether these letters could be admitted as evidence to prove
competence or whether they constituted hearsay. Wright had argued that the
letters were admissible because they showed that the testator was seen and treated
as a competent in the eyes of those who knew him. Tatham argued that they were
inadmissible and so would have to sworn under oath before they could be
admissible.
Holding • There was an implied assertion that he was capable and competent, or they
wouldn’t have written the types of letters they wrote to him regarding business
• Verbal conduct with an implied assertion
• Baron Parke held that conduct consistent with a belief in a fact is hearsay when
offered to prove the existence of that fact.
Ratio • Third party statement made out of court which imply an opinion or statement on
the matter at issue is inadmissible hearsay unless there is evidence to show
intent

Implied Hearsay after the Federal Rules

US v. Zenni
 Facts • While searching the premises of D for evidence of bookmaking activity,
government agents answered the telephone several times
• The unknown callers stated directions for the placing of bets on sporting events;
the government proposes to introduce this evidence to show that the callers
believed that the premises were used in betting operations
• The Ds object on grounds of hearsay
Issue • Was this hearsay?
Holding • Held: As an implied assertion, the proffered evidence is expressly excluded from
the operation of the hearsay rule and the objection must be overruled
• Rule 801(a) removes implied assertions from the definition of statement and
consequently from the operation of the hearsay rule
• Utterances of the betters telephoning in their bets were nonassertive verbal
conduct, offered as relevant for an implied assertion to be inferred from them,
namely that bets could be placed at the premises being telephone
• The language is not an assertion on its face and these persons did not intend to
make an assertion about the fact sought to be proved or anything else;
Ratio • Implied assertions are not hearsay unless they are intended to make an
assertion. The callers did not have intent, and therefore it was not hearsay and is
admissible.

Stoddard v. State
Facts • Stoddard was indicted on charges of murdering a 3 year old, her brother, and 18
month old cousin Jasmine Pritchett that were in Stoddard’s care
• At trial, prosecution tried to offer into evidence testimony by Jasmine Pritchett’s
mother that, after the incident, jasmine asked me if Stoddard was going to get her
• Stoddard argues that Jasmine’s mother’s out of court statement was hearsay when
offered to prove the truth of its “implied assertion” that Jasmine was afraid of
Stoddard
Issue • Was the implied assertion amounting to hearsay?
Holding • Both the State court and Court of Special appeals held that it was not hearsay
because it was a request for information, spoken without the intent to “assert”
anything. The court held that if there was an implied assertion, it was not offered
to prove that Eric was in fact going to “get” jasmine, but rather as circumstantial
evidence of her state of mind
• Implied assertion doctrine focuses on the implications or inferences contained
within or drawn from an utterance, as distinguished from the declaration’s literal
contents
Ratio • Implied assertion goes as: where a declarant’s out-of-court words imply a
belief in the truth of X, such words are hearsay if offered to prove that X is
true
• This court rules that regardless of intent, a declarant’s lack of intent to
communicate a belief in the truth of a particular proposition is irrelevant to the
determination of whether the words are hearsay when offered to prove the truth of
that proposition.
Estos v. Carpenter Co.
Facts • Estes brings civil action against employer and co-workers (one named Doug
Bullock) contending that they orchestrated a series of assaults on Estes
Issue • Did TC err in excluding a series of statements made by the unidentified assailants
who perpetrated the assault?
Ratio • The burden lies with the party claiming that an utterance contains an implicit
assertion to show that the speaker intended to and did make a particular
expression of fact, opinion, or condition by presenting evidence to the TC

Mosley v. State
Facts Mosley was found guilty by a jury of aggravated sexual assault on 3-year-old step-
granddaughter – jury gave him 26 years in jail. The little girl’s mother testified that Mosley is
married to her mother and that the little girl spent a lot of time at their house.
• Mosley contends that the mother’s statement attributed to her mother was hearsay
and should have been excluded. The grandma says: “Well, I can’t watch them all
the time” and gov’t wants to use this statement.
Issue • Did the trial court err in overruling Mosley’s objection?
Holding The State contends the statement was not offered for the truth of the declarant’s ability to
watch Mosley and the little girl all the time, and was, therefore, not hearsay. The State would
be correct if we were applying the federal rules.

- relevant in this case is the absence of a definition for ‘matter asserted’ in the
federal rules
- in Texas, ‘truth of the matter asserted’ includes any matter explicitly asserted,
but also includes within hearsay any matter implied by a statement, if the
probative value of the statement as offered flows from the declarant’s belief
as to the matter.
- Therefore, the implication of the out-of-court statement is a ‘matter
asserted’ and is inadmissible hearsay if the statement is offered for the
implication

Application to this case:

- The mother’s testimony concerning her mother’s statement was hearsay
- The statement was offered for the implication that McCoy’s mother knew
Mosley and girl were alone together and that she knew the girl was being
sexually assaulted
- This is an implied matter asserted and is therefore hearsay

US v. Snow
Overview • Hearsay didn’t bar admission of a piece of tape – with the D name on it – affixed
to a briefcase containing an unregistered firearm
• The tape is circumstantial evidence.
o Wigmore: All circumstantial evidence is subject to being explained away
o Court: Treating the name tape as circumstantial evidence, whether
viewed as part of the case or separate and apart from the case, permits its
admissibility to be governed initially by the standard of relevancy
 ▪ This standard is met only if showed that the name tape renders
the inference that the appellant owned the case more probable
than it would be without the name tape

US v. Pina
Facts - At trial, the government solicited testimony from a witness concerning the country-of-
origin label on a computer alleged to have been used in a violation of 18 USC §2252
- Defense stated that asserting the answer would constitute hearsay, in that its only
relevance would be to prove the country of origin, which would be relevant to proving the
necessary nexus to interstate commerce
- Court instructed parties that they can’t utilize statements used by the Compaq computer
only because the sticker at the bottom says “made in China”
Issue - Is admitting a manufacturer’s label to prove country of origin hearsay?
Holding - Court goes into a discussion of 3 cases and this court agrees with the Koch case stating
that the best practice to prove country of origin is to show place of manufacture through
business records
Reasoning - Court cites 3 cases: US v. Thody, US v. Alvarez, and US v. Koch
- Thody: Defendant failed to object to gov’t witness reading on a gun that the
weapon was “Made in Spain”. The judge declared that the manufacturer’s imprint
in the gun isn’t hearsay because it’s technically not an assertion by a declarant as
contemplated by the rule. However, doesn’t explain why that’s the case
- Alvarez: Adopts the “Mechanical trace” theory which is used to refer to
evidentiary facts used to show that at some previous time a certain act was or was
not done (such as stains, brand on animals/timber, tags, signs, etc...).
Cases under this theory, like US v. Snow, include instances where the uniform of
the driver of a vehicle was admissible to prove the identity of the employer, the
name on a wagon or truck to prove ownership of the vehicle, name on a dog collar
to prove ownership, etc...
- The labels here are not mechanical traces → they are out of court
statements likely made by the manufacturer, to show they were
made in China
- They are both hearsay and circumstantial – not direct evidence –
possible they were made somewhere else just because it says china
doesn’t mean china
- If it had Chinese writing on it – then it could be mechanical traces –
Chinese writing showing how it was made
- Koch: It was found that the district court did not abuse its discretion in
admission the origin label to show origin. However, the better practice, says
Koch, is to prove the place of manufacture through a business record.
Ratio - You can use label to show country of origin without being declared hearsay,
however, you should use business records to show place of manufacture

Wilson v. Clancy
Facts - No facts in textbook
Issue - Whether a certain person’s silence, the fact that they did NOT mention a particular fact
in their conversation with the witness, is hearsay
 Reasoning - Common law stated that silence of an individual or group of individuals is hearsay as an
“implied assertion”
- However, it appears that the hearsay definition under Fed.R.Evid. 801(a) did away with
this implied assertion stating: “to non-verbal conduct “intended [by the declarant] as an
assertion”.

Silence should not be treated as an implied assertion absent evidence of the

declarant’s intent to make a statement. Silence is only hearsay if the evidence shows
the silence was intended to be an assertion, and nothing in this case does, so the court
says they won’t allow it (decedent took no action but that wasn’t an assertion).
• Questions are not typically assertions though sometimes they can contain
commands
• Nonverbal conduct are assertions when it is in response to a question
• Statement offered for a basis of inferring something other than the matter
asserted

US v. Torres
Facts - Torres appeals his conviction for knowingly transporting 73 kg of cocaine across the US-
Mexico border concealed in a compartment in his truck
- The district court (hung jury) permitted Torres to testify that his friend in Tijuana
borrowed his truck (Fernando Griese) on several occasions and concealment
- On retrial, Torres tried to testify about other requests made to him by Griese who he
claimed manipulated him into unknowingly carrying drugs into the country by asking him
for favors running errands in San Diego
- The district court precluded that line of questioning as hearsay and irrelevant
Issue - Did the district court err in precluding those statements as hearsay?
- Are questions or requests hearsay?
Holding It is hearsay when the declarant intends the question to communicate an implied assertion
and the proponent offers it for his intended message
Reasoning - As a general rule, a party is prohibited from introducing a statement made by an out-of-
court declarant when it is offered at trial to prove the truth of the matter asserted (801(c),
801)
- ‘Statement’ as it’s defined in 801(a) is that nothing is an assertion unless intended to be
one → advisory notes to the rule
- The court also examines 801(c) and the terms ‘matter asserted’ which includes both
matters directly expressed and matters the declarant necessarily implicitly intended to
assert
- Since a declarant could phrase statements as questions to trigger hearsay and
protect themselves, the court says that the focus of the inquiry should be on what
the declarant intended to say, whether implied or directly asserted
- The court looks at 3 instances where Fernando was trying to take control of Torres’ truck
making it clear that Fernando intended the implied assertion rather than the express one,
and Torres offered the questions for this intended implied message to show that it was
Fernando that was calling the shots and set him up
- Because we’re dealing with an implied statement, it falls within 801(c) and is hearsay

Hearsay
Even though something falls within the literal definition of hearsay, it may nonetheless be deemed ‘not
hearsay’
 o NOTE → THE PREVIOUS CASES WERE NOT HEARSAY BECAUSE THEY FELL
OUTSIDE THE DEFINITION [i.e. they are not a ‘statement’ or because they were not
‘offered to prove the truth of the matter asserted in the statement’]

TWO CATEGORIES:
1) Prior Statement by Witness – This is substantive evidence – not just impeachment
• FRE 801(d)(1)
o Prior Inconsistent Statement:
o Prior Consistent Statement
o Prior Statement of Identification: Declarant identified witness already in some other way

2) Admissions by party-opponent –
• FRE 801(d)(2)
o Adoptive admissions
o Vicarious admissions
o Co-conspirators

1. Prior Inconsistent Statements by a Witness: 801(d)(1)(A)

FRE 801(d)(1)(A) has three foundational requirements:
• The declarant testifies inconsistently with the prior statement;
• The prior statement was made under oath subject to the penalty of perjury at a prior trial,
hearing, or other proceeding, or in a deposition; and
• The declarant testifies and is subject to cross‑examination concerning the statement.

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
o (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to
cross-examination about a prior statement, and the statement:
▪ (A) is inconsistent with the declarant’s testimony and was given under penalty of
perjury at a trial, hearing, or other proceeding or in a deposition;
prosecutors want this rule, so they can treat prior statements as evidence

US v. Dietrich
Facts - Dietrich was convicted of conspiring to sell counterfeit notes in violation of 18 USC
§371 and selling counterfeit notes in violation of 18 USC §473
- Dietrich’s contention on appeal is that the district court erred when it admitted a prior
inconsistent statement of one of the government’s witnesses as substantive evidence
- This witness (Thomas) claimed that Dietrich showed her and her husband a number of
counterfeit $100 notes…according to the statement, Dietrich wanted them to get rid of
$10,000 worth of counterfeit currency
- At trial Thomas testified that she didn’t know Dietrich and said she has never seen him
before. The government questioned Thomas on her prior inconsistent statements
- She said she lied in her interview to help Peek (her husband) because he was awaiting
trial for counterfeit charges
- Government claims that the statements were properly admitted under FRE 801(d)(1)(A).
If it complied with the rule, it can be used as substantive evidence to establish the truth of
the matter asserted. If not, it can be used to impeach a witness
- Her statements were inconsistent with testimony at trial and that the prior statement was
made under oath with penalty of perjury however, the court wanted to determine if the
statements made in front of two secret service agents were made in another proceeding for
purposes of 801(d)(1)(A)
 Issue - Were statements made to two Secret Service agents statements made in “another
proceeding”?
Holding - Court says it did not; A police interview does not constitute an other proceeding under
the Federal Rules of Evidence and the term is not unlimited.
Reasoning - Citing US v. Livingston, the court says that the rule seems to contemplate situations in
which an official verbatim record is routinely under legal authority
- The term “other proceeding” includes grand jury proceeding, even though the declarant
is not subject to cross-examination during the grand jury proceeding (Grant jury is meant
to determine whether there is enough evidence, or probable cause, to indict a criminal
suspect)
- Also includes immigration proceeding because it contained many same
procedural protections as a grand jury proceeding (investigatory, ex parte,
inquisitive, sworn, basically prosecutorial, held before an officer other than the
arresting officer, recorded, and held in circumstances of some legal formality”
(Castro-Ayon)
- However, Thomas gave her prior inconsistent statements during an interview with two
secret service agents in her home, Thomas agreed to speak to them, no one else was
present in the interview. She spoke to the agents who wrote down what she said and
signed it, it wasn’t recorded.
- Her statements were also made to the same agents who had the authority to arrest her,
the interview was not prosecutorial, not recorded, and no indicia of legal formality

E. Statements that are “Not Hearsay”

- Rule 801(d) takes two categories of statements – a declarant-witness’s prior statement (rule 801(d)(1)),
and an opposing party’s statement (Rule 801(d)(2)) → these are not hearsay even though they’re made by
a declarant within the meaning of 801(b), are “statements” within the meaning of rule (801(a)), and are
offered to prove the truth of the matter asserted in the statement within the meaning of 801(c)(2)

1. A Declarant-Witness’s Prior Statement

- The common requirement for invoking each of the 3 sub-categories of Rule 801(d)(1) is that the
declarant testifies and is subject to cross-examination about a prior statement
- Rule 801(d)(1)(A) paves the way for admitting the declarant’s “inconsistent” statements – not merely to
impeach the witness’s credibility but also as substantive proof of the matters contained within those
statements
- Rule 801(d)(1)(B) provides for the admission of a declarant’s prior “consistent” statements without
regard to the setting in which those prior statements were made, but only when offered to rehabilitate a
declarant’s credibility
- Rule 801(d)(1)(C) provides for the admission of a declarant’s prior statement identifying a person after
“perceiving” that person, without regard to the setting in which the prior identification took place and
without regard to whether the statement is consistent or inconsistent with the declarant’s testimony at
trial.

Tome v. US
Facts - No facts
Issue - Whether out-of-court consistent statements made after an alleged fabrication, or after an
alleged improper influence or motive arose, are admissible under 801(d)(1)(B)
- Does 801(d)(1)(B) support the temporal requirement? (past = admissible/after = not)
Holding - Yes, the rule supports temporal requirements in determining consistent statements
 Reasoning - The prior common law ruling is that a prior consistent statement introduced to rebut a
charge of recent fabrication or improper influence or motive was admissible if the
statement had been made before the alleged fabrication, influence, or motive came into
being but inadmissible if it came after
- McCormick and Wigmore said that the applicable principle is that the prior consistent
statement has no relevancy to refute the charge unless the consistent statement was made
before the source of the bias, interest, influence or incapacity originated
- The question lies on temporal proximity. A consistent statement that predates the motive
is a square rebuttal of the charge that the testimony was contrived as a consequence of that
motive
- Prior consistent statements carry little rebuttal force when most other types of
impeachment are involved
- Instances may arise when out-of-court statements that postdate the alleged
fabrication have some probative force in rebutting a charge of fabrication or
improper influence or motive, but those statements refute the charged fabrication in
a less direct and forceful way
- If consistent statements are admissible without reference to the timeframe, we find
imbedded in the Rule, there appears no sound reason not to admit consistent statements to
rebut other forms of impeachment as well
- It’s clear that the drafters of rule 801(d)(1)(B) were relying upon the common-law
temporal requirement
- Court uses the advisory notes of 801(d)(1)(B) to exemplify that the pre-motive
requirement was intended and the committee’s “unwillingness to countenance the general
use of prior prepared statements as substantive evidence”

Berry v. Beauvais
Facts - Berry sues two police officers claiming that they had a duty to prevent a third officer
from applying excessive force to Berry during an encounter at a convenience store
- Berry wants to call her psychotherapist as a fact witness, rather than an expert witness.
Berry had a therapist session with Schultz in the hours immediately following Berry’s
encounter with Defendants, and has had several more therapy sessions since
- Since she expects defendants to impeach her testimony, she wants to use the therapist to
testify as to the version of events recounter to her by Berry in the hours after the incident
- Berry cites 801(d)(1)(B) to allow her prior consistent statements asserting if it was
“consistent with the declarant’s testimony and is offered to rebut an express or implied the
charge that the declarant recently fabricated it or acted from a recent improper influence or
motive in so testifying”
- Sub B is split up into two parts: 1) to rebut an express or implied charge that the
declarant recently fabricated it or acted from a recent improper influence or
motive in so testifying. 2) Rehabilitate the declarant’s credibility as a witness
when attacked on another ground.
- Berry invokes clause 2 as justification to admit what Berry said to the therapist on the
day of the accident
Issue - Is the therapist’s testimony allowed as a prior consistent statement of an incident that
occurred?
Holding - Evidence not admitted under clause I (which wasn’t disputed), may be admitted under
clause II depending on the circumstances
 Reasoning - Court looks at what the rule intended. They say that the rule was not intended to
ensure admissibility of prior consistent statements. Traditionally, it has been
admissible to rebut charges of recent fabrication or improper influence or motive.
- The purpose of amending 801(d)(1)(B) was to expand the use of such statements,
admitting them not only as purpose rehabilitative evidence but also as substantive
evidence
- According to the committee commentary, clause II addresses prior consistent statements
offered for purposes other than to rebut a charge of recent fabrication, such as “consistent
statements that are probative to explain what otherwise appears to be an inconsistency in
the witness’s testimony and consistent statements that would be probative to rebut a
charge of faulty memory
- As before the amendment, prior consistent statements under the amendment may be
brought before the factfinder only if they properly rehabilitate a witness whose credibility
has been attacked
- However, Berry does not explain what sort of impeachment she expects from the
defendants and gives no indication that her testimony may be attacked as inconsistent or
based on faulty memory. BUT assuming such an attack takes place, clause ii would likely
allow the therapist’s testimony for its rehabilitative effect and for the truth of the matter
asserted

United States v. Owens

Facts - John Foster, a correctional counselor at a federal prison was attacked and brutally beaten
with a metal pipe and as a result of his injuries, his memory was severely impaired
- The FBI investigator tried interviewing him about the attacker and he was very lethargic
and unable to remember the attacker’s name…a month later he was much better and
recalled the incident and named the defendant as his attacker through an array of
photographs
- He testified that he remembered identifying the respondent as the assailant during his
May 5th interview, although on cross, he also admitted that he could not remember seeing
his assailant, could not remember any visitors that saw him in the hospital but Mansfield,
and didn’t remember if any of these visitors mentioned the defendant as the assailant
- Defendant was unsuccessful in trying to refresh his recollection with hospital records,
including one indicating that Foster had attributed the assault to someone other than the
respondent → wasn’t allowed and was convicted 20 years
Issue - Whether the Confrontation Clause of the 6th Amendment or rule 802 of the Federal Rules
of Evidence bars testimony concerning a prior, out of court identification when the
identifying witness is unable, because of memory loss, to explain the basis for the
identification
Holding - Forgetful witnesses can testify under 801(d)(1)(C)
Reasoning - Court examines what “subject to cross examination” means in FRE 801(d)(1)(C)
- They say that ordinarily a witness is regarded as “subject to cross-examination” when he
is placed on the stand, under oath, and responds willingly to questions
- However, limitations on the scope of examination by the trial court or assertions
of privilege by the witness may undermine the process to such a degree that
meaningful cross-examination within the intent of the Rule no longer exists
- However, the court says this does not happen with memory loss because cross-
examination is the exact purpose of this. It will have the effect of destroying the
force of the prior statement
- The court says that congress was aware of the issue here which is witness forgetfulness
of an underlying event but chose to not make it an exception to 801(d)(1)(C)
 - Since a witness’ memory becomes more reliable over time, it’s actually favourable to
allow prior statements that may be more reflective on the events that took place
- Court distinguishes the fact that it contrasts rule 804(a)(3) which says that the forgetful
witness who is deemed “subject to cross examination” under 801 is simultaneously
deemed “unavailable” under rule 804(a)(3). The court says it’s clear that congress
intended forgetful witnesses to be able to testify and be subject to cross-examination and
that 804(a)(3) is used for a different purpose

State v. Canady
Facts - Canady was convicted of physically abusing a family or household member
- At trial, complainant said she couldn’t recall who or what caused injuries and didn’t
remember her conversation with the police
- Police officer’s testimony about what complainant said was admitted and on appeal
Issue - In contention is whether the statement was admissible under Hawaii’s version of rule
801(d)(1)(A) as a prior inconsistent statement
Holding Statement not admissible, complainant could not speak to the substantive events and
therefore could not be subjected to cross examination concerning the subject matter of the
statement as envisioned under the rule
Reasoning - Court cites US v Owens’s interpretation of 801(d)(1)(A) and says that “under a natural
reading of the phrase subject to cross-examination concerning the statement, all that is
required is that the witness is placed on the stand, under oath, and responds willingly to
questions even if they’re unable to testify about any of the events set forth in the prior
statement
- Court compared the language of FRE rule 801(d)(1) to 804(a)(3) which defined
an unavailable witness as a person who “testifies to a lack of memory of the
subject matter of the declarant’s statement”
- The court said that between the statement “subject to cross-examination
concerning the statement” of 801 and “lack of memory of the subject matter of the
defendant’s statement” that congress knew the contrast between the rules and
didn’t make witness forgetfulness an exception to the admissibility of an out-of-
court identification under 801(d)(1)(C)
- The Hawaii alternative language to 801 requires that the declarant “be subject to cross-
examination concerning the subject matter of the declarant’s statement” (different than
Owen’s interpretation that the witness just has to be on the stand)
- Although this Hawaii version isn’t evidence of legislative intent, it held aid in
understanding the rule
- Commentary says that prior inconsistent statement was considered hearsay and
only be used to impeach a witness. Hawaii’s 802.1 adopted the FRE modification
to allow prior inconsistent statement to be used as substantive proof of the matters
asserted in the statement and added two more exceptions: 1) The statements could
‘fairly be attributed’ to the witness; and 2) the witnesses themselves were ‘subject
to cross examination concerning the subject matter of the statement
- Witness testifies about an event which is inconsistent with prior
statement, trier of fact can credit their present testimony or prior statement
in determining where the truth lies
- HRE Rule 802.1(1) (unlike 801(d)(1)), requires more of the witness than just that he or
she be “placed on the stand, under oath and respond willingly to questions” like the
Owens court interpreted.
- Court holds that the witness be subject to cross-examination about the subject matter of
the prior statement, that is, the witness be capable of testifying substantively about the
 event, allowing the trier of fact to meaningfully compare the prior event with the version
recounted at trial

2. Statements of an Opposing Party

Rule 801(d)(2) defines as not hearsay five different categories of statements made by a party or by certain
people associated with a party when showing that the party:
(A) was made by the party in an individual or representative capacity
(B) Is one the party manifested that it adopted or believed to be true;
(C) Was made by a person whom the party authorized to make a statement on the subject;
(D) Was made by the party’s agent or employee on a matter within the scope of that relationship
and while it existed; or
(E) Was made by the party’s coconspirator during and in furtherance of the conspiracy
- A party cannot invoke the rule to admit their own statements or those of their agent, employees, or
coconspirators, it must be offered AGAINST an opposing party

“Not-hearsay” cases but actually Hearsay

US v. Reed
Facts - Reed was charged with bank robbery
- At trial he testified that DC declared a mistrial due to a hung jury; he was retried, and the
jury returned a guilty verdict; at the second trial he decided not to testify, and the DC
judge admitted Reed’s entire testimony from the first trial as an admission by a party
opponent under rule 801(d)(2)(A);
- After the jury’s guilty verdict, the DC judge sentenced him to 240 months in prison
Issue - Is the evidence hearsay or subject to 801(d)(2)(A) and subject to party admission
Holding - Evidence allowed, district court did not err
Reasoning - The prior evidence was admitted as an admission of a party opponent under
801(d)(2)(A), which provides that a statement is not hearsay and may be admitted when
the statement in question is offered against a party and is the party’s own statement
- Reed argues: 1) statements gov’t sought to include were not against his interest; 2)
district judge erred when failing to require redaction of reed’s testimony, so that only
statements against Reed’s interest remained
- Court says his argument failed because statements under 801(d)(2)(A) do not need to be
inculpatory → reed says it shouldn’t be admitted because admission must be contrary to
the trial position of the party, court says NO
- 801(d)(2)(A) merely renders a statement non-hearsay if it was made by the party against
whom it is offered, citing McGee, the statements do not need to be incriminating,
inculpatory, against interest, nor otherwise inherently damaging to the declarant’s case
- The rule simply admits statements made by one party, but offered as evidence by
the opposing party

Pau v. Yosemite Park and Curry Co.

Facts - Fatal bike accident; jury found Curry Company not liable for death of Eleanor
- The family and estate of the decedent appeal the denial of summary judgment and
several evidentiary rulings by the trial judge
- The Paus contend that the DC abused its discretion by allowing Ranger Bryant to testify
regarding Mr. Pau’s statement as to the cause of the crash
- Bryant testified “It is the opinion of Mr. Pau, that due to the speed, Mrs. Pau did not
remember to use the foot break”
 - Paus’ attorney objected to the testimony on the ground that it was pure hearsay and pure
speculation and that the potential for unfair prejudice substantially outweighed the
probative value of the statement
- DC allowed the statement to be admitted as an admission of a party opponent
Issue - Is the evidence submitted by the defendant’s that the plaintiff said something hearsay
under 801(d)?
Holding - Statement is not hearsay under 801(d)
Reasoning - Court says that the statement was made by Mr. Pau, a party to the action, and was
offered by Curry Company against him at trial
- Whether the statement was pure speculation is irrelevant to the statement’s admissibility,
admissions of a party opponent need not be based upon personal knowledge and are not
subject to rule 701

Bruton v. United States

- In footnote 4 after Pau case
- Bruton and Evan are on trial jointly for postal robbery
- Evans confesses that “Bruton and I committed the robbery”
- Statement made by party in an individual capacity;
- However, 6th amendment confrontation clause allows one to confront other party
- Court holds: Unless Evans takes the stand there is no way to challenge the statement; Evans
has no obligation to testify in the criminal proceedings and no one can call him
- Issue: is it a violation of Bruton’s 6th amendment confrontation rights to allow the statement
to be used against him without any challenge
- Options before the lower court: The rule of criminal procedure that authorizes severing the
trial; or could have redacted statement involving Bruton to eliminate prejudicial effect
- The statement is not admissible in trial if Evans does not take stand;

United States v. Ward

Facts - Greg and Aishauna Ward robbed a bank where she was employed
- They were tried and convicted for conspiring to rob a bank, using force,
violence or intimidation to rob a bank and using a firearm during the
commission of a crime of violence
- After Mr. Ward was released on bond, he called his sister to retrieve a bag that
he had given her to hold following the robbery; She told him that the bag was
being safeguarded by family friend Gardner and her boyfriend Bryant
- They drove to Gardner’s apartment to retrieve the bag, but it could not be
located; Mr. Ward’s sister said (in front of Bryant and Gardner) “I don’t
believe he’s getting ready to go to jail for 10 years for something he doesn’t
even have” and that the money was “the money they got when they robbed the
bank”
- The next day Gardner and Bryant turned the bag (with some money missing) to
the FBI and Gardner agreed to testify regarding the previous day’s events and
the government agreed not to prosecute her for spending bank robbery
proceeds
- With the help of her testimony both the Wards were convicted of all the
charges against them
 - Wards contend that Gardner should not have been allowed to testify that after
Mr. Ward’s sister said, “that’s the money they got when they robbed the bank”,
Mr. Ward remained silent
- Ms. Ward argues that if this testimony was allowed against Mr. Ward it should
not be used against her
Issue - Was the sister’s statement hearsay under 801(d)(2)(B)?
Holding - Court holds DC did not abuse its discretion by admitting evidence that Mr. Ward
remained silent when she said “that’s the money they got when they robbed the bank
Reasoning - DC found that Mr. Ward’s silence in the face of his sister’s assertion was considered an
adoptive admission
- Under 801(d)(2)(B), a statement is not hearsay if it is offered against a party and is one
the party manifested that it adopted or believed to be true, it is not necessary for one to use
any specific language to adopt another’s statement
- A statement may be adopted as long as the statement was made in the defendant’s
presence, the defendant understood the statement, and the defendant has the
opportunity to deny the statement but did not do so
- Mr. Ward argues that there’s no evidence that he heard or understood his sister’s
statement
- Distinguishes from Andrus where defendant was found to have adopted
another’s statement because they were sitting in the same table. Ward contends
that the government must prove that both the speaker and listener were in a
confined space in order to establish that they could hear and understand eachother
- Court says that while proximity may be helpful to show one heard and understood
another, it is not determinative…defendant may also demonstrate his cognizance of a
conversation by his statements and conduct during or after the conversation
- Court says that Mr. Ward’s location and verbal response indicated that he understood the
conversation around him
- They all stood around having a heated discussion about the $50,000, he was
angry the money was missing
- Sister said that she couldn’t believe her brother is going to jail for something he
didn’t have
- The statement is admitted because his sister’s accusation is the type of statement that a
party would normally respond to if innocent

United States v. Paulino

Facts - Undercover investigation of narcotics trafficking
- The police were watching a particular apartment and observed appellant in and
around the apartment
- An informant entered the apartment and made a controlled purchase of cocaine
from the principal suspect inside the apartment; while the transaction was in
process the detectives observed Paulino peering form a window
- With a search warrant the cops searched the home and found appellant in the
kitchen and a lot of drugs in the bedroom
- On the appellant they found keys to the front door; he was arrested and
convicted of narcotics charges
- Appellant most touted assignment of error relates to a so-called customer
receipt for a Postal Service money order discovered on a kitchen shelf
 - The receipt bore appellant’s name (but with 2 additional letters) and his
address and purported to corroborate payment to Tower management in an
amount of $280;
- At trial prosecution offered the receipt to prove the truth of the matter asserted:
that appellant had paid the apartment rent (during the period it was being used
as a drug distribution outlet)
Issue When overruling the appellant’s hearsay objection, the DC did not specify a hearsay
exclusion or exception that removed the barrier to introduction of the evidence
Holding - Evidence admitted, written statements plus possession is not hearsay
Reasoning - Court says that a receipt can be classified as an adoptive admission, and, therefore, that it
eludes the hearsay bar
- Courts have frequently construed possession of a written statement as an adoption of
what its contents reveal
- Court follows the Ospina court in that “possession plus” can evidence adoption. So
long as the surrounding circumstances tie the possessor and the document together
in some meaningful way, the possessor may be found to have adopted the writing and
embraced its contents
- Appellant held the only known key to the apartment, frequented the premises, saved
document bore his name, and at the very least, was privy to the criminal enterprise and
therefore the record is sufficient to permit a finding that appellant possessed and adopted
the receipt

Notes & Questions

• Just as with individual admission under FRE801(d)(2)(A), personal knowledge of the statement
adopted is not required under FRE801(d)(2)(B)

• The jury is primarily responsible for deciding whether, in light of all the surrounding facts and
circumstances, the defendant actually heard, understood and acquiesced in the statement

• FRE 802(d)(2)(B) is still subject to constitutional requirements

o i.e. it is unconstitutional to introduce into evidence that a criminal defendant remained

silent after he was given a Miranda warning advising him of his right to remain silent

C. Authorized Admission
FRE 801(d)(2)(C) has two foundational requirements:
• A statement by a person authorized by the party to make a statement concerning the subject; and
• The statement is offered against a party.
D. Statements of Agents and Employees – FRE 801 (d)(2)(D)

FRE 801(d)(2)(D) has three foundational requirements:

• Statement relates to matter within the scope of agency or employment;
• Statement is made during the existence of the agency or employment relationship; and
• The statement is offered against a party.

