THE CASE OF PEOPLE v.

JOHNSON
Parties: A. District Attorney William Cummings B. Defense Attorney Mark Deemer Charges: A. Count 1 Battery on Correctional Officer Huston B. Count 2 Battery on Correctional Officer Van Berg Elements of Battery: A. Willfully & unlawfully B. Uses any force or violence 1. Any unlawful application of physical force against the person of another, even though it causes no pain or bodily harm, or leaves no mark & even though only the feelings of such person are injured by the act 2. The slightest unlawful touching, if done in an insolent, rude, or angry manner, is sufficient a. It's not necessary that the touching be done in an actual anger or w/ actual malice sufficient if it was unwarranted & unjustifiable b. Touching essential for a battery may be a touching of the person, of the person's clothing, or of something attached to or closely connected w/ the person C. Upon the person of another Prosecution's Case-in-Chief: A. Direct Examination 1. George Huston Correctional Officer 2. Richard Van Berg Correctional Officer 3. Brandon Walker Correctional Officer 4. Stephen Smith Correctional Officer 5. Ruth Taylor Correctional Case Records Specialist a. Defendant was confined as an inmate in the state prison on the date in question Defense's Case-in-Chief: A. Direction Examination 1. George Butler Defendant's Cell Mate 2. Michael Green Inmate at Pelican Bay 3. James Johnson Defendant 4. Robert Stokes Correctional Lieutenant

I. Federal Rules of Evidence A. 404 character evidence, in contrast to reputation evidence, is normally not admitted to show that a person committed an act in conformity w/ that character 1. Example of general principle that relevancy is a necessary but not a sufficient condition for admissibility B. 609 felony convictions may be admitted to impeach the character for truthfulness of any testifying witness C. 615 permits the court to exclude witnesses from the courtroom while another witness is testifying to safeguard against the possibility of "contaminating" a witness 1. Objective is to preclude a witness from altering or modifying testimony to explain or dovetail w/ the testimony of another witness II. Pretrial Motions A. If an advocate knows that an evidentiary problem is likely to arise at trial, the advocate can attempt to get a pretrial resolution of that issue e.g., motions to suppress illegally obtained evidence 1. A more general procedure involves filing a motion in limine (at its threshold) can be used to get pretrial rulings on virtually any evidentiary question III. Opening Statement A. Primary purposes: 1. To state the facts that the advocate expects to produce at trial 2. To present the facts w/in the framework of a story or theme that's persuasive & that will be the basis for closing argument 3. To personalize the client B. Also used to introduce the jury to weaknesses in the case IV. Rebuttal A. Rebuttal evidence is put on by the prosecution after the defense has rested 1. Restricted to evidence made necessary by 's case e.g., response to new evidence or to new grounds of innocence and shouldn't include what the prosecutor should have proved in the case-in-chief V. Closing Argument A. Final opportunity for the advocates to speak directly to the jury about the case B. Many closing arguments contain summations of the evidence i.e., a recitation of the key witnesses & key testimony 1. But where the case isn't long + complicated, and where not many witnesses have testified, the jury may not need much help keeping things straight 2. Summing up the evidence should be contrasted, then, w/ arguing the evidence, where the advocate seeks to persuade the jury about contested facts & about why his/her client is entitled to prevail a. Such arguments should be simple enough to be clearly understood, and sound enough to withstand the jury's scrutiny b. Argument about what inferences should be drawn from the evidence C. Advocates often refer to the instructions during closing argument, particularly those defining critical legal terms

THE PROCESS OF PROOF: HOW TRIALS ARE STRUCTURED

Theme of Jury Insulation A. Evidence 1. To a large degree, the rules of evidence focus directly on the question of what evidence the jury will be allowed to hear 2. Policy implications of most evidence rules based on someone's answer to the question: What is the effect on the accurate resolution of disputes of allowing a jury to consider this type of information? B. Trial Process 1. Modern juries decide only factual issues (not issues of law) 2. Virtually all legal discussion including proper substantive & procedural law to be applied to the case, and whether evidence should be admitted/excluded occurs outside the hearing or presence of the jury I. THE ADVERSARY SYSTEM A. Adversary System dominant theory of dispute resolution in the U.S. 1. Adverse parties each present a self-serving version of the truth to a disinterested fact finder, judge or jury, which hears the evidence the parties present & decides in a disinterested fashion what actually happened, and thus what verdict is appropriate 2. Parties are responsible for investigating the case, preparing the case for trial, and in large measure controlling the presentation of evidence at trial a. Many believe that adversarial investigation & presentation of evidence is more likely to yield a verdict consistent w/ the truth than is a process more dominated by a tribunal i. Disinterested tribunal will lead to less abuse & manipulation of the evidence, thus increasing the changes that judgments consistent w/ the truth will emerge B. "Inquisitorial" System used in many Western European countries 1. Adjudicative tribunal often involves itself actively in investigation, and controls the trial process much more than the litigants do II. THE ROLE OF THE TRIAL PARTICIPANTS A. Witnesses ppl w/ knowledge of out-of-court events who are called on to reveal that knowledge in court, under oath, in front of the judge, jury, and litigations B. Jury uses it senses to perceive info in the courtroom & its reasoning capacity to evaluate + make inferences about that info to reach a conclusion about which version of disputed events is the truth 1. Jurors expected to come to conclusions about disputed facts in the case w/ bringing to bear any outside or firsthand knowledge of their own a. Typically, they know nothing about the case beforehand, and are instructed by the judge not to investigate the facts on their own b. However, they're not expected to disregard their own generalized background knowledge & experience assumed they will use their knowledge & experience in reasoning + making inferences about the evidence before them 2. Typical jury instructions don't give the jury any guidance about what its reasoning process should be, other than to define "inference" & "circumstantial evidence," and to rule out certain "irrational" factors: emotions, the # of witnesses on a side, chance, or the drawing of lots

C. Advocates provide info to the jury through the use of witnesses, documents, and other exhibits 1. Role is to investigate, interview, select, prepare, and present the sources of info that the advocates think will most advance their respective cases a. Also argue inferences & conclusions to the jury, but the jury is instructed that attorneys' statements aren't evidence D. Judge controls trial process by setting limits, primarily pursuant to rules of evidence, on the advocates' proof in the interests of rationality of results, fairness btw the parties, social & moral values, and efficiency 1. Has power to make all the trial participants conform to their roles in courtroom behavior & decorum 2. May call witnesses & may question witnesses whether called by the court or not a. But, not supposed to control the content or the overall presentation of the advocates' cases E. Bench Trials trials held w/out a jury 1. Judge acts not only as the decision-maker on points of law & admission or exclusion of evidence, but also as the sole fact finder, weighing the evidence a. Similar situation presented by "evidentiary hearings": pretrial proceedings (e.g., a preliminary hearing in a criminal case) in which witnesses are called to testify III. THE STRUCTURE OF THE TRIAL A. Pretrial Motions 1. Trials usually begin w/ "motions in limine" made by the parties to obtain rulings on anticipated evidentiary problems a. Parties anticipating intro of problematic evidence by their adversaries make motions in limine to exclude that evidence, though can be used to get pretrial ruling on any evidentiary question i. For example, a criminal may want to testify only if the jury won't learn of his prior criminal convictions to make an informed decision about whether to testify, could file a motion in limine asking that prior convictions be excluded from evidence B. Jury Selection 1. Varies both in the process for selection & the # of jurors empanelled, depending on the type of the case & the jurisdiction anywhere from 6 to 12 jurors may be req'd (in fed. court, 12 jurors sit in criminal trials & 6 in civil trials) 2. Founded on the belief that trials are more likely to result in an accurate verdict assigning liability or blame only where warranted by the facts by having cognitively competent, disinterested jurors a. Process allows parties to object to potential jurors who are incompetent, who have a financial or emotional interest in the case, or who can't put aside any preconceptions about the case they may have to decide it based on the evidence produced at trial 3. Primary means of selecting a jury is by question the jury "venire" the group from whom the jury panel will be chosen to uncover any ground for dismissing them a. The questioning process "voir dire" may be conducted by the trial judge, the lawyers, or by means of a written questionnaire, or by a combination of any of the 3 i. Judge can dismiss potential jurors "for cause" (e.g., some type of bias for or against 1 of the parties) or practice reasons (e.g., inability to serve for the length of the trial) ii. Lawyers can request dismissal for cause, or may make "peremptory challenges" Only constraints on peremptory challenges are that each side is given only a limited #, and can't be sued merely b/c of the race or sex of the potential juror

C. Preliminary Instructions 1. May be nothing more than admonitions not to talk about the case prior to jury deliberations; or may include certain generic guidelines about considering the evidence or credibility of witnesses; or, less typically, may even include instructions about the substantive law governing the case a. Court may sometimes read the "information" the written criminal pleading setting forth the charge, which states the statutory elements of the alleged offense D. Opening Statements 1. Lawyers take turns introducing their respective cases to the jury, in the order in which they will present their evidence: (civil) or prosecution (criminal) proceeds 1st, then 2. Opening statement is neither evidence nor argument, but is supposed to be a compact narrative of what the lawyer believes in good faith the evidence will show a. Purpose is to provide the jury w/ a coherent overview of the case to make it easier for the jurors to assimilate the testimony they will soon hear, testimony that may necessarily tell the story in a fragmented, nonchronological fashion 3. Argument & discussion of law are NOT allowed can result in an objection being sustained a. Argument e.g., conclusions or inferences derived from the evidence, contentions about legal rules, comments about witness credibility i. Pointing out weaknesses in your adversary's case clearly constitutes objectionable argument E. Presentation of Evidence & the Burden of Production 1. The Order of the Parties' Presentation of Cases a. After opening statements, /prosecution presents its case-in-chief (main case) calling a series of witnesses to the stand i. Primarily through direct examination of these witnesses, /prosecution must present evidence sufficient to prove i.e., sufficient to support a finding by the jury to establish each element of its cause of action (or of the crime charged) 2 important devices make it unnecessary, in many instances, to prove facts through testimony or other evidence: "stipulation" (facts agreed by the parties) & "judicial notice" b. After /prosecution "rests" its case, and any motion to dismiss is heard (& denied), 's case begins i. Like , conducts direct examinationof witnesses, but the trust of the defense case is to cast doubt on 's evidence & to present evidence sufficient to prove each element of any affirmative defense c. When defense rests its case, /prosecution has an opportunity to call witnesses in a "rebuttal" case i. Presentation of rebuttal evidence proceeds in same way as the case-in-chief, expect the scope of rebuttal evidence is limited rebuttal evidence must respond to either: (a) Matters raised an part of 's affirmative defenses; or (b) Attacks during the defense case on the credibility of /prosecution's evidence ii. Normally, a or prosecutor won't be allowed to repeat evidence presented in its case-in-chief, or to present evidence that should've been party of its case-in-chief iii. may be entitled to a "sur-rebuttal" (a rebuttal to the rebuttal), but this is unusual

2. The Burden of Production a. "Burden of production" producing enough evidence so that a "reasonable" factfinder can make a finding for the or prosecution on each element of the civil claim or criminal charge i. The "finding" involved is a finding of the facts necessary to est. those elements of the claim or charge, and it must meet the applicable "burden of persuasion" "beyond a reasonable doubt" in criminalcases, "more likely than not" ("a preponderance of the evidence") in civil cases meets its burden of production in civil cases w/ evidence sufficient for a reasonable jury to find that the facts establishing each element of 's claim are more likely than not true In a criminal case, prosecution meets its burden of production if it offers enough admissible evidence so that a reasonable jury can find that each element of the crime charged has been established "beyond a reasonable doubt" ii. Note: in civil cases, s have burden of production on their affirmative defenses; however, in criminal, prosecution has burden of production to negate any defenses (e.g., "self defense") b. Failure by or prosecutor to meet the burden of production on each element of the claim can result in a judgment as a matter of law for the defense on that claim i. JMOL motions for the defense can be made at several different points in the litigation process Civil cases: motions for summary jdgmnt (before trial), nonsuit/directed verdict/dismissal (after 's case-in-chief), directed verdict (after close of evidence) or JNOV (after verdict) all argue that the moving party wins the case on facts that aren't genuinely disputed (in fed. civ. cases, such motions made during or after trial now all called motions for JMOL) Criminal cases: only can move for JMOL, and may do so after prosecution's case-in-chief, after close of evidence or after the verdict ii. Basic similarity btw all these motions seeking JMOL on a factual record: in each, the court is supposed to refrain from usurping the jury's role judge has to make all inferences in favor of the party opposing JMOL Judge shouldn't resolve conflicts in the evidence or questions of witness credibility If the party w/ the burden of production has produced enough evidence to support a finding by a reasonable jury, the court shouldn't issue jdgmnt based on the judge's own view of how the jury should decide the case iii. Ask: Whether there's evidence sufficient for a reasonable jury to find for prosecutor or (or civil on an affirmative defense) B. Post-evidence Matters 1. After the close of evidence, the court make take up certain legal matters w/ the lawyers outside the presence of the jury a. may make a motion for "directed verdict" on the ground that "no reasonable jury" could find for b/c the evidence, as a matter of law, fails to est. 1 or more elements of 's claims; or that hasn't raised sufficient evidence to dispute an affirmative defense b. Similarly, could move for JMOL on the ground that hasn't raised sufficient evidence to dispute its claims (prosecution can't move for a directed verdict of guilt, b/c that would be deemed a violation of the criminal 's 6th Amendment right to jury trial) 2. At this stage the parties also argue over jury instructions a. Arguments usually arise over how to instruct the jury on substantive law, particularly in areas where the law is developing or unsettled i. If a party disagrees w/ an instruction the court decides to give, it may object & argue instructional error as a basis for appeal

C. Closing Argument 1. Permits both argument & discussion of the law (both prohibited in opening statements) 2. Lawyers "argue" the facts may only discuss facts based on evidence admitted at trial a. "Arguing the facts" isn't merely summarizing the evidence rather, lawyers in closing arguments should analyze the evidence, identifying & arguing for the inferences + conclusions they believe should be drawn from it b. A critical feature of closing argument should be to explain to the jury the chain of inferences that connect the evidentiary facts heard by the jury w/ the facts of consequence in the case i. Chain of inferences is necessary not only to argue the significance of evidence to a jury, but also to determine the application of such rules as relevance & hearsay 3. Effective closing presents a coherent story of the events that proves 1's case, while trying to show how the most likely interpretation of every point of conflict or ambiguity in the evidence supports that story a. The lawyers should stress evidence corroborating key points of their case as well as evidence that undermines the credibility of witnesses whose testimony contradicts key points 4. Important to weave key jury instructions into closing argument the lawyers can show the jury how they believe the evidence maps onto the controlling substantive law how they've proved the elements of their case & how the other side has failed to cast doubt on the proof or to prove its own case a. Links the facts of consequence w/ the essential elements req'd by the substantive law 5. Courts vary in whether closing argument goes before or after jury instructions important point is that disagreement over jury instructions has been resolved before closing argument D. Jury Instructions & the Burden of Persuasion 1. Most trial judges instruct the jury by simply reading word-for-word the written set of instructions a. Reason: jury instructions are a fertile source of "error" for the losing litigant to raise on appeal 2. Important concept explained to jury in every case in form of a jury instruction = burden of persuasion a. Burden of production requires a party to produce evidence sufficient to support a finding on a particular issue b. Burden of persuasion specifies the degree of certainty that the jury must have to make a finding on a particular issue i. Civil cases: jury must find by a preponderance of the evidence that 's claims are true greater than a 50% percent probability, or "more likely than not" ii. Criminal cases: burden of persuasion is guilt "beyond a reasonable doubt" E. Jury Deliberations & Verdict 1. Jurors allowed to have all the exhibits the documents & objects admitted into evidence w/ them in the jury room can also request to have portions of testimony read back to them 2. Unanimity of the jury verdict depends on the type of case a. While unanimity is req'd in fed. criminal cases, many jurisdictions permit nonunanimous verdicts in civil & even some criminal cases b. Fed. civil verdicts must be unanimous unless the parties agree otherwise 3. In criminal cases, a verdict takes the form of a decision guilty or not guilty on each crime charged

4. Civil verdicts: a. In some trials, the jury is asked only for a general verdict "we find for ," plus an amnt of money damages, where that's the issue, or "we find for " b. In many cases, particularly where the legal issue has a more complex structure, the court may use a "special verdict" form or "jury interrogatories" i. Jury is asked for its answers to a series of questions from which a judgment can be derived Questions might ask for separate jury findings on each element of a claim or a defense c. Given that the burden of proof is on to prove each element of its case, a special verdict form or jury interrogatories may work to 's advantage, b/c a "wrong" answer to any 1 of several questions may result in a defense judgment d. On the other hand, if a general verdict is used in a legally complex case, the jury may not have followed the correct path to its final verdict i. Such mistakes in the jury's reasoning process are not considered proper grounds for an appeal the evidence rules in most jurisdictions prohibit any inquiry into the jury's mental processes or deliberations FRE 606(b) 5. Some trials are "bifurcated" or "trifurcated" conducted in 2 or 3 separate phases, each 1 w/ its own set of jury instructions & closing arguments, and its own special verdict e.g., civil cases involving punitive damages & criminal cases involving the death penalty a. Cases "bifurcated" into a 2 phases: i. "Liability" or guilt" phase whether committed the tort or crime ii. "Penalty" calls for evidence irrelevant to liability or guilt but that might sway jury against Not reached if the jury returns a defense verdict in the liability phase F. Post-trial Motions 1. The "verdict" is NOT the same as the "judgment" in a case a. Verdict = the jury's ultimate decision b. Judgment = a judicial act that concludes the case i. After a jury trial, the trial judge eventually enters a judgment on a jury verdict The judgment may do nothing more than restate the jury's verdict In some cases, however, the judgment may include more further issues that aren't decided by a jury e.g., injunctive relief ii. It's the judgment, rather than the verdict itself, which has such legal effects as res judicata & that's subject to appellate review iii. Also, the judgment may differ from the jury verdict e.g., if the court grants a post-trial motion reversing the verdict 2. Types of pre-trial motions: (1) motion for jdgmnt notwithstanding verdict, & (2) motion for new trial a. Party that loses the case (or loses at least 1 ultimate issue) can bring either of these motions, and typically brings both together b. Post-trial motion is an "appeal" from a jury verdict, only it's made to the trial judge rather than to an appellate court i. Appeal from a jury verdict to a court of appeals requires that these motions have been made ii. Technically, appellate review of a jury trial is actually review of a trial ct. decision denying a motion for a new trial or JNOV