The statement is offered against an opposing party and was made by the party’s agent or employee on a
matter within the scope of that relationship and while it existed;
 • The statement is offered against an opposing party and: (D) was made by the party’s agent or
employee on a matter within the scope of that relationship and while it existed; [1. Employee; 2.
Related to their job; 3. While they were employed]

c. Statements of Agents and Employees

Agents and Employees

Mahlandt v. Wild Canid Survival & Research Center, Inc.
Facts - Action for damages arising out of an alleged attack by a wolf on a child
- Issue: correctness of three rulings which excluded conclusionary statements against
interest
- 2 statements were made by D who was also an employee of the corporate D and the 3rd
was in the form of a statement appearing in the records of a board meeting of the corporate
D
- Daniel (3 years old) was sent by his mother to a neighbor’s home on an adjoining street
to get his older brother;
- Mr. Poos (one of the neighbors Daniel had to pass by) had a wolf in his yard he was
taking care of for the research Centre → was supposed to be kept at the Tyson Research
Center but decided to keep the wolf in his back yard because he was taking the dog to
schools and institutions where he showed films and gave programs with respect to the
nature of wolves
- A neighbor heard Daniel scream and saw the wolf on top of him
- Clarke Poos (Mr. Poos son) heard the scream as well and grabbed Daniel away from the
wolf
- Clarke and his sister ran over to get Daniel’s mother and she says that Clarke told her “A
wolf got Danny and he is dying” → he denies that statement
- When Mr. Poos came home and found out about the situation he left a note at the
research centre asking someone to get back to him b/c the wolf bit a child
- On appeal, denial of admission of this not is at issue
- Mr. Poos later found the president of the research center and told him what
happened…denial of P’s offer to prove that Mr. Poos told the research centre that the wolf
bit the child is the second issue on appeal
- The Research Centre had a meeting that day discussing the situation of the wolf biting
the child and denial of the offer of the abstract of the minutes of the meeting is the third
issue on appeal
- These pieces of evidence were excluded because the judge felt that Mr. Poos did not
have any personal knowledge of the facts and the admissions were based on hearsay
 Reasoning - Court says that the note pinned on the door is not hearsay and is admissible against Mr.
Poos, it was his own statement and clearly different from the reported statement of another
- Were the statements admissible against Wild Canid Survival and Research Center Inc?
They were made by Mr. Poos while he was an agent or servant of both corps and
concerned a matter within the scope of his agency or employment
- Defendant argued that Rule 801(d)(2) does not provide for admissions of “in house”
statements and only allows admissions made to 3rd parties
- Looking at the advisory notes on 801(d)(2)(C) → although not a (C) situation, the
rationale applies to D as well. They say that communication to an outsider has not
generally been thought to be an essential characteristic of an admission
- Looking at the Weinstein Discussion of rule 801(d)(2)(D), they say that the rule adopts
the approach which as a general proposition, makes statement made by agents within the
scope of their employment admissible…once agency, and the making of the statement
while the relationship continues are established, the statement is exempt from hearsay rule
so long as it related to a matter within the scope of the agency
- Statements can be admitted if made by the employee/servant of an opposing
party, so long as the statement was made within the scope of the professional
relationship
- Because Rule 805 and rule 403 provide additional bases for excluding otherwise
acceptable evidence, neither rule mandates the introduction into 801(d)(2)(D) of an
implied requirement that the declarant have personal knowledge of the facts underlying
his statements
- Statements made by Mr. Poos admissible against Wild Canid and Research
Center
- The entry in the records of a corporate meeting had the authority to include their
conclusions in the record of the meeting, as directors/primary officers. The evidence falls
under 801(d)(2)(C) and is admissible against the corps
- Evidence not admissible against Mr. Poos since 801 (d)(2) does not cover the
claim that minutes of a corporate board meeting can be used against a non-
attending, non-participating employee of the corporation
- The court then looked at whether the trial court’s ruling which excluded all three items
of evidence is justified under rule 403. They say that relevant evidence is usually
prejudicial to the cause of the side against which it is presented, and that the prejudice
which concerns us is unreasonable prejudice…403 does not warrant the exclusion of the
evidence of Mr. Poos’ statements against himself or the corps
- However, limited admissibility of the corporate minutes, coupled with the repetitive
nature of the evidence and low probative value of the minute record, all just supporting the
judgement of the trial court under rule 403

Notes & Questions

• For some types of agents, such as attorneys, speaking authority is assumed, but for
most, it must be expressly conferred. Rule 801(d)(2)(C) reflects the narrow scope of
the vicarious admissions doctrine at common law

• FRE801(d)(2)(D) dramatically expanded the scope of the vicarious admissions doctrine

– few principals employ agents for the purpose of making damaging statements, the usual
result was exclusion of the statement; dissatisfaction with this loss of valuable and
helpful evidence has been increasing
 • The determination whether someone qualifies as a person’s agent or employee, as well as
the question whether someone falls within the scope of that relationship is governed by
federal common law principles of agency law

• A statement can be admitted under Rule 801(d)(2)(D) only if made at time when the
agency or employment relationship existed

The “Anti-Bootstrapping” Provision of FRE 801(d)(2)

The statement must be considered but does not by itself establish the declarant’s authority under (C); the
existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it
under (E).
E. Co-conspirator Statements: FRE 801(d)(2)(E)

The statement is offered against an opposing party and (E) was made by the party’s co-conspirator during
and in furtherance of the conspiracy.

There must be other evidence to allow co-conspirators admission statement to be used against a
conspirator.

Agreement ------------Object of conspiracy ------------------Arrest

(During conspiracy) (Concealment Phase)

** Once the parties come into agreement that they will work a crime: the conspiracy begins

• Recruiting members of conspiracy is within the conspiracy

• Any admissions after the arrest is not part of the conspiracy
•
Bourjaily v. United States
Facts - Greathous, an informant working the FBI, arranged to sell cocaine to Lonardo who
agreed he would find individuals to distribute the drug
- Lonardo stated in a tape-recorded telephone convo that he had a gentleman friend who
had some questions to ask about the cocaine; in another call Greathouse talked to the
friend about the quality of the drug and the price
- Greathouse spoke to Lonardo and they arranged the details of the purchase
- During the transaction FBI arrested Lonardo and petitioner, who had $20k in cash in his
car
- Petitioner was charged with conspiring to distribute cocaine
- Government introduced Lonardo’s telephone conovo about the friend participating in the
transaction
- DC found that considering the events in the parking lot and Lonardo’s statements, the
govt had established that a conspiracy b/w Lonardo and petitioner existed and that
Lonardo’s statements over the phone had been made in the course of and in furtherance of
the conspiracy;
- Circuit court affirmed that this fell within Rule 801(d)(2)(E) that Lonardo’s out of court
statements were not hearsay
Issue - Can hearsay statements be used to make a preliminary factual finding of conspiracy?
 Holding - Court rules that it is sufficient to hold that a court, in making a preliminary factual
determination under Rule 802(d)(2)(E), may examine the hearsay statements sought to be
admitted
Reasoning - Before admitting statement over an objection that it doesn’t qualify under
802(d)(2)(E), a court must be satisfied that the statement actually falls within the
definition of the rule. There must be evidence that there was a conspiracy involving
the declarant and the non-offering party, and was made “during and in furtherance
of the conspiracy”
- The evidentiary standard is unrelated to the burden of proof on the substantive issues, be
it a criminal or civil case
- When the preliminary facts relevant to 802(d)(2)(E) are disputed, the offering party must
prove them by a preponderance of the evidence (probable truth or accuracy of the
evidence rather than amount of evidence)
- Petitioner argues the admissibility of the Leonardo statements stating that whether a
conspiracy exists and whether the defendant was a member of it, the court must only look
to independent evidence – that is, evidence other than the statements sought to be admitted
- Petitioner relies on the “bootstrapping rule” from Glasser which says that declarations
are admissible over the objection of an alleged co-conspirator, who was not present when
they were made, only if there is proof aliunde (proof from another place) that he is
connected with the conspiracy…otherwise, hearsay would lift itself by its own bootstraps
to the level of competent evidence
- Courts have widely adopted the former view and held that in determining the preliminary
facts relevant to co-conspirators’ out-of-court statements, a court may not look at the
hearsay statements themselves for their evidentiary value
- However, the bootstrap rule was adopted before the FRE was enacted
- Rule 104 allows courts to make preliminary factual determinations relevant to
802(d)(2)(E) by considering any evidence it wishes, unhindered by considerations of
admissibility
- Petitioner claims that the bootsrapping rule stood the test of time and remains
unchanged, the court disagrees
- Petitioner claims that Congress evidenced no intent to disturb the bootstrapping
rule and that the court should not find that Congress altered the rule without
affirmative evidence indicating so
- Court also disagrees that the construction of rule 104(a) will allow courts to admit
hearsay statements without any credible proof of the conspiracy, thus fundamentally
changing the nature of the co-conspirator exception
- Petitioner contends that out-of-court statements by co-conspirators are unreliable until
they’re actually proven to be co-conspirators and since unreliable shouldn’t be allowed to
establish a basis of conspiracy
- Court says that out of court statements are only presumed unreliable and that
presumption can be rebutted with appropriate proof. Second, individual pieces of
evidence, insufficient in themselves to prove a point, may in culmination prove it
- Each one of Leonardo’s statements may itself be unreliable, but taken as a whole, the
entire conversation between Leonardo and Greathouse was corroborated by independent
evidence → the friend, who ended up being petitioner, showed up at the prearranged spot
at the prearranged time (as Leonardo’s statements suggested)

Romani v. State
Facts - Romani was charged with and convicted of conspiracy to commit first degree murder
and with the first-degree murder of Dr. DeMola
 - TC denied defense counsel’s motion to exclude the coconspirator’s hearsay statements,
holding that sufficient evidence had been produced to demonstrate a conspiracy
- DC held that trial judge could consider the coconspirator hearsay statements in
determining out of court declarant’s participation in the conspiracy based on Bourjaily v.
US case
Issue - Can the court adopt hearsay statements to show sufficient evidence had been produced to
demonstrate a conspiracy?
Holding - Decline to adopt approach in that case and adopted by DC; each member’s participation
in the conspiracy must be proved by independent evidence
Reasoning - Since there is no counterpart to rule 104(a) in the Florida Evidence Code, Florida takes a
different approach
- Florida Code provides for a jury instruction that each member’s participation in the
conspiracy must be proved by independent evidence (§90.803(18)(e))
- In according with statute and case law, the court has required that a court rely upon
independent evidence to prove a conspiracy, and each member’s participation in it, before
admitting coconspirator hearsay statements
- The court is apprehensive to accept the Bourjaily rule fearing that it may frequently lead
to the admission of statements which are not reliable

Notes & Questions

• Anti-Bootstrapping Portion of FRE801(d)(2)(D)

o A court shall consider the contents of the coconspirator’s statements in

determining the existence of the conspiracy and the participation therein of the
declarant and the party against whom the statement is offered – established by a
preponderance of the evidence

o The contents of the declarant’s statement do not alone suffice to establish a

conspiracy in which the declarant and the defendant participated. The court must
consider in addition the circumstances surrounding the statement, such as the
identity of the speaker, the context in which the statement was made, or evidence
corroborating the contents of the statement in making its determination as to each
preliminary question

• Statements made in furtherance of a conspiracy:

o Comments designed to assist in recruiting potential members

o To inform other members about the progress of the conspiracy

o To control damage to or detection of the conspiracy

o To hide the criminal objectives of the conspiracy

o To instill confidence and prevent the desertion of other members

 o Satisfied so long as the statement was made with the apparent intent to promote
the objectives of the conspiracy

▪ Statements made to a government agent can only be admitted under

FRE801(d)(2)(E) into evidence if there are at least two individuals
OTHER THAN the government agent

PRIVILEGES
Information conveyed in a privileged communication cannot be brought into trial and cannot be a
subject for discovery even though the statement may be relevant to a disputed issue. Generally speaking,
only the holder of the privilege may waive it (exception: attorney-client).
• Any privilege must start from the premise that the public has a right to every man’s evidence
• All privileges must balance the public’s right to every man’s evidence with the need for
protection of the relationship
• For the most part, privileges have been left as common law and can be created, extended or
abolished through the courts
• In a civil case, state law governs privilege regarding a claim or defense for which state law
supplies the rule of Decision
• Duty of confidentiality can be aggregated by a statute that throws out the testimonial privilege
unless it’s required by a court

The Utilitarian Approach Wigmore’s Requirement for Recognition of Privilege:

1. The communications must originate in a confidence that they will not be disclosed
• Was it intended to be confidential?
2. Confidentiality must be essential to the full and satisfactory maintenance of the relationship
between the parties
3. The relationship must be one that, in the opinion of the community, ought to be sedulously
fostered
• Is it important to maintain the relationship and maintenance of the system?
4. The injury to the relationship caused by the disclosure of the communications must be greater
than the benefit gained for the correct disposal of litigation
• Balancing of the privilege with social

Sources of privilege include the Constitution, statutes, and the common law.
** Americans don’t recognize on a case by case basis
• Evaluate the Wigmore factors

History of Privilege
• Attorney Client Privilege – Roman law
• Middle Ages – Priest Penitent Privilege (First example of the exclusionary rule)
o St. Thomas “The priest should conform himself to God, of whom he is the minister, and
as God does not reveal the sins made known to him in confession, so the priest should be
equally reticent.”

There are two schools of thought regarding privileges:

Deontology – The state should not intrude in certain personal relationships. Privacy & autonomy are
fundamental human needs.
 Teleotogical – Utilitarian school. The communications are socially desirable, and people would be
less likely to make them if they were not privileged. The “ethics of ends and consequences”.
The early Roman privileges were based upon the individual right to privacy, as opposed to what is best
for society as a whole. The concept of privacy was adopted in the Fourth Amendment.
Physician-Patient Privilege – Rex v. Duchess of Kingston (1776) – Court refused to recognize privilege.
Critical turning point in the law of privilege. Began applying utilitarian approach. Examine need for the
evidence, replaced ethics as the standard. Only a few courts recognize this privilege.
Originally the FRE contained detailed privilege definitions. Rejected by Congress because of controversy
over executive privilege in the Watergate crisis. As a result, only Rules 501 and 502 govern privileges.
Why Privilege?
• Protect relationships
• Keep communication
• Protect from self-incrimination

Rule 501 is having an exalted position relative to the other FRE. Privileges apply in all stages of civil
and criminal actions (even grand jury and preliminary hearings) and are not subject to the Erie doctrine.
✓ Only statements made in confidential relationships are kept secret by privileges.
✓ Privileges impede the fact-finding process.
✓ Society feels there is substantial value in the relationship, so protects the communications.
“Fruit of the poisonous tree” doctrine → Criminal D entitled to have evidence that is obtained in
violation of the Constitution + material from the unconstitutionally obtained evidence suppressed.
The party invoking the privilege has the burden of establishing all of its elements. Each element of
privilege must be established by a preponderance of the evidence.

FRE 501. General Rule [exception to Erie Doctrine]

The common law, as interpreted by US courts in the light of reason and experience, governs a claim of
privilege unless any of the following provides otherwise:
• US constitution, federal statute, or rules proscribed by supreme court
• But in a civil case, state law governs privilege regarding a claim or defense for which state law
supplies the rule of Decision.

RULE 501 authorized federal courts to define new privileges by interpreting the common law in the light
of reason and experience.

Types of Privileges
o Attorney-Client Privilege
o Spousal Privilege
o Psychotherapist-Patient Privilege
o Privilege Against Self-Incrimination
o Miscellaneous Privileges
o Clergy-Penitent Privilege
o Accountant-Client Privilege
o Journalist’s Privilege
o Parent-Child Privilege

** Only Spousal Privilege protects what’s observed → all other privileges only protect communication
 ** Supreme Court really only recognizes the Psychotherapist privilege → the other ones vary circuit to
circuit.

ALL PRIVILEDGES MUST BE ASSERTED

→It is the client’s privilege not the lawyers

1.Attorney-Client Privilege

FRE 502: Attorney-Client Privilege

Where legal advice of any kind is sought from a professional legal advisor in his capacity as such, the
communications relating to that purpose, made in confidence by the client, are at his insistence
permanently protected from disclosure by himself or by the legal adviser, except the protection be waived

Requires: (1)Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as
such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his
insistence permanently protected by (7) from disclosure by himself or by the legal advisor, (8) unless the
protection is waived

**Waiver must be an established privilege that is then waived

The following provisions apply, in the circumstances set out, to disclosure of a communication or
information covered by the attorney-client privilege or work-product protection.

Notes:
• AC privilege belongs to the client, not the attorney – attorney invokes it on client’s behalf
• Attorney cannot waive the privilege if the client does not wish to waive the privilege
• Rule 502 refers to disclosures that are made in a federal or state proceeding, which arguably
means that the rule governs only if the disclosure occurs after a suit has commenced
• Party invoking the privilege bears the burden of proving that it has not been waived

In re: Grand Jury Subpoenas

Generally, a client’s identity and source of payment is not confidential.
• Legal Advice Exception: Where there is a strong probability that disclosure would implicate the
client in the very criminal activity for which legal was sought
• Last Link Exception (Highly Disfavored): Information not normally privileged should be
protected when so much of the substance of the communication is already in the government’s
possession that additional disclosures would yield substantially probative links in an existing
chain of inculpatory events or transactions.
 • Confidential Communications Exception: Info regarding the fee arrangement is not normally
part of the professional consultation and therefore is not privileged even if it would incriminate
the client in wrongdoing

Re Grand Jury Subpoena

Facts • Emergency appeal by several attorneys who were held in contempt and placed
in jail because they refused to reveal the source of payment of their fees
incurred during their representation of 4 Ds on drug charges
• Relators claim the fee information sought by the grand jury is subject to
attorney client privilege
Issue Did attorney-client privilege protect this information?
Holding • Held: fee arrangements are not protected by ACP except in rare cases where
the payment of the fee itself is unlawful or where an actual client paid the fee
and sought advice concerning the actual case under investigation

Well recognized that the identity of an attorney’s client and the source of payment for
legal fees are not normally protected by the attorney-client privilege BUT three major
exceptions:
- legal advice exception → where there is a strong probability that
disclosure would implicate the client in the very criminal activity for which
the legal advice was sought → this exception does not apply in this case
- last link exception → information, not normally privileged, should also be
protected when so much of the substance of the communications is already
in the government’s possession that additional disclosures would yield
substantially probative links in an existing chain of inculpatory events or
transactions → circuit split on this issue; current circuit hasn’t spoken on
it; does not apply to this case.
- However, the court does not reject the underlying principle supporting the
last link exception → the confidential communication exception holds
that an exception to the general rule that a client’s identity is not privileged
exists in the situation where the disclosure of the client’s identity would be
tantamount to disclosing an otherwise protected confidential
communication

Application to this case:

• No claim that the source of the fees was a client who sought advice on any
subject
• No claim that advice was given concerning the case now under
investigation
• Disclosure of the source of fees would not disclose any confidential
communication from client to attorney
While payment of a fee to an attorney is necessary to obtain legal advice, disclosure of the
fee arrangement does not inhibit the normal communications necessary for the attorney to
act effectively in representing the client → absent some exceptional circumstances, fee
arrangements ARE NOT protected by A-C privilege
Reasoning• The confidential communication exception holds that an exception to the general
rule that a client’s identity is not privileged exists in a situation where the
 disclosures of the client’s identity would be tantamount to disclosing an otherwise
protected confidential communication.

Client identification and source of fees are not protected unless it fits one of the exceptions
(disclose a confidential communication or legal advice)

NOTES:
• The attorney must have been engaged or consulted by the client for the purpose of
obtaining legal services or advice – services or advice that a lawyer may perform or give
in his capacity as a lawyer, not in some other capacity. A communication is not
privileged simply because it is made by or to a person who happens to be a lawyer
• Confidentiality and A-C privilege are not the same → Confidentiality applies not only to
matters communicated by the client, but also to all information relating to the
representation, whatever its source
o Confidentiality is broader than A-C privilege
• Privilege applies not only to direct communications between attorney and client but also
to communications involving their representatives
• Communications includes not only written and spoken statements, but also non-verbal
acts intended to convey information to an attorney
• A communication is not privilege simply because it is made by or to a person who
happens to be a lawyer
• The party invoking a privilege has the burden of establishing all of its elements – each
element of the privilege must be established by a preponderance of the evidence
• Two people, such as business partners, may jointly consult an attorney for legal advice –
such communications are privileged in legal disputes with third persons but not in
subsequent litigation between the joint clients
• A party always remains free to disclose his own communications
• Initial communications that a person has with a prospective lawyer are privileged even if
the client ultimately decides not to retain the lawyer or the lawyer declines to take on the
case
• The privilege extends to nonverbal communicative acts intended to convey information –
the privilege applies when the purpose in performing the act is to convey information to
the lawyer

Upjohn Co. v. US
Facts • Upjohn conducted an audit of one of its foreign subsidiaries and discovered
that the subsidiary made payments to or for the benefit of foreign government
officials to secure government business
• To investigate the matter the attorneys of the firm prepared a questionnaire sent
to all foreign general and area managers;
• The company voluntarily submitted a preliminary report to the SEC and IRS
who issued a summons demanding the questionnaires sent to managers of
Upjohn’s foreign affiliates
• The company declined to produce the documents stating they were protected
from disclosure by the ACP and that the questionnaires were work product of
attorneys prepared in anticipation of litigation
 Issue Are the questionnaires covered by A-C privilege?
Holding Held: control group test does not apply; communications of lower ranking employees
were protected by attorney–client privilege when protection was necessary to defend
against litigation.

The attorney-client privilege protects the communications involved in this case from
compelled disclosure and that the work-product doctrine does apply in tax summons
enforcement proceedings.

The privilege applies when the government is a corporation.

The courts below applied the ‘control group’ test, which is not applicable and too difficult
to apply in these cases → If the purpose of the A-C privilege is to be served, the attorney
and client must be able to predict with some degree of certainty whether particular
discussions will be protected → The test in the lower courts restricts the availability of the
privilege to those officers who play a ‘substantial role’ in deciding and directing a
corporation’s legal response → ACP applies to corporations, not just the “control
group” – extends to lower-level employees

Application to this case:

• The communications concerned matters within the scope of the employee’s
corporate duties and the employees themselves were sufficiently aware that
they were being questioned in order for the corporation to obtain legal
advice.
• Questionnaires were from general counsel
• They were highly confidential
• Consistent with the underlying purposes of A-C privileges, these
communications must be protected against compelled disclosure
In this case, although it would have been more convenient for the government to obtain
the questionnaires, these considerations of convenience do not override it
Ratio The attorney-client privilege applies to corporations, not just the “control group” – it
extends to lower level employees as well
• In the corporate context, attorney-client privilege extends to lower level employees, not
just to those in control of the corporation. The work-product doctrine protects oral
statements made to attorneys, which necessitates a showing of undue hardship on the part
of the party-opponent who seeks that information. Overrules the prior “control group”
test and instead applies a subject matter test.

• In order for privilege to apply to corporate employees the communication must be made
by (1) an employee; (2) to an attorney for the corporation; (3) for the purpose of seeking
legal advice; (4) within the regular scope of their duties; and (6) at the direction of their
superiors. 


US v. Zolin [Crime Fraud Exception]

Facts • In course of investigation, IRS sought access to 51 documents that had been
filed with the clerk of the LA County Superior Court in connection with the
Armstrong case
 • IRS filed in the DC a petition to enforce its summons seeking 12 sealed
documents; The Church and Ms. Hubbard were intervened to opposed
production of the tapes and sealed documents claiming the IRS was not
seeking the documents in good faith and objected on grounds of lack of
relevance and ACP
• IRS argued the tapes fell within the crime-fraud exception to ACP
• The DC rejected respondents claim of bad faith and ordered production of 5 of
the 12 documents; DC rejected the IRS’ claim of crime-fraud
• Respondents appealed, and IRS cross appealed contending the DC erred in
rejecting the application of the crime-fraud exception to the tapes
• Purpose of crime-fraud exception is to assure the seal of secrecy between
lawyer and client does not extend to communications made for the purpose of
getting advice for the commission of a fraud or crime
Issue 1. Whether a district court, at the request of the party opposing the privilege, may review
the allegedly privileged communications in-camera, to determine if the crime-fraud
exception applies?
2. Whether some threshold evidentiary showing is needed before the district court may
review the communications?
3. If a threshold showing is required, whether the partial transcripts the I.R.S. possessed
may be used to oppose the privilege?
Holding First issue → whether district court may ever honour the request of the party opposing the
privilege to conduct an in-camera review of allegedly privileged communications to
determine whether they’d fall within the crime fraud exception
- There is no express provision in the FRE that bars such use of in camera reviews
→ it would be unwise to prohibit it in all instances as a matter of federal common
law
- A complete prohibition against opponents’ use of in camera review to establish
the applicability of the crime-fraud exception is inconsistent with the policies
underlying the privilege

Second Issue → is in-camera always permissible

A blanket rule allowing in camera review as a tool for determining the applicability of the
crime-fraud exception would place the policy of protecting open and legitimate disclosure
between attorneys and clients at undue risk

Correct balance = before engaging in in-camera review to determine the applicability of

the crime-fraud exception ‘the judge should require a showing of a factual basis adequate
to support a good faith belief by a reasonable person, that in-camera review of the
materials may reveal evidence to establish the claim that the crime-fraud exception
applies. Once the showing is made, the decision whether to engage in in-camera review
rests in the sound discretion of the district court
• Some courts say the proponent of the privilege bears the burden of proving
the privilege while courts say it’s who’s challenging the privilege
o Not a uniform standard

Issue Three → What evidence can the court consider in determining whether it has the
discretion to undertake an in-camera review of an allegedly privileged communication
(partial transcripts)
 • Rule 104(A) – materials that have been determined to be privileged may not be
considered in making the preliminary determination of the existence of a privilege
• Can use any nonprivileged evidence in support of its request for in camera review,
even if its evidence is not independent of the contested communication
Ratio The party opposing the privilege may use any non-privileged evidence in support of its
request for in camera review, even if its evidence is not ‘independent’ of the contested
communications as the Court of Appeals uses that term
Notes:
• In-camera: only the judge views it
• Nonmoving party has to provide non-privilege evidence for the court to have a reasonable believe
that the crime fraud exception will apply.
• Party claiming the privilege has to prove the elements. The courts are split on who has to prove
the exception
• In-camera review of allegedly privileged attorney-client communications may be used to
determine whether the communications fall within the crime-fraud exception. The party
requesting in camera review must present evidence sufficient to support a reasonable belief that
such review may reveal evidence that establishes the exception’s applicability (good faith
showing). This is a lower threshold that doesn’t have to be privileged
• After this threshold determination is met, the decision rests in the sound discretion of the court to
then review the privileged material
o Applies to in tangible and non-tangible evidence of AC communication (i.e such as
attorney’s testimony
o Disagreement between courts as to who has to bring it forth

Swindler & Berlin v. United States

Facts • This case arises out of an investigation conducted by the Office of the Independent
Counsel into whether various individuals made false statements, obstructed justice, or
committed other crimes during the investigations of the 1993 dismissal of employees
from the White House Travel Office
• Foster was Deputy White House Counsel when the firings occurred
• Foster met with Hamilton (an attorney at Swindler & Berlin) to seek legal
representation concerning possible congressional or other investigations of the firings
• During the 2-hour meeting Hamilton took 3 pages of notes with the word Privileged at
the top; 9 days later Foster committed suicide
• A federal grand jury, at the request of the Independent Counsel, issued subpoenas to
petitioners Hamilton and Swindler & Berlin for Hamilton’s notes during his meeting
with Foster
• Petitioners filed motion to quash arguing it was protected by ACP and work product
• DC agreed it was protected and CA reversed because the client was already dead
Issue - Should the attorney-client privilege survive the death of the client?
Holding Held: where the exoneration of an innocent criminal D or a compelling law enforcement
interest is at stake, the harm of precluding critical evidence that is unavailable by any
other means outweighs the potential disincentive to forthright communication. The cost of
silence warrants a narrow exception to the rule that ACP survives death of the client

There are various policy considerations in favour of this view → (1) knowing that
communications will remain confidential even after death encourages the client to
communicate fully and frankly with counsel
 Ratio Attorney-client privilege survives the client’s death and applies to communications.
Except for in litigation between the declarant’s heirs, the communications are not
admissible as evidence.

Privileges survives the client and it does not apply differently between criminal and civil
trials.
•

• When a client makes certain communications that are protected by the attorney-client
privilege and then subsequent to making the statements dies, the privilege survives the
death of the client and, except for in litigation between the declarant’s heirs, the
communications are not admissible as evidence.

Exceptions to the A-C Privilege

• The Crime-Fraud Exception
• The “Dangerous-Client” exception
• Testamentary exception
• Issues arising from disputes between the attorney and the client [I.e. legal malpractice].
• Who has the burden of proving exceptions to the privilege?
• Unique issues involving joint clients

There are two elements to the crime-fraud exception:

(1) The client was engaged in criminal or fraudulent conduct when he sought the
advice of counsel, that he was planning such conduct when he sought the advice of
counsel or that he committed a crime or fraud subsequent to receiving the benefit of
counsel’s advice
(2) The assistance sought from the attorney was in furtherance of the criminal or
fraudulent activity or was closely related to it

o The attorney need not have been aware of the client’s criminal or fraudulent
purpose, and it even applies if the attorney took no steps after the communication
to further the crime or fraud

▪ Applicable in situations in which the attorney unwittingly assists the client

as well as those in which the attorney refuses to take steps to further the
client’s crime or fraud

FRE 502: Waiver of Privilege

The privilege belongs to the client, not the attorney. When an attorney invokes the attorney-client
privilege, it is understood that he is doing so on the client’s behalf. Similarly, an attorney cannot waive
the privilege if the client does not wish to waive the privilege.

(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver.
When the disclosure is made in a federal proceeding or to a federal office or agency and waives the
attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication
or information in a federal or state proceeding only if:

• (1) the waiver is intentional;

• (2) the disclosed and undisclosed communications or information concern the same
subject matter; and
o Subject matter rule:
(3) they ought in fairness to be considered together.
*** IF STATE, THEN GO TO GRAY v. BICKELL SINCE 502 IS ONLY FEDERAL
(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the
disclosure does not operate as a waiver in a federal or state proceeding if:

• (1) the disclosure is inadvertent;

• (2) the holder of the privilege or protection took reasonable steps to prevent
disclosure; and

• (3) the holder promptly took reasonable steps to rectify the error, including (if
applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).
(c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not
the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a
federal proceeding if the disclosure:

• (1) would not be a waiver under this rule if it had been made in a federal
proceeding; or

• (2) is not a waiver under the law of the state where the disclosure occurred.
(d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not
waived by disclosure connected with the litigation pending before the court — in which event the
disclosure is also not a waiver in any other federal or state proceeding.
(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal
proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
(f) Controlling Effect of this Rule. Notwithstanding Rules 101 and 1101, this rule applies to state
proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the
circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law
provides the rule of decision.
(g) Definitions. In this rule:
• (1) “attorney-client privilege” means the protection that applicable law provides for
confidential attorney-client communications; and
• (2) “work-product protection” means the protection that applicable law provides for
tangible material (or its intangible equivalent) prepared in anticipation of litigation
or for trial.
Gary v. Bicknell
Facts - G and B entered into a series of contracts in connection with the formation of a
restaurant joint venture. After the venture failed, G commenced diversity action against B
 for payment on 2 promissory notes, breach of K and breach of fiduciary duty. B
counterclaimed for breach of K and contribution on joint obligations.
- Bicknell gave Gray two letters written to Bicknell by his attorney addressing a wide rang
of matters (absent the disclosure, would have been subject to AC). Gray argued that lost it
for all documents
- District court: waived his attorney client privilege only with the respect of those two
letters
• G appeals from jury verdict (district court found that the disclosure of the letters was
inadvertent, and the A-C privilege continued to protect other docs), arguing that B
waived his A-C privilege by inadvertently disclosing 2 letters written to him by his
attorney
Issue Did he waive privilege? Did the district court abuse its discretion?
Holding Held: District court did not abuse its discretion in refusing to grant a new trial

Courts have generally followed one of three approaches for waiver of ACP:
(1) Lenient Approach:
The ACP must be knowingly waived. Critics argue that the test creates little incentive
for lawyers to maintain tight control over privilege material.

(2) Strict Test:

The courts will grant no greater protection to those who assert the privilege than their
own precautions warrant. Under the strict test, any document produced, either
intentionally or otherwise, loses its privileged status with the possible exception of
situations where all precautions were taken. Critics attack its lack of flexibility and its
significant intrusion on the attorney-client relationship.
o Problems with the strict test → lack of flexibility; significant
intrusion on the A-C privilege; sacrifices the value of protecting client
confidences for the sake of certainty of results; would likely impede the
ability of attorneys to fill this need by chilling communications between
attorneys and clients

(3)Middle Test (hydraflow)

Courts undertake a five-step analysis of the unintentionally disclosed document to
determine the proper range of privilege to extend, including:
1. The reasonableness of the precautions taken to prevent inadvertent
disclosure in view of the extent of document production

2. The number of inadvertent disclosures

3. The extent of the disclosures

4. The promptness of measures taken to rectify the disclosure

5. Whether the overriding interest of justice would be served by relieving

the party of its error

Application to this case:

- Missouri courts would adopt the middle test
 Appropriate balance between protecting A-C privilege and allowing, in certain situations,
the unintended release of privileged documents to waive the privilege

The middle of the road approach to waiver of privilege requires the court to assess the following
considerations: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view
of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the
disclosures; (4) the promptness of the measures taken to rectify the disclosures; (5) whether the overriding
interests of justice would be served by relieving the party of its error.
If after determining these factors the waiver occurred, then the documents are no longer privileged.

• Lenient Approach: privilege must be knowingly waived

• Strict Approach: any document produced, either intentionally or otherwise, loses its
privileged status with the possible exception of situations where all precautions were
taken (In re Sealed Case [Monica Lewinsky]).

2. Spousal Privileges

Two recognized types of spousal privileges: (1) the spousal testimonial privilege and (2) the marital
communications privilege (After Trammel Case)
• Take into account the fundamental principle that the public has a right to every man’s
evidence
• AC privilege only has communication aspect
• Doesn’t apply if crime done jointly (Bonnie and Clyde)

FEDERAL LAW Evidence Criminal Trial Civil Trial

Married at time Bloody shirt Admissible if wife chooses Admissible
of trial and • Witness (wife holds • No testimonial privilege.
events privilege – can choose • Testimonial priv does not
if she wants to testify – apply in civil cases
Trammel)) UNLESS – tethered to a
criminal case
“I killed Vance” Not admissible Not Admissible
• Communication • Communication privilege
privilege applies (both applies in civil (both
spouses hold the spouses hold the privilege)
privilege)
 • US v. Singleton
Divorced at trial Bloody shirt Admissible Admissible
and married at • No testimonial • no testimonial privilege in
events privilege since not civil trails and couple is not
spouses (already married at timeof tiral
divorced)
“I killed Vance” Not Admissible Not Admissible
• There is • There is communication
communication privilege because it survives
privilege because it the marriage
survives the marriage
Not married at Bloody shirt Admissble if wife chooses Admissible
time of events, • Witness wife holds the • Testimonial privileges do
married at trial testimonial privilege not apply in civil trials.
Therefore, would get in
UNLESS can argue its
tethered
“I killed Vance” Admissible Admissible
• No communication • Statements made before
privilege since they marriage and therefore not
were not married at the privileged
time of the statements -
however, if she
chooses not to testify,
she cannot be
compelled to do so
(husband does not old
privilege because it
was made outside the
marriage)

MICHIGAN LAW Evidence Criminal Trial Civil Trial

Married at time of Bloody shirt Under 600.2162(2) – They both hold the privilege
trial and events Testifying spouse hold the (neither can testify without
privilege (up to the witness) the other’s permission) – this
is the OPPOSITE from the
federal rules
“I killed Vance” 600.2162(7) – testifying Both hold privilege
spouse holds privilege
Divorced at trial and Bloody shirt No testimonial privilege No testimonial privilege
married at events “I killed Vance” 600.2162(7) – There is There is communication
communication privilege privilege because it survives
because it survives the the marriage
marriage (cannot testify as to
the statement)
Not married @ time Bloody shirt Testimonial privilege Testimonial privileges do not
of events, married at (witness – spouse) – will only apply in civil trials.
trial come in if wife wants to Therefore, would get in
testify UNLESS can argue its
tethered
 “I killed Vance” No communication privilege No communication privilege
since they were not married at since they were not married
the time of the statements – at the time of the statements –
however, if she chooses not to however, if she chooses not
testify, she cannot be to testify, she cannot be
compelled to do so compelled to do so

A. The Testimonial Privilege

Ability for the spouse to get on the stand and testify
• Looks forward with reference to the particular marriage at hand: meant to protect againt
the impact of the testimony of the marriage
• Should the witness-spouse asser it, applies to all testimony against a Defendant spouse
including testimony on non-confidential matters and matters that occurred prior to
marriage
• Can be asserted after the marriage is terminated
• Must be married at the time of trial
• Only in criminal, privilege doesn’t exist in civil proceedings unless its tethered to a
criminal proceeding (US v. Sriam)

Trammel v. United States

Facts • Mr. Trammel was indicted with Freeman and Roberts for importing heroin and
for conspiracy to import heroin; the indictment also names his wife, Mrs.
Trammel
• According to the indictment, petitioner and his wife flew from the Philippines
to California carrying heroin with them
• Freeman and Roberts assisted them in its distribution
• Mrs. Trammel traveled to Thailand where she purchased another supply of the
drug; she boarded a plane for the US with 4 ounces of heroin; the heroin was
discovered during a search and she was arrested; she agreed to cooperate with
the govt to get more lenient treatment
• Petitioner advised the court that the govt intended to call his wife as an adverse
witness and asserted his claim to a privilege to prevent her from testifying
against him
• At a hearing on the motion, Mrs. Trammel was called as a govt witness under a
grant of use immunity, she explained her role and her husband’s role in the
heroin distribution conspiracy
• After hearing the testimony, the DC rules that Mrs. Trammel could testify to
any act she observed during the marriage and any communication made in
presence of a third person; at trial she testified within these limits and her
testimony constituted the entire case against the petitioner; he was found guilty
on both the substantive and conspiracy charges
• In CA petitioner’s claim of error was that admission of the adverse testimony of his
wife, over his objection, constituted a reversible error; CA rejected this contention;
Issue Whether an accused may invoke the privilege against adverse spousal testimony so as to
exclude the voluntary testimony of his wife
Holding Existing Hawkins rule should be modified so that the witness-spouse alone has privilege
to refuse to testify adversely; the witness may neither be compelled to testify nor
 foreclosed from testifying to evidence that does not consist of confidential marital
communications
• Trammel makes clear that the witness spouse alone is the holder of
the adverse spousal testimony privilege (prior to decision, trammel
could prevent it)
• Establishes the testimonial and the martial privilege

Marital Communication Privilege

US v. Singleton
Facts Singleton argues that District Court erred refusing to allow marital communications
privilege. Singleton and Cedric, separated, had a conversation in January 1998 that the
FBI set up. They then became divorced in May 1998.
Ratio Martial communications privilege is not available when the parties are permanently
separated; that is, living separately with no reasonable expectation of reconciliation.
Factors to consider in determining whether there was a permanent separation at the time of
communication:
1. Was the couple cohabiting?
2. If they were not cohabiting, how long had they been living apart?
3. Had either spouse filed for divorce?
Burden of proof on the party attempting to prove marital communications
privilege – must show by preponderance of evidence that they were not
permanently separated at the time.

US v. Siriam
Facts • Govt filed civil action seeking injunctive relief and damages based on assertion
that Dr. Sriram submitted numerous false and fraudulent claims for
reimbursement of Medicare services
• Before the injunction hearing, government wanted to question Ms. Sriram
relating to the case against her husband;
• Ms. Sriram wanted to assert the spousal testimonial privilege but the govt claimed that
the testimony it was seeking from her would not be adverse to her husband
Issue Can spousal testimonial privilege be invoked in a civil proceeding?
Holding • Held: in this case determining if the testimony is adverse depends on whether
the testimony might be used adversely by the govt in the pending criminal
proceeding; the court will determine admissibility on a question by question
basis
• The spousal testimony privilege allows the testifying spouse to assert a
privilege against providing adverse testimony against the other spouse
• Spousal testimonial privilege would not apply to adverse testimony given by a
spouse in a civil proceeding
• However, this case is connected to the pending criminal prosecution and the
govt has not represented that her testimony, if adverse to her husband, will not
be used in the criminal proceeding
Ratio There is no spousal testimonial privilege in a civil proceeding. The only exception to this
rule is if the civil proceeding is tethered to a criminal proceeding.

The spousal testimonial privilege allows the testifying spouse to assert a privilege against
 ADVERSE testimony against the other spouse.

US v. Etkin
Facts • Following a grand jury indictment for extortion in violation of the Hobbs Act,
Etkin was arrested by FBI agents;
• A printed email exchange between him and his wife was one of the items
seized from his vehicle upon arrest
• The government provided this email to D's counsel in discovery
• D counsel notified govt that use of the email was protected by the marital
privilege
• Govt refused to return the email and expressed intent to use it at trial
• Govt argues that the mail did not constitute confidential communication b/c D
sent the email from his work computer which is monitored by the NY State
Police
• A notice is on the computer which the user must acknowledge by clicking OK
before proceeding to use the computer
• D argues the email exchange was confidential because D did not intend to
waive any marital communications privilege by using his work computer
• D argues the govt failed to provide evidence that the NYSP actually monitored
D’s email
• D accuses govt of attempting to employ an after the fact justification for its
intrusion into privileged material
• D also claims to have never read the computer notices
Issue Is email communication protected by the communication privilege?
Holding • Held: email communication by D and his wife is not subject to the marital
communications privilege because it was not a confidential communication
Employees do not have a reasonable expectation of privacy in the contents of
their work computers when their employers communicate to them via flash
screen warning a policy under which the employer may monitor or inspect
computers at any time
• Court finds it is irrelevant that the govt did not establish that the NYSP actually
read D’s email because D had knowledge of the fact that his email could be
read by a third party by virtue of the log on notices
• Court finds that the log on notices sufficiently notified him of the risk of a third
party reading the emails;
Ratio Employees do not have a reasonable expectation of privacy in the contents of their work
computers when their employers communicate to them via flash screen warning a policy
under which the employer may monitor or inspect computers at any time.

Where marital communications are made in the presence of a 3rd party, such
communications are usually regarded as not privileged because they are not made in
confidence.

Psychotherapist Privilege
Jaffee v. Redmond
Facts • After a traumatic incident a police officer received extensive counselling from
a licensed clinical social worker. At issue is whether the statements the officer
made to her therapist during the counseling sessions are protected from
compelled disclosure in a federal civil action brought by the family of the
deceased.
Issue Whether a privilege protecting confidential communications between a psychotherapist
and her patient outweighs the need for probative evidence
Holding • This court found that effective psychotherapy depends on an atmosphere of
confidence and trust in which the patient can make honest and complete
disclosure
• Court agreed with Advisory Committee that a psychotherapist-patient privilege
will serve a public good transcending the normally predominant principle of
utilizing all rational means for ascertaining truth
• Confidential communication between a licensed psychotherapist and her
patients in the course of diagnosis or treatment are protected from compelled
disclosure under Rule 501
• Court also agrees that this privilege should be extended to social workers
because today social workers provide a significant amount of mental health
treatment
• The court rejected the balancing test used by the CoA which balances the
evidentiary need for disclosure of contents of a patient’s counseling sessions
and the patient’s privacy interests
Ratio (1) The federal courts should recognize a psychotherapist privilege.
(2) The privilege should extend to confidential communications made by licensed social
workers in the course of psychotherapy.
(3) The conversation between the Respondent and his therapist, and the notes taken during
the counselling sessions, are protected from compelled disclosure under F.R.E. Rule 501.

Empirical Support for the Psychotherapist-Patient Privilege

▪ The Shumand and Weiner Studies
o Patients were confusing privilege with confidentiality (testimonial privilege)
▪ The Evans-Marsh Study
▪ The Taube and Elwork Study
▪ Other Empirical Studies

Exceptions to the Psychotherapist-Patient Privilege

In federal courts, exceptions are the Patient-Litigation and the Dangerous Patient exceptions.
- Federal:
o Patient-Litigant → Sets the doctor free from any privileges so that he cannot be
sued by his patients for negligence or malpractice.
o Dangerous Patient →Tarasoff duty to warn: Duty to warn third persons
(authorities or potential victim) if the patient indicates an intent to harm during his
communications with his psychotherapist.
▪ Must have a reasonable belief
 ▪ Duty to break confidentiality
- States:
o child custody and child protection hearings.
▪ Subject to waiver.

Fifth Amendment
• No person shall. . . Be compelled in any criminal case to be a witness against himself. –
can plead the 5th if they believe that it will lead to a criminal case; applies only where
danger of criminal liability exists; if statute of limitations period expires then 5th
amendment cannot be used
• Scope of privilege (Not civil)
• If it’s a personal privilege and cannot be used by anyone else and cannot be used by an
attorney to not incriminates them selves
• Griffin v. California
o Forbids any comment by the prosecution on the accused silences or instructions by the
court that silence can be an indication of guilt
o failure to testify as unfavourable is not acceptable

Griffon v. California
Facts • Petitioner was convicted of First-Degree Murder. He chose to invoke his Fifth
Amendment Privilege against self-incrimination and remained silent
throughout the trial. At the closing of trial, the court instructed the jury that it
may infer that the defendant’s silence was a probable indication of guilt. The
death penalty was imposed, and it was upheld by the California Supreme
Court. Under a writ of certiorari, the United States’ Supreme Court decided to
take the case at hand.
Issue Whether a jury instruction on the accused’s silence is reversible error.
Ratio The fifth Amendment, as incorporated against the states in the Fourteenth Amendment,
forbids comment on the accused’s silence as evidence of guilt → no comment can be
made during jury instructions regarding the accused’s silence

Clergy Communication Privilege

Re Grand Jury Investigation (3rd Cir. 1990)

Facts • Fire occurred in an all-white neighborhood at a house that was purchased by a
black family. The neighbors who lived next door sought counselling from their
Reverend. Government subpoenaed the Pastor to testify about his counselling
sessions.
Ratio Court defined the contours of the privilege:
1. Communication made to a clergyperson;
2. In his or her spiritual capacity, and;
3. Made with a reasonable expectation of confidentiality
 Court also held that presence of other persons would not void the privilege so long as
the presence of third persons was essential to and in furtherance of the
communication.
Notes:
• Focus is on the capacity in which the communication was made, to wit, whether it was
made to the other member of the clergy in his capacity as a spiritual advisor as opposed
to his role as a friend or supervisor

Parent-Child Privilege

Re Grand Jury Investigation (3rd Cir. 1997)

Facts • Three appeals dealing with the same issue
• 1st: Father subpoenaed as a witness for an investigation that was going on against the
son
o Father argued that they had a great relationship and if he was forced to testify
against his son it would ruin that.
• 2 : 16yr daughter was subpoenaed to testify in an investigation against her father
nd

regarding a kidnapping.
• DC over ruled the privilege claims
Issue • Should the court recognize a parent-child testimonial privilege? No fed nor state court
has recongized such a privilege and we decline to do so
Ratio Held: No fed nor state court has recognized such a privilege and we decline to do so
• : it is necessary i order to advance important public policy interest such as the
protection of strong and trusting relationships
• An exception is only recognized when it would promote a public good transcending
the normally predominant principle of utilizing all rational means for ascertaining the
truth
• Applying Wigmore’s 4-part test to establish a privilege:
o Communication must originate in a confidence that they will not be disclosed
o This element of confidentiality must be essential to the full and satisfactory
maintenance of the relation between the parties
o The relation must be one which in the opinion of the community ought to be
sedulously fostered
o The injury that would be caused to the relation by the disclosure of the
communication must be greater than the benefit thereby gained for the correct
disposal of litigation
• Parent child privilege fails the Wigmore test on the following factors→
o (1) confidentiality is not essential to a successful parent-child relationship,
o (2) the injury, if any, to the relationship resulting from the non-recognition of
the privilege would be relatively minor, and
o (3) any harm would be outweighed by the benefit to society gains from having
access to relevant evidence

UNRESTRICTED HEARSAY EXCEPTIONS

Steps
1. Identify the statement
2. Identify what its being used for – asserted for the truth of the matter
3. Does it fall into one of the categories (prior,
 4. Are there exceptions to the hearsay – Unrestricted and Restricted?

The hearsay is admissible if they fall within one of the categories

FRE 803 – Exceptions to the Rule Against Hearsay

** Don’t have to determine the unavailability of the declarant – 804 we do

The following are not excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness:
- (1) Present Sense Impression. A statement describing or explaining an event or condition, made
while or immediately after the declarant perceived it.
- (2) Excited Utterance. A statement relating to a startling event or condition, made while the
declarant was under the stress of excitement that it caused.

US v. Mejia-Velez
Facts • Mejia-Velez was convicted after trial for murdering for money
• Jury heard testimony from 2 eyewitnesses who claimed they saw the victim’s
killer and who called 911 shortly after; they were not able to identify the D as
the shooter but the descriptions they gave were consistent with the physical
appearance of the D
• US Attorney was also permitted to introduce audio-taped recordings of the
emergency telephone calls; the recordings were admitted as present sense
impressions pursuant to Rule 803(1) and as excited utterances under Rule
803(2)
Issue •
Ratio FRE803(1) present sense impression:
i) The statement must describe or explain the event perceived
ii) The declarant must have in fact perceived the event described
iii) The description must be substantially contemporaneous with the event in
question

The theory behind this exception is that the immediacy requirement reduces the
opportunity for reflection, and thus minimizes the likelihood of deception or fabrication on
the part of the declarant; it also greatly reduces the likelihood that the declarant will have
inaccurately remember the event in question. There is no rule indicating what time
interval is too long.

FRE803(2) excited utterances:

i) Startling event
ii) Offered statements were made during period of excitement and in reaction
to that event
Circumstances may produce a condition of excitement which temporarily stills the
capacity of reflection and produces utterances free of conscious fabrication.

Miller v. Keating
Facts • Miller was in a car accident. When she was pulled over on the shoulder of the
highway, two witnesses proclaimed that someone stated, “the bastard tried to
 cut in”. They were unable to find this witness who seemed to be declaring that
Keating was responsible.
Ratio Unlike unavailability, which is immaterial to admission to FRE803, the
unidentifiability of the declarant is germane to the admissibility determination. A
party seeking to introduce such a statement carries a burden heavier than where the
declarant is identified to demonstrate the statement’s circumstantial trustworthiness
→ must be able to identify declarant

Unaware if the statement produced by unidentified witness was from personal

knowledge or from real spontaneity.

• Requirements of 803(2): (Wigmore)

o A startling occasion
o A statement relating to the circumstances of the startling occasion
o A declarant who appears to have had opportunity to observer personally
the events
o A statement made before there has been time to reflect and fabricate

Miller v. Crown Amusements, Inc.,

Facts Miller attempted to help a truck driver pulled over on the side of the road. The truck driver
was hit by a car who did not stop. Carper, Miller’s sister, called 911 sometime later.
Another 911 call was placed by an unidentified witness who described the truck driven by
the accused, at issue was whether this 911 phone call by an unidentified witness after
some time after the accident could be admissible.
Ratio FRE803(1) present sense impression when a declarant is an unidentified bystander, a
court should be hesitant to uphold the statement of the declarant as sufficient to
demonstrate that the declarant actually perceived the event. However, direct proof of
perception, or proof that forecloses all speculation is not required.

United States v. Boyce – majority opinion upholds the admission of contents of a 911 call.
Looks at present sense impression and excited utterance exceptions to the hearsay rule, both of
which were invoked by the majority to justify the 911 call.
-Statement was admissible as part of present sense impression and as an excited utterance.
Rationale behind present sense impression is that if the event described and statement describing
it are near to each other in time, this negates the likelihood of deliberate and conscious
misrepresentation.

FRE 803(1) and 803(2): Present Sense Impressions and Excited Utterances
May be offered to prove what the statement asserts regardless whether the Declarant testifies, and regardless
whether or not he could be produced at trial to give testimony.

803(1): Present Sense Impression- A statement describing or explaining an event or condition, made
while or immediately after the declarant perceived it.
- immediacy is the key – declarant describes what he sees as he sees it.
- Declarant describes event or condition.
- Declarant has 1sy hand knowledge.
- Statement made while event or condition is occurring or immediately thereafter, nearly
contemporaneous.
 - Note that it need not be an exciting event.

803(2): Exciting Utterance - A statement relating to a startling event or condition, made while the
declarant was under the stress of excitement that it caused.
- Look for the exclamation point
- excitement is the key to the excited utterance exception – declarant sees a startling event that
rivets his attention and then speaks in reaction.
- There must be a startling event.
- Declarant’s statement must be related to that event.
- Declarant has 1st hand knowledge of event.
- Statement made while under stress of excitement caused by the event.
o Startling event enough to halt reflective faculties

** It is perceiving it – could be a past event

• The most significant differences between FRE803(1) and FRE803(2) is:

- The time lapse allowable between event and statement – only FRE803(1) has a time
limit;
- 803(2) requires a startling event;
- No special mental state is required for 803(1), while 803(2 requires it to be under stress
of excitement;
- The scope of the content, subject matter under 803(1) is limited to explanation of the
event or condition; under 803(2) the statement need only relate to the startling event or
condition
• The lack of another witness who could independently verify observation bares upon the weight owed the
evidence but not the admissibility.

(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-
existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such
as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the
fact remembered or believed unless it relates to the validity or terms of the declarant’s will.
- The potentially unlimited reach of this exception is cabined by 2 provisions:
o (1) the exception covers a statement by a declarant referring to physical pain or
feelings that the person is experiencing when making the statement [i.e. my ankle
hurts or I feel sad] but NOT ‘my ankle hurt last week’ → has to be “then existing”
o (2) the clause excluding from its coverage ‘a statement of memory or belief to
prove the fact remembered or believed’ [i.e. my ankle hurts because Stas hit me –
the first part is admissible, but the second part is NOT]
o (3) unless it relates to the validity or terms of the declarant’s will → Woman
intends to remover her shitty husband from her will. She exclaims this intent. This
statement is admissible in a will contest even though it is a statement of memory
offered to prove the truth of the fact remembered. (Policy consideration is the
basis for this exception)

Mutual Life Insurance. Co. of NY v. Hamilton

Facts • Hillmon brought action against the D on a policy of insurance on the life of her
husband that was to be paid to her within 60 days after notice and proof of his
death
 • She also brought actions against 2 other life insurance companies for similar
policies
• D alleges that in a scheme to defraud the life insurance companies, Mr.
Hillmon procured the issue of all the policies and then falsely pretended and
represented that Hillmon was dead and that a dead body which they had
procured was his whereas in reality he was alive and in hiding
• At trial, P introduced evidence tending to show that Hillmon traveled with
Brown thru southern Kansas in search of a site for a cattle ranch; while
camping in Crooked Creek, Hillmon was killed by an accidental discharge of a
gun; he was taken to a neighbouring town and his body was buried;
• D’s introduced evidence tending to show that the body found in the camp at
Crooked Creek was not the body of Hillmon but was the body of Frederick
Adolph Walters; there was also evidence that Walters was last seen in Wichita
(where Hillmon and Brown were before they reached Crooked Creek)
• The letters introduced showed that Walters went away and intended to go with
Hillmon
Issue • Whether the testimony of third parties regarding letters received from Mr.
Walters should be admitted?
Holding • The 2 letters were competent evidence of the intention of Walters at th time of
writing them, which was a material fact bearing upon the question in
controversy; new trial must be set to include this evidence
A man’s state of mind or feeling can only be manifested to others by countenance, attitude
or gesture, or by sounds or words, spoken or written – when the intention to be proved is
important only as qualifying an act, its connection with that act must be shown, in order to
warrant the admission of declarations of the intention – but whenever the intention is of
itself a distinct and material fact in a chain of circumstances, it may be proved by
contemporaneous oral or written declarations of the party.

Application to this case:

• the letters were competent as evidence that Mr. Walters had the intention of
going with Hillmon and made it more probable both that he did go and that he
went with Hillmon than if there had been no proof of such intention
• the letters were competent evidence of the intention of Walters at the time of
writing them, which was a material fact bearing upon the question in
controversy
• for the exclusion of the letters, the verdicts be set aside
• new trial ordered
Ratio Wherever the bodily or mental feelings of an individual are material to be proved the usual
expressions of such feelings are original and competent evidence; those expressions are
the natural reflexes of what it might be impossible to show by other testimony

Out of court statement of the declarant’s state of mind are admissible to prove the
subsequent conduct of others – the letters were used to explain his then-existing state of
mind which his intentions were
Notes:
• State of mind exception to the hearsay rule owes its existence to the Hillmon case
 o The ultimate contested factual issue in all of the trials was the identity of the man
who died of a gunshot wound in March of 1879 at Crooked Creek, Kansas
• Not just showing Walter’s intent – but also used to prove a third parties’ action

Shepard v. United States

Facts • Shepard convicted of murder of his wife at a military reservation
• There is circumstantial evidence to sustain a finding by the jury that to win
himself his freedom from his wife to marry a woman he was having an affair
with he turned to poison and murder
• D says the acceptance of incompetent evidence worked to prejudice him
• Government offered evidence of a conversation with his wife and her nurse;
she told the nurse to bring a bottle of whisky from the other room and said this
is what she drank before collapsing; she asked whether enough was left to
make a test for the presence of poison, insisting the taste and smell were
strange; she also said “Dr. Shepard has poisoned me”
• Her accusation was accepted as evidence of guilt but if the evidence was
incompetent the verdict may not stand
• D introduced evidence of witnesses claiming that his wife was suicidal; so, the
government introduced the evidence of her accusation as a rebuttal
Issue • Can past statements be admitted as evidence of intent?
Holding Held: her statement spoke to a past act by someone not the speaker and should not be
included
Ratio Statements to past acts not allowed but only statements of intention going forward
are trustworthy

United States v. Houlihan

Facts • Boyden was found dead near Spice Street, he had been shot in the back of the
head
• At trial the government moved in limine for an Order permitting it to offer,
thru percipient witnesses, hearsay statements made by Boyden
• On the evening before he was found, Boyden was hanging out in his sister’s
apartment; as he was leaving, he allegedly told his sister he was going out to
meet Billy Herd (co-D in this case)
• Government sought to admit the statement of Boyden to his sister that he
intended to meet Herd as relevant circumstantial evidence that it was Herd who
killed him later that evening
• The government argued this statement is admissible b/c it constitutes a
statement of a then existing mental or emotional condition under Rule 803(3)
• The court admitted the statement and his sister was allowed to testify
Issue • Are Boyden’s statements indicative of a then-existing state of mind thereby
admissible under 803(3)?
Holding • Held: Boyden’s statement is admissible against Herd under 803(3)

Although the statement that he was going to meet Herd would clearly be admissible, if
relevant, as a statement of Boyden’s OWN intention, it is unclear whether it can be
admitted against others as evidence that the meeting ACTUALLY took place.
 FRE 803(3) states that a declarant’s out of court statement of intent is admissible at trial as
an exception to the rule against hearsay – the text of the rule is silent as to whether such
statements are admissible against third parties
- the language of FRE 803(3) clearly says that statements of intent are
admissible – because it DOES NOT BY ITS TERMS limit the class of
persons against whom such statements of intent may be admitted

Application to this case:

- Boyden’s statement that he was going out to meet Herd is admissible
against Herd under FRE 803(3)
Although true that the statement is only circumstantial evidence that he actually met Herd,
the statement will be allowed to function as part of the larger array of evidence before the
jury
Ratio Statements can be admissible against third parties – function as part of larger array of
evidence
Notes & Questions
• Differences between 803(3) then existing state of mind and 803(4) medical diagnosis:
o 803(4) covers such statements only made for the purpose of obtaining medical
diagnosis and treatment
o 803(3) covers such statements without regard to the purpose for which the
statements were made

o 803(4) covers statements that reference present or past pain, suffering, or medical
conditions; including what caused the pain

o 803(3) covers only statements referencing present pain, suffering or medical

conditions; cannot reference what caused the pain

o 803(3) is useful to a criminal defendant to introduce his own prior statements to

show good faith, duress, or other states of mind relevant to his defense, or to
introduce statements of a victim or another person not party to the action whose
state of mind is somehow relevant in the case

(4) Statement Made for Medical Diagnosis or Treatment. A statement that:

- (A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and
- (B) describes medical history; past or present symptoms or sensations; their inception; or their
general cause.
- Rationale is that you’re not going to lie when you’re going to the doctor

United States v. Renville

Facts • Renville convicted by a jury of 2 counts of sexual abuse of his 11-year-old
stepdaughter
• Renville contends that the DC erred in permitting a physician to testify to
statements of the victim during an examination identifying Renville as her
abuser under 803(4)
 • D argues that the hearsay exception 803(4) does not encompass statements of
fault or identity made to medical personnel
Issue • Issue: whether the out-of-court statement of the declarant was reasonably
pertinent to diagnosis or treatment
Holding Two-part test for admissibility of hearsay statements under FRE 803(4):
- (1) The declarant’s motive in making the statement must be consistent with
the purposes of promoting treatment
- (2) The content of the statement must be such as is reasonably relied on by
a physician in treatment or diagnosis

Prior courts have recognized that a declarant’s statements relating to the identity of the
individual allegedly responsible for his injuries or condition would seldom, if ever, be
reasonably pertinent to treatment or diagnosis – Advisory Committee Notes = statements
of fault ordinarily are not admissible under the rule
- Statements of fault generally meet neither criterion for admission set
forth in the case of Iron Shell – statements of identity seldom are made to
promote effective treatment; the patient has no sincere desire to frankly
account for fault because it is generally irrelevant to an anticipated
course of treatment

HOWEVER:
- Statements by a child abuse victim to a physician during an
examination that the abuser is a member of the victim’s immediate
household ARE reasonably pertinent to treatment
- Reasons:
o (1) Child abuse involves more than physical injury; the physician
must be attentive to treating the emotional and psychological
injuries,
o (2) Physicians have an obligation, imposed by state law, to prevent
an abused child from being returned to an environment in which he
or she cannot be adequately protected from recurrent abuse.
Information that the abuser is a member of the household is
therefore “reasonably pertinent” to a course of treatment, which
includes removing the child from the home.