3. Motion for judgment notwithstanding the verdict (JNOV) a. Seeks jdgmnt as a matter of law, on the ground that (considering evidence in light most favorable to nonmoving party), the court can say that no reasonable jury could've reached this particular verdict i. If granted, court reverses the jury verdict & enters a directly contrary judgment: a defense verdict is overruled & judgment entered for , or vice versa b. Allows the court, in effect, to delay the type of decision put to it in a directed verdict motion i. A court might be inclined to direct a verdict in favor of , for example, due to the apparent insufficiency of 's evidence By deferring its ruling on the question until after the jury renders its verdict, however, the court allows the jury the opportunity to find against & thereby possiblyavoids the need itself to make an outcome-dispositive ruling that would be subject to appellate review ii. In fed. court, a JNOV motion can only be made if the moving party had previously moved for directed verdict 4. Motion for new trial a. Argue that significant errors undermined the trial, which, therefore, must be done over b. Parties can move for a new trial on any of several grounds: i. Erroneous jury instructions ii. Excessiveness or inadequacy of a jury's damages award iii. Irregularities in the trial or jury deliberations iv. Erroneous admission or exclusion of evidence c. Losing party can also move for new trial on the ground that the verdict is "against the weight of the evidence" this is a lowers standard than that req'd to get a JMOL i. While a JNOV argues that the nonmoving party has failed to meet its burden of production, a new trial motion typically argues the nonmoving party failed to meet its burden of persuasion ii. In contrast to motions for JMOL, the trial judge gets to weigh conflicting evidence & assess witness credibility in considering whether to grant a new trial d. Granting new trial motion results in trying the case over, rather than determining outcome of case

IV. EXAMINATION OF WITNESSES & FRE 611

Questioning ("examination") of witnesses, & witnesses' answers their testimony form the core of the trial
o Most

evid. in most trials takes the form of testimony witness testimony generally most crucial form of evid. Documents, photos, demonstrative & other tangible objects also introduced into evidence but, the rules of evidence require presentation of testimony about documentary or tangible evidence to est. its admissibility & often to explain its significance - Documentary & tangible evidence requires a witness to provide foundation testimony unless the parties agree to forego the formalities

Examination of witnesses in the evidence-presentation phases of the trial follows a pattern of taking turns
o The party calling the

witness conducts a direct examination w o Opposing party cross-examines, / cross-examinationlimited in scope to matters raised on direct exam o The party calling the witness may respond to points made on cross by conducting redirect examination o Recross & further redirect examinations can be permitted
Rules for presenting testimony, including the order of examinations, aren't set out in the rules of evidence or any

procedural code rather, they arise from an unwritten tradition of trial practice developed over the yrs w o FRE 611 only provision of Fed. Rules dealing directly / witness examinations specifies only a few limitations + otherwise grants trial judge broad discretion over "the mode & order" of examining witnesses
\

A. FRE 611 Mode and Order of Interrogation and Presentation (a) Control by Court. Court exercises reas'ble control over mode & order of interrogating witnesses and presenting evidence so as to (1) make the interrogation & presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-examination. Cross-examination should be limited to the subject matter of the direct examination & matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into add'l matters as if on direct examination. (c) Leading Questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on crossexamination. When a party calls a hostile witness, an adverse party, or a witness identified w/ an adverse party, interrogation may be by leading questions.

B. Interpretation & Illustration of FRE 611(a) & (b) 1. FRE 611(a): Breadth of the Court's Power a. FRE 611(a) recognizes sweeping authority of judge to control the examination of witnesses during trial i. Even the 2 express provisions purporting to limit the scope of cross-examination [611(b)] & the use of leading questions [611(c)] may be overridden in the discretion of the trial judge to serve the purpose outline in FRE 611(a) 2. Direct Examination a. Direct examination the questioning of witnesses you call in your case-in-chief is the most straightforward & effective way to prove your case i. Each party must plan to meet its burden of production w/ evidence developed through direct exam b. FRE 611 says nothing affirmatively about direct examination, but simply assumes that direct examination will be conducted i. FRE 611(b) direct examination should set a limit on the scope of cross-examination ii. FRE 611(c) w/ limited exceptions, leading questions shouldn't be used on direct examination

3. FRE 611(b): The Scope of Cross-examination a. Direct exam generally reflects some degree of cooperation btw examiner & witness, thus raising the danger that the witness will be permitted, if not encouraged, to present a self-serving version of events i. Cross-examination is an effective way to test the witness's credibility & show that there may be another side to the story b. FRE 611(b) est., as a guideline, that 2 general areas of inquiry are permissible for cross-examination i. It's permissible to explore matters which the witness has testified on direct examination ii. It's always permissible to ask questions that may impeach the credibility of the witness even though there may have been no reference to these matters on direct examination proof of prior convictions is 1 of the trad'l ways to impeach a witness's character for truthfulness Same principle applies to the rehabilitation of witnesses on cross-examination - If a direct examiner impeaches a hostile witness, it would be appropriate to rehabilitate the witness on cross-examination w/ questions about matters relating to credibility that weren't covered on direct examination c. Unless the court exercises its discretion, it's improper to explore on cross-examination subjects that weren't mentioned on direct examination & that don't affect the credibility of a witness 4. Redirect & Recross-examination a. Scope of redirect limited to matters that were raised in cross-examination i. Direct examiner is usually not permitted to prove an essential element of the case that was overlooked, although judges vary widely in how strictly they will enforce this limitation b. Recross & further redirect examinations sometimes allowed each such successive exam is smaller in scope since it's limited to responding to the immediately preceding redirect or recross-examination C. Elaboration of FRE 611(a) & (b) and the Examination of Witnesses 1. Direct Examination a. On direct examination, goal is to let the witness provide pieces of narrative, in his/her own words, that build an overall "story" to the jury i. Important to help your witness appear as credible as possible, since W will be supporting your case ii. Although you can also introduce evid. through cross-exam, the danger in relying on cross-exam to introduce key evidence is that you have no control over what witnesses your opponent will call b. W should be allowed to testify in a narrative format, w/ the lawyer's questions keeping the story moving forward, keeping W from digressing, and helping to vary the pace so W's story doesn't become boring i. Questions for the most part should be open-ended: "What happened next?" "What did you see" "Why did you do that" ii. Witnesses should be allowed to explain their actions

2. Cross-examination a. FRE 611(b) embodies the "American" or "restrictive" rule of cross-exam, in contrast to the wide-open rule of cross-examination, used in the English trial system, which permits the opposing party to question witnesses about anything that's relevant to the case i. Primary advantage of American rule: allows the parties to control development of their cases ii. Primary advantage of Eng. rule: avoids necessity of determining what the scope of direct exam was iii. While English rule also avoids the necessity of recalling witnesses who may have testimony regarding several issues of the case, FRE 611(b) reserves for the trial judge the discretion to accomplish same efficiency by permitting questions about matters that are beyond the scope of direct examination, in which the examination shall be conducted "as if on direct examination" Witness has become the cross-examiner's witness and that, therefore, "leading question should not be used ... except as may be necessary to develop the witness' testimony" b. Strategy & Goals of Cross-examination i. Take advantage of the subtle opportunity to argue your case Whole lines of questions can develop themes that you can emphasize by repetition & then argue to the jury in closing Leading questions, which can be asked on cross-exam, provide opportunity to make assertions that emphasize inferences or interpretations you want the jury to draw from the evidence ii. Fill in gaps in your evidence or obtain favorable admissions Sometimes adverse witness is the only witness who can provide admissible testimony needed to est. an element in your claim or defense, or to tell part of the story you want to convey to the jury - Many instances, you may have to call such a witness yourself as an "adverse witness" - Some witnesses called by your opponent may make (voluntarily or otherwise) admissions favorable to your side
b

iii. Control damage by minimizing the effect of adverse testimony by 1 or both of 2 means: w/out discrediting the witness, you can try to show how the witness's version of the facts is consistent with, or at least not inconsistent with, your theory of the case Discredit the witness by attacking his/her credibility, either on specific points or overall c. Cross-examination Technique i. b/c direct exam seeks to develop the story through the witness's own words & to bolster the witness's credibility, the direct examiner wants the jury to focus on the witness Factual info arising out of the testimony should therefore come from what the witness says, not the questioner questions should be shorter than the answer, and should generally be openended the question "why" is often effective on direct ii. On cross-exam, in contrast, lawyer wants to provide (in effect) most of the info the jury hears, while attempting to limit what the witness actually says by asking leading questions Make an assertion of fact to which the witness can fully respond by simply agreeing w/ a "yes" or "no" answer Formulate precise, narrow questions that don't call for explanation, keeping open-ended questions at a minimum in particular, "how" & "why" questions are generally avoided Don't ask "1 question too many" shouldn't ask the witness to agree to a conclusion or inference that constitutes the point you'll make in closing argument, even if you feel the conclusion follows logically from a series of propositions that the witness has agreed to - W will invariably disagree + attempt to give a self-serving explanation, arguing his own case

3. Direct Examination of "Adverse" & "Hostile" Witnesses a. FRE 611(c) 2 circumstances in which a direct exam may be conducted in the manner of a cross-exam, using leading questions & following the tactics of cross-exam: i. The direct examination of "adverse" witnesses ii. The direct examination of "hostile" witnesses b. Adverse witness = "an adverse party, or witness identified w/ an adverse party" w/in the meaning of 611(c) i. Concept includes not only the adverse party, but also his/her/its agents, employees, and ppl who, through legal or other ties, are strongly identified w/ the adverse party ii. Not uncommon to call such an adverse witness in your case-in-chief Usually call adverse witness where an item of evid. necessary to prove your case is uniquely w/in the knowledge of adverse witness, or where there's reason to believe adverse witness will be so disliked or disbelieved by jury that his testimony will necessarily help rather than hurt your case If an adverse witness is necessaryor strategically helpful to your case, may not want to run the risk of waiting for cross-examine this witness - Your adversary may not call this witness, or may do so but keep the direct exam so circumscribed that you won't be able to cover the subjects you want on cross-exam iii. When questioning an adverse witness on direct exam, you're allowed to use leading questions and, as a tactical matter, should use all the techniques of cross-examination Although using cross-exam techniques, you don't have a limitation on the scope of questioning as you do on actual cross-exam When you're finished, your adversary has the right to do a "friendly cross-exam," during which leading questions will normally be prohibited, as though that were a direct exam c. Hostile witness = 1 who's presumed friendly or neutral when called to the stand (i.e., a nonadverse witness), but who, during questioning, demonstrates an attitude sufficiently hostile to the questioner to raise an inference of opposition to the examiner's client or identification w/ the adverse party i. Examining att'y then asks court to declare the witness "hostile" if court does so, the examiner can proceed w/ leading questions, and may want to use the other cross-exam techniques as well d. In addition to asking leading questions, the party calling the adverse or hostile witness may also impeach that witness by attacking the witness's credibility according to FRE 607, "the credibility of a witness may be attacked by any party, including the party calling the witness" i. The rule suggests that a party may impeach a witness on direct exam even if the witness isn't formally adverse or hostile D. Interpretation & Illustration of FRE 611(c): Leading Questions 1. Leading questions are questions that suggest the answer the examiner is seeking a. FRE 611(c) confirms again, in the form of a guideline to the trial judge the common practice that leading questions are normally prohibited on direct, but allowed on cross-examination i. This rule accounts for most obvious difference btw the mode of conduct direct & cross-exam ii. "Redirect" is treated the same as direct exam, and recross the same as cross-exam for purposes of the leading question rule b. Assumption underlying FRE 611(c) a witness is likely to be friendly or at least cooperative w/ the party calling the witness, and won't be equally cooperative w/ the cross-examiner i. This presumed bias against cross-examiner may make leading questions essential to get at the truth ii. Conversely, b/c the witness's presumed willingness to cooperate w/ the direct examiner, there is thought to be a risk that the suggestiveness in leading questions on direct exam may cause the witness to distort the truth in the direct examiner's favor

E. Elaboration of FRE 611(c) & Leading Questions 1. What Is a Leading Question? a. A leading question is 1 that suggests the answer the questioner wants the witness to give i. The "test" of a leading question may often come down to a matter of degree how suggestive is the question? that's heavily dependent on context b. Leading questions are often phrased as an assertion of fact, ending either w/ a tone of voice implying a question mark at the end, or w/ an actual verbal tag asking the witness to agree i. You were at home the night of the murder, isn't that correct [...isn't that true? ...right? ...weren't you?]?
ii. Weren't you at home the night of the murder? iii. You were at home the night of the murder? iv. Isn't it a fact that you were home the night of the murder?

c. It's the suggestion of the directed answer that makes a question leading i. A typical leading question occurs when the questioner suggests a fact to a witness who seems to have overlooked it 2. Leading Questions: Tactical Considerations a. If the opposing counsel doesn't object, the court is unlikely to stop you on its own initiative i. Even if objections are made, the trial judge has virtually unreviewable discretion to allow leading questions b. Down side to asking a lot of leading questions: i. b/c the focus on direct exam should be on the witness, rather than on the examiner, leading questions often backfire as a direct exam technique A witness who delivers key testimony in response to leading questions on direct exam will give the impression of saying whatever the lawyer wants, and can lose credibility

V. OBJECTIONS & PRESERVATION OF ERROR FOR APPEAL: FRE 103

Substantive rules of evidence revolve most clearly around 2 features of the trial process:
o Trial

objections record" that preserves evidentiary issues for appellate review

o "Making a

Evidentiary rulings admitting evidence over objection will virtually never by the basis of appellate reversal w/out a

clear, direct, and correct objection in the trial record

o If

evidence is excluded, the losing side must make sure that the substance of the evidence, and the theory of its admissibility, are apparent from the record to preserve the issues for appeal FRE 103(a)(2) of the advocates to create a record that adequately reflects the objection, any response to it, and the judge's ruling "perfecting the record" & "preserving the issue for appeal"

o Job

A. FRE 103 Rulings on Evidence

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) Objection. In case the ruling is 1 admitting evidence, a timely objection on motion to strike appears of record, stating the specific ground of objection, if the specific ground wasn't apparent from the context; or (2) Offer of Proof. In case the ruling is 1 excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context w/in which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. (b) Record of Offering & Ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question & answer form. (c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. (d) Plain Error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they weren't brought to the attention of the court.