Application to this case:

- Circumstances are present in this case
Nothing in the record indicates that the child’s motive in making these statements was
other than a patient responding to a physician questioning for prospective treatment
Ratio Identity of a child rapist is relevant to medical treatment if the person is part of the
victim’s immediate family. This decision was made because the victim is a child and is
not likely to apply to an adult

State v. Lawrence
Facts • DM told her mother that her uncle (D) had sexually abused her on several
occasions; they told Detective Carter who allowed Dr. Coffman to examine
 her; the parents also took her to get examined by Dr. Barnes, her pediatrician;
both doctors relayed their results to Detective Carter
• D asserts that the doctors should not have been allowed to detail what DM told
them because none of the requirements for an exception to the hearsay rule
were met
• Rule 803(4) excludes statements made solely for purpose of diagnosis
• Detective Carter testified that she referred DM to Dr. Coffman for an
examination as part of her usual procedure because in case there is trauma
from penetration
• Prosecutor acknowledged during in camera proceedings that the primary
purpose for the referral was to determine if sexual abuse had occurred along
with treating the child if necessary
• Evidence establishes that although Dr. Coffman testified that an accurate and
detailed history was generally necessary to treat victims of sexual abuse this
was not the primary purpose of her examination in this case
Issue Were statements offered to each physician properly admitted?
Holding • Held: DM’s statements to Dr. Barnes regarding the assaults by Mr. Lawrence
were made for purposes of medical treatment and were thus properly admitted
under hearsay exception 803(4)
• Dr. Coffman’s testimony regarding DM’s account was erroneously admitted at
trial b/c her statements were not necessary for medical treatment or for a
diagnosis in connection with treatment but instead used to investigate if sexual
abuse occurred
• The evidence regarding Dr. Barnes’ examination was properly admitted; Dr.
Barnes was contacted specifically to treat DM related to the sexual assault that
occurred and to test her for venereal diseases;
o As a result of Dr. Barnes interview and examination she referred DM to
a therapist – therefore DM’s statements to Dr. Barnes regarding the
assaults were made for the purposes of medical treatment and were
properly admitted
Ratio It was held that under FRE 803(4), the extent to which a physician’s hearsay testimony is
admissible under this exception must be determined by the PURPOSE of the examination
at issue
NOTES:
- this rule rests on the assumption that the patient has a strong motivation to be truthful,
because effective treatment depends on accurate information
- re: a child who is being sexually abused by someone residing in their house, statements
by the child to a physician identifying the perpetrator are admissible ONLY IF the
physician makes clear the importance of the information to diagnosis and treatment
- the statement doesn’t have to be made to a physician to fall under the Rule – i.e.
statements to ambulance drivers, hospital attendants, etc.
- Scope of 803(3) is substantially narrowed by the proviso excluding: ‘a statement of
memory or belief to prove the fact remembered or believed’ allowing only for the
admission of statements relating to the declarant’s then-existing physical, mental, or
emotional condition NOT the reasons for that condition
(5) Recorded Recollection. A record that:
- (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully
and accurately;
- (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
- (C) accurately reflects the witness’s knowledge.
o If admitted, the record may be read into evidence but may be received as an exhibit only
if offered by an adverse party.

United States v. Hernandez

Facts • Jury convicted D on one count of possession of a firearm by a prohibited
person
• D attended his nephew’s bday at his sister’s home; D asked his sister’s bf
Crofts for the keys to his car to have a smoke; Crofts later noticed his garage
door opener was missing; the next day when he returned to his own home, he
noticed that all the firearms had been stolen from his bedroom closet including
on that his father gave to him
• 1 month later, D asked Kirk and Tracy Allen to store a gun for him at their
home; Tracy mentioned this to D’s sister who demanded the serial number of
the gun; Tracy refused and told Jacqueline Grant the serial number instead;
when D’s sister called several days later for the serial number D already took
the gun; so Tracy asked Grant for the serial number and told D’s sister the
serial number
• About 5 months after the initial incident, a friend of the D dropped of a black
duffel bag at D’s sister’s home with the missing gun and some of D’s personal
possessions; D’s former live in girlfriend Fanning was able to ID the duffel bag
and the personal possessions within them as belonging to D;
• D’s sister turned the bag to her bf who then turned them in to the federal
authorities
• D was indicted in the DC for 1 count of possession of a firearm by a prohibited
person
• On appeal, D argues that the DC erred when pursuant to the recorded
recollection exception to the hearsay rule, it admitted hearsay testimony
linking D to the gun that he was convicted of possessing
• D argues the record containing the serial number of the gun does not satisfy the
requirements of the recorded recollection exception to hearsay b/c they were
not made by a single witness or adopted by a single witness
• The serial number was important b/c it shows that D possessed the gun
Issue Can the serial number be entered into evidence?
Holding - Held: recorded recollection compiled thru the efforts of more than one witness is
admissible under 803(5).

FRE 803(5) is the exception to the hearsay rule for recorded recollections:
- Recollections recorded through the efforts of more than one person under
the rule possess such circumstantial guarantees of trustworthiness – such
recollections have sufficient indicia of accuracy to be admitted in evidence
when the parties who jointly constructed the record to testify that, on the
 one hand, the facts contained in the record were observed and reported
accurately, and on the other hand, that the report was accurately transcribed
- A recorded recollection compiled through the efforts of more than one
witness is admissible under the rule where each participant in the
chain testifies at trial as to the accuracy of his or her piece of the chain
→ recorded recollection (hearsay within hearsay) is admissible under
803(5) where each participant in the chain testifies at trial as to the
accuracy of his price of the chain.
o Multiple party recollections are sufficiently accurate for admission
purposes when the parties who jointly constructed the record testify
that, on the one hand, the facts contained in the record were
observed and recorded accurately, and on the other hand, that the
report was accurately transcribed.
Ratio Recorded recollections complied through the efforts of more than one witness is
admissible where each participant testifies at trial to the accuracy of his or her piece
in the chain

Notes & Questions

• Differences between recorded recollection refreshing and reviving a witness’
memory so that she can testify from present memory:
o FRE803(5) recorded collection: only those writings that meet certain
foundational requirements can be offered; vs. anything can be used to refresh a
witness’ memory
o FRE803(5) recorded recollection: the writing must be read into evidence,
because it is the contents of the writing, and not the witness’ memory, that is
being offered into evidence; vs. someone being refreshed cannot read from the
writing while testifying, and is not evidence
▪ The rationale behind admitting into evidence under 803(5) is to prevent
the trier of fact from being overly impressed by the writing
▪ Unlike every other exception set forth in Rule 803, the exception for
recorded recollections applies only if a showing is first made that
better evidence – namely the author testifying based on present
memory – is not available
• Differences between FRE803(1) and FRE803(5):
o FRE803(1): must have been made while perceiving immediately thereafter;
FRE803(5): need only have been made when fresh in the declarant’s mind (can
be days or months later)
o FRE803(1): declarant need not be called as a witness;
FRE803(5): declarant must be called to the stand
o FRE803(1): writing can be admitted even if the declarant has full memory of
incident;
FRE803(5): can be admitted only if the declarant testifies to a loss of memory
concerning the incident
 o FRE803(1): a writing offered can be received into evidence as an exhibit;
FRE803(5): a writing can only be read into evidence

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis
if:
- (A) the record was made at or near the time by — or from information transmitted by — someone
with knowledge;
- (B) the record was kept in the course of a regularly conducted activity of a business, organization,
occupation, or calling, whether or not for profit;
- (C) making the record was a regular practice of that activity;
- (D) all these conditions are shown by the testimony of the custodian or another qualified witness,
or by a certification that complies with Rule 902(11) or (12) or with a statute permitting
certification; and
- (E) neither the opponent does not show that the source of information nor or the method or
circumstances of preparation indicate a lack of trustworthiness.
Notes:
- In the court of conducting their affairs, businesses are constantly generating memo reports, and
other documents that relate to those affairs. When a document consists of first-hand observations
of the person who generated the document, it is, like any other document, hearsay. The problem
becomes more complex when documents re the end result of a web of communications amongst
employees in an organization
- Absent some exception to the hearsay rule for such documents, the hearsay rule would
require that, instead of admitting the document into evidence, the proponent of the evidence
call as witnesses all of the employees who have first-hand knowledge of the matters
described in the document
- FRE803(6) business records exception justifies the exception partially based on the grounds of
necessity – describing as “burdensome and crippling” a rule that would require producing every
person who participated in the gathering, transmitting, and recording of the information contained
in such documents
- It does not encompass records of a purely personal nature, such as personal diaries
or financial records
- The exception applies only to a record that is made at or near the time of the events
that are the subject of the record, and only if it is the regular practice of the business to
generate such records
- A party who opposes the admission of evidence under 803(6), has the burden of
invoking the trustworthiness proviso and persuading the court that the record is not
trustworthy

United States v. Vigneau

Facts • V and another, Crandall, acquired marijuana and steroids in the Southwest and
resold them in the North-eastern US. Crandall got the marijuana and steroids
from suppliers in Texas and Mexico and sent the drugs to V in Rhode Island
and southeastern Massachusetts. Some of the proceeds from the sales had to be
sent to Crandall in Texas to pay the suppliers – V sent funds to C primarily
through Western Union money orders.
• Jury convicted V - He appeals, challenging conviction but not sentence.
• V claims that district court erred in allowing the gov’t to introduce Western
Union “To Send Money” forms. The original forms are usually discarded after
 6 months but the info provided by the sender are recorded in a computer
database. Employees at Western Union filled out portions of the forms
• Gov’t only had the computer records for some of the transfers. V’s name,
address and telephone number appeared on the documents.
• V argues that his name, address and telephone number on the “To Send
Money” forms were inadmissible hearsay used to identify Patrick Vigneau as
the sender.
Issue - Should the forms have been admitted for their truth?
Holding The district judge was correct that the “To Send Money” firms literally comply with the
business records exception because each form is a business record, and in this case, the
computer records appeared to be a trustworthy account of what was recorded on the
original “To Send Money” firms.

Despite the language, the business records exception does not embrace statements
contained within a business record that were made by one who is NOT a part of the
business if the embraced statements were offered for their truth

Application to this case:

• The forms were relevant to the government’s case regardless of whether V
was the person who made the transfer → they showed the transfers of
money from Rhode Island directed to Crandall and others that tended to
support the general description of the drug and money laundering activities
described by the government’s witnesses
• The sender name, address and telephone number on the forms should NOT
have been admitted for their truth

Requires a person within the organization to have firsthand knowledge → there was no
one in the organization who actually had firsthand knowledge about what this person’s
name was – if they asked for ID, it would have been different, but the employee just took
the name as given – ALWAYS LOOKING AT THE LIABILITY FOR THE FOUNDATION
HERE
Ratio Addressing the issue of “outsider information” contained within a business record
Notes: FRE803(6) business records exception does not embrace statements within a business record that
were made by one who is not a part of the business if the embraced statements are offered for their truth

No safeguards of regularity or business checks automatically assure the truth of a statement to the
business by a stranger to it, such as that made by the bystander to the police officer or that money sender
who gave the form containing his name, address, and telephone number to Western Union. Excluding this
outsider information, where offered for its truth, unless some other hearsay exception applies to the
outsider’s own statement.

Ebenhoeh v. Koppers
Facts • E, as chief chemical operator at Solutia, Inc., slipped and fell about 15 feet off
the side of a tank car and severely injured his left leg.
• E argues that K should be liable under negligence for spilling a hazardous
chemical on a rail car and not cleaning it before it got to Solutia.
• Plaintiff seeks to exclude an unusual incident report created by plaintiff’s
employer after the accident → report says that the cause was the at-risk
 behaviour of working at an elevated location w/o fall protection.
• Court finds that the report is not admissible – Plaintiffs argue that the reports
should be excluded because they were not made in the regular course of
business.
Issue Is the incident report admissible?
Holding • No, the business record exception was not intended to ‘make admissible all
evidence, no matter how incompetent or irrelevant, merely by virtue of the fact
that it appeared in a business record.
• Instead, it was meant to admit into evidence entries of a purely clerical or
routine nature not dependent upon speculation, conjecture or opinion
• Courts have found that the exception applies to business records which are
reliable and trustworthy because the employee was motivated to be accurate
because the business depends on accuracy of the record to conduct its affairs
and created the record in a habitual manner

Application to this case:

• Report is NOT admissible as a record of a regularly conducted business
because:
• (1) it was prepared with the knowledge that the event could lead to
litigation and
(2) was not routinely created [they didn’t normally produce accident reports]
Ratio Illustrates why accident reports are not included in the business records exception to
the hearsay rule
Notes: FRE803(6) business records exception was meant to admit into evidence entries of a purely
clerical or routine nature not dependent upon speculation, conjecture or opinion. Courts have therefore
found that the exception applies to business records which are reliable and trustworthy because the
employee was motivated to be accurate because the business depends on accuracy of the record to
conduct its affairs and created the record in a habitual manner.
- While a party seeking to invoke FRE 803(6) has the burden of establishing that the evidence satisfies the
elements of the exception, it is the party who opposes the admission of evidence under FRE 803(6) who
has the burden of invoking the trustworthiness proviso and persuading the court that the record is not
trustworthy
- The party seeking to invoke FRE 803(6) has to call a witness to establish the elements → standard for
witness = witness need only be familiar with the company’s recordkeeping practices in general, and need
not be in control of or have individual knowledge about the preparation of the particular records being
offered into evidence

The courts consider whether:

1. The business had motivation to skew the record because it was prepared in anticipation of
litigation; and
2. The record was not routinely created but only created because of an unusual incident
- Business Exception documents must be made in the regular course of business

(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a
record described in paragraph (6) if:
o (A) the evidence is admitted proving that the matter did not occur or exist;
o (B) a record was regularly kept for a matter of that kind; and
o (C) neither the opponent does not show that the possible source of the
 information nor other circumstances indicate a lack of trustworthiness.

United States v. Monoz-Framco

Facts •
Issue
Holding
Ratio

(8) Public Records. A record or statement of a public office if:

o (A) it sets out:
• (i) The office’s activities;
▪ Documenting that office’s work, i.e. stating what the agency did
▪ Considered reliable b/c it is assumed that agencies are working pursuant to a
governmental charge
• (ii) A matter observed while under a legal duty to report, but not including, in a
criminal case, a matter observed by law-enforcement personnel; or
▪ Congress was careful to craft the rules to comply with the
confrontation cause
▪ Only in a criminal case!
▪ If an auto accident, it’s civil
▪ Rationale is that officers would have incentive to falsify records; Declarant
must testify and can then use record to refresh memory
• (iii) in a civil case or against the government in a criminal case, factual findings
from a legally authorized investigation; and
▪ Applies to civil cases and criminal cases against the government
▪ Does not authorize the admittance of photos, statements, bodies, etc. that help to
produce the finding
▪ Probative value and persuasiveness will be called into question, however, if the
same witness is not called as the exhibits entered into evidence
▪ Michigan has not adopted this rule
- (B) neither the opponent does not show that the source of information nor or other circumstances
indicate a lack of trustworthiness.

United States v. Oates

Facts • Oates was charged with possession of heroin with intent to distribute and
conspiracy to commit a substantive offense. D wanted to exclude documents
from customs agents doing a chemical analysis on powders they seized. Gov’t
tried to call the chemist that analyzed the powder and determined it was heroin,
but he was sick and could not testify; so they called another chemist to testify
concerning the regular practices and procedures used by Customs Service
chemists in analyzing unknown substances
• Appellant claims that the TC committed error by admitting into evidence at
trial 2 documentary exhibits purporting to be the official report and
accompanying worksheet of the US Customs Service chemist who analyzed
the white powdery substance seized from Oates’ co-D Daniels;
Issue Did the TC err by admitting these official reports?
Holding The Advisory Committee notes show a clear intention to draft the rules in such a way to
eliminate any tension between the hearsay rule and the confrontation clause.
 - CONCLUSION: that the chemist’s report and worksheet could not satisfy
the requirements of the ‘public records and reports’ exception seems
evident merely from examining, on its face, the language of FRE 803(8)
- The factual findings resulting from an investigation made pursuant to
authority granted by law are not shielded from the exclusionary effect of
the hearsay rule by ‘the public records exception’ if the government seeks
to have those ‘factual findings’ admitted against the accused in a criminal
case

Application to this case: the chemists report and worksheet in this case can be
characterized as reports of ‘factual findings resulting from an investigation made pursuant
to authority granted by law’ → the factual finding (conclusion that the substance was
heroin) is obviously the product of an investigation
- CONCLUSION: chemist’s documents might also fail to achieve status as
public records under FRE 803(8)(A)(ii)
- Application to this case: are the chemists ‘law enforcement personnel’? –
this phrase should include, at least, any officer or employee of a
governmental agency which has law enforcement responsibilities
- Congress’ intent → it was clear intention of Congress to make evaluative
and law enforcement reports absolutely inadmissible against defendants in
criminal cases
- Government ignores this and says it falls under ‘business records’ → the
chemist’s documents might appear to be within the literal language of FRE
803(6) although there is clear congressional intent that such documents be
deemed inadmissible against a defendant in a criminal case
Courts have to uphold legislative intent → the only way to construe FRE 803(6) and
the other hearsay exceptions in such a way that police and evaluative reports not
satisfying the standards of FRE 803 may not qualify for admission under FRE 803(6)
or any of the exceptions to the hearsay rule.
Ratio Court examined the interplay between FRE 803(6) and FRE 803(8), along with the
legislative history of FRE 803(8) and held that reports that are inadmissible against
criminal defendants under FRE 803(8) are likewise not admissible under FRE 803(6)
Notes: FRE803(8) public records (A)(ii) and (A)(iii) is not shielded from the exclusionary effect of the
hearsay rule by the public records exception if the government seeks to have those factual findings
admitted against the accused in a criminal case – almost certain collision with confrontation rights which
would result from their use against an accused in a criminal case
• Records prepared by law enforcement personnel (INCLUDING POLICE REPORTS) are
not only not admissible under Federal Rule of Evidence (”FRE”) Rule 803(8)(B), but
they also are not admissible under alternative hearsay exception FRE Rule 803(6)
o MUST BE CRIMINAL

It does not matter that the witness was unavailable, or that the report might technically qualify as a
business record under 803(6) because the legislative intent is so clear that they intended the exclusion to
be absolute.

(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office
in accordance with a legal duty.
 - A record of a birth, death, or marriage,
if reported to a public office in
accordance with a legal duty.
(10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent search
failed to disclose a public record or statement if:
o (A) the testimony or certification is admitted to prove that
▪ (i) the record or statement does not exist; or
▪ (ii) a matter did not occur or exist, if a public office regularly kept a record or
statement for a matter of that kind; and
o (B) in a criminal case, a prosecutor who intends to offer a certification provides written notice
of that intent at least 14 days before trial, and the defendant does not object in writing within
7 days of receiving the notice — unless the court sets a different time for the notice or the
objection.

(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth,
legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of
personal or family history, contained in a regularly kept record of a religious organization.

(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a
certificate:
- (A) made by a person who is authorized by a religious organization or by law to perform the act
certified;
- (B) attesting that the person performed a marriage or similar ceremony or administered a
sacrament; and
- (C) purporting to have been issued at the time of the act or within a reasonable time after it.

(13) Family Records. A statement of fact about personal or family history contained in a family record,
such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or
burial marker.

(14) Records of Documents That Affect an Interest in Property. The record of a document that purports
to establish or affect an interest in property if:
- (A) the record is admitted to prove the content of the original recorded document, along with
its signing and its delivery by each person who purports to have signed it;
- (B) the record is kept in a public office; and
- (C) a statute authorizes recording documents of that kind in that office.
(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document
that purports to establish or affect an interest in property if the matter stated was relevant to the
document’s purpose — unless later dealings with the property are inconsistent with the truth of the
statement or the purport of the document.

(16) Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose
authenticity is established.
(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other
compilations that are generally relied on by the public or by persons in particular occupations.

(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise,

periodical, or pamphlet if:
- (A) the statement is called to the attention of an expert witness on cross-examination or relied
on by the expert on direct examination; and
- (B) the publication is established as a reliable authority by the expert’s admission or
testimony, by another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.

(19) Reputation Concerning Personal or Family History. A reputation among a person’s family by
blood, adoption, or marriage — or among a person’s associates or in the community — concerning the
person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption,
or marriage, or similar facts of personal or family history.

(20) Reputation Concerning Boundaries or General History. A reputation in a community — arising

before the controversy — concerning boundaries of land in the community or customs that affect the land,
or concerning general historical events important to that community, state, or nation.

(21) Reputation Concerning Character. A reputation among a person’s associates or in the community
concerning the person’s character.

(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:

(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea (guilty
plea);
(B) the conviction was for a crime punishable by death or by imprisonment for more than a
year;
(C) the evidence is admitted proving any fact essential to the judgment; and
(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment,
the judgment was against the defendant.
- The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is
admitted proving a matter of personal, family, or general history, or boundaries, if the matter:
- (A) was essential to the judgment; and
- (B) could be proved by evidence of reputation.

- Includes:
o Former testimony
o Dying declarations
o Statements against interest
o Forfeiture by Wrongdoing
 RESTRICTED HEARSAY EXCEPTIONS
• Restricted Hearsay Exceptions can only be invoked if the proponent first makes a showing that the
declarant is “unavailable as a witness”
• Except for 803(5), all of the exceptions to the hearsay rule set forth in Rule 803 are unrestricted,
meaning that the statements falling within the scope of such exceptions bear sufficient indicia of
reliability that they can be admitted without regard as to whether the person who made the statement
is able and willing to testify in court
• Rule 804 → can be invoked only if the proponent first makes a showing that the declarant is
unavailable as a witness

Four Kinds:
o 1. Former testimony
o 2. Dying Declarations
o 3. Statements against interest
o 4. Forfeiture by Wrongdoing

FRE 804 – Hearsay Exceptions; Declarant Unavailable

Based on the assumption that a hearsay statement falling within one of its exceptions possesses qualities
which justify the conclusion that whether the declarant is available or unavailable is not a relevant factor
in determining admissibility
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if
the declarant:
o (1) is exempted from testifying about the subject matter of the declarant’s statement
because the court rules that a privilege applies; → Williams
o (2) refuses to testify about the subject matter despite a court order to do so; → Williams
o (3) testifies to not remembering the subject matter; → Carson
o (4) cannot be present or testify at the trial or hearing because of death or a then-existing
infirmity, physical illness, or mental illness; or → McGuire
o (5) is absent from the trial or hearing and the statement’s proponent [supporter] has not
been able, by process or other reasonable means, to procure [obtain]: → Kehm
▪ (A) the declarant’s attendance, in the case of a hearsay exception under Rule
804(b)(1) or (6); or
▪ (B) the declarant’s attendance or testimony, in the case of a hearsay exception
under Rule 804(b)(2), (3), or (4)
o But this subdivision (a) does not apply if the statement’s proponent procured or
wrongfully caused the declarant’s unavailability as a witness in order to prevent the
declarant from attending or testifying.
- (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is
unavailable as a witness:
o (1) Former Testimony. Testimony that:
▪ (A) was given as a witness at a trial, hearing, or lawful deposition, whether given
during the current proceeding or a different one; and
▪ (B) is now offered against a party who had — or, in a civil case, whose
predecessor in interest had — an opportunity and similar motive to develop it by
direct, cross-, or redirect examination.
o (2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a
civil case, a statement that the declarant, while believing the declarant’s death to be
imminent, made about its cause or circumstances.
o (3) Statement Against Interest. A statement that:
▪ (A) a reasonable person in the declarant’s position would have made only if the
 person believed it to be true because, when made, it was so contrary to the
declarant’s proprietary or pecuniary interest or had so great a tendency to
invalidate the declarant’s claim against someone else or to expose the declarant
to civil or criminal liability; and
▪ (B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to expose the
declarant to criminal liability.
o (4) Statement of Personal or Family History. A statement about:
▪ (A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce,
relationship by blood, adoption, or marriage, or similar facts of personal or
family history, even though the declarant had no way of acquiring personal
knowledge about that fact; or
▪ (B) another person concerning any of these facts, as well as death, if the declarant
was related to the person by blood, adoption, or marriage or was so intimately
associated with the person’s family that the declarant’s information is likely to be
accurate.
o (5) [Other Exceptions] [Transferred to Rule 807.]
o (6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s
Unavailability. A statement offered against a party that wrongfully caused — or
acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so
intending that result.

2. Unavailability – FRE 804(a)

FRE 804(a) can be invoked only if the proponent first makes a showing that the declarant ins unavailable
as a witness. Testimony given on the stand in person is preferred over hearsay, and hearsay, if of the
specific quality, is preferred over complete loss of the evidence of the declarant.

Unavailability:
United States v. Williams
Facts • Convicted of conspiring to violate the narcotics laws
• 4 D’s pleaded guilty and was serving sentence when trial took place.
• Each D said they would plead the 5th if asked to testify
• Gov’t sought permission from the district court to use the prisoners’ guilty plea
allocutions as statements against interest pursuant to FRE 804(b)(3) – district
court accepted the prosecutor’s representations as reliable and admitted the
allocutions
Issue - Were defendants deemed ‘unavailable’ by pleading the 5th?
Holding Subdivisions (a)(1) and (a)(2) of FRE 804 must be distinguished.
- (a)(2) identifies as “unavailable” a witness who persists in refusing to
testify despite an order of the court to do so. This obviously contemplates
presence of the witness in court → this requires the declarant to be in court
and refuse
- (a)(1), on the other hand, identifies as “unavailable” a witness who is
exempted by a court ruling on the ground of privilege. Such a ruling can be
made with or without the witness being hauled into court.

Application to this case:

 the prosecution and the Judge acted reasonably and in good faith and the finding of
unavailability based on his ruling concerning testimonial privilege has ample support in
the record
Ratio Pleading the 5th is a “privilege” for 804(a)(1) purposes.
Notes: A judge has discretion to declare a witness as unavailable whether a witness appears or not. You
don’t have to drag a defendant to court to plead the 5th. All of the privileges make a person unavailable to
testify.
• Distinguishes between (a)(1) and (a)(2) – Pleading 5th under (a)(1)

United States v. Carson

Facts - C was convicted of assault resulting in serious bodily injury after a stabbing incident at
Lorton Reformatory, where C was an inmate.
- At trial, victim said he couldn’t remember any details of the incident, even though he
was permitted to refresh his memory by looking at the transcript of his grand jury
testimony.
• Trial judge declared victim unavailable as a witness and allowed his grand jury
testimony to be read to the jury.
Issue - Whether the alleged inability to remember what happened rendered him an unavailable
witness under FRE 804
Holding District court did not err in declaring Edwards an unavailable witness
Ratio In this case, whether the claim is true or false, whether it is based on a physical condition
or on fear, FRE 804(a)(3) requires no more than that the witness testify to a lack of
memory in order to be found unavailable.

All the witness has to do is take the stand and say: I don’t remember
Notes: Where the claim is true or false, whether it is based on physical condition or free, FRE804(a)(3)
not remembering requires no more than the witness testify to a lack of memory in order to be found
unavailable.
o Rule 804(a)(3) requires no more than that the witness testify to a lack of memory
in order for a witness to be declared unavailable.

United States v. McGuire

Facts • McGuire and Peterson were part of a group called “Montana Freemen” which
was hostile to the US government – group’s activities were described as
‘unusually large and complex criminal scheme’ involving hundreds of people
and millions in losses.
• McGuire participated in this by using Freemen financial instruments to
purchase various goods and services – 22 fraudulent checks were made out to
him. McGuire also convicted of robbery for taking sound equipment from
ABC news television crew.
• First trial resulted in hung jury – before re-trial, a doctor for ABC wrote to the
court that the victim wouldn’t be able to travel to Montana for the trial and
can’t testify by video because she’s pregnant.
• Over McGuire’s objections, the district court allowed the victim’s videotaped
testimony from the first trial to be admitted
• Jury convicted McGuire of band fraud, robbery, and 4 firearms violations –
sentenced to 180 months
Issue Did the district court err in considering the witness ‘unavailable’?
 Holding No, the DC did not err.
FRE prohibit the admission of hearsay statements except under certain specified
circumstances:
- FRE 804(b)(1) = ‘former testimony’ - does not apply unless the witness is
‘unavailable’ under FRE 804(a)

Under this rule, a witness is unavailable if she cannot be present or testify at the trial or
hearing because of death or a then-existing infirmity, physical illness, or mental illness –
courts have considered factors such as the nature of the infirmity, the expected time
of recovery, the reliability of the evidence concerning the infirmity and other special
circumstances

Application to this case:

- not inappropriate for the district court to have credited the doctor’s written
opinion that the pregnancy made her unable to undergo the stresses of
testimony
nothing wrong with relying on a physician’s statement when assessing availability
Ratio You can rely on physician’s opinion on whether someone is unavailable to testify
Notes: In determining whether a witness is unavailable per FRE804(a)(4) death or illness, courts have
considered factors such as the nature of the infirmity, the expected time of recovery, the reliability of the
evidence concerning the infirmity, and other special circumstances.

United States v. Kehm

Facts • Markowski organized a smuggling ring to import drugs from South America
via the Bahamas – 41 participants were indicted in Indiana – Kehm and
Greenberg were convicted
• Nigel Bowe, a citizen and attorney in the Bahamas may have been part of the
scheme – he stayed in the Bahamas – the prosecutor left Bowe out because it
would have been hard to prosecute Bowe.
• Greenberg wanted Bowe’s testimony – Bowe refused to come to the US
voluntarily and the extradition treaty with the Bahamas is limited to extradition
for trial or punishment.
• District court not satisfied by submissions that Bowe is unavailable – court
insisted that an affidavit of unavailability be obtained – Bowe supplied it
• Greenberg didn’t offer the deposition for use at the trial – Greenberg then
argued that Bowe was available for trial after all, making disposition
inadmissible
• Trial judge allowed disposition into evidence – after trial Greenberg produced
new affidavit
• District court denied Greenberg’s motion for new trial b/c Bowe’s first
affidavit was honest and his second one was not.
Issue
Holding FRE 804(a)(5) states that a person is unavailable if they are absent from the hearing and
the proponent of the person’s statement has been unable to procure his attendance by
process or other reasonable means.

Application to this case:

- prosecutor didn’t try to issue compulsory process to Bowe
 - prosecutor didn’t try any means to secure Bowe’s attendance at trial
- Greenberg argues that the prosecutor’s inaction precludes a finding of
unavailability

Futility excuses a request → a matter of degree – the constitution and FRE 804 strongly
favour live testimony and it’s always easy to ask politely, even if the answer is no

Application to this case:

- the probability of a favourable response under current law was low
- probability that Bowe would testify at all if hauled into the US was law as
well
- the only treaty in question does not authorize compulsory process to
produce witnesses

Conclusion:
Greenberg was right when he requested permission to take the deposition: Bowe is
unavailable as a witness and the deposition was admissible at trial
Ratio FRE804 does not require pointless gestures. Once Bowe swore that he would neither
appear nor testify voluntarily he was unavailable at witness – his deposition was
admissible.
Notes: FRE804 does not require pointless gestures. Once Bowe swore that he would neither appear nor
testify voluntarily he was unavailable at witness – his deposition was admissible.
• The prosecutor must try within reasonable means to assure one’s attendance at trial.
• The government is not required to give someone immunity to compel testimony.
Reasonableness is all that is required.

United States v. Peterson

Facts Peterson appeals judgment convicting him, as a convicted felon, of possessing a firearm

Officers were patrolling and noticed 3 men – when the men saw the officers, they ducked
behind a car – the police got out and asked them a few questions – they examined a
knapsack that Peterson was holding – found guns and ammunition – Peterson was arrested
and told officers that it wasn’t his bag (it belonged to Anthony Woods) and that he had
given the officer permission to search it

Peterson did not testify [invoked his 5th Amendment rights] but he sought to introduce
testimony he had given to the state grand jury that had indicted him based on the same
conduct – before the state grand jury, he testified that the knapsack didn’t belong to him
and that he had been asked by Woods to hold it ‘for a second’ just as the police arrived
• Trial court ruled that the testimony was not admissible against the government
Issue Did the trial court err in ruling that the testimony was not admissible under FRE
804(b)(1)?
Holding No the TC did not err. In general, someone who invokes the 5th Amendment rights,
leaving other powerless to compel his testimony, is considered to be unavailable to others
for purposes of FRE 804 → however, rule expressly provides that a declarant is not
unavailable as a witness if the statement’s proponent procured or wrongfully caused the
declarant’s unavailability as a witness in order to prevent the declarant from attending or
testifying
 When the defendant invokes his 5th amendment privilege, he has made himself
unavailable to any other party, but he is NOT unavailable to himself → one other
circuit has ruled that a defendant who exercises his privilege not to testify at a second
trial of his case is not entitled to introduce the testimony he gave at the first trial
Ratio A declarant is not unavailable as a witness if the statement’s proponent procured or
wrongfully caused the declarant’s unavailable as a witness in order to prevent the
declarant from attending or testifying. FRE804(a) privilege when the defendant invokes
his 5TH Amendment privilege, he has made himself unavailable to any other party,
but he is not unavailable to himself.
Notes: A declarant is not unavailable as a witness if the statement’s proponent procured or wrongfully
caused the declarant’s unavailable as a witness in order to prevent the declarant from attending or
testifying. FRE804(a) privilege when the defendant invokes his 5TH Amendment privilege, he has
made himself unavailable to any other party, but he is not unavailable to himself.

• FRE804(a)(2) refuses to testify exception is only applicable if the witness appeared

in court, has been ordered by the court to testify and yet nonetheless refuses to testify

• FRE804(a)(5) reasonable means to procure requires that he obtain the witness’

deposition before resorting to the hearsay exceptions for dying declarations,
statements against interest, statements of personal or family history; though not
former testimony or forfeiture by wrongdoing

• Judge determines unavailability under Rule 104(a)

FRE 804(b) – The Exceptions

Former Testimony – FRE 804(b)(1)

Testimony that:
(A) Was given as a witness at a trial, hearing, or lawful deposition, whether given during the current
proceeding or a different one; and
(B) Is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an
opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Sal and Sam are opposing parties at trial. Stas gives a testimony during a deposition in which Sam is
present and has opportunity to cross-examine. Sam does not cross-examine. At trial, Sal has the right to
enter the deposition answers from Stas assuming he is unavailable [under 804(a)]

Three critical questions arise under this rule:

- 1. When does a party have an ‘opportunity’ to develop testimony?
- 2. When does a party have a ‘similar motive’ to do so?
- 3. What is the scope of the phrase ‘predecessor in interest’?

United States v. DiNapoli

Facts • Conspiracy and substantive charges under RICO for participating in a bid-
rigging scheme in the concrete construction industry [mafia related] – 2
members of one of the companies who had been given immunity testified
saying they didn’t know anything – during trial, defendants wanted to call the
two members but they invoked the privilege against self-incrimination –
 defendants then offered testimony of the two members – district court refused
to admit as prior testimony under FRE 804(b)(1)
Issue Whether the prosecution had a ‘similar motive to develop’ the testimony of two grand jury
witnesses compared to its motive at a subsequent criminal trial at which the witnesses
were unavailable
Holding 1. How similarity of motive at two proceedings will be determined for the
purposes of the rule → do not accept that the test of similar motive is simply
whether at the two proceedings the questioner takes the same side of the same
issue → the test must turn not only on whether the questioner is on the
same side of the same issue at both proceedings, but also on whether the
questioner had a substantially similar interest in asserting that side of the
issue → this suggests that the questioner must not only be on the same side
of the same issue at both proceedings but must also have a substantially
similar degree of interest in prevailing on that issue

Re: grand jury context → because of the low burden of proof at the grand jury stage, even
the prosecutor’s status as an ‘opponent’ of the testimony does not necessarily create a
motive to challenge the testimony that is similar to the motive at trial → At a preliminary
stage, the prosecutor is not trying to prove any side of any issue, but only to develop the
facts to determine if an indictment is warranted.
- Point is simply that the inquiry as to similar motive must be fact specific,
and the grand jury context will sometimes, but not invariably, present
circumstances that demonstrate the prosecutor’s lack of a similar motive.

PROPER APPROACH → in assessing similarity of motive under FRE 804(b)(1)

must consider whether the party resisting the offered testimony at a pending
proceeding had at a prior proceeding an interest of substantially similar intensity to
prove [or disprove] the same side of a substantially similar issue. The nature of the
two proceedings – both what is at stake and the applicable burden of proof – and to a
lesser extent, the cross-examination at the prior proceeding – both what was
undertaken and what was available but forgone – will be relevant though not
conclusive on the ultimate issue of similarity of motive.

Application to this case:

- Dissimilarity of motive is beyond dispute
Ratio
Notes: THIS RULE DOES NOT APPLY TO GRAND JURY TESTIMONY. In order to meet the test of a
similar motive to develop requirement, the test must turn not only on whether the questioner is on the
same side of the same issue at both proceedings but also on whether the questioner had a substantially
similar interest in asserting that side of the issue.
- The proper approach therefore, in assessing similarity of motive under Rule 804(b)(1) must consider
whether the party resisting the offered testimony at a pending proceeding had at a prior proceeding an
interest of substantially similar intensity to prove is at stake and the applicable burden of proof—and to, a
lesser extent, the cross-examination at the prior proceeding—both what was undertaken and what was
available but forgone—will be relevant though not conclusive on the ultimate issue of motive.

Lloyd v. American Export Lines, Inc.,

Facts Violent altercation between Alvarez and a fellow crew member, Lloyd – Lloyd failed to
show up to court several times and his complaint was dismissed by the court – court found
 that Export was negligent and that contributed to Alvarez’s injuries – A’s theory was that
Export negligently failed to use reasonable precautions to safeguard him from Lloyd after
Export had knowledge of Lloyd’s dangerous propensities.

Also, a hearing with the Coast Guard to determine whether P’s merchant marine rights
should be revoked.

• Jury wasn’t permitted to hear any other version of the fight other than that of A
which is the major thrust of Exports appeal
Issue Did Alvarez or a predecessor in interest have the opportunity and similar motive to
develop the testimony by direct, cross or re-direct examination as required by FRE
801(b)(1)?
Holding - Regardless of whether there was an individual [Alvarez] or public [Coast
Guard] interest, the nucleus of operative facts was the same – the conduct of
Llyod and Alvarez on the ship
- Although the results sought in the two proceedings different, the basic interest
advanced by both was that of determining culpability and exacting a penalty
for the same condemned behaviour thought to have occurred
There can be such a community of individual and public interest → this meets the
rules “predecessor in interest” requirement and because both the Coast Guard and
Alvarez had a ‘similar motive’ to develop the plaintiff’s prior testimony.
Ratio Although no definition of “predecessor in interest” in FRE 804(b)(1) former
testimony was provided by Congress, the concept of sufficient community of interest
shared by the Coast Guard and Alvarez satisfied the rule.
Note: Under Federal Rule of Evidence 804(b)(1), when a “sufficient community of interest” exists
between a prior litigant and a party against whom prior testimony is offered, the prior litigant is a
“predecessor in interest,” as that term is used in the Rule. Realistically, this rule combines the motive
portion of the rule and the part about interest, which is problematic.
- Can reason that maybe the interest part was there but the Coast Guard hearing had a different motive for
developing the testimony than the subsequent civil action

Dying Declarations – FRE 804(b)(2)

Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a
statement that the declarant, while believing the declarant’s death to be imminent, made about its
cause or circumstances
o Declarant is “unavailable.”
o Homicide or civil case prosecution.
o Statement must directly relate to the cause or circumstances of declarant’s death in order to be
admissible. (Shepard).
o Statement must be made at a time when declarant believes death is imminent. (Angleton—Jail note
not dying declaration).
o Court may look at the facts and circumstances surrounding the out-of-court statement to
determine whether the declarant made the statements in the belief that death was imminent.
o Personal knowledge of the witness as to the declarant’s state is required.
o Rationales
o Religious – Person on verge of death won’t lie because of fear of supernatural punishment for
lying.
o Secular/Psychological – People lose motivation to lie when they are on death-bed.
o Necessity – Unavailability is prerequisite for invoking the exception, and at least in homicide
cases, the need for evidence is usually great, since homicide is usually a secret crime and
 evidence to prove the crime is often scarce.

Shepard v. United States

Facts • Defendant was convicted of the poisoning murder of his wife. The prosecution alleged
that he was in love with another woman and wanted to marry her, poisoning his wife
to secure his freedom.
• While on her deathbed, the deceased had a conversation with her nurse. She asked the
nurse to obtain a bottle of whiskey from defendant’s closet, explaining that it was the
bottle she had drunk from directly before taking ill, and asking the nurse to perform a
test on it for poison. She went on to say that the defendant had poisoned her.
• The defense objected to the admission of these statements into evidence.
Issue • Whether the statements of the dying woman were admissible under the dying
declaration exception to the hearsay rule? Whether the statements that the dying
woman made to her nurse were admissible to show her state of mind, thus qualifying
as an exception to the hearsay rule?
Holding • No. There was no evidence that the statements were made under the shadow of
impending death, or that the patient had lost all hope of recovery. Indeed, in
statements that she made later to her doctor, she implored him to make her well.
No. These statements looked backward in time and thus did not fall under the Hillmon
doctrine, allowing admission of statements that would show the state of mind or
intention of an unavailable declarant.
To make out a dying declaration the declarant must have spoken without hope of recovery
and in the shadow of impending death.

There must be a ‘settled hopeless expectation’ that death is near at hand, and what is said
must have been spoken in the hush of its impending presence

Application to this case:

- the record furnishes no proof of that indispensable condition
- she said this on May 20 and she died June 15
what the patient said was not spoken in that mode
Ratio FRE804(b)(2) dying declaration to make out a dying declaration the declarant must
have spoken without hope of recovery and in the shadow of impending death. Fear
or even belief that illness will end in death will not avail of itself to make a dying
declaration. There must be a “settled hopeless expectation” that death is near at
hand, and what is said must have been spoken in the hush of its impending presence.
Note: In order for a statement to be admitted as a dying declaration, there must be sufficient proof that the
statement was made in the shadow of impending death and that the declarant had no hope of recovery
whatsoever. Moreover, a statement that looks backward in time may not be admitted as evidence going to
the state of mind of the unavailable declarant. State of mind evidence may only look forward.

United States v. Angleton

Facts • D on trial for commissioning the murder of his wife Doris. D seeks to offer into
evidence 5 handwritten notes that his brother wrote in prison prior to committing
suicide in which he indicated that he, not his brother, was responsible for the murders.
Seeks to have them admitted as per 804(b)(2) which provides exception for believing
the declarant`s death to be imminent, made about its cause or circumstances.
Issue
Holding - The dying declaration exception to the rule against admission is based on the belief
that persons making such statements are unlikely to lie – the sense of impending death
 is presumed to remove all temptation to falsehood and to enforce as strict an
adherence to the truth as would the obligation of oath
- Dying declarations are admissible only in homicide prosecutions and civil cases
- To satisfy the dying declaration exception to the hearsay rule, the statement must
be made at a time when the declarant believes death is (1) imminent – there must
be a settled hopeless expectation that death is near at hand, and what is said must
be spoken in the hush of its impending presence – the state of mind must be
exhibited in the evidence, and not left to conjecture, and (2) only statements
directly relating to the ‘cause or circumstances’ of the declarant’s death are
admissible

Court may look at the facts and circumstances surrounding the out of court statement to
determine whether the declarant made the statements in the belief that death was imminent

Application to this case:

- The reason of why he committed the murder does not speak to the reason for the
suicide – it cannot be admitted as a dying declaration
In another note he says: “in the event of my death” ... → this does not suggest or convey
imminent death
Ratio FRE804(b)(2) dying declaration the dying declaration exception to the rule against
admission is based on the belief that persons making such statements are unlikely to
die.

It has long been recognized as the least reliable forms of hearsay. In addition to the
risk distorted or misunderstood communications that impending death may present,
experience suggests that the desire for revenge or self-exonerating or to protect ones
loved ones may continue until the moment of death.

A court may look at the facts and circumstances surrounding the out-of-court statements to
determine whether the declarant made the statements in the belief that death was
imminent. The length of time elapsing between the making of the declaration and the
death is to be considered.

If a suicide is unwitnessed and the declaration is contained in a writing discovered after

the suicide, no one can testify as to the making of the declaration. It can be difficult to
show when a statement was written or whether it was written in the belief that death was
imminent.
Note: Under Rule 804(b)(2) only statements directly related to the cause and circumstances of the
declarant’s death are admissible. Belief that a condition will end in death is not sufficient to make
something a dying declaration. Courts are looking carefully at the foundational requirements for
admission. In order to be admitted the statements must speak to the cause of the declarant’s death, guilt is
not a cause of death.

Statements Against Interest – FRE 804(b)(3)

(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be
true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so
great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to
civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in
a criminal case as one that tends to expose the declarant to criminal liability.
 - Such statements are viewed as reliable based on a general assumption regarding human nature →
the circumstantial guarantee of reliability for declarations against interest is the assumption that
persons do not make statements which are damaging to themselves unless satisfied for good
reason that they are true
- This rule’s utility is in circumstances in which the declarant is NOT a party to the action or
when a party is trying to get his OWN statement admitted into evidence

Heddings v. Steele
Facts • Steele’s appeal orders denying them primary custody of their grandchildren →
allegations the Steele had an incestuous relationship with his daughter between ages of
8 and 16 – daughter told her friends about it
Issue Whether the TC erred in admitting and basing certain factual findings on hearsay evidence
that appellant John Steele had conducted an incestuous relationship with his daughter
Holding - Whether a statement of a decedent is admissible when it is not against the declarant’s
pecuniary, proprietary, or penal interest, but rather is against the declarant’s social
interest, is a question of first impression in the court
- A declarant’s assertion made against his or her social interests may merit exception to
the hearsay rule, depending, of course, upon the individual circumstances of each case
- The reason for admitting declarations against interests of any type is that people
do not make statements that are disadvantageous to themselves w/o substantial
reason to believe that the statements are true →
o QUESTION IS: Would a reasonable person in the declarant’s position
have made the assertion against interest unless he or she believe it to be
true? If not, there is no logical reason, assuming that it is relevant, to
forbid its use as an exception to the hearsay rule, whether the personal
interest that is imperiled is classified as pecuniary, proprietary, penal or
social
Ratio Note: this court allowed it, but it was overturned by federal court → fed courts don’t look
at social interests like this court did

Williamson v. United States

Facts • Harris was stopped by a sheriff for weaving on the highway and consented to a
search of the car, which revealed 19 kg of cocaine in 2 suitcases in the trunk;
he was arrested
• Harris was interviewed by Special Agent Walton; Harris revealed that he got
the cocaine from an unidentified Cuban in Fort Lauderdale and that the cocaine
belonged to Williamson and it was to be delivered that night to a particular
dumpster;
• Agent Walton took steps to arrange a controlled delivery of the cocaine but as
he was about to leave the room Harris revealed he had lied; the real story was
that he was transporting the cocaine for Williamson and that Williamson was
travelling in front of him in another rental car; since Williamson saw Harris’
car getting checked by the police it would be impossible to do a controlled
delivery
• Harris said he lied about the source of the drugs because he was afraid of
Williamson
• Though Harris freely implicated himself, he did not want his story to be
recorded and he refused to sign a written version of the statement
 • Williamson was convicted of possession with intent to distribute, conspiring to
possess with intent to distribute and traveling interstate to promote the
distribution of cocaine
• When called to testify at Williamson’s trial, Harris refused despite being given
immunity; the court ordered him to testify and held him in contempt; DC ruled
that under 804(b)(3) that Agent Walton could relate what Harris told him
• Williamson appealed his conviction claiming that the admission of Harris’
statements violated 804(b)(3) and the confrontation clause
Issue
Holding - Case was remanded
- The rule is founded on the common-sense notion that reasonable people, even
reasonable people who are not especially honest, tend not to make self-
inculpatory statements unless they believe them to be true
- In the courts view, the most faithful reading of 804(b)(3) is that it does not
allow admission of non-self-inculpatory statements, even if they are made
within a broader narrative that is generally self-inculpatory
A statement against penal interest that exposes the declarant to criminal liability (i.e. one
that’s offered to exculpate the accused by implicating the declarant instead of the
perpetrator) is not admissible unless it is ‘supported by corroborating circumstances that
clearly indicate its trustworthiness
Ratio FRE804(b)(3) statements against interest is founded on the commonsense notion that
reasonable people, even reasonable people who are not especially honest, tend not to
make self-inculpatory statements unless they believe them to be true.

When part of the confession is actually self-exculpatory, the generalization on which

FRE804(b)(3) is founded becomes even less applicable. Mere proximity to other, self-
inculpatory, statements does not increase the plausibility of the self-exculpatory
statements.

The arrest statements of a codefendant have traditionally been viewed with special
suspicion. Due to his strong motivation to implicate the defendant and to exonerate
himself, a codefendant’s statements about what the defendant said or did are less
credible than ordinary hearsay evidence.
Note: The courts have looked at:
• Whether declarant has pled guilty or is still exposed
• Whether the declarant has a motive to lie
• Relationship between the parties
• Nature and strength of any other independent evidence
Wigmore: would admit every fact
McCormick: Only the collateral statements are admissible if they are neutral
O’Connor: Only the statements that should be admissible are statements that are directly against the
interest of the declarant. The rule suggests a very narrow approach to the admissibility of these types of
statements.

Forfeiture by Misconduct – FRE 804(b)(6)

Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability. A
statement offered against a party that wrongfully caused--or acquiesced in wrongfully causing--the
declarant's unavailability as a witness and did so intending that result.
United States v. Cherry
Facts Gov’t charged 5 defendants with involvement in a drug conspiracy – much of the evidence
came from a cooperating witness – witness was murdered before the trial – gov’t moved to
admit out of court statements by the witness, under FRE 804(b)(6) on the grounds that the
defendants wrongfully procured the witness’s availability – gov’t offered evidence that the
witness’s ex-wife told one of the defendants that he was cooperating with the gov’t.

• District court held that one of the defendants procured the absence of the
witness and hence the statements were admissible against him – it ruled that
there was insufficient evidence that the other defendants procured the witness’s
absence – district court therefore refused to find that the remaining defendants
had waived their Confrontation Clause and hearsay objections to the admission
of the statement
Issue How the doctrine of waiver by misconduct and FRE 804(b)(6) apply to defendants who
did not themselves directly procure the unavailability of a witness, but allegedly
participated in a conspiracy, one of the members which murdered the witness
Holding Supreme Court has held that a defendant’s intentional misconduct can constitute waiver of
the Confrontation Clause rights – the FRE codifies this in FRE 804(b)(6).

The court reads the plain language of the rule to permit the admission of those hearsay
statements that would be admissible under the constitutional doctrine of waiver by
misconduct and hold that in the context of criminal proceedings, the Rule permits the
admission of hearsay statements by an unavailable witness against defendants if those
statements are otherwise admissible under the doctrine of waiver by misconduct.

Guided by 2 important principles:

(1) the right to confrontation is a fundamental right essential to a fair trial in a
criminal prosecution and
(2) courts will not suffer a party to profit by his own wrongdoing

Pinkerton case (Conspiratorial Liability): during the existence of a conspiracy, each

member of the conspiracy is legally responsible for the crimes of fellow conspirators; a
conspirator is only responsible for crimes of the conspirators that are committed in
furtherance of the conspiracy; conspirators are responsible for crimes committed within
the scope of the unlawful project and thus reasonably foreseen as necessary or natural
consequence of the unlawful agreement → a co-conspirator may be deemed to have
‘acquiesced in’ the wrongful procurement of a witness’s unavailability for purposes
of FRE 804(b)(6) and the waiver by misconduct doctrine when the government can
satisfy the elements of Pinkerton

RULE:
• A defendant may be deemed to have waived his/her Confrontation Clause
rights (and hearsay objections) if a preponderance of the evidence
establishes one of the following circumstances:
1. He or she participated directly in planning or procuring the declarant’s
unavailability thru wrongdoing OR
 2. The wrongful procurement was in furtherance, within the scope, and
reasonably foreseeable as a necessary or natural consequence of an
ongoing conspiracy

Application to this case:

- district court did not abuse its discretion in holding that the gov’t failed to
show by a preponderance of the evidence that any of the defendants
directly participated in the execution of the murder but remand for
application of the planning and Pinkerton tests

Scope of Conspiracy, Furtherance and Reasonable Foreseeability as a Natural

Consequence:
- participation in an ongoing drug conspiracy MAY constitute waiver of
constitutional confrontation rights if the following additional circumstances
are present: the wronging leading to the availability of the witness was in
furtherance of and within the scope of the drug conspiracy and such
wrongdoing was reasonably foreseeable as a ‘necessary or natural’
consequence of the conspiracy
- Actual knowledge is not required for conspiratorial wavier by misconduct
if the elements of Pinkerton: scope, furtherance, and reasonable
foreseeability as necessary or natural consequences are satisfied

Planning:
District court did not look at whether one of the Ds obtained the car to help the other
Defendant kill the witness; remanded to see if she participated in the planning of Lurks’
murder to permit a finding of waiver by misconduct
Ratio Before permitting the admission of grand jury testimony a judge must hold an
evidentiary hearing in the absence of the jury and find by a preponderance of the
evidence that the defendant’s coercion made the witness unavailable.

FRE804(b)(6) forfeiture by misconduct waiver can be imputed under an agency

theory of responsibility to a defendant who “acquiesced” in the wrongful
procurement of a witness’ unavailability but did not actually engage in a wrongdoing
apart from the conspiracy itself.

Courts will not suffer a party to profit by his own wrongdoing.

Conspirators are responsible for crimes committed “within the scope of the unlawful
project” and thus “reasonably foreseen as a necessary or natural consequence of the
unlawful agreement”

A defendant may be deemed to have waived his or her Confrontation Clause rights if a
preponderance of the evidence establishes one of the following circumstances: (1) he or
she participated directly in planning or procuring the declarant’s unavailability through
wrongdoing; (2) the wrongful procurement was in furtherance and reasonably foreseeable
as a necessary or natural consequence of the conspiracy

Scope of the conspiracy is not necessarily limited to a primary goal but can also
include secondary goals relevant to the evasion of apprehension and prosecution for
 that goal. The burden shifts to the defendant to prove he or she took affirmative
steps to withdraw from the conspiracy before those acts were committed.
Note: Drug conspiracy. Under Pinkerton, the substantive crime must be in the scope and foreseeable in
the context of the conspiracy as a whole. A co-conspirator may be deemed to have “acquiesced in” the
wrongful procurement of a witness’ unavailability for purposes of Rule 804(b)(6) and the waiver of
misconduct doctrine when the government can satisfy the requirements of Pinkerton.
A defendant may be deemed to have waived his or her Confrontation Clause rights if a preponderance of
the evidence established one or the following circumstances:
• He or she participated directly in planning or procuring the declarant’s unavailability through
wrongdoing; or;
• The wrongful procurement was in furtherance, within the scope, and reasonably foreseeable as a
necessary or natural consequence of an ongoing conspiracy. 


In the case of conspiracy, it is not just the person whose actions made the witness unavailable but if it is
part of a conspiracy, the statements can be used against any other participant as long as the action is
FORESEEABLE. Application of a preponderance of the evidence standard to establish that they caused
the witness to be unavailable.

People v. Geraci
Facts • Defendant convicted of first-degree manslaughter and two counts of first
degree assault – witness had originally come forward and accused defendant
but then left the state and refused to give trial testimony consistent with his
earlier story
Issue Whether there was sufficient evidence establishing that the witness had been intimidated
by the defendant to warrant the use of that witness’s Grand Jury testimony as part of the
People’s case
Holding As a general rule, the Grand Jury testimony of an unavailable witness is inadmissible as
evidence-in-chief – an exception to this rule → where it has been shown that the defendant
procured the witness’s unavailability through violence, threats or chicanery – in these
situations, the defendant may not assert either the constitutional right of confrontation or
the evidentiary rules against the admission of hearsay in order to prevent the admission of
the witness’s out of court declarations

RULE → Out of court statements, including Grand Jury testimony, may be admitted as
direct evidence where the witness is unavailable to testify at trial and the proof establishes
that the witness’s unavailability was procured by misconduct on the part of the defendant

Difficult question = what standard of proof?

- The “clear and convincing evidence” standard → the most protective of the
truth-seeking process – it best recognizes the gravity of the interest at stake
and most effectively balances the need to reduce the risk of error against
the practical difficulties in proving witness tampering
A determination that the defendant has procured a witness’s unavailability results in the
admission of hearsay statements and the forfeiture of the right to cross-examine about the
substance of those statements

Justification → public policy of reducing the incentive to tamper with witnesses

 Ratio • Purpose of this case is to demonstrate that there are different standards that can be
applied for proving that the witness’s unavailability was procured by misconduct
on the part of the defendant
RE804(b)(6) forfeiture by misconduct statements may be admitted as direct evidence
where the witness is unavailable to testify at trial and the proof establishes that the
witness’s unavailability was procured by misconduct on the part of the defendant.
The standard of proof required to establish a foundation for the admission of
hearsay evidence under this rule is clear and convincing.

FRE 807 – Residual Exception

Gives parties flexibility - allows in evidence that falls outside the exceptions, if it has a sufficient
“guarantees of trustworthiness” and is the best available way to prove a needed fact.
- (a) In General. Under the following circumstances, a hearsay statement is not excluded by the
rule against hearsay even if the statement is not specifically covered by a hearsay exception in
Rule 803 or 804:
o (1) the statement has equivalent circumstantial guarantees of trustworthiness;
o (2) it is offered as evidence of a material fact;
o (3) it is more probative on the point for which it is offered than any other evidence that
the proponent can obtain through reasonable efforts; and
o (4) admitting it will best serve the purposes of these rules and the interests of justice.
- (b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an
adverse party reasonable notice of the intent to offer the statement and its particulars, including
the declarant’s name and address, so that the party has a fair opportunity to meet it.

TEST FOR FRE 807

- To invoke FRE 807, a party must demonstrate that the proffered evidence is reliable
o Factors to consider:
▪ The probable motivation of the declarant in making the statement;
▪ The circumstances under which it was made; and
▪ The knowledge and qualifications of the declarant; and
• AND
▪ Character of declarant for truthfulness;
▪ Whether testimony was given voluntarily, under oath, subject to cross-, and
penalty for perjury;
▪ The extent to which the witness’ testimony reflects his personal knowledge;
▪ Whether witness ever recanted testimony;
▪ Whether declarant’s statement was insufficiently corroborated.
▪ Other Circuits – Focus on the extent to which evidence poses any of the classic
hearsay risks: insincerity, faulty perception, faulty memory, and faulty narration.

United States v. Laster → 807 is a last resort exception

Facts • Acquisto, a detective for a state drug task force, received a tip from Universal
Testing Incorporated that one of its employees, Laster, had ordered hydriodic
acid, a component of methamphetamine, from Wilson Oil Company using the
UTI company name without its permission
• Acquisto and Agent Tennant approached Laster; he stated that 4 moths ago he
was contacted by an unnamed older man seeking certain chemicals thru UTI;
Laster said he was acting under the assumption that he would be paid for
 securing these chemicals which he believed were to be used to make
methamphetamines;
• In a second statement, Laster admitted to making 3 trips with Lear to Illinois to
pick up the chemical and received $300 per bottle for it; Lear gave a statement
to Acquisto and Tennant corroborating these trips with Laster
• Lear was stopped by the police for driving recklessly with Laster in the
vehicle; the car was searched and chemicals and tools to make meth were
found as well as records from Wilson Oil Company including invoices for
hydroidic acid and sulfuric acid;
• DC held these records were admissible under either the business records
hearsay exception or residual exception;
Issue Did the DC err?
Holding District court did not err in admitting the purchase orders and other related documents
under the residual hearsay exception of FRE 807 as there was no indication that the
records were not reliable
- This rule finds an equally trustworthy statement not specifically covered by a
hearsay exception in FRE 803 or 804 admissible if it is “material”, “more
probative on the point for which it is offered than any other evidence that the
proponent can obtain through reasonable efforts” and its admission best serves the
interests of justice
- The court interprets FRE 807 to mean that if a statement is admissible under one
of the hearsay exceptions, that exception should be relied on instead of the
residual exception
specifically covered = means only that if a statement is admissible under of the 803
exceptions, such subsection should be relied on instead of the residual exception
Ratio Admissible as an exception under FRE807, however, Not admissible under FRE803(6)
business records – no personal knowledge, no familiarity with record-keeping practices;
admissible under FRE807 residual exception.

There was no indication that the records were no reliable, satisfying the
“trustworthiness” component; unobtainable elsewhere; satisfies justice component.
If a statement is admissible under one of the hearsay exceptions, that exceptions
should be relied on instead of the residual exception.

Walk Through
• To be admissible under FRE807 residual exception a party must demonstrate that the proffered
evidence is reliable and necessary, examining factors such as:
o The probable motivation of the declarant in making the statement
o The circumstances under which it was made
o The knowledge and qualifications of the declarant
o Character of the declarant for truthfulness
o Where the testimony was given voluntarily, under oath, subject to cross-examination and
a penalty for perjury
o The extent to which the witness’ testimony reflects his personal knowledge
o Whether the witness ever recanted his testimony
o Whether the declarant’s statement was insufficiently corroborated
 ▪ Other courts consider: (1) insincerity; (2) faulty perception; (3) faulty memory
and (4) faulty narration

Confrontation Clause
What is the Confrontation Clause?
• The important part of the 6th amendment is cross examination of the witness though the ability to see
one’s accuser is also an important part
• Hearsay admissions cannot be cross-examined. They can be impeached a little, but we can’t cross
generally. Therefore, the right to confrontation comes directly in conflict with the admission of the
hearsay.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in
all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against
him to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel
for his defense

The right to confront is understood to provide criminal defendants with a right to cross-examine, before
the trier of fact, witnesses against him

Ohio v. Roberts → OLD RULE, DO NOT USE THIS TEST

Ratio • Rule: When a hearsay declarant is not present for cross examination at trial the
confrontation clause normally requires a showing that he is unavailable; even then,
his statement is admissible only if it bears adequate indicia of reliability;

Crawford v Washington → NEW RULE, OVERRULED OHIO v ROBERTS

Ratio Crawford Test:
1) Is it a testimonial statement?
Statements that were made under circumstances that would lead an objective witness to
believe that the statements would be available to be used at a subsequent criminal trial
2) Can it be admissible under confrontation clause exceptions?
If a statement is testimonial it is not admissible under confrontation clause UNLESS:
1) unavailability of witness AND 2) prior opportunity for cross-examination
Note: Confrontation Clause requires unavailability and a prior opportunity for cross examination when
hearsay statements are testimonial. We apply the Confrontation Clause only to testimonial statements,
leaving the remainder to regulation by hearsay law—this eliminating the over breadth referred to above.
Testimonial statement is a solemn declaration or affirmation for the purpose of establishing or proving
some fact
▪ Various formulations of this core class of “testimonial” statements exists: Custodial
examinations, prior testimony that the defendant was unable to cross examine, affidavits, ex
parte, depositions, confessions, and statements made under circumstances that would lead an
objective witness to believe they would be used in a criminal prosecution (viewed from the
declarant’s perspective)
▪ Testimonial statements of witnesses absent from trial have been admitted only where the
declarant is unavailable, and only where the defendant has had a prior opportunity to cross-
examine.
• NOTE → There has to be BOTH prior cross-examination AND
unavailability
Refining the Doctrine: The Meaning of “Testimonial” and Possible Exceptions to Crawford

Davis v. Washington
Ratio What are “statements”? RULE:
- NON-TESTIMONIAL = statements are non-testimonial when made in
the course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency
- TESTIMONIAL = they are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution

Primary Purpose Test:

- Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to
enable police assistant to meet an ongoing emergency.
- A conversation which begins as an interrogation to determine the need for emergency
assistance can evolve into testimonial statements once that purpose has been achieved.
- Statements are testimonial when the circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose of the interrogation is to establish
or prove past events potentially relevant to later criminal prosecution.

Giles v. California
Ratio Forfeiture Doctrine: permitted the introduction of statements of a witness who was
detained or kept away by the means or procurement of the defendant.

To define the scope of the doctrine the exception applies only when the defendant
engaged in conduct designed to prevent the witness from testifying. The rule
required the witness to have been kept back or detained by means or procurement of
the defendant.

The common law’s uniform exclusion of unconfronted inculpatory testimony by

murder victims in the innumerable cases in which the defendant was on trial for
killing the victim but was not shown to have done so for the purpose of preventing
testimony.

Michigan v. Bryant → Determining ‘on-going’ emergency

Ratio An objective analysis of the circumstances of an encounter and the statements and
actions of the parties to it provides the most accurate assessment of the primary purpose
of the interrogation.