B. Interpretation & Illustration of FRE 103(a) & (d): Objections, Offers of Proof, and Preservation of Evidentiary Issues for Appeal 1. Objection = means by which a lawyer can interrupt the trial to oppose the introduction of evidence a. Can be made to any type of evidence: real evidence, demonstrative evidence, or testimony b. Purpose of an objection: i. If the objection is sustained to increase your chances of winning the trial by excluding harmful evidence from consideration by the trier of the fact ii. If the objection is overruled to preserve for appeal your argument that the evidence should have been excluded, pursuant to FRE 103(a)(1) 2. When an objection is made, 1 of 3 things will usually happen: the court will "sustain" (agree with) the objection, "overrule" (disagree with) the objection, or ask counsel for further elaboration or argument, usually outside the hearing of the jury, such as at the sidebar a. If judge rules on the objection right away, losing lawyer may feel it necessary to try to make further argument before the trial proceeds any further, & may ask to approach the bench to argue the point 3. When an objection has been sustained, it may be necessary for the lawyer offering the evidence to approach the bench to make an offer of proof a. FRE 103(a)(2) to preserve an appeal of an erroneous ruling excluding evidence (an incorrectly sustained objection), the party must "[make] the substance of the evidence ... known to the court" unless the substance "was apparent from the context in which the questions were asked" i. This procedure of advising ct. of the substance of the excluded evidence = an "offer of proof" ii. An offer of proof can take the form of a statement on the record by counsel summarizing what the excluded evidence would show

4. FRE 103(a) a. An evidentiary ruling will be a ground for reversal on appeal only if 2 conditions are met: i. The error must "affect a substantial right" of a party i.e., the ruling made some difference in the outcome of the trial ii. The party must have made a timely objection and, where the ruling excludes evidence, an "offer of proof" alerting the court to the substance of the excluded evidence Failure to object will probably mean that the judge's ruling , or the adversary's behavior, can't be grounds for reversal b. Exception to this general rule: FRE 103(d) "Plain"error (applies to both criminal & civil cases) i. An error so serious, and so obvious, that it can be grounds for reversal even though no objection was made to it during trial trial judge should have noticed it, and it's highly probably that it affected the outcome C. Elaboration of FRE 103(a)(1) & (2) and Objections 1. Two Types of Objections a. Objection to the admissibility of the answer i. Intended to exclude inadmissible evidence ii. Made when it appears that the question, even if properly phrased, calls for evidence barred by exclusionary rules of evidence or whose relevance or foundation hasn't been established iii. Governed by rules of evidence b. Objection to the improper form of a question i. Intended to regulated the mode of questioning & the behavior of the examiner ii. Governed by trad'l trial practice & the trial judge's inherent discretionary authority rather than form evidence rules iii. Examples: "Leading," "Argumentative," "Calls for a narrative response," "Compound," "Vague," "Ambiguous," "Mischaracterizesthe testimony" iv. May be sustained even though the evidence they seek is ultimately admissible or questions can be framed in an objection form & seek arguably inadmissible matter v. Questions can violate more than 1 rule relating to form, and it's appropriate to mention multiple grounds for the objection e.g., Objection: leading, compound 2. Timing of Objections a. In a very short time often no longer than the second or 2 before the witness answers the question you have to determine whether the question is objectionable, on what basis, whether tactically the objection is worth making, and then actually say "objection" b. Failing to make a timely objection can result in a failure of both goals of objecting at all a failure to object and even an untimely objection fails to keep the evidence from the jury, & normally waives the evidentiary error on appeal i. Narrow exception to this "contemporaneous-objection rule": under FRE 103(d), an appellate court may correct "plain error" in spite of the absence of a contemporaneous objection Plain error exception used "sparingly," and only to correct "particularly egregious errors" that would result in a miscarriage of justice if not corrected

c. A timely objection to the form of the question must be made before the question is answered i. If the answer is given before the objection, judges will often allow the answer to stand, & will either overrule the objection or simply say, "witness already answered" or "the answer stands" ii. But, if the witness answers an objectionable question after the objecting lawyer has already started speaking or before the judge rules, the judge may strike the answer & caution the witness not to answer questions while objections are being made or ruled on d. Timely objection to inadmissibilityof an answer must be made as soon as inadmissibility becomes clear i. Where a clear potential for an inadmissible answer inheres in the question, the objection should be made before the answer is given ii. However, in contrast to objections to the form of the question, where the judge is unlikely to strike the answer, if you didn't object fast enough to an inadmissible answer, you might still object belatedly & ask the judge to strike the answer e. Sometimes, the objectionable matter can't be anticipated from the question e.g., "Tell us what happened next" is generally an unobjectionable question, but the witness could say all kinds of things that aren't admissible testimony i. It's fair game to cut the witness off w/ an objection & motion to strike as soon as the objectionable character of the answer becomes clear Most judges will be more lenient about striking inadmissible portions of an answer in this situation, even if you didn't jump in at the 1st possible moment f. When inadmissible matter has gotten in front of the jury & you failed to object (presumably b/c you couldn't anticipate the objectionable matter from the question), proper response is a motion to strike the offending testimony, and perhaps a request for the judge to admonish the jury to disregard it 3. Stating the Objection a. An objection isn't preserved for appeal unless "a timely objection or motion to strike appears of record, stating the specific ground for the objection" FRE 103(a)(1) i. General objection = an expression of an objection w/out stating the grounds May not hurt your case if you make a general objection that's sustained, b/c goal of keeping the evidence out is accomplished, and have no basis to appeal your own successful objection If a general objection is overruled, however, it's likely to be deemed to waive the issue on appeal for failure to state the ground ii. Specific objection = need only communicate the basic reason for the objection e.g., "Objection, hearsay" probably sufficient to preserve the point for appeal - Not necessary to spell out your theory as to how the only relevant use of the out-of-court statement is for the hearsay purpose of proving the truth of the matter asserted - Indeed, most judges frown upon "speaking objections" making arguments in the course of stating an objection b. Vital to state the correct basis for the objection i. Judge is req'd to rule only on the stated ground of objection if you state an invalid basis for an otherwise proper objection, your objection could be overruled even if it could have been sustained on another ground c. If offending matter has already been stated by witness, proper procedure = make a motion to strike i. Need to specify both the grounds for the motion (which are the same kinds of points as grounds for objections) & the portion of testimony you contend should be stricken ii. Should be done to preserve the issue for appeal iii. The remedy can have a practical consequence if the jury asks for a "read-back" of the trial transcript during jury deliberations stricken portions of testimony omitted from read-back

4. Tactical Considerations a. Tactical disadvantages of making objections: i. An objection signals to the jurors that counsel wants to keep them from hearing some info This could create an impression of having something to hide, and this downside of objecting has to be weighed against the damage to 1's case if the evidence comes in ii. Irritating judge or jury, or (if the objection is made during your opponent's cross-examination of your witness) possibly confusing the witness iii. Objections to the form of a question may simply cue your adversary to phrase a clearer, more effective question iv. An objection can often underscore the damaging aspects of an objectionable question v. Objectionable questions sometimes helpful to your case either b/c the specific answer will be helpful or b/c the question will "open the door" to helpful testimony that might not otherwise be admissible b. Tactical advantages of making objections: i. Jurors will expect the lawyers to make some objections, which gives you some leeway to do so w /out reaching an irritation threshold ii. By sitting mute while your witness is being flogged w/ seemingly unfair questions, you may send a signal that you're being lazy, inattentive, or indifferent to your case iii. Objections particularly if sustained can disrupt rhythm or flow of your opponent's examination or leave opponent stumped as to how to ask proper question to get in some important piece of evid. B. Elaboration of FRE 103(a) & (d): Preservation of Error for Appellate Review 1. Making the Record in General a. When a judgment is rendered based on a jury or bench trial, any appeal is most likely to focus on the evidence "in the record" i. Appellate questions of substantive law will look at whether sufficient evidence supports the legally defined elements of the claims or defenses ii. Evidentiary questions will consider whether appellant's rights were unduly harmed by excluding evidence that should've been admitted or admitting evidence that should've been excluded b. The record serves as the universe of facts & trial court rulings w/in which an appellate court must operate in making its ruling on appeal i. Appellate courts aren't allowed to "go outside the record" by considering facts or legal arguments that haven't been presented to the trial court c. "Making the record" very often means nothing more or less than having what's said recorded & ultimately transcribed by the court reporter so that it becomes part of the official trial transcript i. Sometimes, the judge, either inadvertently or by design, will conduct some important moments of legal argument or ruling during the trial w/out the court reporter present e.g., an argument in chambers or sidebar might go unrecorded, and thus be "off the record" In such cases, it's the responsibilityof the lawyer to put the matter "on the record" i.e., to summarize what occurred when court reporter is back on duty & making verbatim record Otherwise the matter occurring off the record could be effectively insulated from app. review 2. Making the Record for Appeal of Evidentiary Rulings a. For purposes of appeal of evidentiary rulings, "making the record" means complying w/ FRE 103 i. Appealing party must have made ("on the record") a specific objection or an offer of proof, depending on whether the disputed item of evidence was admitted or excluded

3. Standards of Appellate Review of Evidentiary Errors a. Analytically, appellate courts proceed through 2 steps in considering whether a trial judgment should be reversed for an erroneous evidentiary ruling i. "Was there error"? Must, but not all, evidence questions reviewed on appeal under an "abuse of discretion" standard appellate ct. won't "substitute its judgment" for that of the trial court i.e., the appellate court won't redecide the issue as though it were the orig'l decision-maker Under the abuse of discretion standard, to find error at all, appellate court has to conclude trial court's decision wasn't merely wrong, but something close to an unreasonable decision ii. If there was error, was the error "harmless"? FRE 103(a) an appeal based on an erroneous ruling admitting or excluding evidence at trial can't win a reversal unless the error affects a "substantial right" of the party "Substantial right" as invoking the "harmless error standard" - An error is harmless if it didn't affect the outcome of the trial o Would the jury have reached same result had the erroneously admitted evidence been excluded (or had the erroneously excluded evidence been admitted?) o If so, the error is harmless

RELEVANCY, PROBATIVE VALUE, AND THE RULE 403 DANGERS

I. RELEVANCY THE BASIC CONCEPT A. FRE 401 & 402
Rule 401: Definition of "Relevant Evidence" "Relevant evidence" = evidence having any tendency to make the existence of any fact that's of consequence to the determination of the action more probable or less probable than it would w/out the evidence Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as otherwise provided by the U.S. Constitution, by Acts of Congress, by these rules, or by other rules prescribed by the Supreme Ct. pursuant to statutory authority. Evidence which isn't relevant is NOT admissible.

B. Interpretation & Illustration of FRE 401 & 402

Under FRE 401 & 402, judges will exclude all evidence that's not relevant
o There

are other specific rules of evidence (e.g., the opinion & hearsay rules) that provide for the exclusion of evidence on other grounds

In deciding whether an item of evidence is relevant under FRE 401, judge must consider 2 issues:

(1) Is the item offered to prove a fact that's "of consequence" to the case? (2) Does the evidence actually tend to prove (or disprove) that fact by making it more (or less) probable?
Common law perceived these 2 issues as 2 separate concepts:
o Materiality

the connection to a fact of consequence in the case o Relevancy the connection as logically probative 1. Relevant Evidence Is Offered to Prove a Fact of Consequence (Materiality) a. In general, a proposition of fact is "of consequence" (i.e., material) in a legal dispute if it matters to the legal resolution of that dispute if it can be connected through inferential reasoning to 1 of the essential legal elements of the substantive law that governs the case EF FOC EE

Arrow drawn from the EF (the evidentiary fact offered into evidence) to the FOC (the fact of consequence the EF is offered to prove) represents an inference that the jury can make The EF is evidence presented to the jury in the courtroom The FOC is a proposition of fact that's not presented but that the jury can decide to believe, on the basis of drawing an inference The FOC connects to the EE (essential element) again through an inference b. The substantive law determines the essential elements in every case c. The relevance of some evidentiary facts requires that several inferences be made prior to reaching a readily identifiable fact of consequence to the litigation EF IF(inferred fact) FOC EE

d. The facts of consequence in a case can't be determined w/out knowing the substantive law that governs the dispute

2. Relevant Evidence Must Make a Fact of Consequence More or Less Probable Once the proponent identifies the fact of consequence, the proponent must also be prepared to say why the evidence offered tends to prove (or disprove) this fact - The evidence offered must make the fact of consequence more or less probable FRE 401 a. Probability Is Determined from Knowledge & Experience i. Virtually no legal rules governing this test of relevancy Test of "logic & general experience" b/c the jury uses its generalized knowledge & experience to draw inferences ii. Generalization principles evolved by experience or science, applied logically to the situation at hand iii. To test whether an evidentiary fact is logically probative of a FOC, the judge examines the generalizations underlying each inference in the proponent's proposed chain of reasoning Generalizations are only rough estimates of human behavior (& other kinds of occurrences) - Can't "prove" than an inference is true Nevertheless, operate as part of a type of syllogistic reasoning: from major premise (the generalization) & minor premise (evidentiary fact) to conclusion (inference to be drawn) b. Relevancy Requires Reasonable Generalizations i. Judges will admit evidence as making a FOC more or less probable when they think there are reasonable generalizations based on common knowledge & experience that will support each inference in the chain of reasoning Test of relevancy is "whether a reasonable person might believe the probability of the truth of the consequential fact to be different if that person knew the proffered evidence" Judge thus estimates the probabilities of such generalizations in a subjective way, from the perspective of the reasonable juror ii. If trial judge has doubt about whether a generalization is reasonable, judge can require the proponent of the evidentiary fact to produce evidentiary support for the generalization itself A proponent will have to present proof of an underlying generalization if judge requires it, or may do so simply to persuade jury that the generalization has particularlystrong probative force iii. Judges don't require objective proof of most generalizations that sound reasonable, due to the lack of empirical knowledge about most of human behavior However, at least 2 obvious limits implicit in the "reasonable juror" test: - The necessary generalizations can't be known to the judge to be false (e.g., "ppl can seek through brick walls") - The necessary generalizations can't be speculation (e.g., "ppl w/ red hair seem to be more aggressive than ppl w/ black hair" A relevancy theory based on such generalizations should be rejected iv. Some generalizations express invidious stereotypes based on factors such as gender, race, ethnicity, religion, age, and sexual preference Once articulated, many such generalizations probably fall w/in the "false" or "guesswork" categories of unacceptability, or lack any connection to the individual case v. Stereotypes & biases may also surface during confidential jury deliberations if the background facts necessary to trigger them are available Some of these problematic stereotypes have been identified & addressed in the Fed. Rules - FRE 610 prohibits evidence of religious beliefs or opinions on the question of credibility - FRE 412 limits the use of evidence of a victim's sexual behavior or predisposition in cases involving allegations of sexual misconduct

c. FRE 401's Minimal Standard of "Any Tendency" i. FRE 401 defines relevant evidence as having "any tendency to make the existence of any fact of consequence more or less probable" This is a minimaltest of a logically probable inference from the offered item to a FOC The judge compares how probable the FOC is w/ & w/out the offered evidentiary fact - Judge will find the offered fact relevant if it makes a FOC somewhat more or less likely than it would be were the evidence not known ii. Analysis of the results of the judge's comparison: If and only if the probability is the same w/ & w/out the evidence, the evidence is irrelevant if these probabilities are different, the evidence is relevant - The size of the change is of no importance in determining relevancy The exclusion of evidence which makes a change, but a change too small to justify the time consumed in receiving the evidence, is dealt w/ by Rule 403 There are no degrees of relevancy the term relevant refers to the distinction btw some probative force & no probative force btw some change in probability & no change iii. How certain trial judge has to be that the evidentiary fact has the minimal relevant connection to the case FRE 401 doesn't contain a specific standard of proof (unlike FRE 104) Absence of a specifically higher standard, plus the policies underlying the minimaltest of relevancy established in FRE 401, persuade us that the judge should find evidence to be relevant if the judge believes there's any probability that the relevant connection exists Implicit in Fed. Rules is the concept that the relevance of evidence is determined by whether the evidence could influence a reasonable juror or reasonable jury, rather than whether the evidence does or would influence the trial judge - Minimal test of relevancy serves 1 of the most important goals of the FRE: to promote rational decisionmaking by promoting the jury's access to relevant evidence 3. Direct Versus Circumstantial Evidence a. Common law distinguished btw 2 types of relevant evidence: direct & circumstantial i. Direct Evidence evidence that, if believed, establishes an essential element e.g., Testimony of an eyewitness identifying a bank robber, if believed, would be direct evidence of the element of identity - The fact of consequence is itself identical, or basically identical, to the essential element, the difference being the legal terminology in which the essential element is phrased - b/c no inferences other than those pertaining to the credibility of the eyewitness mediate btw the EF, the FOC, and the EE, this type of evidence is = direct evidence ii. Circumstantial Evidence the connection btw an EF and an EE isn't so immediate & requires an intervening inference e.g., Witness testimony that immediately after a bank was robbed, he saw (charged w/ the bank robbery) running a block away from the bank viewed as circumstantial evidence of 's guilt b/c the testimony doesn't directly est. the EE of identity - Add'l inferences are necessary to explain 's conduct in such a way to connect to the robbery he was attempting to flee to avoid being caught after the crime - And b/c there are numerous other explanations for 's running, an inference of identity doesn't automatically follow b. Analytically, no difference btw direct & circumstantial evidence b/c both require jury to use inferential reasoning what distinguishes circumstantial from direct evidence is length of the inferential chain i. Direct evidence establishes an EE only if the jury believes the eyewitness, and this requires inferential reasoning about the eyewitness's ability to observe the event correctly, to remember it, and to describe it accurately

c. Labels of "direct" & "circumstantial" don't reflect the evidence's probative force i. Circumstantial evidence can often be more reliable than direct evidence e.g., Fingerprint or blood spot found on a murder weapon, identified as 's by fingerprint analysis or DNA testing is circumstantial evidence that can be very accurate, and probably more reliable than many eyewitnesses d. Some jurisdictions distinguish btw circumstantial & direct evidence in instructing the jury that each fact in a chain of circumstantial evidence necessary to proof of guilt must be proved BARD i. Although, this instruction can't possibly be applied to every intermediate inferred fact in a chain of reasoning, and giving it is very confusing to the jury e. The ultimate inference of guilt in a criminal call will typically depend on a # of intermediate inferred facts, each proved by a # of individual items of evidence i. Only rarely will any 1 such fact, of itself, be necessary to proof of guilt Prosecution bears the burden of proving all the elements of a crime BARD i.e., the essential ingredients of each element must be so proved - Doesn't mean that every fact every piece of evidence relied upon to prove an element by inference must itself be proved beyond a reasonable doubt - Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately 4. Background Information a. In most cases, judges admit some testimony that may not seem to have any obvious connection to any fact of consequence in the case i. Reasonable background info about the witness who's testifying is "always admissible b/c it allows the jury to make informed judgments about the credibility of a witness & the reliability of the witness' observations" b. Res gestae "things done" used to justify admission of broader context to an important incident c. Parties also use many kinds of exhibits that in & of themselves don't tend to prove any FOC but that are nonetheless part of, or illustrate, the story to which the jury is listening i. This kind of contextual evidence evidence which is essentially background in nature is admitted as an aid to understanding, despite its lack of immediate consequence to the case e.g., Charts, photographs, views of real estate, murder weapons, etc. 5. Relevancy Is Not Sufficiency a. The question of admissibility under FRE 401 is separate from the question whether an item of evidence is sufficient proof to justify sending a case to the jury i. Question of admissibility goes to logical effect, and "any tendency" under FRE 401 requires only a minimum level of logical effect ii. Question of sufficiency goes to whether a reasonable person could be persuaded by the evidence to the level demanded by the applicable burden of persuasion Typically, a party's case will require many items of evidence to meet the burden of producing evidence sufficient to support a jury verdict b. Most items of evidence won't trigger just 1 inference or just 1 underlying explanatory generalization i. Evidence typically can be interpreted in several diff. ways, thus triggering competing & often contradictory inferences usually for jury, in its ultimate deliberations, to chose among them ii. To be admitted under FRE 401, an item of evidence needs only to make a fact of consequence somewhat more or less likely than it would be were the evidence not known