Implicit in resolving an ongoing emergency is the idea that the prospect of

fabrication in statements is presumably significantly diminished.

An assessment of whether an emergency that threatens the police and public is ongoing
cannot narrowly focus on whether the threat solely to the first victim has been neutralized
because the threat to first responders and public may continue.
 The medical condition of the victim is important to the primary purpose inquiry to
the extent that it sheds light on the ability of the victim to have any purpose at all in
responding to police questions and on the likelihood that any purpose formed would
necessarily be a testimonial one.

An emergency does not last only for the time between when the assailant pulls the trigger
and the bullet hits the victim.

The ultimate inquiry is whether the primary purpose of the interrogation was to
enable police assistance to meet the ongoing emergency.

This situation is more similar, though not identical, to the informal, harried 911 call in
Davis than to the structured, station-house interview in Crawford. The situation was fluid
and somewhat confused; they did not conduct a structured interrogation.

Ohio v. Clark
Ratio Applies primary purpose test to statements made by a young child to his teacher →
determined that despite a teacher’s role as a mandated reporter, the primary purpose of
their inquiries were to tend to an ongoing emergency of the child’s abuse and not to obtain
a record

A Fragile Majority and the Future of Crawford : Laboratory Reports

Melendez-Diaz v. Massachusetts
Ratio In the court’s examination of Crawford, it held that the Confrontation Clause
encompassed a core class of testimonial statements, such as affidavits. The court held the
certificates were functionally affidavits and that absent a showing that the analysts were
unavailable to testify at trial and that the petitioner had a prior opportunity to cross-
examine them, the petitioner was entitled to be confronted with the analysts at trial.

The court further held that the 6th Amendment guaranteed the defendant the right to be
confronted with the witnesses against him and that the analysts despite the Respondents’
suggestion had provide testimony against him that proved a fundament element of the
crime – that he possessed cocaine.

The court rejected the premise that the analysts were distinguishable from conventional
witnesses because they were not recalling events but making near-contemporaneous
observations. They noted that the affidavits were created nearly a week after the tests were
performed.
Furthermore, experts are conventional witnesses and forensic evidence is not immune
from errors and manipulation.
The court also rejected the argument that an analyst’s certificate paralleled that of a clerk
of the court’s certification, the clerk simply provides a record while the analyst provides
evidence against a defendant.

Bullcoming v. New Mexico

Ratio Citing Melendez-Diaz, the court noted that a certificate prepared in connection with a
criminal investigation or prosecution is testimonial and therefore within the scope of the
Confrontation Clause.
 Regardless of the comparative reliability of another analyst, it does not overcome the
6th Amendment right. The surrogate testimony gives no insight into the particular test and
testing process the actual analyst employed.

Despite arguments that this will place too much of a burden on the prosecution, a
Constitutional right proceeds cannot be disregarded for convenience. Further, a small
fraction of cases actually to trial and analysts testify at a very small percentage of trials.

Williams v. Illinois
Ratio expert referenced a non-testifying private analyst’s profile of the defendant’s DNA only to
indicate that it matched a state analyst’s profile of DNA found at the crime scene

1) The plurality argued that the Confrontation Clause did not apply because the Cellmark
DNA profile was not a “witness against” Williams, as the term “witness against” is used
in the Confrontation Clause.
- The plurality concluded that the Cellmark DNA profile was so reliable that it
should not be considered “testimonial,” for Confrontation Clause purposes;
- The plurality also concluded that, even if the Cellmark DNA profile was
“testimonial,” it was not offered for a hearsay purpose, and therefore did not
violate Williams’ rights under the Confrontation Clause; forensic reports are not
testimonial; not offered for truth of matter asserted but admissible under 703

2) the four dissenting Justices rejected this, insisting that the Cellmark DNA report had
been offered for a hearsay purpose, and therefore (all other things being equal), the
Confrontation Clause should apply; they argue that forensic reports are testimonial;
just because it is reliable doesn't mean its not testimonial; offered for truth of matter
asserted to match evidence on victim to accused; evidence is hearsay and not
admissible

3) Justice Thomas, alone among the nine Justices, has insisted that statements are
“testimonial” only if they were marked by “solemnity and formality”–such as testimony,
responses to “formal” police interrogation, affidavits, and formal “certifications.” Since
the Cellmark DNA report was none of these, it was not “testimonial”; therefore, using it as
evidence did not violate Williams’ rights under the Confrontation Clause; only thing that
qualifies as testimonial if there is something to show formality

Similarities Between 3 Cases: Melendez-Diaz, Bullcoming, Williams

• Factually similar: Lab analyzed evidence and certified a report to be used in criminal
prosecution
• State used evidence in trial without calling witness, not admissible (Melendez-Diaz);
Bullcoming: called a substitute witness, not admissible; Williams: called another witness,
still not admissible
• No witness from Cellmark so violates

Differences:

• Plurality in Williams: at the time Cellmark had DNA profiles no one was arrested yet; initial
use that was made of Cellmark profile was an attempt to identify perpetrator and not
necessarily to be used at trial;
• Melendez-Diaz: D had already been arrested when evidence was being analyzed;
• M-D and Bullcoming: the tests were done by government agencies, but Williams it was done
by a private agency (cellmark);

EXPERT WITNESS TESTIMONY

1. Is the expert qualified?
2. Is the expert’s testimony reliable? → Daubert evaluation
o Is it based on sound principles? Methodology?
3. Is the expert’s testimony helpful?
o If not helpful, why bring it in?

Syllogistic Structure of Expert Testimony

- Major Premise: A general statement; general theory or technique
- Minor Premise(s): Specific fact(s) of the case
- Example:
o All dogs have teeth (major premise
o Lassie is a dog (minor premise – an observation of one dog)
o Conclusion: Lassie has teeth

FRE 702 Testimony by Expert Witnesses

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

Qualification of Expert Witness

Waldorf v. Shuta
Ratio FRE 702 requires the witness to have ‘specialized knowledge’ regarding the area of
testimony – basis of specialized knowledge can be practical experience as well as
academic training and credentials - specialized knowledge has been applied liberally → it
extends to the substantive as well as the formal qualification of experts → at a minimum, a
proffered expert witness must possess skill or knowledge greater than the average
layman
- Courts stress that ordinarily an otherwise qualified witness is not
disqualified merely because of a lack of academic training
Once the trial court has determined that a witness is competent to testify as an expert,
challenges to the expert’s skill or knowledge go to the weight to be accorded the expert
testimony rather than to its admissibility.
- Expands on the what is meant by “knowledge, skill, experience, etc”
Note: For a court to qualify a witness as an expert, Rule 702 requires the witness to have “specialized
knowledge” regarding the area of testimony. The basis of this specialized knowledge can be practical
experience as well as academic training and credentials. An ordinarily qualified merely because of a lack
of academic training. Not disqualified If a lack academic training
- The practical process for qualifying a witness a voir dire with the judge or a stipulation by the opponent
that the witness is an expert (you will also want to briefly describe the qualifications to the jury).
- FRE 104(a) whether a witness qualifies as an expert is such a determination and it is thus the judge
alone who decides whether the witness is so qualified.
- Judge determines who an expert is → can still ask expert about qualifications and probe on weakness
- Once the trial court has determined that the witness qualifies, the parties remain free to bring up the
expert’s qualifications before the jury as the jury ultimately decides what weight to give to the expert’s
testimony and may be swayed by arguments regarding his qualifications.
The use of the term “expert” in the Rule does not, however, mean that a jury should actually be informed
that a qualified witness is testifying as an expert.

Nature of an Expert

Daubert v. Merrell Dow Pharmaceuticals, Inc.

Facts Daubert (P) and other minors suffered serious birth defects. Daubert claims that these
defects were caused by Bendectin, a prescription drug manufactured by Merrell. Both
Daubert & Merrell presented competing affidavits of medical testimony. The trial court
and appeal court did not accept the D’s evidence, citing Frye, where expert opinion
based on a scientific technique is inadmissible unless the technique is “generally
accepted” as reliable in the relevant scientific community.
Reasoning Frye was decided prior to the introduction of the Federal Rules of Evidence. Under the
rules the trial judge must ensure that any and all scientific testimony or evidence admitted
is not only relevant, but reliable.
The trial judge must determine at the outset, whether the expert is proposing to testify to:
(1) Scientific knowledge
(2) Help the trier of fact to understand or determine a fact in issue

This entails a preliminary assessment of whether the reasoning or methodology

underlying the testimony is scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in issue.
In determining whether a theory or technique is scientific knowledge that will assist the
trier of fact will be whether it can be (and has been) tested. Another pertinent
consideration is whether the theory or technique has been subjected to peer review and
publication. 107

Concerns about overriding the common law rule provided by Frye, makes the respondent
overly pessimistic about the capabilities of the jury and of the adversary system generally.
 Ratio TO ADMIT EXPERT SCIENTIFIC TESTIMONY: must be both relevant and reliable

Faced with expert scientific testimony, the trial judge must determine at the outset under
702, pursuant to Rule 104(a) whether the expert is proposing to testify to (a) scientific
knowledge that (b) will assist the trier of fact to understand or determine a fact in issue
(need a valid scientific connection to the pertinent inquiry as a precondition to
admissibility). This entails a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of whether that reasoning
or methodology properly can be applied to the facts in issue. The court must ask the
following questions:

• Whether a theory or technique of scientific knowledge has been tested; 


• Has technique been subjected to peer review + publication; 

• What is the rate of error; 

• Are there universal standards governing application; 

• General acceptance in the scientific community (from Fry)
•
** Court has gatekeeping role on whether the texpert is qualified and if the evidence itself
is reliable. However, it’s a flexible standard so each doesn’t have to be set out

In order to challenge an expert, there must be a request for a Daubert hearing. AVOID
DAUBERT AT ALL COSTS, A HEARING COSTS ~20,000-$30,000 (most common in
toxic torts, less common in med mal cases).

General Electric Company v. Joiner

Ratio General Electric Company v. Joiner: abuse of discretion standard to review a trial court;
Kumho Tire Co.: extended Daubert to testimony that was not necessarily scientific,
applying to all expert testimony that is not purely scientific

Kumho Tire Co
Issue Does Daubert apply to expert testimony that was not “scientific”?
Ratio Kumho Tire Co. extended Daubert to all expert testimony. In admitting or excluding
expert testimony, the factors identified in Daubert may or may not be pertinent in
assessing reliability, depending on the nature of the issue, the expert’s particular expertise
and the subject of the testimony

Other factors relevant in determining whether expert testimony is sufficiently reliable to

be considered, include:
(1) Experts are testifying matters growing naturally out of research they have
conducted independent of the litigation, or whether they have developed their
opinions expressly for purposes of testifying
(2) Whether the expert has unjustifiably extrapolated
(3) Whether the expert has accounted for an obvious alternate explanation
(4) Whether the expert is being as careful as he would be in his regular
professional work outside his paid litigation consulting
(5) Whether the field of expertise claimed by the expert is known to reach reliable
results for the type of opinion the expert would give
 In diversity cases, it is frivolous to assert that a federal court should not have applied the
federal rules governing expert witnesses, just because the case happened

Weisgram v. Marley
Facts Basic elements of product negligence: duty, breach of duty, causation, inquiry.
• Plaintiffs won a Daubert motion in lower court and jury ruled in their favour
• On appeal, the Circuit court found, despite the abuse of discretion standard, that
plaintiffs’ expert should have been excluded and granted judgment as a matter of law
for the defendant. Court refused to allow plaintiffs a new trial at which they could
introduce new expert testimony.
Ratio Parties should reinforce their expert testimony with additional support in the event
the admission of evidence is later over-ruled → NO DO-OVER; MAKE SURE
YOUR EXPERT IS GOOD.
• Evidence that goes to prove an element, not having an expert for the
element makes you unable to re-call another expert.
A Closer Look at the Helpfulness of Daubert

Under 702, a trial judge may not admit expert scientific testimony unless the profeffered scientific
evidence is both relevant and reliable.
• Reliable: Requires testimony be based on scientific knowledge and be derived from, and
validated by, the scientific method
• Relivance: Must help the trier of fact undertand the vidence or determine a fact in issue. To this
end, it must fit the facts of the case

1.DNA Evidence

United States v. Crisp

Facts C appeals multiple convictions arising from an armed bank robbery – maintains that his
trial was tainted by the govt’s representation of inadmissible expert testimony
Ratio The basic premises underlying fingerprint identification are:
(1) no two persons share the same fingerprint
(2) fingerprint examiners are able to make reliable identifications on the basis
of small, distorted latent fingerprint fragments

- The Daubert decision in adding 4 new factors to the traditional ‘general

acceptance’ standard for expert testimony effectively opened the courts to a
broader range of opinion evidence than was previously admissible
- Touchstone for admissibility under Daubert = reliability and relevancy

RE: fingerprinting admissibility → every circuit to have addressed the issue has
concluded that such evidence is properly admissible

RE: handwriting comparison → long history of admissibility in the courts

- Fact that it has achieved widespread and lasting acceptance in the expert
community gives the court the assurance of reliability that Daubert requires
- Role of this is primary to draw the jury’s attention to similarities between a
known exemplar and a contested sample
 Conclusion → defendant didn’t offer any reason to doubt the reliability of handwriting
analysis evidence in general – therefore decline to deny the courts and juries such insights
as it can offer
Notes: While the principles underlying fingerprint, identification have not attained the status of scientific
law, they nonetheless bear the imprimatur of a strong general acceptance in science and the courts. The
fact that handwriting comparison analysis has achieved widespread and lasting acceptance in the expert
community gives us the assurance of reliability that Daubert requires.
- The touchstones for admissibility under Daubert are: reliability and relevancy.
- Vigorous cross-examination, presentation of contrary evidence, and careful instructions on the burden of
proof are the traditional appropriate means of attacking shaky but admissible evidence.

Eye Witness Reliability

United States v. Lester
Facts • Robbed a convenience store – two eyewitnesses said different things [different
descriptions] – Lester made an oral motion in limine requesting that the Court allow
Dr. Cutler to testify at trial respecting the general reliability of eyewitness
identification – court opposed motion – court ruled that Dr. Cutler’s testimony was not
reliable and denied Lester’s motion
Ratio Under FRE 702 → a trial judge may not admit expert scientific testimony unless the
preferred scientific evidence is both relevant and reliable
- reliability factor → requires that the testimony be based on scientific
knowledge and be deprived from, and validated by, the scientific method
→ judge must decide whether the expert testimony proffered in the case is
sufficiently tied to the facts of the case that it will aid the jury in resolving a
factual dispute
- relevance factor → requirement that the testimony held the trier of fact to
understand the evidence or to determine a fact in issue
- NOTE:
- A judge may exclude reliable scientific evidence if the court
concludes that the risk of confusing the jury is too great →
TEST: in determining whether a particular expert’s testimony is
sufficiently helpful to the trier of fact to warrant admission into
trial, the district court should consider whether the testimony
presented is simply reiterating facts already within the common
knowledge of the jurors – evidence falling within the common
knowledge of jurors can be of no assistance
- Even if the expert testimony is reliable because its not common
knowledge, the testimony can still violate FRE 403 if the expert
cannot adequately explain to the jury in concrete terms the degree
of impact on accuracy that the factor has been demonstrated to
have

IN SUMMARY: Three-Step Approach for Eyewitness Reliability [version of the

Daubert test just for eyewitness]:
(1) the trial court must assess the significance of eyewitness identification
in the prosecution’s case – where the prosecution’s case relies exclusively
on the identification testimony of eyewitnesses, expert evidence could be
quite probative
 (2) the trial court must assess whether the factors about which the expert
intends to testify are both relevant to the identifications in the case
and beyond the common knowledge of the average juror – if the trial
court decides its irrelevant our within the boundary of common
knowledge, it’s excluded under FRE 702
(3) trial court must conduct the FRE 403 balancing test – must be in
concrete and not broad terms; cannot confuse the jury; cannot have the
‘aura effect’
Notes: In determining RELEVANCE (whether a particular expert’s testimony is sufficiently helpful to
the trier of fact to warrant admission into trial), the district court should consider whether the testimony
presented is simply reiterating facts already within the common knowledge of jurors. In deciding whether
proffered scientific evidence will assist the trier of fact, trial courts must be mindful of both the potential
for expert testimony to mislead a jury, and the court’s continuing obligation under Rule 403 to exclude
evidence, the probative value of which substantially outweighed by the danger of confusing the jury.

Reliability
- First, in eyewitness identification cases, the Court should assess each factor about which an expert
intends to testify and determine whether that factor is one about which the average juror would be
aware.
- Second, trial courts should remain cognizant of traditional methods of trial procedure to equip the
jury with information from which it may fairly assess the credibility of eyewitnesses.

Relevance
Three-step approach in considering relevancy as per Daubert:
1. The trial court must assess the significant of eyewitness identification in the
prosecution’s case (i.e where relies heavy on expert, then more probative

2. The trial court must assess whether the factors about which the expert intends to
testify are both relevant to the identification in the case, and beyond the common
knowledge of the juror.

3. The trial court must conduct the Rule 403 balancing test

- Factors that satisfy admissibility requirements: the effect of weapon; impact of stress on reliability of
eyewitness identifications; eyewitness confidence and accuracy of identification.
- Things that are considered relevant: stress, effect of weapon and accuracy of identification

Battered Women Syndrome

United States v. Young
Facts Young was charged with kidnapping Patrick, interstate domestic violence and unlawfully
carrying a firearm – government called Patrick as a witness – she denied her story and
recanted her story about kidnaping and abuse – she testified she still loved Young

Government also called Dr. Burgess – she had intense expertise specializing in crime
victims – Young objected but the court ruled she could testify – doctor stated that victims
of domestic violence commonly recant their accusations and that victims of such abuse
have a limited ability to perceive means of escape
 • Jury convicted on interstate domestic violence and unlawfully carrying a firearm –
Young appeals the district court’s decision to admit the expert testimony of Dr.
Burgess
Ratio From Daubert → the expert witness’ experience in a particular field is often quite relevant
in determining the reliability of her opinion – must also examine its helpfulness

Re: battered women’s syndrome → if there were some explanation for the victim’s
changed statements, such explanation would aid the jury in deciding which statements
were credible

Application to this case:

- there is no dispute that Young beat Patrick during the course of their
relationship
- the evidence of the beatings was overwhelming and Dr. Burgess’ testimony
was highly probative as to why Patrick recanted on the stand in light of her
earlier statements
Notes: Evidence of battered women’s syndrome can be helpful to the jury which may be puzzled as to the
victim’s testimony on the stand. However, it cannot be offered to prove the offence charged. In this case
the court has basically blended the Daubert test and the qualifications of the expert.
Among the factors to consider, the expert witness’ experience in a particular field is often quite relevant
in determining the reliability of her opinion.

Consider if the expert’s testimony is reasonably likely to assist the jury in understanding and assessing
the evidence, in that the matter at issue was highly material, somewhat technical, and beyond the realm of
acquired knowledge normally possessed by lay jurors.

FRE 703 Basis for Expert Witness Testimony

An expert may base an opinion on facts or data in the case that the expert has been made aware of
or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or
data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But
if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to
the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their
prejudicial effect.
• An expert may base her opinion on facts or data “personally observed” by the expert
• An expert may base their opinion facts or data that they have “been made aware of” by
• This is done in three ways:
1. Expert may attend the trial, hear all the testimony and evidence presented, and then
render an opinion based on the evidence presented → this is expensive
2. Attorney can ask the expert to assume the truth of the facts in the case and render an
opinion based on those facts – essentially will present the expert with a hypo [more
generalized]
3. Expert may render an opinion based on facts or data made known to her prior to a trial
→ problem: opinion may be based on evidence which itself is not admissible, either b/c
it’s hearsay, has not been authenticated or for some other reason [gives them info
directly about this case]
 ▪ NOTE → even if the opinion is based on inadmissible evidence, the opinion can
still be submitted to the jury if the probative value substantially outweighs the
prejudicial effect
• The challenge in dealing with the final method is that the expert’s opinion may be based on
evidence which itself is not admissible, either because it is hearsay, has not be authenticated, or
for some other reason

FRE 704- Opinion on the Ultimate Issue

As stated in US v. Sheffer, the common law barred both lay and expert witnesses from testifying ot an
ultimate issue. This is done to prevent usurping the province of the jury
(a) In General — Not Automatically Objectionable. An opinion is not objectionable just
because it embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the
defendant did or did not have a mental state or condition that constitutes an element of the crime
charged or of a defense. Those matters are for the trier of fact alone.

NOTE:
- Common law barred both lay and expert witnesses from testifying to an ‘ultimate issue’ in the
case – common law imposed this rule ‘to prevent the witness from usurping the province of the
jury’ → FRE 704 ABOLISHED THE ULTIMATE ISSUE RULE
- 704(a) provides that testimony is not barred merely because it embraces the ultimate issue
does not mean testimony is necessarily admissible

Woods v. Lecureux
Facts • Billups was murdered when he was returning to his cell after breakfast at the
prison
• The Melanics assassins stabbed Billups
• Appellant contends Billups was murdered as a result of his involvement with
the attack on Barlow (his cellmate at a previous prison that he and others
assaulted)
• Appellants argues that Tessmer (prison official) knew of the dangers facing
Billups (due to his prior assault on Barlow) and due to his deliberate
indifference he failed to inform the proper authorities of these dangers
• Appellant also argues that prison official Jabe also knew of the high risk to
prisoners housed in 6-Block (where Billups was housed) but failed to take
steps to reduce that risk
• DC found that Tessmer’s failure to act on the knowledge of the dispute b/w
Billups and the Melanics can be characterized as negligent but not deliberately
indifferent, wanton or obdurate; the same was held about Jabe
• Appellant asserts that DC abused its discretion when it prohibited her expert
witness, Dr. Mintzes from using the term deliberately indifferent to describe
Tessmer’s and Jabe’s conduct
Reasoning - Held: testimony such as Dr. Mintze’s, which attempts to tell the jury what
result to reach, and which runs the risk of interfering with a DC’s jury
instructions can hardly be viewed as being helpful to the jury
 Under FRE 704 → apparent that testimony offering nothing more than a legal conclusion
– i.e. testimony that does little more than tell the jury what result to reach – is properly
excludable under the Rules – also appropriate to exclude ‘ultimate issue’ testimony on the
ground that it would not be helpful to the trier of fact when ‘the terms used by the
witnesses have a separate, distinct and specialized meaning in the law different from that
present in the vernacular’

NOTE → the Barry case teaches that a district court abuses its discretion when it allows a
witness to define legal terms, especially terms that carry a considerable amount of legal
baggage

US v. Finley
Facts • Finley wanted to open a chain of law bookstores but he could not obtain a
traditional bank loan b/c of his dispute with the IRS over a large tax claim
• A customer told him about Leroy Schweitzer’s investment seminars, and
Finley decided to attend
• Schweitzer explained that he possessed recorded liens against banks and that
he cold draw on these accounts by issuing negotiable instruments
• Schweitzer gave Finley several documents that looked like financial
instruments
• When Finley tried to negotiate the instruments he was told by several banks
that the instruments were fraudulent
• Finley was indicted on charges of bank fraud and making false claims against
the US
• Finley defended on the ground that he lacked the intent to defraud, the requisite
mens rea for the charged crimes and called an expert to testify in support of his
defense
Reasoning - Held: the defense was entitled to present evidence so that the jury could infer
from the expert’s testimony that the D lacked the necessary intent to defraud
but such a conclusion was not necessarily compelled by the diagnosis
- Dr. Wicks testified that Finley has an atypical belief system; he explained that
most people have an open belief system which is subject to change but some
people have closed belief systems; closed belief systems are abnormal b/c they
are fixed and rigid; he further explained that a delusion is another
psychological term for an atypical belief system; he concluded that Finley
suffered from a delusional disorder and that a person w/such a disorder can be
dissuaded from the delusion only with tremendous difficulty
Ratio FRE 704(b) → limits the expert’s testimony by prohibiting him from testifying as to
whether the defendant had the mental state or condition that constitutes an element of the
crime charged → RATIONALE for precluding ultimate opinion testimony applies to any
ultimate mental state of the defendant that is relevant to the legal conclusion sought to be
proven. HOWEVER = FRE 704(b) allows expert testimony on a defendant’s mental
state so long as the expert does not draw the ultimate inference or conclusion for the
jury [i.e. you can tell a jury that someone has a certain belief system but are not telling
them that they actually had the mental state to satisfy the elements of this crime]

Application to this case:

 - jury was still free to conclude that Finley knew the notes were fraudulent,
despite the rigidity of his belief system

US v. Hayward
Facts H was convicted for transportation of a minor with intent to engage in criminal sexual
activity – H claims district court improperly allowed expert testimony of Lanning re:
general profile of an acquaintance molester
Reasoning - Court held that Lanning’s testimony is admissible
o FRE 704(b) → expert testimony is admissible if it merely supports an
inference or conclusion that the defendant did or did not have the requisite
mens rea, so long as the expert does not draw the ultimate inference or
conclusion for the jury and the ultimate inference or conclusion does not
necessarily follow from the testimony

Application to this case:

- testimony was admissible because Lanning never directly opined as to
Hayward’s mental state
- Lanning focused primarily on the modus operandi – on the actions
normally taken by child molesters to find and seduce their victims
- He drew no conclusions to Hayward’s intent
Ratio Can talk about what certain persons would do [i.e. child molesters] so long as you’re not
saying what the particular defendants state of mind was in the case
Note: Testimony is admissible under FRE 704(b) if the expert never directly opined as to the defendant’s
mental state but focused primarily on the modus operandi normally taken by perpetrators.
- Expert testimony is admissible if it merely supports an inference or conclusion that the defendant did or
did not have the requisite mens rea, so long as the expert does not draw the ultimate inference or
conclusion for the jury and the ultimate inference or conclusion does not necessarily flow from the
testimony.

FRE 705 – Disclosure of Facts or Data Underlying an Expert’s Opinion

Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without
first testifying to the underlying facts or data. But the expert may be required to disclose those facts or
data on cross-examination.

FRE 706 – Court Appointed Experts

- (a) Appointment Process. On a party’s motion or on its own, the court may order the parties to show
cause why expert witnesses should not be appointed and may ask the parties to submit nominations.
The court may appoint any expert that the parties agree on and any of its own choosing. But the court
may only appoint someone who consents to act. (trial court has discretion to make an appointment on
 its own motion or at the request of a party, and that the expert so appointed may be one agreed upon
by the parties and/or the judge’s own choosing)
• Expert’s Role. The court must inform the expert of the expert’s duties. The court may do so in
writing and have a copy filed with the clerk or may do so orally at a conference in which the
parties have an opportunity to participate. (parties have the right to be advised of the expert’s
finding, right to take the expert’s deposition, right to call the expert to testify, and the right to
cross-examine)
The expert:
o (1) must advise the parties of any findings the expert makes;
o (2) may be deposed by any party;
o (3) may be called to testify by the court or any party; and
o (4) may be cross-examined by any party, including the party that called the expert.
- (c) Compensation. The expert is entitled to a reasonable compensation, as set by the court. The
compensation is payable as follows:
o (1) in a criminal case or in a civil case involving just compensation under the Fifth
Amendment, from any funds that are provided by law; and
o (2) in any other civil case, by the parties in the proportion and at the time that the court
directs — and the compensation is then charged like other costs.
- (d) Disclosing the Appointment to the Jury. The court may authorize disclosure to the jury that the
court appointed the expert (discretion to disclose to a jury the expert was court appointed)
- (e) Parties’ Choice of Their Own Experts. This rule does not limit a party in calling its own experts.

FRE 615 – Exclusion of Witnesses

- At a party’s request, the court must order witnesses excluded so that they cannot hear the other
witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize
excluding:
o (a) a party who is a natural person,
o (b) an officer or employee of a party which is not a natural person designated as its
representative by its attorney, or
o (c) a person whose presence a party shows to be essential to presenting the party’s claim
or defense, or
o (d) a person authorized by statute to be present

Review:
o FRE 702
- Whether evidence will “assist the trier of fact”
- Based on sufficient facts or data
- Produce of “reliable principles and methods
- Expert applies principles and methods to facts of the case
o Qualification of Expert Witnesses
o Reliability– Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its
progeny
- Bases for Expert Witness Testimony – FRE 703
- Opinion on the Ultimate Issue- FRE 704
- Three key areas of concern
1. Is the expert qualified?
2. Is the expert’s testimony reliable?
3. Is the expert’s testimony helpful?

Introduction to Canadian Evidence

Difference between US and Canada: Why the difference?

In any given state or province, two sets of rules of evidence might apply – the federal rules, or the state /
provincial rules. How to tell when they apply, however, is very different, based on the Constitutions of
each nation. In the US, you’ll know which rules to apply based on which building you’re in; in Canada,
you’ll know by the level of government that enacted the statute containing the cause of action.

As a general rule, the Federal Rules of Evidence apply in Federal courts, and the State’s own rules apply
in the State court regardless of the matter being heard.

By contrast, Canada’s Federal court and the Provincial Courts do not share jurisdiction. Provincial courts
are responsible for the vast majority of cases, while Federal courts deal with a very limited number of
exclusive jurisdiction issues like bankruptcy, immigration, and military. All criminal law, notably, is the
exclusive jurisdiction of the Federal government under section 91(27) of the Constitution Act 1867.
When a criminal case is tried in a Provincial court, the federal rules apply. Likewise, all matters relating
to ‘property and civil rights’ (think torts, contracts, property rights) are the jurisdiction of the Provinces
under section 92(13) of the Constitution Act 1867. Thus, most private law matters will be tried under the
Provincial acts, like the Evidence Act in Ontario.

Sources of Evidence Law

- Common Law → Primarily judge made
- Statutes → federal and provincial rules may apply

Statutes:
Canada Evidence Act, R.S.C., 1985, c. C-5 [applies in federal courts, in criminal cases, in non-criminal
federal prosecutions, in federal administrative proceedings, in bankruptcy matters and in other civil
proceedings over which the federal government has jurisdiction.]
Provincial Evidence Acts [apply to matters within provincial jurisdiction including provincial
prosecutions, provincial administrative proceedings and in. most civil litigation].
■ Ontario Evidence Act, R.S.O. 1990, c. E.23
Other statutes:
■ ○ Statutory Powers Procedures Act, R.S.O. 1990, c. S.22
■ ○ Child and Family Services Act, R.S.O. 1990, c. C.11
■ ○ Courts of Justice Act, R.S.O. 1990, c. C. 43

Canadian Evidence Act

■ CEA s.4(1), (3)
■ 4. (1) Every person charged with an offence, and, except as otherwise provided in this section, the
wife or husband, as the case may be, of the person so charged, is a competent witness for the defence,
whether the person so charged is charged solely or jointly with any other person.
■ (3) No husband is compellable to disclose any communication made to him by his wife during their
marriage, and no wife is compellable to disclose any communication made to her by her husband
during their marriage.

Ontario Evidence Act:

■ OEA s.35
■ (2) Any writing or record made of any act, transaction, occurrence or event is admissible as
evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of
 any business and if it was in the usual and ordinary course of such business to make such writing
or record at the time of such act, transaction, occurrence or event or within a reasonable time
thereafter. R.S.O. 1990, c. E.23, s. 35 (2).

Child Family Services Act:

■ CFSA ss. 50 & 51(7)
■ 50. (1) Despite anything in the Evidence Act, in any proceeding under this Part, (a) the court may
consider the past conduct of a person toward any child if that person is caring for or has access to or
may care for or have access to a child who is the subject of the proceeding; and (b) any oral or written
statement or report that the court considers relevant to the proceeding, including a transcript, exhibit
or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into
evidence. 1999, c. 2, s. 12.
■ Evidence on adjournments
■ (7) For the purpose of this section, the court may admit and act on evidence that the court considers
credible and trustworthy in the circumstances. R.S.O. 1990, c. C.11, s. 51 (7).

Statutory Powers and Procedures:

■ SPPA s.15
■ 15.(1)Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not
given or proven under oath or affirmation or admissible as evidence in a court,(a) any oral testimony;
and (b) any document or other thing,relevant to the subject-matter of the proceeding and may act on
such evidence, but the tribunal may exclude anything unduly repetitious.
■ (2) Nothing is admissible in evidence at a hearing, (a) that would be inadmissible in a court by reason
of any privilege under the law of evidence; or (b) that is inadmissible by the statute under which the
proceeding arises or any other statute.
■ (3) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or
purposes for which any oral testimony, documents or things may be admitted or used in evidence in
any proceeding.

Court of Justice Act

■ CJA s.112(3)
■ (3)An affidavit of the person making the investigation, verifying the report as to facts that are within
the person’s knowledge and setting out the source of the person’s information and belief as to other
facts, with the report attached as an exhibit thereto, shall be served on the parties and filed and on
being filed shall form part of the evidence at the hearing of the proceeding. R.S.O. 1990, c. C. 43, s.
112 (3).

Charter of Rights and Freedoms

■ Both express rights set out in the Charter and the implicit values found in the Charter
■ have an impact on Evidence Law.
■ Particularly concerned with fairness to an accused.
■ s.24 of the Charter gives teeth to protections as it allows a Court to exclude evidence obtained in
violation of the Charter

Principled Approach
■ Ares v. Venner (1970), 12 C.R.N.S. 349 (S.C.C.)
■ R. v. Khan (1990) 2 S.C.R. 531
■ Moving from a mechanical application of fixed categories of rules and exceptions to a contextualized
principled approach.
■ Is this approach better able to achieve justice?
■ What impact does such an approach have on efficiency and predictability?
 Canadian Privileges
Foundational Principles
• Privileged information is relevant, probative and trustworthy, but it is excluded because of
overriding societal interests. Privilege operates “to restrict the search for truth”.
• Historically, societal interests outside of the trial process were favoured over other values,
and so privileged communications were closely guarded.
• The trend today is to accord privilege only where necessary, on a case-by-case basis, in order
to avoid the risk of even “occasional injustice”.
• Privilege (or non-disclosure) has been accorded to many kinds of confidential
communications within special relationships:
o Solicitor-client, Marital, Litigation, Doctor-patient, Spiritual advisor (pastor-
penitent), Settlement, Informer, and National security

Two privileges are recognized in Canada by law →

• 1. Solicitor-client privilege
• 2. Marital Privilege

Class privilege:
o Recognized at common law
o There is a prima facie presumption of inadmissibility once it has been shown that the
relationship fits within the class
o The onus is on the person wanting to lift privilege to satisfy court that
communications should be admitted as exception to rule
o Ex.: Solicitor-client

Case-by-Case:
o Refers to communications for which there is a prima facie assumption that they are
not privileged (therefore admissible)
o Onus on person seeking to protect confidentiality to establish the privilege
o Privilege may be accorded if Wigmore criteria satisfied
Wigmore criteria:
o Communications originate in confidence that they will not be disclosed
o Confidentiality is essential to the full and satisfactory maintenance of the relationship
o Relationship is one which society sedulously fosters
o Injury that would inure to the relationship by the disclosure is greater than the benefit
that could be gained from the correct disposal of the litigation
• Application of criteria in Gruenke itself led to finding that the communications between a
pastor and accused were not privileged
o First Wigmore criteria not met
o Accused had no expectation of confidentiality when she confessed to killing
o SCC agrees with C.A.’s conclusion that communications were made more to relieve
accused’s emotional stress than for religious or spiritual purpose
•
 R v Gruenke, 1991 SCC
Facts G lived with B, an old man, who gave her money to start a clinic. Started making advances
on her and she moved back in with her mom. They got more aggressive and G with bf
plotted to kill him and did (she was in will)…Councilor told pastor of his convo with G and
her intentions to kill. Convo admitted as evidence
Issue Was trial judge correct in admitting the evidence? YES
Ratio Lamer C.J., writing for the majority, noted that Canadian law does not recognize privilege
in religious communications; however, there may be situations where such a privilege may
be required.
To accommodate this need the Court adopted a four-step test proposed by American jurist
John Henry Wigmore to determine whether privilege is required.
1. the communications must originate in a confidence that they will not be disclosed;
2. this element of confidentiality must be essential to the full and satisfactory
maintenance of the relation between the parties;
3. the relation must be one which in the opinion of the community ought to be
sedulously fostered; and
4. the injury that would inure to the relation by the disclosure of the communications
must be greater than the benefit thereby gained for the correct disposal of litigation.
In application to the facts of the case, Lamer found that they did not meet the requirements
of the Wigmore test and so the communication was not privileged.
Reasons The Court developed a case-by-case test for determining if a communication is privileged.
Prior to the test, only communications that fell into one of narrow set of privilege classes
could gain protection from being submitted in a court of law.
Solicitor-Client Privilege:
Confidential Nature of Communications
• “Without the solicitor and client privilege the whole structure of our adversary system of
administering justice would collapse, for the object of that system is that the rights of all
persons shall be submitted with equal force to the courts. ... If a lawyer is to give useful
service to his client, he must be free to learn the whole of his client’s case. ... [McRuer
Report]
• Privilege is a rule of evidence; confidentiality is broader than the evidentiary doctrine –
confidentiality is both a substantive legal and ethical right/obligation
• The ethical/legal obligation exists without regard to the nature of the source of the
information or the fact that others may share the knowledge: see Rules of Professional
Conduct, r.2.03(6)
Scope of Privilege:
• Privilege belongs to the client, not the lawyer
• Protects client from disclosure of any confidential communication made by him or his agent
to the lawyer, or communications by the lawyer in response, while the client is engaged in
seeking legal advice
• Legal vs. Business/Strategic Advice:
o R. v. Campbell, [1999] 1 S.C.R. 565: “In private practice some lawyers are valued as
much (or more) for raw business sense as for legal acumen. No solicitor-client
privilege attaches to advice on purely business matters even where it is provided by a
lawyer.”
• Privilege attaches to communication even before retainer signed: Descoteaux v. Mierzwinski,
[1982] 1 S.C.R. 860: solicitor-client relationship “arises as soon as the potential client has
 his first dealings with the lawyer’s office in order to obtain legal advice” and even if lawyer
does not agree to advise/act for the person
• The fact that the person is the lawyer’s client may not be privileged
• The privilege only protects communications – not physical objects (R. v. Murray (2000), 48
O.R. (3d) 544):
o Videotapes were evidence of the commission of a crime and pre-existed the solicitor-
client relationship
o Discussions with Bernardo about the tapes were privileged, but not tapes themselves
• Finally, privilege does not attach to discussions about a future crime
o Fraud
o Physical harm
- Canadian law recognized two privileges: Solicitor client and spousal privilege but even those aren’t
absolute and are examined on a case by case basis

Inadvertent Disclosure = Loss of Privilege?

• Traditional common law approach was that it did not matter whether a confidential matter was
disclosed accidentally or intentionally; either way, the privilege would be lost and the communication
admissible. [Descoteaux]
o If it’s no longer confidential, then it will no longer be privileged
o These are very similar to FRE 502 in US dealing with inadvertent disclosures
• Where the document comes into the possession of a third party through non-innocent means,
however, courts have:
o Enjoined its production on equitable principles
o Denied admissibility

Airst v Airst, 1998 Ont Gen Div

Reasons In Airst v. Airst (1998), Ont. Gen. Div. strayed from traditional common law approach and
denied admissibility of a document that was inadvertently disclosed to opposing party →
Court found that privilege is not automatically lost
A matter of judicial discretion whether to admit based on factors
• 1) The way in which the document came to be released
• 2) Was there prompt attempt to retrieve
• 3) Timing of discovery of disclosure
• 4) Timing of application
o Have to show judge you did everything you could as fast as possible
o Put other lawyer on notice right away that needed to delete or would bring
an application
• 5) Number and nature of third parties who have become aware of it
• 6) Whether unfairness to opposing party will result if privilege maintained
• 7) Impact on fairness of court processes

Modern trend:
• Court found that privilege is not automatically lost
• A matter of judicial discretion whether to admit based on factors
• Consistent with American approach
Exceptions
• The SCC has acknowledged that despite its almost sacrosanct nature, solicitor-client privilege is not
completely absolute. But any impediment to open, candid and confidential discussion between
lawyers and clients will be rare and reluctantly imposed.
o Right to make full answer and defence in a criminal case
o Public safety exception
▪ Both of these don’t exist in the US, there are some exceptions like crime fraud, but
the US doesn’t recognize either of these. Nor, does the US require attorneys to breach
confidentiality to warn potential victims.

a. Innocence at Stake Exception

• This falls in line with the “right to make full answer and defence in a criminal case”
• Appropriate test for determining whether to set aside solicitor client privilege to permit the accused to
make full answer and defence is the “innocence at stake” test
• In R. v. McClure (SCC, 2001) [referred to in Brown at p.231], test set out for applying to lift privilege
o Accused criminal defendant on trial and the information that the defendant sought was
information that was actually contained in files from a plaintiff in civil litigation. Defendant
claimed those documents suggested he was innocent of the crime charged. In the McClure
case, the SCC set up the test to lift the privilege.
• Before innocence at stake test is even applied, accused must establish that the information he is
seeking in the solicitor-client file is not available from any other source and he is otherwise unable to
raise a reasonable doubt as to his guilt in any other way (the threshold question)
• Two stages to innocence at stake test:
o Accused must provide some evidentiary basis upon which to conclude that there exists a
communication that COULD raise a reasonable doubt as to his guilt
o If judge satisfied that such an evidentiary basis exists, then she must examine the file to
determine whether, in fact, there is a communication that is LIKELY to raise a reasonable
doubt

b. Public Safety Exception to Solicitor Client

• In Smith v. Jones, [1999] 1 S.C.R. 455 [p. 251], SCC held that there was a public safety exception to
the solicitor-client privilege.
• Where it can be demonstrated that there is a clear imminent risk of serious bodily harm or death to
an identifiable person or group, the privilege will be set aside.
• Application of test:
o Clear risk: How detailed is the threat/planning?
o Imminent: Threat made in such a manner that a sense of urgency is created
o Serious harm: Intended victim is in danger of being killed or of suffering serious bodily harm
o Identifiable group or person: Violence must be directed to an ascertainable, identifiable
person or group.

Smith v Jones, 1999 SCC

Facts - Involved a psychiatrist brought the application asking for the Courts advice/order as to
whether he could disclosure statements made to him by an accused person
- Accused charged with aggravated sexual assault
- Counsel refers client to psychiatrist and says it will be privileged
- In meeting, he tells Dr how he will kidnap and kill prostitutes in the future
- Accused pleads guilty, lawyer decides not to disclose psychiatrist’s opinion and DR
brings application
 Issue Should public safety apply to psychiatrists who is acting as an agent for the lawyer,
consulted by defence lawyer to help with defence or sentencing on basis it would be
confidential
- Does public safety exception apply? And how much communication between Dr and
accused could be disclosed?

Reasons In Smith v. Jones, [1999] 1 S.C.R. 455 [p. 980], SCC held that there was a public safety
exception to the solicitor-client privilege.
TEST: Where it can be demonstrated that there is a clear imminent risk of serious bodily
harm or death to an identifiable person or group, the privilege will be set aside.
• Needs to be identifiable group – not the city of Windsor
• I’m going to kill all single women living in certain part of Toronto – large group,
but identifiable
• I intend to sexually assault all children under 5 – identifiable
• Imminent: can it include a plan to do something after prison?
o Imminent could be in the future, but with great specificity – Smith v Jones
o He planned to escalate his crime in a specific way when he got out of
prison
• Smith v Jones Result
o Majority: Public safety > solicitor-client privilege in this case
▪ Dr Smith can disclose his opinion and basis of his opinion which
could include specific things accused talked about in section
o Minority: public safety exception, to extent it applies, only allows DR to
disclose opinion, but NOT what they talked about
o This would have been brought up at sentencing
o Retainer for lawyer and psychiatrist was not to treat Jones as a patient, but
instead to help them prepare a defence – should he plead insanity, mental
automatism and to give him information re: sentencing
o Didn’t matter b/c accused plead guilty
o When going to sentencing, DR wanted to say what he had heard and was
asking if he could
Application of test:
• Clear risk: how detailed is the threat/planning?
• Imminent: threat made in such a manner that a sense of urgency is created
• Serious harm: intended victim is in danger of being killed or of suffering serious
bodily harm
Identifiable group or person: violence must be directed to an ascertainable, identifiable
person or group.

Marital Privilege
In the US there are: (1) Testimonial, and (2) Communication privilege
In Canada, Testimonial is called Compellability, and (2) Communication is called
- In the US, both spouses hold the communication privilege and can stop one from testifying, and
these statements survive the marriage → In Canada, witness spouse holds privilege
• S. 4(3) Canada Evidence Act
“No husband is compellable to disclose any communication made to him by his wife during their
marriage, and no wife is compellable to disclose any communication made to her by her husband
during their marriage.”
o Same privilege in Ontario Evidence Act, s. 11
o The witness spouse holds this privilege
• Privilege is testimonial in nature and belongs to the spouse receiving the communication (the witness)
• Recently challenged R. v. Nguyen et. Al. 2015ONCA 278 – common law marriage not same
• Section 4(4) and 4(5) have now been repealed

Offences against young persons

• (4) The wife or husband of a person charged with an offence against any of sections 220, 221, 235,
236, 237, 239, 240, 266, 267, 268 or 269 of the Criminal Code where the complainant or victim is
under the age of fourteen years is a competent and compellable witness for the prosecution without
the consent of the person charged.
Saving
• (5) Nothing in this section affects a case where the wife or husband of a person charged with an
offence may at common law be called as a witness without the consent of that person.

Should there be an exception to the Pyschotherpaist Patient Privilege when someone makes
dangerous remarks?
- Individual faced turmoil in his life, and during a therapist session, he makes a threat to a Federal Judge.
This threat was only made to his therapist in a therapy session. Therapist considered the threat to be
substantial or real and they report it to the authorities under the Tarasoff statute. Should courts recognize a
dangerous patient exception to a psychotherapist patient privilege? One circuit court says yes, and one
court in dicta said they would decide favorably on that issue, and 3 circuits say no.
- Since the threats were only made to the therapist, the duty to warn was complied with. However, the
dissenting circuits say there’s a difference between the duty to warn which goes to the therapist
confidentiality and the testimonial privilege. Court said that the public is protected when the therapist
reports the threat, they don’t see what good it is for the only witness of the threat to testify in court and
would put his patient in jail

In Canada, a psycho/patient privilege will be determined on a case by case determination. The court in
Canada would go through the Wigmore factors for public/private interests in stake, what’s the balancing?
If they’re willing to abrogate in a class-based solicitor privilege, they’re probably not going to allow this
exception to the privilege

Second Question (same in Canada and US)

First, we want to know who Atley is. Although he has a law license, he does not practice law, he is a
director of risk management which is a business function. He may hire outside counsel, but there’s no
indication he’s involved in any role of an attorney.
- The statements that Diane, we would look to see if they’re procured as a function of corporate counsel.
She’s not a part of that group privy to decision making.
- Information was given to Doctor David and was disclosed before outside counsel was introduced

There is case law in Canada that, if a spouse is called to the stands, they have to have to claim that
privilege in front of the jury. The explanation is that they’ll leave the jury hanging.

Not married at the time of trial (Testimonial/compellability) & (Communication/Actual Privilege)

US: Not married → Compelled to testify (YES), Does she have to testify to the body? (YES)
Married → Not compelled to testify, husband can prevent her from taking the stand
CAN: Not married → Compelled to testify (YES), Does she have to testify to the body? (YES)
Married → Compelled to testify (YES), On the stand, she gets to choose whether to testify to the
communication.
 Character Evidence

In both countries, defendant can call witnesses, defendant can call evidence of their own pertinent trait in
US, and in Canada if it’s relevant

Basic Test for Admissibility

To be received, evidence must meet two basic requirements:
1. Admissible, must be:
• 1) Relevant
• 2) Not subject to an exclusionary rule
2. Judge has not exercised discretion to exclude (PV>PE Is the probative value greater than the
prejudicial effect?)

Civil Cases
In civil cases – character of parties is generally irrelevant and therefore presumptively inadmissible if
offered for propensity purposes (that the person acted in accordance with their character)
• “…no presumption would fairly arise […] from the good character of the defendant that he did not
commit the breach of contract or of civil duty alleged against him”. (AG v Radloff, [1854])
• applies to both good and bad character
- But there are some civil actions involving intentional torts, for example, where character evidence
would be relevant (eg. tort of deceit, assault, defamation, etc.)

General rule remains that evidence of good character is inadmissible in civil cases except
• where character is directly at issue: defamation or civil assault case where character of one of the
parties for peacefulness or violence may be germane (if PE<PV)
• where it amounts to similar fact evidence
• you can ask questions going to character on cross-examination to test credibility but bound by answer
(collateral fact rule)
o This is essentially a means of impeaching the witness on the answer given by that witness

Collateral Fact Rule

- Answers given by a witness to questions concerning collateral facts are treated as final, and cannot be
contradicted by extrinsic evidence
- Credibility of a witness is relevant but collateral (ie: not determinative of case)
- Tsoukas v. Segura → an example of counsel asking questions related to character in order to impeach
credibility

Criminal Cases
- Unlike civil cases, evidence of accused’s good character is admissible on the issue of innocence or guilt
(unless in rebuttal), so long as the character trait relates to a relevant issue. It is also admissible to support
the accused’s credibility as a witness.
- Good character evidence admissible because relevant (Rowton, 1865)
- Although relevant, accused’s bad character cannot, as a general rule, be adduced by Crown for policy
reasons

Accused’s Good Character

Accused can introduce evidence of good character in three ways:
1. Adduce evidence re: reputation by cross-examining Crown witness or examining defence witness
• Rowton rule was to the effect that witness could speak to knowledge of accused’s general
reputation in the community, but not testify re: specific acts of the accused
• In certain kinds of cases, such general reputation evidence of little weight
 • Eg: R. v. Profit, SCC 1993
2. Personally testify to specific acts of conduct
• Not restricted by Rowton rule to testifying only about general reputation
• Accused can introduce evidence of good character by relating specific acts which portray him in a
good light in relation to a trait relevant to an issue in the case (Essentially Mercy Rule)
• Accused can also put his character in issue by any evidence that projects the image of a law-
abiding citizen – can occur by implication
• NOTE: An accused person does not place his good character in issue by denying his guilt and
repudiating the allegations against him. (R. v. P.(N.A.), OCA, 2002)
• NOTE: Only puts character in issue out of his own mouth OR through examination in chief of
own witnesses; therefore Crown cannot put accused’s character in issue through clever cross-
examination of defence witnesses (R. v. A.(W.A.), Man.C.A., 1996)
3. Call expert opinion evidence – confined to cases involving distinctive behavioural characteristics of a
crime (per Mohan, SCC 1994)

Use of good character evidence:

• Relevant on issue of guilt or innocence in that it supports inference that accused unlikely to have
committed the offence charged (trait must be relevant to particular charge – reputation for honesty not
relevant to offence of sexual assault)
• Relevant to credibility of accused as witness
• Judge must give jury direction re: permissible uses of the evidence

Accused’s Bad Character

General rule: Crown not permitted to adduce evidence of the accused’s bad character either by evidence
of reputation or specific acts
Exceptions:
1. Where accused has put own good character in issue
• When accused puts her character in issue, Crown entitled to refute the good character evidence
with evidence of bad character by:
• Cross-examining accused about specific bad acts
o Accused may be cross-examined about specific acts of misconduct, including the details
of prior convictions
• Cross-examining accused about prior convictions pursuant to s. 666 Code
o S. 666 Code: “Where at a trial the accused adduces evidence of his good character, the
prosecutor may, in answer thereto, […] adduce evidence of the previous conviction of the
accused for any offences …”

Impeachment under the Canadian Evidence Code

• S. 12 CEA:
o “A witness may be questioned as to whether the witness has been convicted of any
offence, […] where the conviction was entered after a trial on an indictment.”
o Therefore, this type of bad character evidence allowed even though offends general rule
o S 666 differs from s 12 CEA because
▪ S. 12 applies to any witness
▪ S. 12 not triggered by accused putting character in issue
▪ S. 12 only permits introduction of fact of conviction, not underlying details
▪ S. 12 only applies where accused testifies
▪ Both s. 12 CEA and s. 666 Code subject to Corbett
• S 666 and s 12 subject to Corbett application – prejudicial value vs
probative effect
 • Defense may make Corbett application to withhold Crown from
questioning on any prior convictions
• Cross-examining defence witnesses who are giving good character evidence
o Crown may cross-examine witnesses called on behalf of accused who testified as to the
accused’s good reputation in the community
o Witness can be asked about their knowledge of the accused’s criminal record or previous
bad acts
o Trial judge must be careful in admitting rebuttal evidence of specific acts of misconduct
o Before receiving the rebuttal evidence of specific incidents of bad character (that are not
SF), trial judge must balance Prejudicial Effect against Probative Value
o Note: only use that can be made of Crown’s bad character evidence is either to
▪ Rebut the accused’s claim of good character OR
▪ Impugn the accused’s credibility
o Accused’s bad character evidence cannot be used as evidence that the accused is “the
type of person likely to commit the offence charged” (therefore need limiting instruction
from judge)
• Adducing extrinsic rebuttal evidence
2. If the bad character evidence is relevant to an issue at trial which has evidential value apart from mere
propensity and PV > PE
3. Similar fact evidence (R. v. Handy, SCC, 2002)

R v Brown, 1999 ONCA

Facts Brown accused of aggravated assault for violently shaking his baby causing brain injury. He
was self-represented, not aware of rules. It was his intent to put his character in issue.
Issue Can the Crown lead specific bad acts that do not constitute similar act evidence in reply to
rebut good character evidence?
Ratio If crown can’t rebut good character evidence, maybe can refer to specific past acts
Reasons As general rule this type of evidence should not be admitted. Other ways in which the
Crown can respond. BUT may be situations where Crown can’t respond by accessing
reputation evidence, similar fact evidence, criminal record. In those very rare situations,
there is discretion for judge and Crown can reply.
May be rare cases where manner in which accused has testified about his good
character (e.g. testifies about specific acts related to the charge) that requires response
to ensure that jury not presented with a distorted picture = Last resort
In this case the Crown failed to cross examine him after he testifies about what a great dude
he was. They knew that he regularly assaulted his son.
Crown must first X accused on evidence before leading it in reply

Witnesses Other than Accused (Generally)

• no policy rule excludes relevant evidence of bad character of an ordinary witness led by the accused
o usually goes to credibility of witness
• trial judge has discretion to exclude relevant evidence of bad character proffered by defence only
where PE substantially outweighs PV

Co-Accused
• Rule which prevents Crown from leading evidence of bad character of accused does not apply to an
accused leading evidence of bad character of a co-accused (R. v. Crawford)
• Does not have to wait for co-accused to put good character in issue
• Special jury instruction required
Complainant
• Old common law position was that character of complainant (re: chastity/sexual history) relevant
• Led to victims being on trial
• S. 276, 277 Code: evidence of prior sexual activity and sexual reputation generally inadmissible for
purpose of attacking or supporting credibility of complainant
• Many exceptions

R v Seaboyer, 1991 SCC

Facts Brown accused of aggravated assault for violently shaking his baby causing brain injury. He
was self-represented, not aware of rules. It was his intent to put his character in issue.
Issue Whether rape-shield provisions, s 276 and 277, infringed the principles of fundamental
justice or right to a fair trial
Reasons Provisions restricted right of defence to question sexual conduct of complainant in prior
occasions
S 276 struck down – did not imply a reversion to the old common law rules where
complainant could be cross-examined
3 purposes that law was changed:
1) preservation of integrity of trial – eliminating evidence that had little or no
probative value that was unduly prejudicial against the complainant
2) encourages reporting of crime
3) gives witnesses protection of their privacy
BUT
Accused has right to full answer and defence.
Court found s 276 had effect of excluding other evidence that would otherwise be relevant
- motive to make false statement
- prejudice against defendant
Defence can make application on a trial for a sexual offence to cross examine a complainant
- can’t apply because they consented before
Charter applications cannot be heard at a preliminary hearing – must be dealt with my trial
judge

Canadian Criminal Code

- Evidence of complainant’s sexual activity

• 276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159,
subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the
complainant has engaged in sexual activity, whether with the accused or with any other person, is
not admissible to support an inference that, by reason of the sexual nature of that activity, the
complainant
(a) Is more likely to have consented to the sexual activity that forms the subject-matter of
the charge; or
(b)Is less worthy of belief.
• (2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall
be adduced by or on behalf of the accused that the complainant has engaged in sexual
activity other than the sexual activity that forms the subject-matter of the charge, whether
with the accused or with any other person, unless the judge, provincial court judge or
justice determines, in accordance with the procedures set out in sections 276.1 and 276.2,
that the evidence
(a) Is of specific instances of sexual activity;
(b) Is relevant to an issue at trial; and
 (c) Has significant probative value that is not substantially outweighed by the danger of
prejudice to the proper administration of justice.
Factors that judge must consider
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial
court judge or justice shall take into account
(a) The interests of justice, including the right of the accused to make a full answer and
defence;
(b) Society’s interest in encouraging the reporting of sexual assault offences;
(c) Whether there is a reasonable prospect that the evidence will assist in arriving at a just
determination in the case;
(d) The need to remove from the fact-finding process any discriminatory belief or bias;
(e) The risk that the evidence may unduly arouse sentiments of prejudice, sympathy or
hostility in the jury;
(f) The potential prejudice to the complainant’s personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full
protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.

Reputation Evidence
S.277 – In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection
160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence of sexual reputation, whether
general or specific, is not admissible for the purpose of challenging or supporting the credibility of the
complainant.

Similar Fact Evidence (SFE) → similar to 404(b)

• The “forbidden reasoning” that the general rule seeks to prevent is that a trier of fact will conclude,
based on the accused’s bad character, that he has the general propensity to commit the offence in
question and is therefore guilty
• The SFE exception highlights an important distinction between general propensity and specific
propensity
o General propensity: The accused has previously committed criminal acts and is more likely to
have committed this offence because he is a “bad man”
o Specific propensity reasons that we might be able to more reliably conclude that based on the
number of prior bad acts and the degree of similarity that the accused has a propensity to act
in a certain way in certain circumstances
▪ Specific propensity reasoning is not grounded in “bad man” reasoning but rather the
doctrine of chances or improbability of innocent coincidence reasoning
▪ “In order to be admissible… it would be necessary to conclude that the similarities
were such that absent collaboration, it would be an affront to common sense to
suggest that the similarities were due to coincidence” (R. v. B. (C.R.), SCC, cited at
para. 41 of Handy)
▪ Onus on Crown, on balance of probabilities
▪ must be relevant to a particular issue, not disposition or character
▪ eligible “bad acts”:
• charged misconduct (other counts on the indictment)
• uncharged misconduct or
• conduct for which the accused was convicted

Probative Value
Potential for Collusion
• Before Handy there was no clear answer as to whether collusion should go to admissibility or weight
• Since the relevance of propensity reasoning is in the doctrine of chances (i.e. improbability of
innocent coincidence), it makes sense to treat the potential for collusion as a threshold admissibility
issue
• Elements
o 1) Accused must establish “air of reality” to collusion allegation
o 2) Mere opportunity to collude insufficient
o 3) Burden then shifts to the Crown to rebut evidence on a balance of probabilities
o 4) In Handy, Court was persuaded that there was the “whiff of profit”

Identification of the Issue in Question

• The “particular issue” must be something other than disposition or character
o Identity
o Gang membership
o Motive
o Rebut innocent association
o Modus operandi

Similarities between Facts Charged and SFE (R v. Handy Factors)

• Temporal Proximity
• Degree of Similarity in Details
• Number of Occurrences
• Circumstances Surrounding Similar Facts
• Distinctive Features
• Intervening Events
• Strength of Evidence that Similar Acts Occurred

R v Handy, 2002 SCC

Facts - Handy is a sexual predator
- Two prior convictions for sexual assault involving other women
- Conversation in which ex-wife tells complainant about accused, CICB, $16,500 and “all
you had to say was that you were abused”
- Sexual assaults on his wife – seven prior incidents
- Statement by accused “why does this keep happening to me?”
Issue Is accused’s history of sexual assault on his ex-wife admissible as similar fact evidence?
Ratio Collusion seen as condition precedent to admissibility of similar fact evidence
Reasons - While it seems clear how Binnie would have decided the issue if he were- the trial judge
(i.e. not admissible), he identifies the trial judge’s failure to resolve the issue of
collusion as a condition precedent to admissibility as the error of law
- According to Binnie, there is the “whiff of profit”; “prospect of financial profit” which
is “persuasive” [using the words from Shearing describing Handy]
- Testimony not tainted by collusion because evidence available before witness and
complainant met.
- Minor dissimilarities that take away from probative value of similar fact evidence.
Factual errors by witness’s account:
▪ Accepts that proximity and # add to probative value
▪ BUT
▪ “The learned trial judge paid insufficient weight to the dissimilarities”
▪ Minor dissimilarities and potential factual errors = Tanovich: but isn’t
the similar fact Handy’s domineering attitude toward women?
- Prejudicial effect of Wife (witness’s) evidence
 “The inflammatory nature of the ex-wife’s evidence in this case cannot be doubted. It is, to
the extent these things can be ranked, more reprehensible than the actual charge before the
court. The jury would likely be more appalled by the pattern of domestic sexual abuse than
by the alleged misconduct of an inebriated lout in a motel room on an isolated occasion …”
SCC found ex-wife’s evidence not similar enough
“Perhaps the most important dissimilarity lies not in the acts themselves but in the broader
context. The “similar fact” evidence occurred in the course of a long-term dysfunctional
marriage whereas the charge relates to a one-night stand following a meeting of casual
acquaintances in a bar.”

Prejudice
Moral Prejudice → Similar to what you would do in a 403 analysis
• “Bad person” reasoning – risk of wrongful conviction because evidence, if believed, shows that an
accused has discreditable tendencies. Verdict may be based on prejudice rather than proof, thereby
undermining the presumption of innocence.
• Morally repugnant act
• Revulusion or Condemnation
Reasoning Prejudice
• Giving the evidence more weight than it deserves
• Confusion – dealing with allegations of multiple incidents rather than the single offence charged.
• Distraction – arises from the risk that the court will be caught in a conflict about the accuracy of other
fact evidence
• Evidence can be excluded if prejudicial effect outweighs probative value
Exam: 30 M/C
- 30 Short Answers
- Do questions on CALI (Stay away from implied assertion → not tested very heavily)
- For implied, know wright case since it’s the seminal case. Know that there’s a difference of
opinion in American law with respect to federal rules recognizing implied assertion.
- Whether it’s made for truth of matter asserted
- Canadian evidence is very minimal on exam (a couple short answers bring in Canadian)
- Confrontation clause won’t be heavy, if at all on exam

Take home:
- Differences between the two and what you

Impeachment
Intro
• Facts relating to the credibility of the witness giving direct or circumstantial evidence of a
fact in issue are relevant.
• Impeachment is the term used for destroying the credibility of the witness so that little if any
weight will attach to their evidence
• In much litigation, the issue comes down to one of credibility
• Credibility has two components:
o Credit
▪ Is the witness trying to be truthful?
▪ Can we demonstrate that they have reason to mislead the court?
 o Reliability
▪ This speaks to the factual accuracy of the evidence
▪ Focus is on factors relevant to testimonial capacity – memory, perception and
ability to communicate
• There are many tools for impeachment:
o Proof that witness made prior inconsistent statement
o Demonstrating bias or motive to fabricate
o Direct attack on credit of witness
▪ Reputation for dishonesty in community
▪ Criminal record
▪ Bad character
o Evidence of defect in testimonial capacity
▪ Direct evidence relevant to this issue
▪ Expert evidence may be called in rare cases
o Demeanour
▪ Behavioural clues given during testimony
▪ Most dangerous tool for assessing credibility especially given cultural
incompetence of triers of fact;
▪ SCC considered demeanor and right to face one’ accuser in R v. N.S.
• R v Lyttle – good faith basis for asking a question on cross

Browne v. Dunn
• You typically attack credibility by way of cross-examination of the witness:
o Putting PIS to the witness,
o asking about their criminal record,
o getting the witness to admit to defects in observation of events, etc...
• But can also impeach by way of extrinsic independent evidence: calling other witnesses or tendering
documents that challenge credibility of the original witness.
• If cross examiner intends to impeach credibility by way of extrinsic evidence must give the witness
notice of intention to do so, this is known as the Browne v. Dunn rule.
• Note also: There is a general rule that answers given by a witness to questions concerning
collateral facts are treated as final and cannot be contradicted by extrinsic evidence.
• If council is considering the impeachment of credibility of a witness by calling independent
evidence, the witness must be confronted with this evidence in cross-examination while he or
she is still in the witness box.
• The rule does not prevent the use of extrinsic evidence to contradict a witness who has made
a statement in cross-examination which is relevant to a substantive issue.
• The SCC in R v. Lyttle confirmed that the rule in Browne v. Dunn remains a sound rule of
general application but also said that it is not absolute. Counsel must have a good faith basis
for the questions asked on cross examination.