C. Elaboration of FRE 401 & 402 1. Knapp v. State illustrates the low threshold of probative connection req'd by the concept of relevance a. Appellant appealed from a judgment, under which he stood convicted of 1st degree murder i. Appellant, as his own witness, offered testimony tending to show a killing in self-defense Testified that before the killing, he heard that the deceased (a marshal) had clubbed & seriously injured an old man in arresting him, and that the old man died shortly after On Appellant being asked, on cross-exam, who told him this, said he couldn't remember ii. State permitted, on rebuttal, to prove by a physician, over objection & exception of defense, that the old man died of senility + alcoholism, and that there were no bruises or marks on him b. Must be an open + visible connection btw the fact under inquiry & the evidence by which it's sought to be established connection req'd is in the logical processes only, for to require an actual connection btw the 2 facts would be to exclude all presumptive evidence i. While Appellant's counsel was correct in asserting the question was whether Appellant had heard a story that the deceased had offered serious violence to the old man, doesn't follow that the testimony complained of didn't tend to negate Appellant's claim as to what he heard ii. Fact proved by State tended to discredit appellant as it showed that somewhere btw the fact & the testimony someone was lying, and b/c Appellant couldn't point to his informant, testimony complained of had a tendency to render his claim as to what he had heard less probable KEY POINTS FRE 402 requires that evidence must be relevant to be admitted at trial, and that all relevant evidence is admissible unless otherwise provided FRE 401 requires that to be relevant, an evidentiary fact must: 1. Connect by a process of inferential reasoning to a "fact of consequence" in the case a. The essential elements of the substantive law that governs the case determine what facts are "of consequence" 2. Make a fact of consequence "more or less probable" a. The judge decides under the "any tendency" standard by examining the necessary inferences & the reasonableness of the generalizations underlying them

II. PROBATIVE VALUE & THE RULE 403 DANGERS

FRE 403 affords the trial court authority to exclude evidence that's admittedly relevant under Rules 401 & 402,

but that the judge believes might distract the jury from its role of rational decisionmaking o FRE 403 provides guides for the exercise of the court's discretionary power to exclude: Judge isn't free to choose btw admission & exclusion unrestrained by fixed principles rather, the judge has some flexibility in choice of outcome, but is restrained by standards articulated in the rule
o FRE

403 doesn't allow trial judge to remove relevant evidence from jury's universe solely b/c he finds the evidence unpersuasive ultimate arbiter of the persuasiveness of the proof must be factfinder, not lawgiver

Judge's power to exclude under FRE 403 means the advocates can't present all the relevant evidence they would

like to offer to the jury, and the jury won't see & hear admittedly relevant info A. FRE 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

B. Interpretation & Illustration of FRE 403

When the opponent objects to the admission of evidence on any of the grounds stated in the rule, the judge

must carefully evaluate the probative value of the offered item, estimate the "Rule 403 danger" that it poses, and then apply the terms of the balancing test that the rule sets forth
Relevant evidence is to be excluded only if its probative value is substantially outweighed by 1 of the rule's

articulated dangers 1. Probative Value

To decide the merits of a Rule 403 objection, judge must 1 analyze the persuasive effect the item of
st

evidence will be likely to have on the jury's thinking about the FOC it's offered to prove this is its probative value
Evidence is relevant if it has "any" tendency to make the FOC more or less probable probative value

measures the strength of the effect on the probabilities, even if only in general terms like "highly," "somewhat," or "minimally" probative a. Strength of the Underlying Inferences i. Primary measure of probative value is the strength of the inferences that connect the evidentiary fact to the fact of consequence & then to an essential element in the case This strength depends on the rough probabilitiesof the generalizations underlying those inferences b. Certainty of the Starting Point i. The certainty of the starting point of the inferential chain can also affect probative value If witnesses admit that they are themselves uncertain about what facts they actually perceived, or if a document contains ambiguous language, judges may discount the value that they attribute to the evidence for purposes of FRE 403 But courts don't count the witness's credibility when estimating probative value - Evaluating the credibility of witnesses is a matter uniquely w/in the competence of the jury, and the judge's role is to estimate the probative value of testimony if believed c. Need i. Judges should balance "the probative value of & need for the evidence against the harm likely to result from its admission" The "availability of other means of proof" may also be weighed in the decision to exclude evidence on grounds of unfair prejudice ii. The centrality of the point to be proved, and the degree to which it's disputed by the opponent, can increase a party's need for evidence & would increase its probative value iii. The lack of alternative means of proving a FOC can also raise the probative value of an item of evidence "in the relative sense, as being determined by supply & demand" Alternatively, if there's already substantial evidence on the same point, there's less need for an add'l item & its probative value is lower iv. Fine-tuning of probative value in the specific context the evidence is offered to prove the FOC requires judge be familiar w/ evidence already admitted & that's expected to be admitted at trial Judge may also need to inquire about what other evidence is available to the parties - If judge isn't able to make this contextual judgment of probative value at the time a Rule 403 objection is made, he can defer decision until later in the trial when more evidentiary context has been provided, using technique of conditional admissibility

NOTE a. Higher # of inferential steps in a chain of reasoning doesn't automatically reduce probative value i. While it's true that some chains of reasoning are longer & some are shorter, the important point is that some are stronger in the sense of being more convincing, while some are weaker in the sense of being not very persuasive ii. At issue is the strength of the connection btw the evidentiary fact & the final inference rather than the # of steps that must be taken to get to that final conclusion This is a function primarily of the strength of the generalizations underlying each step 2. Rule 403 Dangers
2nd step in resolving a Rule 403 objection is for the judge to estimate the danger that the item of evidence

poses to the jury's rational decision-making process & to the judicial system's interest in efficient decisionmaking o Major sources of risk of error in the jury's reasoning process, as identified by FRE 403: Evidence that's unfairly prejudicial or confusing or that will mislead the jury can be excluded If the production of evidence causes undue delay, is a waste of time, or is needlessly cumulative, it may be excluded as well
Whatever the kind of danger, the judge will attempt to make a realistic estimate of the danger posed
o This

will include: The nature of the danger, The likelihood that the jury will be negatively affected, and The probable degree of the harmful effect

o If

a single item of evidence raises more than 1 of these probative dangers, this may significantly increase the probable degree of harm

a. Unfair Prejudice i. Refers to the danger that evidence might suggest an improper basis upon which the jury could decide the case Evidence is not unfairly prejudicial simply b/c it's detrimental to a party's case i.e., the test is not whether the evidence is detrimental, but whether it's so unfairly prejudicial as to substantially outweigh its probative value ii. 2 principal risks of unfair prejudice w/in the scope of FRE 403 (1) Evidence about a party can trigger a response that has nothing to do w/ its logical connection to a FOC this response can turn the jury against that party (or in favor of that party) & improperly influence the jury's decisionmaking - This improper reaction is commonly, though not necessarily, an emotional one (2) If evidence could be used by the jury in a manner that violates a rule of evidence law - A single item of evidence can generate several different inferences & be used by the jury in more than 1 way e.g., Walker's attack on other the inmate triggers the permissible inference that feared W. It also triggers impermissible inference about W's propensity to use violence against inmates in general, and thus to use violence against . This is impermissible under FRE 404(b), which prohibits the use of prior specific acts, such as W's attack, to prove action in conformity w/ character. The risk that the jury will use 's testimony for this improper purpose qualifies as a danger of unfair prejudice under FRE 403. 's testimony thus has a proper relevant use to prove he feared W as well as improper use to prove W's violent character. If prosecution objects to 's testimony, FRE 403 requires judge to balance the testimony's permissible probative value against the danger that it will be used improperly.

b. Confusion of the Issues i. Evidence confuses the issues when it focuses the jury's attention too closely on a factual issue that's not central to the outcome of the case collateral issues Collateral issues = their connection to the essential elements is trivial & may be based on complicated or attenuated theories of relevance - Typically, then, proof of collateral issues will require the use of multiple witness or will consume considerable time in court if a jury gets involved & interested in deciding a collateral issue, it will spend less of its attention on the important questions It's not that these collateral issues are irrelevant rather, they are too distracting & tend to confuse the issues c. Misleading the Jury i. Courts often refer to evidence as both "confusing & misleading" and make no effort to distinguish btw the 2 dangers the danger of being misleading, however, usually involves a risk that an item of evidence will cause the jury to draw a mistaken inference Facts taken out of context or presented in falsely suggestive manner can also trigger this danger ii. Specific types of evidence can be viewed as misleading if the judge feats that the jury will give the evidence more weight than it deserves e.g., Videotaped reenactments of accidents or other events have been called misleading b/c jurors may treat them as documentations of the actual event Some kinds of scientific evidence & expert testimony also believed to be overpersuasive - e.g., Many courts reject a criminal 's lie detector evidence on grounds that the jury may overvalue polygraph results as an indicator of truthfulness b/c of their scientific nature d. Undue Delay, Waste of Time, and Needless Cumulative Evidence i. Each of these elements illustrates a different aspect of the same underlying problem: The introduction of evidence always absorbs court time, incurs expense by the opposing parties & by the state-run judicial system, and expends the attention of the jury Dangers of delay & waste of time FRE 403 balancing test: "As a general rule, evidence may not be excluded solely to avoid delay Under Rule 403, the court should consider the probative value of the proffered evidence & balance it against the harm of delay" - Courts have held that evidence may waste the jury's time if offered to prove stipulated, collateral, or background facts Danger underlying needless presentation of cumulative evidence includes the expenditure of trial time on repetitive testimony, plus the risk of losing the attention of the jury - Judge must assess the degree to which the testimony is actually repetitive - Also, there may be reasons why repetition is needed such as the centrality of the FOC being proved, the degree to which that fact is in dispute, and the probative value of the corroboration itself

3. Probative Value Substantially Outweighed by One of the FRE 403 Dangers

Final step is for the trial judge to weigh the probative value of the offered item of evidence against the

danger that this item poses under FRE 403 o How does 1 determine when a danger substantially outweighs probative value? a. The Meaning of "Substantially Outweigh" i. No scale a common measure w/ which to compare probative values vs. the degree of risk that Rule 403 dangers pose to the jury's reasoning process 1 way that judges might think about the balancing test is to predict an overall effect of an item of evidence on the jury: What is the likelihood that the "bad" aspect of the evidence will seriously dominate the mind of the jury, overwhelming the "good" aspect? - If the likelihood seems high, admission of such evidence may lead to "bad" factfinding as the incremental "badness" of the evidence exerts itself, and exclusion under FRE 403 would be justified - Why evidence should ever be admitted if its "bad" aspect appears to dominate over the "good" to even a small degree? o b/c the rule's requirement that probative value be outweighed "substantially" appears to require that some risks of negative impact be tolerated Another way to think about the requirement of substantially is that it measures the judge's confidence level: Evidence should be excluded only when the judge is quite confident that the prejudicial aspects of the evidence outweigh its probative value - The requirement can be thought of as providing a burden of proof to be applied under FRE 403 to the admission of evidence the burden in FRE 403 favors wrongful decisions to admit evidence over wrongful decisions to exclude it
Probative value of offered relevant evidence High Mid Negative effect of Rule 403 listed factor High, Mid, or Low High Mid or Low High Low Mid Low
*

Whether trial court may exclude evidence No No (Perhaps Yes)* No Yes No (Perhaps Yes)* No

If probative value were near the bottom of the "mid" range & the negative effect extremely high, or if probative value were extremely low & the negative effect near the top of the "mid" range, Rule 403 might allow exclusion

b. The Effect of Limiting Instructions on the Balancing Process i. Balancing of probative value vs. Rule 403 danger is also affected by FRE 105, which provides:
When evidence which is admissible as to 1 party or for 1 purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope & instruct the jury accordingly

ii. When an item of evidence has a proper relevant use to prove a FOC but also creates the risk of an improper use an impermissibleinference or an unfairly prejudicial effect the judge may give a limiting instruction that directs the jury to consider the evidence only for its proper use In reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to probable effectiveness or lack of effectiveness of a limiting instruction - The judge's belief that the jury can & will follow limiting instructions could decrease the judge's estimation of the risk of Rule 403 dangers As a general rule, courts assume that instructions do effectively exclude improper evidence from the jury's consideration - In some circumstances, however, courts recognize that limiting instructs aren't a surefire solution for the prejudice resulting from the needless admission of prejudicial evidence KEY POINTS 1. An objection made under FRE 403 to an item of evidence requires the trial judge to determine whether admission of the evidence creates any Rule 403 danger to the jury's decision-making process and, if so, whether this danger will substantially outweigh the probative value of the evidence 2. Probative value means the degree to which the evidence will alter the probabilities of a fact of consequence & an essential element in the case a. This is determined primarily by the judge's estimate of the strength of the generalizations connecting the evidence to the disputed issue & by the proponent's need for the evidence 3. The judge estimates the risk of harm from evidence that bears Rule 403 danger by predicting the nature of the jury's reaction to the evidence, the danger of that reaction, and the likelihood that the harmful reaction will occur 4. b/c FRE 403's balancing test requires the danger to substantially outweigh the probative value, even a very significant risk of danger many not result in exclusion if there are no alternatives or less dangerous means of proving the FOC a. The court will also use a limiting instruction to reduce the danger to admit the evidence NOTES 1. Many cases involving various ways in which parties (and sometimes their lawyers), attempt to destroy, alter, or suppress evidence that's adverse to their position in a lawsuit "spoliation" a. Instances of spoliation take many forms subordination of perjury, threats to & intimidation of witnesses, solicitation of murder of a witness, and alteration or destruction of documents b. Evidence of spoliation conduct is generally admissible against the spoliator giving rise to an inference that evidence was unfavorable to the spoliator's position or to an inference of the party's general consciousness of guilt or liability i. Evidence of spoliation offered at trial raises recurring questions of relevance & of unfair prejudice under Rule 403

C. Elaboration of FRE 403: Appellate Review of Judicial Discretion Under FRE 403 1. Application of FRE 403 calls for the exercise of judicial discretion i.e., judge applies criteria & standards that aren't mechanical but require the use of judgment a. The trial court makes judgments that: i. Estimate the probability of inferences ii. Evaluate the nature, likelihood, and degrees of danger to jury decisionmaking iii. Compare probative value to those dangers b. On appeal, these judgments are reviewed under the abuse of discretion standard (very deferential standard of appellate review) i. Appellate courts will tolerate trial court decisions that the appellate judges wouldn't have made themselves reversal is justified only when the trial court "abuses" its discretion 2. Reasons why appellate courts defer to the trial courts' judgments under FRE 403: a. Complexity & Uncertainty i. Rule 403 balancing test requires complex fact-based judgments unique to each case Judgments about probative value & the Rule 403 dangers are at best rough estimates and predictions of effect on the jury's decisionmaking the estimates that are made in 1 case may have little bearing in the next ii. Ultimate standard of "substantially outweighs" also requires balancing where there's no calibration for the weighing process, and the standard is such that precision isn't called for What's "substantial" can vary greatly among judges b. Competence i. Trial judge has more experience than appellate judges w/ making judgments of this kind ii. Trial judge is also closer to the evidence in the particular case, meaning that he has watched its presentation in the context of the entire trial & has observed its effect on the particular jury c. Tolerance for Outcomes that Appear Inconsistent i. Under an abuse of discretion standard of review, appellate courts will affirm trial ct. outcomes that may appear to be inconsistent, even in cases that appear to be similar to the appellate ct. That's what it means for the appellate ct. to "defer" to the trial court's judgment, even when it (or another trial ct.) might have decided the Rule 403 question differently ii. Largely b/c of the factors of competence, complexity, and uncertainty, appellate courts may not be able to know whether outcomes actually are inconsistent, and probably couldn't create sufficiently detailed precedent necessary to achieve uniform & consistent outcomes among the trial courts The contextual facts of Rule 403 decisions affect the weighing process too greatly - Abuse of discretion standard of review is an acknowledgment of the limits of the knowledge of an outside reviewer 3. Most appellate decisions affirm dist. courts' R.403 decisions, whether they admit or exclude the disputed evid. a. Standard of review for abuse of discretion often defined somewhat differently by Circuit Cts of Appeal i. There are some errors in applying R.403 that appellate courts will hold to be errors of law, such as not giving the terms of the rule their legally correct meaning, or violating a criminal 's const'l right to put on witnesses in his defense ii. Some balancing decisions are held to be abuses of discretion when the results are "clear errors of judgment," plainly against the logic & effect of the facts in the case iii. Appellate courts also try to ensure dist. courts will engage in full consideration of all R.403 factors b. Sometimes appellate review of FRE 403 decisions does create precedent for dist. courts to follow

4. United States v. Hitt a. Probative value: Nonexistent or Low i. But no relevance objection can't get it on appeal b/c wasn't raised at trial b. Rule 403 Danger: i. Unfair prejudice jury is going to think Hitt is a bad person ii. Misleading & confusing c. Balance: Judge in this case thinks the evidence is of slight probative value & rewrites the rule: i. "Where the evidence is of very slight (if any) probative value, it's abuse of discretion to admit it if there's even a modest likelihood of unfair prejudice or a small risk of misleading the jury" ii. But that's not the standard abuse of discretion only if the Rule 403 danger (e.g., unfair prejudice) substantially outweighs the probative value 5. Old Chief v. United States a. Standard rule that the Gov't is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal may not stipulate or admit his way out of the full evidentiary force of the case as Gov't chooses to present it, is inapplicable when point at issue is 's legal status, dependent on some jdgmnt rendered wholly independent of the concrete events of later criminal behavior charged against him D. Reflection on Judicial Discretion to Admit & Exclude Evidence 1. Exercise of judicial discretion req'd by FRE 403 allows the trial court considerable freedom to admit or exclude evidence a. Appellate courts treat lower court Rule 403 decisions w/ great deference, and appellate findings of abuse of discretion are infrequent 2. Other major rules of exclusion the character rule, the other relevance rules, the hearsay rule, the best evidence rule, and rules of privilege don't grant such explicit discretion to the trial court a. Rather these are exclusionary rules, and their exceptions, are "bright line" rules i. Some of these, such as the rule prohibiting the use of extrinsic evidence to prove specific acts that impeach a witness's truthfulness, are truly "bright line" ii. Others control the admission/exclusion decision w/ doctrinal definitions & categories 3. The categorical rules operate in 2 ways: a. The hearsay rule establishes categories that require judicial factfinding; the character rule establishes categories of permissible uses of specific acts that require the trial judge to identify particular noncharacter theories of relevance i. Under both types of categorical rules, trial judge's task is to determine whether the proffered item of evidence fits w/in a doctrinal category this decision of whether the item "fits" usually is determinative of admission or exclusion Thus, discretion the estimation & balancing of probative value and dangers to jury decisionmaking isn't exercised under these categorical rules This isn't b/c the categorical terms are applied mechanically they require very careful thinking by the trial judge - But it's a different kind of thinking, and it can be treated less deferentially by appellate courts if they treat the applicationof the categorical term as a question of law

LAYING THE FOUNDATION FOR PROOF

Universal principal of evidence law that no evidence is admissible until it's 1st shown to be what its proponent claims
o This

universal requirement = laying the foundation for proof

Evidence consists of testimony of witnesses, writings, material objects, or anything presented to the senses & offered

to prove the existence or non-existence of a fact o Rules that establish what foundation is req'd to secure the admission into evidence for these various types: FRE 104 allocating factfinding on preliminary foundational questions btw judge & jury FRE 601-606 necessary foundation for introducing testimony from witnesses FRE 901-902 various foundational requirements for exhibits, including real, demonstrative, documentary, and electronic evidence FRE 1001-1008 "the best evidence rule"
The foundational requirements differ for each type of evidence, but in all cases the proponent must present

foundational facts that are adequate under the rules o Failure to do so may give rise to an objection from the opponent & then to exclusion by the court Thus, these foundational requirements gives judge add'l control beyond FRE 401, 402, and 403 over what evidence advocates may present to jury & increases the info available to jury for its decision-making process
Satisfaction of the found'l requirements doesn't guarantee admission either other exclusionary rules may still apply

I. LAYING THE FOUNDATION FOR WITNESSES Foundational requirements for witness: 1. FRE 601 competency 2. FRE 602 personal knowledge 3. FRE 603 oath or affirmation to testify truthfully 4. FRE 605 & 606 incompetency of judge & jurors to testify in the case before them 5. FRE Art. VII rules regulating the admission of lay & expert opinion testimony of witnesses A. FRE 601 General Rule of Competency Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions & proceedings, w/ respect to an element or a claim or defense as to which the State law supplies the rule of decision, the competency of a witness shall be determined in accordance w/ State law. B. Interpretation & Illustration of FRE 601 1. Historical background of the strict regulations imposed at C/L rules of competency to keep certain categories of persons off the witness stand entirely a. Examples: (1) Spouses were incompetent to testify for or against a spouse; (2) Persons interested in the suit, including parties couldn't testify; (3) Atheists were categorically held to be incompetent, as were felons, young children, and the mentally ill i. All of these categories aimed at persons who judges & legislators thought weren't trustworthy b/c it was assumed that they either possessed a motive for coloring the facts in favor of their interest, or suffered defects of character, youth, or mental capacity that created risks of untrustworthiness b. In addition, the opponent could challenge a witness on grounds of individual incompetence i. Party presenting the witness then had to demonstrate the witness possessed the 4 testimonial qualities the ability to observe events, to remember them, to relate them accurately, and to understand the duty to tell the truth

2. 1st sentence of FRE 601 abolishes all categorical grounds of incompetence, subject only to limit that where state law furnishes the rule of decision in fed. court, a state-created category of incompetency will be applied a. FRE 605 & 606 do prohibit the presiding trial judge + members of the sitting jury from testifying in the case at issue i. These prohibitions are established not b/c of doubts about the trustworthiness of such witnesses, but b/c of the procedural complications & the potentially unfair prejudicial effect such testimony would be likely to have on the (other) jurors 3. In general, apart from judge & jury, ppl who witnessed relevant events can't be prevented from testifying solely b/c of their status or their interest in the case a. Note, however, a witness's status (e.g., a felony conviction, a spousal or familial relationship to a party) or a witness's interest in the outcome of a case might still affect that witness's truthfulness thus such facts are relevant, and are usually admissible, to impeach the credibility of the testifying witness i. FRE permit jury to decide whether such status or interest affects a witness's credibility, whereas the categorical incompetencies of the C/L would have withheld that witness from the jury entirely C. Elaboration of FRE 601: Challenging a Witness's Mental Competency 1. No mental or moral qualifications for testifying as a witness are specified FRE 603 abolishes the moral qualifications of taking a religiousoath in favor of acknowledgment of secular obligation to testify truthfully 2. Is there no longer any authority under FRE 601 for a fed. judge to decide that an individual witness's testimonial abilities are so impaired either temporarilyor permanently that the witness shouldn't testify? a. Since the authority to disqualify isn't mentioned in FRE 601, the fed. circuit courts of appeal have taken 2 primary approaches to challenges to the competency of a witness: i. FRE 601 can't be used to evaluate the ability of persons to testify The authority of the court to control the admissibility of the testimony of persons so impaired in some manner that they can't give meaningful testimony is outside of FRE 601 - The judge always has the authority under FRE 403 to balance the probative value of testimony against its prejudicial effect - Under FRE 603, the inability of a witness to take or comprehend an oath or affirmation will allow the judge to exclude that person's testimony - A person might be impaired to the point that he wouldn't be able to satisfy the "personal knowledge" requirement of FRE 602 ii. Under FRE 601, the trial court retains the discretion it had under C/L to decide whether an individual witness is competent to testify b. Under either view, the trial court may need to hold a hearing on the competency issue at which the witness in question would be placed under oath & examined out of the presence of the jury i. The judge has ample authority to hold such a hearing under FRE 104(c) & would decide the preliminary question of incompetence under FRE 104(a) by a preponderance of the evidence 3. Appellate courts seldom overturn a trial court's finding that a witness is competent to testify, emphasizing that most disabling factors should be treated as matters affecting credibility for the jury to resolve, not as matters of competence a. Appellate courts may also reverse a trial court's exclusion of the testimony of a witness who had been found insane & incompetent to stand trial if there's evidence in the record that the witness had sufficient memory, understood the oath, and could communicate what he saw

4. Child witnesses can raise troublesome issues of competence w/ regard to their ability to remember events & to relate them accurately + truthfully a fed. statute establishes a presumption of competency for children who are victims of crimes of abuse & who have witnessed crimes against others 18 U.S.C. 3509(c) a. A competency examination may be held only if compelling reasons exist & only upon motion by the opposing party & an offer of proof of incompetency i. Such examination is conducted primarily by the court away from the jury, w/ atty's but not parties present the questions focus on the child's "ability to understand & answer simple questions" Child witness's failure to respond to the trial judge's questions, her wrong answers to some of counsel's questions, and her nonsensical answers to others held to have raised questions of credibility, not competence U.S. v. Allen J. (10th Cir. 1997) KEY POINTS 1. FRE 601 establishes that all persons are competent to testify a. In most cases, facts that bear on competency are treated as affecting the weight of the witness's testimony but don't disqualify the witness 2. Particular challenges to the competency of individual witnesses may be resolved as a matter of the trial court's Rule 601 discretion, or under FRE 602, FRE 603, and FRE 403 D. 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 person. Evidence to prove personal knowledge may, but need not, consist of the witness's testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses. E. Interpretation & Illustration of FRE 602 FRE 602 mandates that before a witness may testify about a matter, the witness must be shown to have personal knowledge of that matter by evidence "sufficient to support a finding" 1. The Requirement of Personal Knowledge a. Most common kind of personal knowledge is visual perception, making the witness an eyewitness or percipient witness who was present at an event or occurrence i. However, knowledge can be based on any of the senses b. FRE 701, the rule regulating the admission of opinion testimony from lay witnesses, also contains a personal knowledge requirement c. If a witness's testimony is not based on personal knowledge, then it's probably based either on speculation or on what someone else has said to the witness, which makes it disguised hearsay 2. The Requirement of Evidence Sufficient to Support a Finding a. The proponent of a witness must produce evidentiary facts that the judge finds are "sufficient to support a finding" of personal knowledge i.e., a jury could reasonably find that it's more probable than not that the witness has personal knowledge i. This is same standard applied to preliminary questions of fact under FRE 104(b) & under FRE 901 b. Under all these evidence rules, trial court screens the proponent's evidence by applying the same "sufficiency" standard of proof i. If a "sufficient" showing of personal knowledge is still disputed by the opponent, then final resolution of the question is given to the jury as part of its decision-making role

c. To satisfy the sufficiency standard, usually all the proponent needs to do is to ask whether the witness did in fact see or hear the matters that are about to be described to the jury i. FRE 602 provides that the witness's own testimony "I saw that" will suffice Add'l corroboration that the witness did in fact perceive the matter is admissible, but wouldn't be necessary to satisfy the sufficiency standard A jury could reasonably believe the witness's testimony, and judge many not evaluate credibility d. Sufficiency standard in the context of FRE 104(b): In determining whether the Gov't has introduced sufficient evidence to meet Rule 104(b), trial court neither weighs credibility nor makes a finding that the Gov't has proved the conditional fact by a preponderance of the evidence i. The court simply examines all the evidence in the case & decides whether the jury could reasonably find the conditional fact by a preponderance of the evidence e. Sufficiency doesn't concern the question whether the trier actually will make such a finding i.e., it doesn't concern ordinary questions of credibility or the persuasive effect that evidence will actually have on the mind of the particular jury or judge as a trier of fact i. It doesn't ordinarily matter, therefore, that the testimony of the fact may be contradicted or impeached sufficiency isn't primarily concerned w/ credibility nor w/ the choice among competing permissible inferences All conflicts in the evidence are resolved against the party who challenges the sufficiency of the evidence, including conflicts & contradictions w/in a witness's or party's own testimony The proponent is entitled to the most favorable of competing rational inferences & to have inferences drawn from the most favorable findings f. In civil cases, summary jdgmnt motions are often decided on the basis of affidavits, which must state facts on personal knowledge FRCP 56(c) i. If the foundation for the affiant's knowledge isn't set forth in the affidavit w/ some particularity, it may not be sufficient to raise a genuine issue of material fact KEY POINT 1. FRE 602 requires that all witnesses (other than experts testifying to their opinions) must have personal knowledge of the matters about which they testify a. The proponent of a witness must present evidence sufficient to support a finding of the witness's personal knowledge, typically by having the witness testify that the witness saw, heard, or otherwise perceived those matters

II. THE AUTHENTICATION & IDENTIFICATION OF EXHIBITS

In addition to witnesses, info is conveyed to the jury through the use of exhibits
o Exhibits

encompasses a wide array of items real & demonstrative evidence; written documents of all kinds; audio, video, and photographic recordings; and electronic & digital data compilations requirement for exhibits is set forth explicitly in FRE 901

o Foundational

A. FRE 901 Requirement of Authentication or Identification

(a) General provision. Requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming w/ the requirements of this rule: (1) Testimony of witness w/ knowledge Testimony that a matter is what it's claimed to be (2) Nonexpert opinion on handwriting Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation (3) Comparison by trier or expert witness Comparison by the trier of fact or by expert witnesses w/ specimens which have been authenticated (4) Distinctive characteristics & the like Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction w/ circumstances (5) Voice identification Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it w/ the alleged speaker (6) Phone conversations Phone convos, by evidence that a call was made to the # assigned at the time by the phone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the 1 called, or (B) in the case of a business, the call was made to a place of business & the convo related to business reasonably transacted over the phone (7) Public records or reports Evidence that a writing authorized by law to be recorded or filed & in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept (8) Ancient documents or data compilation Evidence that document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence for 20 yrs or more at the time it's offered (9) Process or system Evidence describing a process or system used to produce a result & showing that the process or system produces an accurate result
(10) Methods provided by statute or rule Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority

B. Interpretation & Illustration of FRE 901 2 parts to FRE 901: 901(a) establishes the basic foundation & the evidentiary standard that the proponent of an exhibit must satisfy 901(b) illustrates the kinds of foundation facts that the drafters of FRE decided should satisfy that standard FRE 901(a) requires the proponent of an exhibit to do 2 things:
(1) to state what the proponent claims the exhibit to be; and (2) to produce evidence "sufficient to support a finding" that it is what the proponent claims

1. What the Evidence Is Claimed to Be a. Proponent of any item of evidence must have in mind a theory as to why that item is relevant to prove facts that are of consequence in a case relevance thus requires the proponent of an exhibit to articulate a connection btw the exhibit & the parties or the litigated events in the case i. This connection is typically what the proponent claims the exhibit to be for purposes of FRE 901, and what courts require the proponent to prove to identity or authenticate it The Rule 901 foundation, thus, follows from the articulation of why tangible objects, photos, recordings, or written documents are relevant b. Example: Rental agreement btw Harry, a landlord, and Jane, a tenant i. J has filed suit against H for failure to make promised improvements & offers the rental agreement as an exhibit rental agreement states the owner of the property must make specific improvements H, , claims that no written agreement was ever signed, that J has a month-to-month tenancy, and that there's no obligation to make improvements J thus seeks to introduce the rental agreement into evidence to prove H does have this obligation ii. On this theory of relevance, J claims that the exhibit is an agreement signed by landlord c. The facts necessary to authenticate an item are a "special" aspect of relevancy: A phone convo may be irrelevant b/c on an unrelated topic or b/c speaker isn't identified latter aspect is the 1 here involved i. By analogy, whether J's exhibit is signed by identifies it as a fact specific to the case against the landlord & would satisfy FRE 901 Add'l facts that make the rental agreement relevant, for example that it covered the time period during which repairs should have been made, may also require proof 2. The Requirement of Evidence Sufficient to Support a Finding a. Under FRE 901(a), Jane would need to produce evidence sufficient to support a finding that the rental agreement is what she claims it to be the agreement signed by Harry, the landlord i. If J's att'y simply handed the rental agreement to the jury, how would the jury know what it is? The att'y can't just tell the jury what it is (what an att'y says to the jury isn't evidence) The jury might infer simply from looking at the document that it was signed by if the name on the document is the same as 's but the name could be a very common 1, or just initials - The jury wouldn't be able to make this inference w/ a very high degree of certainty ii. So while the signed document on its own might satisfy FRE 401 (having some tendency to show that signed the document), FRE 901(a) requires more FRE 901(a) requires the proponent to satisfy a higher standard of probability evidence sufficient to support a finding that it was landlord who actually signed the document

3. FRE 901(b) Illustrates How to Produce Evidence Sufficient to Support a Finding a. FRE 901(b) now comes into play, setting forth various options for satisfying the FRE 901(a) requirement i. Jane's foundational evidence might come from the testimony of someone who saw the landlord sign the agreement a person w/ personal knowledge under FRE 901(b)(1) ii. If there's no person w/ personal knowledge of the fact at issue: Then circumstantial evidence can be offered, such as the testimony of someone who can recognize the landlord's signature FRE 901(b)(2) Or from a comparison btw the landlord's signature on another document & on the rental agreement itself FRE 901(b)(3) b. Whatever method is used, the added requirement of satisfying FRE 901 affects the parties, jury, & judge i. J, party proponent, has the added burden of locating proper witness & presenting that witness at trial ii. The jury will get the added benefit of learning add'l foundation facts to make its decision about the connection of the rental agreement to the tenant's case iii. Judge will have the added power to exclude tenant's exhibit if FRE 901(a) requirement isn't satisfied If Jane is able to satisfy FRE 901(b)(1), the jury could draw the following inferences: EF1
Rental agreement w / LL's name handwritten on it

EF2
Witness testifies, "I saw LL sign the agreement"