Collateral Facts Rule

• There is a general rule that answers given
by a witness to questions concerning
collateral facts are treated as final and
cannot be contradicted by extrinsic
evidence.
• McIntyre J. in R. v. Krause, [1986] 2
SCR 466 described collateral matters as
being "not determinative of an issue
arising in the pleadings or indictment or
not relevant to matters which must be
proved for the determination of the case.”
• Similar to the U.S. Rule
Prior Inconsistent Statement
• The most common method of impeaching the credit of an opponent’s witness is that of self-
contradiction by means of PIS written or uttered by the witness
• Proof that a witness made an earlier inconsistent statement may be gained from witness himself
during cross, or should the witness deny making the PIS, then by proof from other witnesses.
• How we go about doing this is codified in s. 10 of the CEA/s.20 OEA (when the PIS is in writing)
and s. 11 CEA/s. 21 OEA (when PIS is oral)
• S. 10 On any trial a witness may be cross-examined as to previous statements that the
witness made in writing, or that have been reduced to writing, or recorded on audio tape or
video tape or otherwise, relative to the subject-matter of the case, without the writing being
shown to the witness or the witness being given the opportunity to listen to the audio tape or
view the video tape or otherwise take cognizance of the statements, but, if it is intended to
contradict the witness, the witness’ attention must, before the contradictory proof can be
given, be called to those parts of the statement that are to be used for the purpose of so
contradicting the witness…
• Although s. 10 does not require that counsel reveal the document containing the PIS
to the witness at the outset, must call the witness’ attention to the contradicting parts
 of the document (note there is a discretion for judge, after seeing the document, to
have the document produced and shown to witness)
• In Ontario, there has to be a clear contradiction between trial testimony and
prior statement
• R v. B (K.G.) addressed the conditions under which a prior inconsistent statement can be used as
substantive evidence or for impeachment purposes only.
• Important because:
• Hearsay = principled approach following R v. Khan
• Procedure – “Do you recall speaking to the officer at the scene of the accident?”; “You said the
colour of the car was white.” – and then:
• witness admits having made the prior statement and admits the truth of the earlier statement
OR
• witness admits to having made prior statement but now claims he was lying or mistaken at
that time OR
• witness denies making the earlier statement
• When witness is your own, cannot cross-examine unless:
• Hostile: “withholding of truth [by witness] flows from a hostile animus to the Crown”
• Adverse: more liberal idea; means “opposed in interest” which would include hostile but
broader
Impeachment for Bias

- Similar to the U.S. rules on bias

- Bias includes: intimate or familial
relationship between witness and accused;
recent quarrel; bribe
• Witnesses no longer barred from testifying because of interest (recall s. 3 CEA)
• Traditional exception to collateral fact rule is that counsel is permitted to discredit witness by
introducing evidence to show witness biased, possessed a real interest in the outcome of the litigation,
or was corrupt or unscrupulous in the giving of her testimony
• Examples of bias:
• intimate or familial relationship between witness and accused
• recent quarrel
• bribe
• Financial bias is what’s at issue in cases involving paid informers
• R. v. Dikah (1994) 31 C.R. (4th) 105 aff’d [1994] 3 SCR 1020
• Clause in agreement with RCMP that informer would only get paid if RCMP able to
conduct successful investigation
• “To the extent that agents are paid to gather evidence, their testimony must be viewed
by the trier of fact with a certain degree of suspicion. While an expectation of
financial advantage may reduce the weight of a witness’ testimony, it does not render
such evidence inadmissible without more.”
• Motive to Lie: the absence of a motive for a witness to lie is relevant factor in assessing credibility
• But does this mean that Crown should be allowed to ask accused to provide a motive for
complainant or central Crown witness to lie? Improper to do so
• Potential prejudice arising from this form of questioning:
 • Unfair to expect accused to provide an answer
• Subtly shifts burden of proof from Crown to accused and undermines the
presumption of innocence and the doctrine of reasonable doubt
• Opinion is irrelevant

Reputation for Dishonesty

• Under this exception, you can call evidence of the general reputation of the witness in the
community
• So, call witness and ask following questions:
o Do you know the reputation of the witness as to truth and veracity in the community?
o Is that reputation good or bad?
o From that reputation, would you believe the witness under oath?
• Ont. C.A. in R. v. Clarke(1998) 18 C.R. (5th) 219 narrowed rule: now defence can ask first
two questions but only rarely the third question
• DEFOE: RARELY DONE IN PRACTICE

Demeanour
• Behaviour cues not a reliable indicator of veracity though
• Cultural competence a serious issue
• Ex: failure to make eye contact
• Some recognition of this in case law: “reasons of intelligence, upbringing, education, race, culture,
social status and a host of other factors may adversely affect a witness’ demeanour and yet may have
little bearing on that person’s truthfulness.”-R. v. P(S.H.), (2003) 176 C.C.C. (3d) 281(N.S.C.A.)

Other Considerations:
• Ethical consideration:
o R. v. Lyttle, [2004] 1 S.C.C. 1935:
o “A trial judge must balance the rights of an accused to receive a fair trial with the need to
prevent unethical cross-examination. There will thus be instances where a trial judge will
want to ensure that counsel is not merely taking a random shot at a reputation
imprudently exposed or asking a groundless question to waft an unwarranted innuendo
into the jury box (See Michelson v. United States, 335 US 469 (1948) at p. 481 per
Jackson J.”
o As long as counsel has a good faith basis for asking an otherwise permissible question in
cross-examination the question should be allowed.

Criminal Convictions
■ Examination as to previous convictions
■ 12 (1) A witness may be questioned as to whether the witness has been convicted of any offence .
. . including such an offence where the conviction was entered after a trial on an indictment.
■ Proof of previous convictions
■ (1.1) If the witness either denies the fact or refuses to answer, the opposite party may prove the
conviction.
■ How conviction proved
■ (2) A conviction may be proved by producing
– (a) a certificate containing the substance and effect only, omitting the formal part, of the
indictment and conviction, if it is for an indictable offence, or a copy of the summary
conviction, if it is for an offence punishable on summary conviction, purporting to be
signed by the clerk of the court or other officer having the custody of the records of the
 court in which the conviction, if on indictment, was had, or to which the conviction, if
summary, was returned; and
– (b) proof of identity.

Criminal Convictions – Accused as a witness

■ Corbett v. R. [1988], 1 S.C.R. 670
– Defendant charged with 1st degree murder stemming from an incident in Vancouver that
occurred on December 2, 1982.
– Prior convictions: armed robbery (1954); escaping custody (1954); auto theft (1954);
non-capital murder (1971).
– Trial judge has discretion. Relevant factors:
■ The nature of the prior conviction
■ How similar the previous conviction is to the offence now charged
■ The remoteness or newness of the previous conviction
■ Fairness. Where credibility is at issue based on the accused’s attack on Crown
witnesses
■ R. v. Underwood (1998), 121 C.C.C. (3d) 117 (S.C.C.) holding that the defense has the right to
know whether the accused’s prior convictions will be raised in cross examination if the accused
choses to testify. “Corbett application’

Confessions

 Definition: The admission of guilt in express terms in a criminal case (admission of every
element of offense).
 “A confession is a statement by an accused, whether by words or assertive conduct, to a person in
authority, which the prosecutor seeks to introduce as part of their case. The statement can be
either inculpatory, exculpatory, or both. The statement can address all of some of the material
facts of the offence(s) the accused is being tried on; it need not be a full admission of guilt.” [R v
Pearce, [2014] MJ No 202 (Man CA) para. 48]

R v. Oickle
 Accused agreed to submit to a polygraph as part of a police investigation into a series of fires. He
was advised that anything that he said could be admissible.
 Approximately 4 hours later, he confessed to setting the fire to his fiancée’s car.
 After several more hours of interrogation, he admitted to setting seven of the eight fires.
 After only a few hours of sleep, he was again interrogated, drove to the various locations of the
fires where he described how he had set the fires.
 The trial judge found the confessions to be voluntary. The Nova Scotia Court of Appeals
reversed.
 The SCC recognized that confessions obtained in the absence of meaningful choice have resulted
in numerous miscarriages of justice.
 The Court discussed five types of false confessions
1) Voluntary
2) Stress Compliant – occurs when “the adverse interpersonal pressures of interrogation
become so intolerable that [suspects] comply in order to terminate questioning.”
3) Coerced –compliant - Most common kind. These are the product of threats or promises
4) Non-coerced persuaded. Occurs when police tactics cause the innocent person to become
confused, to doubt his memory and be temporarily convinced of his guilt despite the fact
that he did not commit.
5) Coerced persuaded – This is similar to non-coerced persuaded but involved elements of
coercion.
- “[An effort by the police to convince suspects to make admissions] becomes improper only when the
inducements, whether standing al one or in combination with other factors, are strong enough to raise
reasonable doubt about whether the will of the subject has been overborne.” R. v. Oickel, para.57
- “In order for most statements made to a person in authority to be admissible the Crown must establish
beyond a reasonable doubt in light of all the circumstances that the will of the accused to choose whether
to speak has not been overborne by inducements, oppressive circumstances, or the lack of an operating
mind. In addition, there must not be police trickery that unfairly denies the accused’s right to silence.”
- The failure to record the confession will render the confession suspect in most circumstances.

Ibraham Rule
 The rule from Ibrahim v. R [1914] A.C. 50, 609 once formed the entire law relating to
confessions.
 “[N]o statement by an accused is admissible in evidence against him unless it is shewn by the
prosecution to have been a voluntary statement, in the sense that it has not been obtained from
him either by fear of prejudice of hope of advantage exercised or held out by a person in
authority.”

Voluntary Confession Rule

 The burden is on the Crown to prove voluntariness.
 An involuntary confession is automatically inadmissible for all purposes.
 “A confession will not be admissible if it is made under circumstances that raise a
reasonable doubt as to the voluntariness [on the part of the person making the
admission]”.
 The SCC rejected fixed and narrow rules and emphasized a broad-based approach to
determining voluntariness.

“Person in Authority”
 The confession must be made to a person in authority – Generally “those formally engaged in the
arrest, detention, examination or prosecution of the accused.” R. v. Piche (1971) 12 C. R. N.S.
222 (S.C.C.).
 The Voluntary Confession Rule does not apply if a confession is not made to a person in
authority.

Inducements – Threats or Promises

- Inducement: The key test is: “Whether the accused, based on his [reasonable] perception of the
recipient’s ability to influence the prosecution, believed either that refusing to make a statement to the
person would result in prejudice, or that making one would result in favourable treatment.” R. v. Oickle, at
para. 35
- The Court noted that the “most important consideration in all cases is to look for a quid pro quo offer by
interrogators, regardless of whether it comes in the form of a threat or a promise.”

What constitutes a threat or inducement?

 Imminent threat of torture
 Prospect of leniency from courts
 Offer of psychiatric assistance or other counselling in exchange for confession
 Threat to charge a third party
 Use of violence
 “It would be better to tell”
 Use of spiritual or moral inducements usually ok
Inducement – Oppression
• The Court noted that conditions that are distasteful enough that a suspect would make a stress-
compliant confession to escape those conditions.
• Alternatively, oppressive conditions could lead to coerced persuaded confessions
• Ex.: sleep, food, water, medical attention deprivation, denial of access to counsel, excessively
aggressive, intimidating questions for a prolonged period of time.,

Operating Mind
• Derived from R v. Whittle [1994] 2 S.C.R. 914
• Two situations: 1) where the functioning of the mind affects how inducements or
oppression have influenced the mind and 2) when the mind of the declarant is not
operating properly due to its internal or subjective state.
• Circumstances may include intoxication, mental illness physical trauma and the effects
these may have on the voluntariness of the speech.
• Court will consider whether accused understood what they were saying and the
consequences
• This doctrine is an application of the general rule that involuntary confessions are
inadmissible
• Examples:
• 1. Statements made by a person suffering from shock after an accident were not the
product of an “operating mind.”
• Hypnotized statements and sleep talking
• Intoxicated confessions
• While these conditions, standing alone, may not necessarily invalidate a confession, they
are important factors in determining voluntariness.

Police Trickery
 Where the conduct “shocks the community”
 The SCC noted that courts wary of unduly limiting police discretion; looking for conduct that
‘shocks the community’
 Examples provided by the SCC include an officer pretending to be a chaplain or a legal aid
attorney or “injecting truth serum into a diabetic under the pretense that it was insulin.”

Crown’s Burdens
 1. Crown must prove that the statement was made [Crown must present sufficient evidence to
convince a reasonable trier of fact that the statement was made.
 2. Crown must prove beyond a reasonable doubt that the statements were not the product of quid
pro quo inducements, oppression, because the accused’s mind was not operating properly or that
there was no police trickery.

Youth Criminal Justice Act

 S.C. 2002, c.1.
 Confessions made by persons under the age of 18 – Crown must prove voluntariness and
compliance with section 146 of the Youth Criminal Justice Act beyond a reasonable doubt.

Canadian Hearsay
Canadian Charter of Rights and Freedoms

 Guarantees “everyone has the right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of fundamental justice.”
 SCC has held that the right to answer and make a defense is protected by this section which
includes “various rights of cross examination”
 “[A]ny person charged with an offence has the right. . . to be presumed innocent until proven
guilty according to law in a fair and public hearing by an independent and impartial tribunal.”

Unlike America, Canadians have no explicit right accorded to confront witnesses or cross-examine but a
quasi-constitutional right can be implied. Therefore, the right to confront and cross-examine witnesses has
been held to be a vital part of the accused’s right to answer and make a defense

The Principles Approach: Necessity and Reliability

• If a statement constitutes hearsay, it is presumptively inadmissible unless:
o It falls within a recognized traditional exception to the rule OR
o It is shown to meet the criteria of necessity and reliability(this is the more difficult of
the two) (principled approach)
• Onus on proponent of evidence to establish criteria on balance of probabilities in a voir dire

R v. Khan
 Necessity
◦ Necessity explains the need for the exception to the hearsay rule in that relevant evidence
would be unavailable to the court without the exception.
◦ Reliability (next slide)
◦ Subject to considerations affecting the weight to be accorded the evidence
• Young child was sexually assaulted by a physician,. She informed her mother of the assault shortly
after leaving the physician’s office. The trial judge found the child was incompetent to testify and
denied the prosecutor’s request to admit the statements. (There was also corroborating evidence of the
assault.) The court found the child’s statements did not fit within a recognized exception because her
statements were not contemporaneous with the event.
• The court found the statements were admissible because they were both necessary and reliable.
1. Statements are necessary if they are “reasonably necessary.”
2. Regarding reliability the Khan court said that the trial judge should consider:
o Timing of the statement;
o Demeanour;
o Personality;
o Intelligence;
o Understanding;
o Absence of any reason to fabricate
Whigmore
• “The needless obstruction to investigation of truth caused by the hearsay rule is due
mainly to the inflexibility of its exceptions, to the rigidly technical construction of these
exceptions by the courts, and to the enforcement of the rule when its contravention would
do no harm, but would assist in obtaining a complete understanding of the transaction.

R v. Smith
- S.C.C. ruled that the principles it had set forth in Khan were to be applied in all cases, not just those
involving young children’s statements. Following Khan, SCC confirmed that principled approach not
limited to hearsay evidence of children.
- Statements made by a murder victim to her mother shortly before her murder
- SCC: the first 2 statements did not qualify as such an exception because evidence is not admissible to
show "that persons other than the deceased acted in accordance with the deceased's stated intentions.”
Canadian courts have been quite clear that you cannot use this exception to prove conduct of anyone other
than the declarant. (See R .v P. (R) in Smith pages 15-16)
- Same reasoning applied to 3rd phone call evidence - state of mind exception could not render admissible
the statement "Larry has come back" to prove he actually returned.
- Note: In R. v. Starr (2000), SCC held that all existing traditional hearsay exceptions can be challenged
under the principled approach; categories continue to be useful as they serve an explanatory or educative
function and are illustrative of situations where some hearsay may be admitted.

Categories v. Principles
 R. v. Starr [2000] 2 S.C.R. 144
• Defendant was charged with two counts of first-degree murder. One of the victims had made
statements to his girlfriend in which he said he was going to “do an Autopac scam” with the
defendant. The trial court allowed this under the present sense impression exception.
• The SCC vacated the conviction and ordered a new trial. It ruled that in cases where the
traditional exceptions are at odds with the principled approach, the traditional rules must be
modified.
• The SCC found that there were reasons to find the statements untrustworthy
Following Starr
 all existing traditional hearsay exceptions remain (not abolished) but can still be challenged
under the principled approach requirements of necessity and reliability
 Traditional categories:
◦ “provide certain degree of predictability and efficiency to question of admissibility”
◦ serve an explanatory function
◦ illustrative of situations where hearsay may be admitted
◦ have a certain inherent reliability

Necessity and Reliability

 R v. Khelawon [2006] 2 S.C.R. 787
• Case involved statements made by an elderly resident of a nursing home to a caregiver, a
physician and in a videotaped interview with the police in which he reported that the manager of
the nursing home had physically assaulted him. Other residents reported similar incidents to the
police.
• The trial judge admitted the statements, based on the “striking similarity” between the
complainant and the other residents of the nursing home.
• Governing framework
◦ Hearsay is presumptively inadmissible unless it falls within an exception to the hearsay
rule.
◦ Exceptions can be challenged to determine whether it is necessary and reliable and
evidence may be excluded if it fails to meet these tests.
◦ Hearsay may be admitted, even if it does not fall within an exception if the indicia of
necessity and reliability are established.
◦ Judges determine the threshold reliability; the jury determines the ultimate worth of the
hearsay.
◦ No separate constitutional considerations.
• Khelawon Court ruled that the trial judge must perform as a gatekeeper to determine to determine
if necessity and reliability are found by a preponderance of the evidence.

 Necessity: “reasonable necessity”

• Vague term. It is given a flexible approach. It generally refers to the unavailablity of a
witness’s courtroom testimony. Judge must determine why, in any given case, it is
 necessary to admit a statement untested by cross examination. It has been said that
“necessity” is concerned with obtaining the relevant direct evidence from a particular
witness. Necessity is not met by evidence that is necessary to the prosecution’s case.
• Reliability: circumstantial guarantee of trustworthiness; a function of circumstances
under which statement was made
 In determining reliability the court looks to the circumstances surrounding the
out of court statement. (Khelawon, para. 93)
 Courts may also consider corroborating or conflicting evidence.
 Factors:
 The timing of the statement.
 The demeanor, personality, and intelligence of the declarant.
 The absence of a reason to fabricate

 Videotaped statement in Khelawon not admitted

◦ Witness potentially incompetent
◦ Witness may not have understood consequences of making statement
◦ Possibility of improper influence by home employee
◦ Possibility of motive to lie because disgruntled with management of home
◦ Never provided for cross examination

Categories of exceptions to hearsay include:

o Admission by an accused;
o Statements made in the course of the declarant's duty;
o Dying declaration;
o Statement made as part of a public or government document;
o Statement made in state of shock or surprise;
o Statement describing the declarant's physical or psychological condition;
o Past recollection recorded;
o Present Intention;
o Statutory exceptions; etc.

Canadian Expert Evidence

Intro to the Opinion Evidence Rule
• Opinion evidence is presumptively inadmissible
• Ordinarily a witness can only testify as to the facts personally observed or directly within the
witness’ knowledge
• Inferences or conclusions derived from observed facts or personal knowledge of a witness
are generally the exclusive purview of the trier of fact
•
• The opinion evidence rule permits 2 limited types of opinion evidence:
1. Lay opinion evidence, in circumstances where the regular lay witness has difficulty or is
unable to separate fact from opinion; (See R. v. Graat, [1982] 2 S.C.R. for a non-
exhaustive list of subjects upon which the non-expert witness is allowed to give opinion
evidence: identification of handwriting, apparent age, the bodily plight or condition of a
person, including death and illness, the emotional state of a person, the condition of
things, certain questions of value, estimates of speed and distance, impairment)
2. Expert opinion evidence, which will be discussed
•
• The admission of expert opinion evidence as an exception to the exclusionary rule is based
primarily on necessity
• The special knowledge of the expert going beyond that of the triers of fact must be
reasonably necessary, in the sense that without the assistance of the expert, the triers of fact
may not be able to draw the correct inferences from the facts in evidence
•
• In order to be admissible, expert opinion evidence must satisfy the four Mohan criteria:
1) Relevance;
2) Necessity in assisting the trier of fact;
3) The absence of any exclusionary rule; and
4) A properly qualified expert.
• Reliability is an overarching requirement, assessed under the Mohan factors of relevance,
necessity, and a properly qualified expert, as well as under the residual discretion to exclude.
• Satisfaction of the four Mohan criteria only provides provisional admissibility of expert
opinion evidence
• The trial judge still has an overarching discretion to limit, edit or preclude expert opinion
evidence that is otherwise admissible where the costs to the fair trial interests of the accused
and systemic costs to the trial process outweigh the benefits of admission
• Procedural and substantive safeguards such as notice; disclosure, limiting the scope of, and
editing the opinion evidence; proper jury instructions; cross-examination; and leading
contradictory evidence, will go some way to address the prejudice to fair trial interests and
systemic costs
• Expert opinion evidence-an often necessary part of trials, but powerful (and dangerous)
evidence which must be properly vetted, and where admitted, presented with necessary
safeguards
• In the OCA decision of R. v. Abbey , 2009 ONCA 624, Justice Doherty underscored the
double-edged nature of expert opinion evidence:
o Expert evidence has the real potential to swallow whole the fact-finding function of
the court, especially in jury cases…
o As Moldaver J.A. put it in R. v. Clark (2004), 69 O.R. (3d) 321 (C.A.), at para. 107, a
case involving the proposed expert evidence of a criminal profiler:
▪ Combined, these two concerns [giving expert evidence more weight than it
deserves and accepting expert evidence without subjecting it to the scrutiny it
requires] raise the spectre of trial by expert as opposed to trial by jury. That is
something that must be avoided at all costs. The problem is not a new one but
in today’s day and age, with proliferation of expert evidence, it poses a
constant threat. Vigilance is required to ensure that expert witnesses like
Detective Inspector Lines are not allowed to hijack the trial and usurp the
function of the jury….
o Despite justifiable misgivings, expert opinion evidence is, of necessity, a mainstay in
the litigation process. Put bluntly, many cases, including very serious criminal cases,
could not be tried without expert opinion evidence. The judicial challenge is to
properly control the admissibility of expert opinion evidence, the manner in which it
is presented to the jury and the use that the jury makes of that evidence.

R v. Mohan:
 • Physician charged with four counts of sexual assaults of female patients aged 13 to 16.
• Evidence relating to each complaint was admitted as similar fact evidence with respect to the
others.
• Defendant sought to have a psychiatrist testify that an individual that would commit these types
of offences against young girls would be part of a “limited and unusual group of individuals” and
that the defendant did not belong to this group because he did not possess the required
characteristics.
Mohan Standards of Admission:
• (1) Necessity in assisting the trier of fact
• (2) Relevance
• (3) Properly qualified expert
• (4) The absence of an exclusionary rule
❖ Mohan Court noted the danger of expert evidence “Dressed up in scientific language which the jury
does not easily understand and submitted through a witness of impressive antecedents, this evidence
is apt to be accepted by the jury as being virtually infallible and as having more weight than it
deserves.”
❖ Satisfaction of the four Mohan criteria only provides provisional admissibility of expert opinion
evidence
❖ The trial judge still has an overarching discretion to limit, edit or preclude expert opinion evidence
that is otherwise admissible where the costs to the fair trial interests of the accused and systemic costs
to the trial process outweigh the benefits of admission.
❖ Test is fluid – Compare R. v. Burns (1994), 95 CCC. (3d) 466 (Ont. C.A.)/ R. v. K(A) (1999) 137
C.C.C. (3d) 225 (Ont. C.A.) involving child sexual abuse accommodation syndrome evidence,

Necessity
❖ In R. v. D.(D.), [2000] S.C.R 275, the Supreme Court of Canada explained that the purpose of the
necessity criterion has been sufficiently established where the special knowledge of the expert goes
beyond that of the triers of fact (the so-called “common knowledge rule”), and is reasonably
necessary in the sense that without the assistance of the expert, the triers of fact may not be able to
draw the correct inferences form the facts in evidence, relevant to issues in the trial.
❖ The Mohan court stressed that expert evidence is not admissible simply because it is helpful – it must
be necessary.

Relevance
❖ Relevance under the Mohan criteria means legal relevance
❖ Legal relevance is a higher standard than logical relevance
❖ Logical relevance has the same meaning as relevance in the evidentiary context: that the evidence has
some tendency as a matter of logic and human experience to make the proposition for which it is
advanced more likely
❖ Legal relevance requires evidence not only be logically relevant, but also be “sufficiently probative”
to outweigh any prejudice arising from its admission
❖ Like logical relevance, legal relevance cannot be determined in a vacuum, but must be assessed in
light of the other evidence, and issues at trial

Properly Qualified Expert

❖ Expert opinion evidence must be given by a witness who is shown to have acquired special
knowledge through study or experience
❖ It is immaterial how the specialized knowledge is acquired
❖ The proponent of the expert opinion evidence must establish expertise on a balance of probabilities
❖ Whether the tendered expert is qualified to give the opinion evidence is a question of law
❖ The trial judge has broad discretion in making the determination of whether the proposed expert is
 properly qualified and the precise limits of his or her expertise

Absence of Any Exclusionary Rule

❖ Expert opinion evidence that runs afoul of another rule of evidence may still be admissible
❖ The fact that evidence may be inadmissible for one purpose does not render it inadmissible if it is
logically probative for another purpose
❖ Evidence that might otherwise be considered bad character evidence that is relevant to an issue at
trial, such as motive and intent, is admissible if its probative value outweighs its prejudicial effect
❖ This is made clear in the rule of multiple admissibility as set out by Justice Ewaschuk in R. v.
Rowbotham:
• It is my clear opinion that the fact of Rowbotham’s previous conviction, his
imprisonment, and his parole are integral to the Crown’s case. All these facts are
substantially relevant to the charges other than as bad character evidence. To excise
these frequent references would be to deform reality.
• R. v. Rowbotham, [1984] O.J. No. 2283 (Ont. H.C.J.) at para. 10.

Reliability as a Critical Threshold Requirement for Admissibility for Expert Opinion Evidence
• Although not treated as a separate criterion by Justice Sopinka in Mohan, reliability is a critical
threshold requirement for admissibility
❖ The more unreliable the expert opinion evidence is, the less probative it becomes in relation to the
fact or evidence in issue, and the greater the prejudicial effect, with a corresponding heightened or
increased danger that the expert opinion will distort the fact-finding process
❖ In addition, unreliable expert opinion evidence is not conducive to a fair and orderly trial
❖ The proponent of the evidence has the onus of establishing evidentiary reliability on a balance of
probabilities, bearing in mind that threshold reliability is an issue for the gatekeeper, whereas the
issue of ultimate reliability is one for the trier of fact

R v. Abbey
In R. v. Abbey, Justice Doherty reorganized and refined the Mohan criteria for admissibility of expert
opinion evidence under a 2-stage approach
❖ The purpose of the 2-stage approach was to separate the preconditions for admissibility of expert
opinion evidence from the gatekeeper inquiry
❖ Under the 1st stage, the trial judge enters into a rules-based inquiry about whether the
preconditions to admissibility have been established
❖ Under the 2nd stage, the trial judge performs his/her “gate-keeper” role to preserve the fair trial
interests of an accused, and to the trial as a whole, by doing a case-specific cost-benefit analysis
of the proposed opinion evidence.

The First Stage Inquiry: A rules-based inquiry

Pre-conditions for admissibility that must be established are:
1. the proposed opinion must relate to a subject matter that is properly the subject of expert opinion
evidence;
2. the witness must be qualified to give the opinion;
3. the proposed opinion must not run afoul of any exclusionary rule apart entirely from the expert
opinion rule; and
4. the proposed opinion must be logically relevant to a material issue.
❖ If there is a failure to sufficiently establish all the preconditions to admissibility, the proffered expert
opinion evidence is excluded, and the second stage of the analysis need not be addressed.

The Second Stage: Cost-Benefit Analysis

❖ The cost-benefit analysis is a weighing of the probative value of the proffered opinion evidence
 versus the costs to the accused and to the system When one looks to potential probative value, one
must consider the reliability of the evidence
❖ The “cost” side of the ledger addresses the various risks inherent in the admissibility of expert
opinion evidence, described by Binnie J. in J.(J.), [2000] 2 S.C.R. 600 as “consumption of time,
prejudice and confusion”
❖ The gatekeeper function determines admissibility, not what weight to accord the proffered expert
opinion evidence, which is the purview of the triers of fact

Determining the Benefits – Scientific Evidence

❖ Mohan kept the door open to novel science, rejecting the “general acceptance” test formulated in the
United States in Frye v. United States, 293 F 1013 (D.C. Cir. 1923) and moving parallel with its
replacement, the “reliable foundation” test more recently laid down by the US Supreme Court in
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993).
❖ Canadian courts have noted with approval Daubert factors for asssessing reliability

Daubert Factors
(1) whether the theory or technique has been tested:
(2) whether the theory or technique has been subjected to peer review and publication;
(3) the known or potential rate of error or the existence of standards; and
(4) whether the theory or technique used has been generally accepted:
❖ Scientific validity is not a condition precedent to the admissibility of expert opinion evidence. Most
expert evidence routinely heard and acted upon in the courts cannot be scientifically validated (i.e.
psychiatrists, accident reconstructionists). [para 109 Abbey]
❖ These types of experts do not support their opinions by reference to error rates, random samplings or
the replication of test results. Rather, they refer to specialized knowledge gained through experience
and specialized training in the relevant field. [supra]
❖ Tested exclusively against the Daubert factors, much of the expert evidence routinely accepted and
acted upon in courts would be excluded despite its obvious reliability and value in the trial process.

The Ultimate Issue:

❖ The common law courts traditionally maintained a rule prohibiting expert witnesses from expressing
opinions on the very matter to be decided by the trier of fact.
❖ In R. v. Bryan (2003), 175 C.C.C. (3d) 285 (O.C.A.) , the Court of Appeal relied on Mohan where
Sopinka J. made clear that there is now no general rule precluding expert evidence on the ultimate
issue.
❖ While the ultimate issue rule is no longer rigorously applied, Canadian courts still regularly refer to
the problem of the expert approaching the ultimate issue. (R. v. Aitken, 2012 BCCA 134).
❖ In R.v. Abbey, the Ontario Court of Appeal stressed the trial judge`s role in defining the scope and
language of expert testimony.

Expert Opinion Based on Hearsay:

❖ In R. v. Abbey, [1982] 2 S.C.R. 24 (note: different Abbey) the ratio can be summarized as follows:
1. An expert opinion is admissible if relevant, even if it is based on second-hand evidence.
2. This second-hand evidence (hearsay) is admissible to show the information on which the expert
opinion is based, not as evidence going to the existence of the facts on which the opinion is based.
3. Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be
attributed to the opinion.
4. Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based
must be found to exist.