FOC
Agreement was signed by LL

EE
Landlord has promise to make improvements

c. If the proponent's foundation falls squarely w/in 1 of the FRE 901(b) illustrations, the trial judge will routinely decide that the FRE 901(a) burden is satisfied i. But often evidence is more ambiguous e.g., what if J testifies that she mailed the agreement to H's business address & received the agreement by return mail w/ a signature added? This foundation might satisfy FRE 901(b)(4), since the contents of the document (the name) & the circumstances (mailing it to H & receiving it by return mail) indicate the landlord signed it But would J's testimony satisfy 901(a) standard of "evidence sufficient to support a finding"? 4. Judicial Determinations of Sufficiency Under FRE 901(a) a. Evidence "sufficient to support a finding" = evidence upon which the judge thinks a jury could reasonably find a fact to be more likely true than not i. The judge WON'T assess credibility in making this determination ii. Thus, the judge will assume that Jane's testimony about mailing the rental agreement is true The judge's determination of "sufficiency" will depend primarily on the judge's assessment of the strength of the generalizations underlying the inference that it was who signed the agreement & sent it back to the tenant by return mail Judge's task of making this rough estimate of underlying probabilities involves the same thought process as estimating probative value under FRE 403 - How likely is it that landlords will receive rental agreements that have been mailed to them, will sign them, and will return them by mail immediately? Could a jury reasonably believe that it's more likely than not? o Add'l evidence such as that Harry opens all of his mail would increase the probability that Harry did sign it

b. When the judge applies a "sufficiency" standard to screen preliminary questions such as whether H the landlord signed the agreement, these questions can be disputed in a # of ways i. The proponent of the evidence isn't req'd to rule out all possibilities inconsistent w/ authenticity, or to prove beyond any doubt that the item is what it's claimed to be ii. H could still testify that he didn't sign the agreement, that the signature isn't genuine, or that he was out of town on the day the agreement was received & mailed iii. All of this evidence would be heard by the judge, perhaps outside the presence of the jury pursuant to FRE 104(c) So long as the judge determines, as a preliminary matter, that a jury could reasonably find the preliminary question in the tenant's favor, the judge will find that FRE 901(a) has been satisfied & will admit the rental agreement into evidence iv. Admission of the agreement doesn't end the matter, however H can submit all of his conflicting evidence to the jury, b/c the question of whether H signed the agreement must still be decided by the jury as part of its ultimate deliberations in the case It's the jury who will ultimately determine the authenticity of the evidence, not the court v. The judge will exclude the agreement from the jury's consideration if, on hearing the evidence from both parties, the judge concludes that no jury could reasonably find that H signed it If such is the case, J has not fulfilled the FRE 901(a) burden Judge won't submit an exhibit to the jury that it could not reasonably believe to be authentic 5. The Process of Laying the Foundation a. An exhibit is typically received into evidence after being given a # or letter designation to show which party submitted the exhibit & its sequence in the trial e.g., 's Exhibit 7 i. An exhibit will be numbered "for identification" only, prior to its admission into evidence ii. At trial, the proponent shows the exhibit 1st to the opposing att'y & then to the witness who's going to testify about it The proponent then questions the witness about the exhibit, presumably eliciting foundational facts sufficient to satisfy the FRE 901(a) requirements b. After the foundation is laid, the proponent asks the judge to admit the exhibit "into evidence" i. The opponent may object, either b/c the foundation isn't adequate under FRE 901(a) or on grounds of some other exclusionary rule, such as hearsay or FRE 403 ii. The judge will rule on the objection, or the parties may present further testimony from the testifying witness or from other witnesses 1st If judge overrules the objection & admits the exhibit, it retains its # and is recorded by the court clerk as an official part of the record it may then be inspected by the jury

C. Elaboration of FRE 901: Real Evidence, Demonstrative and Computer-Generated Exhibits, Recordings and Written Documents
Found'l requirements established by FRE 901 described as requirements of "authentication" or "identification"
o "Identification" usually refers

to who authored a writing, or whose voice was heard speaking to the genuineness of the connect btw what the exhibit is & the specific

o "Authentication" usually refers

facts of the case Also, 2 of the FRE 901(b) illustrations add an element of accuracy or genuineness: - Requirement of 901(b)(2) that nonexpert familiarity w/ handwriting be acquired apart from litigation - Requirement of 901(b)(9) that the info contained in the exhibit be accurate
The standard of FRE 901(a) is flexible, and the FRE 901(b) illustrations aren't exhaustive the starting

point is always to ask: o Why is this exhibit relevant? o What does proponent claim it to be, based on its connection to the parties or to litigated events in the case? 1. Real Evidence
Real evidence = tangible items that played some role in the litigated event & from which the jury may

draw inferences e.g., weapons used in a crime or a home appliance that's alleged to be defective step
o The item's

connection is "what the proponent claims" for purposes of satisfying FRE 901 Thus the foundation for real evidence typically consists of a witness who can identify the item's physical involvement in the case

a. Identification Through a Readily Identifiable Characteristic i. 1 typical method of identification is that the witness may recognize the item usually b/c it has a readily identifiable characteristic the witness's personal knowledge satisfies FRE 901(b)(1) A police officer testifying that he recognized a gun as the 1 he seized at 's apartment by identifying the evidence tag placed on the gun at the time of the seizure & by his signature on the tag would satisfy FRE 901(b)(4) Sometimes a fingerprint on a weapon is used as the identifying characteristic - Foundation for identifying 's fingerprint on a gun would satisfy 901(b)(3) if there's testimony that the fingerprint specimen used for comparison was 's b. Identification Through Chain of Custody i. Chain of custody is the 2nd typical method of identification, most often used when an exhibit is generic & has no readily identifiable characteristic e.g., The links in the chain of custody of a gun would consist of the ppl who handled the gun btw the time of its discovery at the crime scene & its appearance in the courtroom - A complete chain of custody under 901(b)(4) would require the testimony of all such ppl + testimony to show that the exhibit was stored in a secure place when it wasn't being handled

c. Unchanged Condition Established Through Chain of Custody i. The chain of custody can also est. that the item hasn't been tampered with & that it's in the same condition as it was when it was discovered this showing may be req'd if the condition of the item is as important as its identity & if it's an item that might be adulterated or tampered with e.g., Knife found at crime scene might have fingerprints on it, or substance seized from might be an illegal drug complete chain of custody would show these conditions existed when the items were found, when they were tested, and perhaps even when they were presented in court - If the knife is tested for fingerprints or if a chemical test is conducted on the drugs seized from the laboratory technician becomes part of the chain of custody - There needs to be evidence that the knife or the drug reached that lab was the same knife or drug found at the crime scene or seized from , and that it hadn't been tampered w/ since d. Under FRE 901(a), the Complete Chain of Custody Is Not Always Required i. The complete chain of custody need not always be proved to satisfy the sufficiency standard Even where gaps exist in the chain of custody of substances that require testing, courts have held that a jury could reasonably find that the exhibit in question was adequately identified & still in an unchanged condition ii. At trial, the opponent may again dispute the identity of the exhibit & its possible changed condition and try to persuade the jury that it has no probative value A claim of tampering must be supported by specific evidence to defeat govt's proof of chain of custody however, even when evidence of tampering is shown, it may not defeat admissibility - Of course, 's challenges can be presented to the jury as affecting the "weight" of the government's evidence of authenticity iii. Once an item of real evidence has been authenticated, it's still potentially subject to the judge's discretion to exclude pursuant to FRE 403 But, it's customary for judges to treat real evidence as being highly probative & thus considerable assistance to the jury, sometimes w/ little analysis of what the jury would learn for purposes of deciding a fact of consequence in the case - Thus, the admission of even gruesome objects has been upheld if they played a part in the litigated events KEY POINTS 1. Real evidence is a tangible exhibit that played some role in the events that are in dispute at trial 2. Real evidence is usually identified pursuant to 901(b)(1) by testimony from a witness who recognizes the exhibit b/c of its readily identifiable characteristic, or by testimony concerning its chain of custody pursuant to 901(b)(4) a. FRE 901(a) requires the judge to decide whether the proffered testimony is evidence sufficient to support a finding that the exhibit's identity b. For some real evidence such as drugs or blood samples, it's also necessary to establish the exhibit's unchanged condition 3. Real evidence may be subject to exclusion under FRE 403

2. Demonstrative Exhibits
Demonstrative exhibits reproduce or depict persons, objects (such as items of real evidence that aren't

brought into court) or scenes that are connected to the litigated events of the case e.g., models, diagrams, drawings, or photographs
o These exhibits o They can

are offered to illustrate or explain the testimony of the witnesses, including experts, and to present complex & voluminous also be referred to by counsel during opening & closing arguments

In theory at least, demonstrative exhibits don't have independent probative value on the substantive issue in a case they're relevant b/c they assist jury in understanding testimonial, documentary, & real evidence
o Illustrative evidence

refers to illustrative aids that aren't admitted into evidence

Demonstrative exhibits are authenticated by testimony from the witness whose testimony they illustrate
o This

witness has knowledge of the nature of the exhibit's content & the connection of that content to the case e.g., Prosecution might offer a photo of a knife that was allegedly found at the crime scene - A witness who saw the real knife (or whatever was the subject of the demonstrative evidence) might testify, "I recognize the knife in the photo b/c of the initials 'XYZ' on the handle. This is a photo of the knife found at the crime scene." - If a drawing, or a model, of the knife were proffered, witness would testify in a similar manner

a. Demonstrative Exhibits Must Assist the Trier of Fact i. The proponent must also be prepared to show that the exhibit is a "fair," or "accurate," or "true" depiction of what the proponent claims that it portrays Although this add'l requirement isn't part of the literal FRE 901 burden, courts enforce it to make sure a demonstrative exhibit will assist the trier of fact by increasing its understanding of the relevant events - This normally will be assumed w/ real evidence e.g., it'd be highly unusual for a trial court to exclude from evidence a murder weapon on the ground that the jury doesn't need to observe the weapon for purposes of its deliberations, even if such a conclusion might be correct Witness authenticating a photo or video doesn't need to be the photographer, but must recognize and identify the object depicted & testify that the photo fairly + correctly represents it - Photos, drawings, diagrams, or models can be described as "fair" depictions of what they represent by the person who made them or by a person who saw the real thing ii. Claims that a demonstrative exhibit is misleading or prejudicial would be decided under FRE 403 b. Application of FRE 403 to Demonstrative Exhibits i. Some demonstrative exhibits are generally admitted as a matter of course e.g., photos of the scene of a crime or accident but sometimes their admission raises Rule 403 dangers such as unfair prejudice & risk of misleading a jury Photo of gruesome injury at a crime scene or autopsy may generate the danger of unfair prejudice Complex charts & graphs may present a danger of misleading the jury Even photos may be misleading (and have lower probative value) if they portray a scene in a different condition than when the relevant accident occurred ii. The judge decides the FRE 403 objection in typical fashion, by estimating the exhibit's probative value & weighting that against the pertinent danger

3. Demonstrations & Experiments in Court a. Sometimes a witness's testimony about an out-of-court event can be illustrated through a demonstration or experiment in court i. Such in-court demonstrations are tested for relevancy under FRE 401 ii. They are also tested under FRE 403 b/c of their potential for misleading or confusing the jury b. The proponent of the demonstration must lay a proper foundation establishing the similarity of circumstances & conditions btw the out-of-court event and the in-court presentation i. The conditions need not be identical, but must be sufficiently similar to provide a fair comparison e.g., A demonstration by an expert witness as to the amnt of force need to cause a 7-month-old infant's fatal injuries held inadmissible b/c shaking the rubber doll wasn't substantially similar due to stiffness of the doll's neck, differences in the weight of head, and absence of testimony concerning the # of oscillations req'd to produce the infant's injuries 4. Recorded & Computer-Generated Reenactments, Animations, and Simulations of Events a. A variety of filmed or computer-generated recordings can be used in trials to portray out-of-court events for the jury, typically in personal injury & criminal cases i. Reenactments involve the use of human models; animations typically consist of computer-generated drawings that depict ppl or objects in motion Both are used to illustrate what witnesses have already testified to, and they are subject to the same requirement of being "fair & accurate" representations as a single drawing They must accurately reflect the testimony & the physical evidence and the reasonable inferences that may be drawn from them ii. Computer-generated simulations are produced by imputing info into a computer program that determines how an event "must have happened" & then provides a visual image of that conclusion A simulation adds info beyond the testimony of percipient witnesses, both in terms of the data inputs into the computer & the programming that analyzes + then graphically portrays the output Most complete foundation for simulated accident reconstruction will involve the sufficiency of the input data, reliabilityof the underlying technical/scientific principles, accuracy of computer's operating system, and accuracy of the mathematical formulae programmed into the computer b. The use of reenactments, animations, and simulations is subject to objection under FRE 403 i. Principal risks are that the presentation inevitably simplifies the real-world events & that much data pertinent to accident reconstruction are supplied by outside sources who are unknown Cautionary instructions are typically given concerning the limited purpose of an animation, the limited facts it's based on, and the jury's role in ultimately deciding those facts - Nevertheless, there's concern among courts that jurors will be misled or overly influenced by such animated exhibits KEY POINTS 1. Demonstrative exhibits reproduce the likeness of some tangible object, person, or scene & are helpful to the jury's understanding of other testimonial, documentary, or real evidence a. More complex forms of demonstrative exhibits include in-court demonstrations & experiments and out-of-court reenactments, animations, and simulations 2. Demonstrative exhibits are usually identified pursuant to 901(b)(1) by testimony from a witness as to what their contents are, the witness's basis for being able to identify them, and the witness's opinion that they are a fair + accurate reproduction 3. Demonstrative evidence may be subject to exclusion under FRE 403

5. Recordings
Audio, video, and photographic recordings of events that occurred outside the courtroom are a cross btw

demonstrative evidence & eyewitness testimony w o Although they may be offered together / the testimony of the witnesses who perceived the events, the recordings themselves are an independent record of them, imprinted not in human memory but on tape or film or some other medium by mechanical, electronic, or other processes w o The recording reveals what the equipment "saw" or "heard," perhaps / less risk of human fallibility than an eyewitness e.g., The film record of a fight would be an independent version of the event that could be used as substantive evidence the "memory"of the video recording would be more reliable than the participants' versions - Such a recording, if properly authenticated, would be admissible as substantive proof that the out-of-court events occurred a. Satisfying the FRE 901 Foundation w/ a Percipient Witness i. When a camera or other device records what a witness is also seeing, that "percipient witness" can authenticate the recording The Foundation is similar to that for demonstrative evidence under FRE 901(b)(1): - The witness would identify the events in the recording, state the basis for the witness's ability to identify the events, and affirm that the recording is a "fair," or "accurate," or "true" record of the events perceived (very simple foundation) ii. Courts treat the question of a tape recording's authenticity as a simple question under FRE 104(b): Has the proponent presented sufficient evidence to support a rational finding of fact that the tape recording is authentic? - If a witness testifies that he/she heard a conversation & that the tape accurately reproduces that conversation, there's a permissive inference of the tape's genuineness b. "Silent Witness" Satisfying the FRE 901 Foundation w/out a Percipient Witness i. Sometimes a recording device records what no human witness has seen or heard, or what no human can see like an X-ray taken of a victim's broken thumb chip When a recording thus functions as a "silent witness," a percipient witness doesn't exist & can't testify to the simplified foundation Instead, recordings made by equipment that operates automatically may satisfy the requirements of the FRE so long a witness testifies to the type of equipment or camera used, its general reliability, the quality of the recorded product, the process by which it was focused, or the general reliability of the entire system - e.g., A sound & video recording of an assault by prison guards on an inmate admitted based on a foundation as to the accuracy of the recording process, despite lack of testimony from any percipient witness that it was a fair + accurate representation of the events But the operation of a particular automatic camera or a hospital's X-ray taken of a particular patient does require some foundational testimony to satisfy FRE 901(b)(9) evidence that the process or system produced an accurate result ii. Courts differ in the degree to which they require the complete foundation set forth above Courts can read FRE 901(a) narrowly to require proof only of the identity of what was recorded & perhaps a minimal chain of custody, but not the recording's accuracy - This trend is consistent w/ 1 of the major thrusts of the FRE, which was to liberalize the admission of evidence Other courts insist on a more complete showing of how a recording was made, of its chain of custody, and of its unchanged condition to show accuracy, often relying on both FRE 403 & 901

iii. Recordings can also be authenticated by their content alone e.g., Videos created by IBM to demonstrate product safety features & solutions to problems arising from computer keyboard usage authenticated as to their source under FRE 901(b)(4) by their internal labels, the manner of their production, and the info that they contained c. Application of FRE 403 to Recordings i. Sometimes the admission of recordings can raise dangers under FRE 403: Video recordings & reenactments portraying gruesome events e.g., personal injuries, autopsies of crime victims, details of crime sites are frequently objected to as unfairly prejudicial - b/c of the immediacy of their visual impact, they have added capacity to generate emotional responses & may arouse the jury's hostility or sympathy for 1 side, thus influencing the outcome in an unfair way Video recordings & computer-generated animations and simulations may also convey an impression of objective reality to the jury - Courts recognize the danger that such evidence is misleading if its contents don't correspond closely enough to the actual conditions & context of the events that are at issue at trial - In another sense of the term, an exhibit might be misleading if the jury won't be able to estimate its probative worth accurately, typically b/c it may overestimate the item's value due to the immediacy of the apparent reality it portrays - A related probative danger is confusion of the issues, which could occur if jury's attention is distracted by dramatic power of an exhibit from a careful evaluation of the issues in dispute ii. In each case, trial ct. will weigh these dangers against the probative value of the recording pursuant to the balancing test of FRE 403, and the appellate court will reverse only for abuse of discretion KEY POINTS 1. Recordings of events may be authenticated pursuant to FRE 901 if a percipient witness can testify that the recording is a fair & accurate record of the real-world event 2. If the recording functions as a "silent witness" b/c there's no percipient witness to the event, FRE 901 may require proofs of the recording process & of the chain of custody of the recording itself 3. Recordings may be subject to exclusion under FRE 403

6. Written Documents
Typically, a written document is relevant b/c its contents are connected to the litigated events of a case by

the identity of its author or by knowledge of its organizational source o The law of evidence, however, doesn't treat the signature or recital of authorship on the face of the document, w/out more, as sufficient proof of authenticity FRE 901(b) includes several illustrations of how to lay a foundation that's sufficient to authenticate a written document a. Signature i. Proof of the genuineness of a signature is sufficient to identify the author of a writing: Observation of the act of signing a document will satisfy FRE 901(b)(1) Identification of a signature based on familiarity w/ handwriting will satisfy FRE 902(b)(2) Under FRE 901(b)(3), either the jury or an expert may compare the signature on the exhibit itself w/ a specimen that has been authenticated pursuant to FRE 901

b. Contents & Other Circumstances i. FRE 901(b)(4) permits proof of authorship or source through many types evidence: The author may be identified by a document's contents, and/or by the circumstances in which it was found FRE 901(b)(4) is Records of a business/other institution can be authenticated as to source thru proof of matching an extremely broad letterhead, comparison w/ matching forms, testimony about the business's routine practices in & flexible standard generating such records, and thru testimony of a custodian about how the business's filing or data retrieval system operates & that the document was retrieved from a certain file or in a certain way - If a computerized data retrieval process or system is used, further testimony may be req'd to satisfy requirement of 901(b)(9) that the computerized process must produce accurate result ii. FRE 901(b)(7) provides for the authentication of certain types of public records or reports Proof that they "are from the public office where items of this nature are kept" can be provided by testimony from the custodian, or by a certificate of authenticity from the public office Or, a witness may simply testify that the record is from the appropriate public office c. Ancient Documents i. If a writing is more than 20 yrs old & is in a place where it would likely be if it were authentic, the document will be admitted as "genuine" pursuant to FRE 901(b)(8) as an ancient document ii. The 3rd requirement of this rule that the document be in such a condition as to create no suspicion concerning its authenticity has been interpreted narrowly by some courts dealing w/ German documents generated during WWII that implicate current U.S. citizens in Nazi war crimes That is, suspicions that go to the accuracy of the contents of the document, or to its completeness, don't count the only issue that the proponent must address is whether the documents are the type of document they are claimed to be, typically by their storage location & by expert testimony of historians who specialize in Nazi-era German history & Nazi policies + practices - These German documents, like many ancient documents, are admitted to prove the truth of the matters they record thus, they are hearsay - An extremely broad "ancient documents" exception to the rule excluding hearsay, 803(16), provides for the admission of a "document in existence 20 yrs or more the authenticity of which is established" d. Electronic Writings i. No subsections of 901(b) address new electronic technologies (e.g., computer-generated data files, e-mail, internet postings), but FRE 901 provides flexibility in applying its standard of sufficiency Courts have developed analogies to trad'l writings in admitting e-mails, chat group discussions, and Web postings: - E-mails can be authenticated by their authorship the electronic signature that they bear may not be sufficient, however, b/c of the risk of manipulation of e-mail headers o Add'l data such as address an e-mail bears, use of "reply" function to generate address of orig'l sender, content of the info included in e-mail, & other circumstances can suffice - Authorship of identity-protected postings on chat groups can be determined by content & circumstances - Web postings require proof of the process by which they were generated courts skeptical about attributing docs obtained from a website to the org. or person who maintains the site o Info retrieved from gov't websites, however, has been treated as self-authenticating, subject only to proof that the webpage does exist at the governmental web location ii. Issues of completeness of electronic records are treated as a matter of evidentiary weight, rather than authentication & admissibility, provided the complete records are available

KEY POINTS 1. Written documents are usually identified pursuant to FRE 901 by testimony that identifies the author or the source of the document, typically using the signature, the contents, the location of the document, or other circumstances 2. Writings created by new electronic technologies are identified & authenticated by analogies to 901(b) illustrations 7. FRE 901 Provides Flexibility in Application a. No 1 "correct" foundation that must be satisfied in each case, or for each particular type of evidence i. Courts apple the standards of Rule 901(a) flexibly & don't always require that a particular subsection of Rule 901(b) be satisfied ii. However, the starting point of your analysis of the requisite foundation should always be relevancy
\

D. FRE 902: Written Documents That Are Self-authenticating 1. FRE 902 Self-Authentication Extrinsic evidence of authenticity as a condition precedent to admissibility isn't req'd w/ respect to the following:
(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the US, or any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, dept., officer, or agency thereof, and a signature purporting to be an attestation or execution. (2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an official or employee of any entity included in (1) hereof, having no seal, if a public officer having a seal & having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity & that the signature is genuine (3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature & official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature & official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature & official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular against of the US, or a diplomatic or consular official of the foreign country assigned or accredited to the US. If reasonable opportunity has been given to all parties to investigate the authentic & accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic w/out final certification or permit them to be evidenced by an attested summary w/ or w /out final certification. (4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed & actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying w/ (1), (2), or (3) of this rule or complying w/ any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority. (5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority. (6) Newspapers & periodicals. Printed materials purporting to be newspapers of periodicals. (7) Trade inscriptions & the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business & indicating ownership, control, or origin. (8) Acknowledged documents. Documents accompanied by a certificate of acknowledgement executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments. (9) Commercial paper & related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law. (10) Presumptions under Acts of Congress. Any signature, document or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic.

(11) Certified domestic records of regularly conducted activity. The orig'l or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying w/ any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record (A) was made at or near the time of the occurrence of the matters set forth by, or from info transmitted by, a person w/ knowledge of those matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice. A party intending to offer a record into evidence under this must provide written notice of that intention to all adverse parties, and must make the record & declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party w/ a fair opportunity to challenge them (12) Certified foreign records of regularly conducted activity. In a civil case, the orig'l or a duplicate of a foreign record regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record (A) was made at or near the time of the occurrence of the matters set forth by, or from info transmitted by, a person w/ knowledge of those matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice. The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this must provide written notice of that intention to all adverse parties, and must make the record & declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party w/ a fair opportunity to challenge them.

2. Interpretation of FRE 902 a. FRE 902 defines those documents that, on the basis of their appearance or self-evident content alone, are so likely to be authentic that the proponent need produce no extrinsic evidence to prove it b. Certain kinds of public documents & public records have been produced by a formal process that triggers a generalization that the document itself, and the signatures on it, are very likely to be genuine i. The formalities, such as a seal or a statement of certification as req'd by FRE 902(1)-(4) & (8), indicate that someone has paid attention to genuineness A passport has been held to be a public document, which must be accompanied by official certifications to be self-authenticating under FRE 902(2) or (3) c. Other kinds of writings, just from looking at them trigger a generalization they're genuine b/c they are very difficult to forge e.g., may more reliably be inferred that the writings defined in 902(5)-(7) & (9) are from the source they appear to be from i. However, this justification for the rule has been weakened modern technological developments (computers, scanners, publishing software, internet access) make it easier to produce a counterfeit ii. Pursuant to FRE 902(7), trade inscriptions & the like are usually treated as establishing the authenticity of the item to which they are affixed, as well as their own genuineness Split authority as to whether writings such as an owner's manual, or electronic writings such as e-mails, that a bear a company's trademark should also be considered self-authenticating d. 902(11)-(12) intended to simplifyauthentication of business records & to substitute a written declaration for the production at trial of a custodian/other witness knowledgeable about the factors specifically listed i. Notice of a party's intent to use Rules 902(11) & (12), together w/ the records themselves, must be provided to the opponent for verification & potential challenge If only conclusory statements are made in written declarations, then the burden falls on the opponent to take discovery of the underlying specific facts

e. Admission of a document pursuant to Rule 902 is NOT dispositive of authenticity the opponent can offer proof that the document is a phony or bears a forged signature f. Self-authentication also doesn't resolve questions as to the source or accuracy of info that's reported in self-authenticated documents i. Objections can also still be made that inadmissible hearsay statements or expert opinions are included in, for example, newspapers or periodicals KEY POINT 1. FRE 902 provides that some written documents can be authenticated by their appearance alone, w/out the testimony of a foundation witness a. The opponent may still dispute the authenticity of these "self-authenticating" documents

III. THE BEST EVIDENCE RULE

Best evidence rule imposes add'l foundational requirements on the proponent of writings, recordings, and photos
o Theory of

the rule: When a writing, recording, or photo is offered to prove its content, the chances are good that the orig'l will be more trustworthy than a copy Thus, the best evidence rule creates a requirement for the production of originals requirement may be excused, and other "secondary" evidence of the contents may be admitted if the absence of the orig'l is explained or justified

A. FRE 1001, 1002, 1003, 1004, 1005, 1006, and 1007

Rule 1001 Definitions
For purposes of this article the following definitions are applicable: (1) Writings & recordings. "Writings" & "recordings" consist of letters, words, or #s, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. (2) Photographs. "Photographs" include still photographs, X-ray films, videotapes, and motion pictures. (3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photo includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original". (4) Duplicate. A "duplicate" is counterpart produced by the same impression as the orig'l, or from the same matrix, or by means of photography, including enlargements & miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the orig'l.

Rule 1002 Requirement of Orig'l

To prove the content of a writing, recording, or photo, the orig'l writing, recording, or photo is req'd, except as otherwise provided in these rules or by Act of Congress.

Rule 1003 Admissibility of Duplicates

A duplicate is admissible to the same extent as an orig'l unless (1) a genuine question is raised as to the authenticity of the orig'l or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the orig'l.

Rule 1004 Admissibility of Other Evidence of Contents

The orig'l is not req'd, and other evidence of the contents of a writing, recording, or photo is admissible if (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or (2) Original not obtainable. No orig'l can be obtained by any available judicial process or procedure; or (3) Original in possession of opponent. At a time when an orig'l was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party doesn't produce the orig'l at the hearing; or (4) Collateral matters. The writing, recording, or photo isn't closely related to a controlling issue.

Rule 1005 Public Records

The contents of an official record, or of a document authorized to be recorded or filed & actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance w/ Rule 902 or testified to be correct by a witness who has compared it w/ the orig'l. If a copy which complies w/ the foregoing can't be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

Rule 1006 Summaries

The contents of voluminous writings, recordings, or photos which can't conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time & place. The court may order that they be produced in court.

Rule 1007 Testimony or Written Admission of Party

Contents of writings, recordings, or photos may be proved by the testimony or deposition of the party against whom offered or by that party's written admission, w/out accounting for the nonproduction of the orig'l.

B. Interpretation & Illustration of FRE 1001, 1002, 1003, 1004, 1005, 1006, and 1007 1. Summary of the Basic Principles of the Best Evidence Rule a. FRE 1002 i. Provides the basic principle of the best evidence rule: An orig'l is req'd when a proponent seeks to prove the content of a writing, recording, or photo 1002 applies broadly, insofar as writings & recordings are defined very broadly under 1001(1) to include any form of data compilation - However, the scope of FRE 102 doesn't extend beyond writings, recordings, and photos ii. A party may prove its case by any admissible evidence, regardless of whether anything "better" (i.e., more persuasive or reliable) is available Of course, the advocate may be motivated to use the most highly probative evidence to persuade the jury, but evidence law gives the judge little control over the advocate's choice iii. What constitutes an orig'l that will satisfy 1002 also defined broadly by 1001(3): any "counterpart intended to have the same effect by a person executing or issuing it" e.g., Carbon copies when document is executed in quadruplicate, any negative or print of a photo, any printout of data stored in a computer if such output is shown to reflect the data accurately iv. Key issue in apply Rule 1002 is the determination of when the "content" of these kinds of items is being proved

b. FRE 1003 i. Provides that duplicates may be furnished instead of an orig'l in most circumstances FRE 1001(4) broadly defines duplicate to include photocopies, which are commonly used - CD versions of audio recordings originally made on a digital memory chip can be admitted as duplicates
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ii. Concerns about whether a recording is of such poor quality that it can't be understood by the jury are determined under Rule 403, once the recording has been authenticated iii. 1003 provides that a duplicate may not be used if the opponent presents evidence that disputes the authenticity of the orig'l, or if other aspects of the orig'l or duplicate incompleteness, erasures, defects make it unfair for the proponent to use the duplicate c. FRE 1004 i. Provides exceptions that justify or explain why a proponent shouldn't be req'd to produce an orig'l Loss or destruction of the orig'l, pursuant to FRE 1004(1), may be proved by testimony from a person w/ knowledge, or by circumstantial evidence that the proponent has a made a reasonable, diligent, and unsuccessful search for the orig'l - The party need not explain w/ absolute certainty what happened to the orig'l, but has the burden to prove that its loss or destruction wasn't in bad faith - Negligent destruction of documents has been held insufficient to establish bad faith ii. If originals aren't lost but are in the possession of others, the court may require the proponent to show that they can't be obtained by reasonable, diligent, and unsuccessful use of judicial process or other inquiry pursuant to FRE 1004(2) iii. If the originals are in the opponent's possession, then, pursuant to the requirements of 1004(3), secondary evidence of their contents may be offered if the opponent fails to produce them at trial If the opponent has described the contents of a writing in testimony or in a written admission, FRE 1007 permits the use of this testimony or admission against the party to prove such contents, w/out accounting for the absence of the orig'l iv. Rule 1004 permits the proponent to use any "other evidence" of the content of the orig'l No preference is given to any particular type of secondary evidence once the orig'l isn't available - Common form of secondary evidence is the oral testimony of a witness who once perceived the orig'l & claims to remember it all types of copies are also equally acceptable Official records are an exception to this principle of equal acceptability FRE 1005 establishes a priority for proof of such official records: a certified copy or a copy that a witness can testify is correct is preferred over other types of secondary evidence - Only if such copies can't be obtained w/ "reasonable diligence" may other evidence of contents be given d. FRE 1006 i. Permits the proponent of voluminous writings, recordings, and photos to present the contents of these items in the form of a summary, chart, or calculation these voluminous materials must themselves be shown to be admissible Trial judge has substantial discretion to decide whether the underlying originals are too voluminous to be conveniently examined in court ii. Proponent is obligated to produce the originals in time to permit the opponent to examine & copy them, to check the summary for any errors or inconsistencies, and for purposes of cross-examination Courts are strict in enforcing this requirement iii. If the originals are no longer available, Rule 1006 won't apply, but a summary might be admissible under FRE 1004 as secondary evidence

2. The Policies Underlying the Best Evidence Rule Seiler v. Lucasfilms, Ltd. (9th Cir. 1986) policies that justify requiring production of originals in general, as well as when nonproduction isn't excused a. Drawings are "writings" w/in the meaning of FRE 1001(1) they consist not of "letters, words, or numbers" but of "their equivalent" b. A creative literary work, which is artwork, and a photo whose contents are sought to be proved, as in copyright, defamation, or invasion of privacy, are both covered by the best evidence rule c. Modern justification for the best evidence rule has expanded from prevention of fraud to a recognition that writings occupy a central position in the law i. When the contents of a writing are at issue, oral testimony as to the terms of the writing is subject to a greater risk of error than oral testimony as to the events or other situations The human memory isn't often capable of reciting the precise terms of a writing, and when the terms are in dispute only the writing itself, or a true copy, provides reliable evidence d. The importance of the precise terms of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplication are the concerns addressed by the best evidence rule e. When a party seeks to prove the content of the originals, and he has lost or destroyed the originals in bad faith under FRE 1004(1), no secondary evidence such as reconstructions is admissible

C. Elaboration of FRE 1002 & 1006 2. When Is a Writing Offered to Prove Its Own Content Under FRE 1002?
The best evidence rule requires an orig'l only when the proponent is offering a writing, recording, or

photo as relevant to prove its own content o When the precise terms of the writing are at issue, accuracy's important & the orig'l is req'd this happens in 2 principal ways a. The Content of the Writing, Recording, or Photo Is a Facto of Independent Legal Significance i. The contents of a writing, recording, or photo may be a fact of independent legal significance in the case under the applicable substantive law examples: Writings may themselves constitute a crime or tort e.g., in an obscenity prosecution, content of an allegedly obscene film must be proved as an essential element of the case; in a libel suit, allegedly libelous writings is offered to prove that its own contents are libelous When there are disputes over terms of written agreements (such as K, wills, and trusts), and either the substantive law requires the agreement to be proved by the writing or the party chooses to rely on the writings to prove the terms, the best evidence rule applies The contents of a document are at issue b/c they prove notice e.g., contents of newspaper article at issue when used to prove was aware of the matters reported ii. In all of these examples, the writings & recordings are "non-hearsay" statements, relevant as legally operative facts or for their effort on the listener (or viewer) As such, their exact content must be proved & FRE 1002 applies b. The Writing, Recording, or Photo Is Used to Prove an Event i. Writings can record many different kinds of events e.g., a business ledger records what items the salesman sold & what price was paid; what people have said in testimony they gave at trial, may be viewed as an event that might be recorded by a stenographer or by a tape recording When the proponent is trying to prove the event using a percipient witness, there's no requirement that a documentary record of the event be produced instead - Oral testimony is being used to prove the event, not the content of a writing But, sometimes proponent chooses to use writing, recording or photo to prove an event occurred - e.g., In the Johnson case, the fight in Johnson's cell was the out-of-court event at issue if prosecutor chose to use a writing (such as Walker's report) or a recording (such as a video) to prove what happened, he would be using it prove its contents & the orig'l would be req'd - A writing that's offered as a record to prove an event will probably be treated as hearsay, and a hearsay exception must be found as well c. Facts About the Writing Are Not Its "Contents" i. In some cases, a writing may be referred to, but it's a fact about the writing not the precise terms of its contents that the proponent is trying to prove In these cases, FRE 1002 doesn't apply - FRE 1002 prevents introduction of evidence designed to prove the terms of the document, where often small changes in words may be of significance but, it doesn't prevent the introduction in evidence of facts about the document, or facts that exist independently of the document that aren't given legal consequence by the terms of the document ii. Testimony about a writing, or about an event that happens to be recorded in a writing, can be difficult to distinguish from testimony about the content of a writing Uncertainty often is resolved by treating a document's contents as "collateral" to the proceeding, & thus excused from the requirement that an orig'l be produced under FRE 1004(4)

3. Types of Summaries & Rule 1006 a. Voluminous Docs Underlying Summary Must Be Admissible, But Need Not Be Admitted At Trial i. A summary of voluminous documents admitted pursuant to FRE 1006 is itself evidence & obviates the need to introduce the orig'l material into evidence Thus, courts have held that when a summary or chart is offered as a Rule 1006 exhibit, the proponent must est. that the documents underlying it are admissible in evidence It's not req'd, however, that the underlying voluminous materials are actually admitted at trial b/c the rule provides that the summary may substitute for those materials b. Illustrative Aids i. Summaries & charts used simply as "illustrative" or "pedagogical" aids to summarize + display the testimony of a witness or documentary evidence that has already been admitted at trial Such devices aren't w/in the terms of FRE 1006 their use is controlled by the trial judge pursuant to FRE 611(a) ii. Even though FRE 901 may not fully apply if an aid isn't treated as an exhibit, a foundation for the accuracy of illustrative evidence, similar to that for other forms of demonstrative exhibits, must be laid pursuant to FRE 611(a) & FRE 403 c. Analytic Summaries i. 3rd type of summary or chart combines the characteristics of a Rule 1006 exhibit & a Rule 611(a) illustrative aid These summaries aren't merely illustrative instead, they contain an analysis, made by the person who created the summary, of data that has already been admitted into evidence ii. The jury is instructed that "the summary isn't independent evidence of its subject matter, that it is only as valid & reliable as the underlying evidence it summarizes," and that the jury is the ultimate judge of its accuracy If the analytic summary reflects assumptions or inferences about the evidence, there must be evidentiary support in the record for these assumptions or inferences KEY POINTS 1. FRE 1002 requires the proponent of a writing, recording, or photograph to produce the orig'l item when the proponent is trying to prove the content of the item a. This requirement applies when the content of the item has independent legal significance or when the item is the record of an event & the proponent has chosen it as the means of proving the event 2. FRE 1003 permits the proponent to produce a duplicate instead of the orig'l in most circumstances 3. FRE 1004 permits the proponent to produce secondary evidence of the orig'l if the absence of the orig'l can be explained or justified a. No particular type of secondary evidence is preferred only FRE 1005 states a preference for certified or compared copies of public records 4. FRE 1006 permits use of summaries of voluminous writings, recordings, and photos w/out the admission of the originals into evidence the originals or duplicates must, however, be available to the opponent a. A summary admitted under Rule 1006 is itself substantive evidence

D. FRE 1008 Functions of Court & Jury When the admissibility of other evidence of contents of writings, recordings, or photos under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance w/ the provisions of Rule 104.
However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photo produced at the trial is the orig'l, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact

E. Interpretation & Illustration of FRE 1008 1. FRE 1008 makes a specific allocation of fact finding btw judge & jury in the application of the best evidence rules a. Judge's general authority to make the preliminary determinations that are necessary to apply all of the rules of evidence is established in FRE 104 2. Reference in FRE 1008 to FRE 104 is a reference to judicial factfinding under FRE 104(a) preliminary facts necessary to the application of FRE 1001-1007 are questions for the judge to decide under Rule 104(a) unless subsection (a), (b), or (c) applies a. Some of the preliminary issues that may arise under these rules include: i. Whether an offered writing, recording, or photo is an "original" under Rule 1001(3) (unless subsection (a) or (b) applies) ii. Whether a given writing, recording, or photo qualifies as a duplicate & is thus presumptively admissible under Rules 1001(4) & 1003 iii. Whether a genuine question is raised as to the authenticity of the orig'l for purpose of Rule 1003 iv. Whether it would be unfair to admit a duplicate in lieu of an orig'l as provided for in Rule 1003 v. Whether an orig'l is lost or destroyed, and whether diligent search has been conducted for the orig'l under Rule 1004(1) vi. Whether the proponent lost or destroyed evidence in bad faith vii. Whether an orig'l can be obtained by any available judicial process under Rule 1004(2) viii. Whether an adverse party has possession or control over the orig'l and, if so, whether proper notice was given to that party under Rule 1004(3) ix. Whether evidence goes to a collateral matter or a controlling issue b. If these issues raise questions of disputed fact, the judge is to decide them, pursuant to FRE 104(a), by a preponderance of the evidence 3. However, 2nd sentence of FRE 1008 provides 3 specific factual issues are for the "trier of fact to determine" a. The judge shouldn't decide the question by a preponderance of the evidence, but should determine only whether there's sufficient evidence to support a jury finding on the matter i. If there is, the question should be given to the jury to decide

NOTES a. In the Seiler case, the district judge decided under FRE 1004 & FRE 104(a) that Seiler had destroyed all originals of his drawings in bad faith, obviously taking Seiler's credibility into account i. Seiler's nonproduction of his orig'l drawings wasn't excused, and thus no secondary evidence of their contents (his reconstructions) was going to be admitted ii. Seiler, however, contended the judge was req'd to give to the jury the question under FRE 1008(c) of whether "other evidence of contents" (his reconstructions) correctly reflected the contents of his original drawings, and thus had to admit his reconstructions The jury, not the judge, would then have evaluated Seiler's credibility - Appellate ct. held, however, Rule 1008(c) didn't come into play until district ct. had decided the Rule 1004(1) issue 1st i.e., the 1004(1) question was decided 1st & was dispositive w /out the judge deciding any of the questions reserved for the jury under FRE 1008(c) b. If the district judge had decided that Seiler's loss of his orig'l drawings was in good faith, the judge wouldn't then be permitted to refuse admission of Seiler's reproductions b/c the court didn't believe that he reconstructions genuinely reflected Seiler's originals i. It would be for the jury to resolve this Rule 1008(c) issue KEY POINTS 1. FRE 1008 provides that most preliminary questions of fact under the best evidence rules are for the judge pursuant to FRE 104(a), and the judge will admit or exclude the offered evidence accordingly 2. If the opponent raises an issue as to the existence of or the true content of the orig'l, then that issue must go to the jury under FRE 104(b), and judge must admit the evidence to permit the jury to decide the issue

IV. JUDICIAL FACTFINDING UNDER FRE 104

FRE 104 establishes the power of the judge to decide preliminary questions concerning the admissibility of

evidence & the process by which these questions are to be decided A. FRE 104 Preliminary Questions
(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those w/ respect to privileges. (b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. (c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness & so requests. (d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to crossexamination as to other issues in the case. (e) Weight & credibility. This rule doesn't limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

B. Interpretation & Illustration of FRE 104(a) 1. Questions of Admissibility Generally a. Trial judge's decision to admit or exclude an item of evidence always requires the judge to answer 1 or more preliminary questions necessary to the application of the rules of evidence i. There are at least 3 kinds of preliminary questions: Questions of law Questions of fact Questions that require the exercise of discretion ii. FRE 104(a) provides that, in general, all of these preliminaryquestions are to be decided by the court e.g., Whether Seiler's orig'l "drawings" fell w/in the scope of Rule 1002 was a question law - In addition, court had to decide under Rule 1004(1) whether Seiler had lost or destroyed the originals in bad faith this req'd court to find the facts about Seiler's conduct & then to apply the legal standard of "bad faith" to those facts FRE 403 presents several questions of law for a court, such as what is the meaning of term unfair prejudice i.e., what dangers to jury reasons does that term include? Rule 403 also requires judicial discretion: estimating the probative value of an item of evidence; evaluating the degree of danger to jury reasoning; and determining whether the danger "substantially" predominates over probative value b. 1 exception to FRE 104's delegation of decisionmaking to the judge FRE 104(b) the power of the court to decide preliminary questions of fact is "subject to the provisions of subdivision (b)" i. FRE 104(b), rather than FRE 104(a), would apply to fact finding on preliminary facts that are critical to the relevance of offered items of evidence ii. FRE 104(b), like FRE 602 & FRE 901, applies the "sufficiency" standard, meaning that the judge decides only whether "evidence sufficient to support a finding" on the preliminary fact question has been introduced 2. Judicial Fact Finding Under FRE 104(a) a. Application of many evid. rules requires determination of preliminary questions of fact, most of which aren't critical to the relevance of the offered item & are thus for judge to decide pursuant to Rule 104(a) i. Under best evidence rules, if a party asserts that a testator's orig'l will existed but was destroyed in a fire, that is a question of fact that must be decided to determine, under FRE 1004(1), whether nonproduction of the orig'l is excused ii. Evidence rule that creates a "privilege" for communications btw att'y & client, meaning that such communications aren't admissible at trial Application of the privilege, to secure exclusion of the communication, requires determination of preliminaryfact question that the communication was made during the att'y-client relationship b. Judges are to decide preliminary questions of fact under FRE 104(a) "by a preponderance of the evidence" in both civil & criminal cases i. Thus Rule 104(a) imposes a persuasion burden on preliminary fact questions Typically the proponent, the party asserting that application of an evidence rule permits admission of an item, must bear the burden proponent must produce evidence that actually persuades the judge that the preliminary fact is more probable than not And, if opponent is using an evidence rule to exclude an item e.g., application of the att'y-client privilege opponent then bears the burden of satisfying the application of the exclusionary rule

c. The persuasion burden under Rule 104(a) means the judge must be persuaded that it's more likely than not that the preliminary fact is true e.g., that the testator's orig'l will was destroyed by fire, or that the client's att'y-client communication was made during the relationship i. In making this decision, the judge is the fact finder & takes the credibility of witnesses into account And, pursuant to Rule 104(a), the judge isn't bound by the rules of evidence, except for privileges i.e., judge may take otherwise inadmissible evidence, such as hearsay, into account - Judge may also take the contents of the proffered item itself into account, even though it hasn't yet been admitted ii. If judge isn't persuaded on the preliminaryquestion of fact, he won't apply the rule in favor of party seeking application of the rule e.g., judge wouldn't admit secondary evidence b/c nonproduction of the orig'l will wouldn't be excused, and judge wouldn't exclude the att'y-client communication 3. The Process of Decision Under FRE 104(a) a. There are well-accepted procedures that govern judicial decisions of preliminaryfact questions under FRE 104(a), even though the rule doesn't state many specifics i. When the parties are in dispute over a preliminaryquestion of fact, both sides may present evidence to the judge on the factual issue this may take place in front of the jury or outside the presence of the jury to protect it from hearing inadmissible evidence Rule 104(c) leaves the question whether to hold such a hearing to the discretion of the judge, except w/ regard to the voluntariness of a confession ii. The jury isn't instructed to redecide the preliminary question nor could it, since the jury may not be exposed to any inadmissible evidence that the judge used in the Rule 104(a) decision Nor is the jury ever told what preliminary facts the judge has found iii. When the judge is persuaded about a Rule 104(a) preliminary fact & admits an offered item, the opponent may still challenge the admitted item's weight & credibility, and may introduce evidence that reduces its probative value, as provided by FRE 104(e) Such evidence may also challenge the existence of the preliminary fact, but the jury isn't instructed to redecide the preliminary question b. Decisionmaking on preliminaryquestions necessary to the admission of evidence could absorb a great deal of trial time + energy even if jury's excluded from the FRE 104(c) hearing, jury's time is wasted i. 2 principal devices for resolving these issues before trial: In civil cases, many judges require that disputes over the admissibility of evidence be resolved through pretrial discovery & agreements reached at pretrial conferences In both civil & criminal cases, motions in limine can be filed to seek determinations of admissibility and exclusion of particular evidence before trial NOTE 1. Policies underlying the division of authority btw judge & jury on most preliminaryquestions authority over preliminaryquestions is justifiably allocated to judges, as FRE 104(a) does, for several reasons: a. To reduce the complexity of jury trials (by not instructing juries on preliminary fact questions) b. To expedite the trial process by eliminating these questions from trial c. To increase the predictability of the outcomes of admissibility decisions (b/c different juries might decide preliminary fact questions differently) d. To preserve issues in a clear & coherent fashion for appeal (b/c rulings by judges under FRE 104(a) are on the record & can be appealed) e. To promote the substantive concerns underlying the various exclusionary policies of the rules of evidence (by giving the judge the authority to decide whether those exclusionary policies apply)

2. The most powerful justification is that allocating most preliminary questions of fact to the judge furthers the substantive concerns that underlie the exclusionary rules of evidence a. Many exclusionary rules e.g., rules concerning character & hearsay implement rule-drafters' policy decision that some types of evidence may inhibit, or even taint, the jury's rational decisionmaking b. When evidence is excluded b/c it may reduce the rationality of jury decisionmaking, there's a persuasive reason to give the exclusion decision to the judge exclusively i. This is what Rule 104(a) accomplishes ensures that the decision of preliminary fact questions under most evidence rules is for the judge KEY POINTS 1. Most preliminary questions of fact raised by the application of the rules of evidence to decide the admissibility of an offered item are for the judge to decide pursuant to FRE 104(a) 2. Both parties may present evidence on FRE 104(a) preliminary questions of fact, and the judge must be persuaded by a preponderance of the evidence by the party asserting the application of the rule 3. In deciding preliminaryquestions pursuant to FRE 104(a), the judge may consider evidence that wouldn't be admissible under the rules of evidence, but may not consider privileged evidence 4. After the judge decides the preliminaryquestion under FRE 104(a), the judge either admits or excludes the item the judge doesn't inform the jury about the decision on the preliminary question 5. The opponent may attempt to reduce the item's probative value, if the item of evidence is admitted, w/ evidence that the preliminaryfact isn't true, but the jury doesn't redecide the preliminary question

V. FRE 104, CONDITIONAL ADMISSIBILITY, AND THE PROBLEM OF CONDITIONAL RELEVANCY A. If a "condition of fact" necessary to establish the relevance of an offered item of evidence is in serious dispute, FRE 104(b) provides that court may admit the offered item "conditional upon" later proof of the necessary fact B. The FRE 104(b) standard is higher than the FRE 401 "any tendency" standard 1. In some cases, courts require the proponent to satisfy the higher standard of "evidence sufficient to support a finding" in proving a "condition of fact" deemed necessary to the relevance of an offered item of evidence C. Both parties may present evidence on FRE 104(b) "condition of fact" questions, and the judge must determine whether there's evidence sufficient to support a finding that the preliminary fact is true 1. In making this decision, the judge may consider only evidence that would be admissible to the jury D. After judge determines the sufficiency of the evidence on the preliminary question under FRE 104(b), as under FRE 602 & 901, judge either admits or excludes the offered item judge doesn't inform the jury about his determination of sufficiency E. The opponent may present evidence relevant to disprove the preliminary fact to the jury 1. The jury will decide the preliminaryfact as part of its ultimate decisionmaking a. The judge may instruct the jury that it must decide the preliminary fact question before it can consider the offered item of evidence to which it pertains

THE CHARACTER, PROPENSITY, AND SPECIFIC ACTS RULES

FRE 402 provides that all relevant evidence is admissible "except as otherwise provided by these rules" the

exceptions & qualifications to the general rule admitting relevant evidence are the focus of many of the FRE: o FRE 403 allows the trial judge to exclude relevant evidence on a discretionary, case-by-case basis o FRE 404-415 "the relevance rules" establish certain categorical exclusions of otherwise relevant evidence FRE 404-406 & 412-415 the exclusion of otherwise relevant character evidence and "past specific acts"
Exclusionary provisions may not be a complete bar to the admissibility of a particular piece of evidence rather, they

prohibit the proponent from offering the evidence only in a particular context or for a particular purpose o e.g., FRE 404(b) limits the use of specific acts to prove character but authorizes their use for other purposes, such as to prove motive or intent st o Thus, to apply the rules properly, you must ask the question that should always be your 1 question: What is the proponent of the evidence trying to prove? (i.e., What is the proponent's theory of relevance?)
o Only after

you answer this question will you be able to apply the rules

I. THE RELEVANCE OF CHARACTER EVIDENCE TO PROVE CONDUCT ON A PARTICULAR OCCASION A. Definitions: 1. Propensity a tendency of a person or thing to behave in a certain way a. The "propensity inference" an argument that evidence about propensity is relevant to show how a person or thing behaved or operated on a specific occasion that's the subject of the litigation 2. Character (FRE 404) a type of propensity a. Character in evidence law is a trait of a person to act a certain way, and evidence of a person's character is relevant but, generally inadmissible to show that he committed a particular act consistent w/ his character trait on a specific occasion that's the subject of the litigation 3. Past specificacts (FRE 404(b)) "other crimes, wrongs, or acts" instances of a person's past conduct that aren't the subject of this case i.e., they aren't the conduct giving rise to alleged civil or criminal liability in the litigation before the court they may be in the future, they may have been in the past, but not now a. Yet such past specific acts may nevertheless be relevant to the current case 4. Habit (FRE 406) a propensity that he law of evidence distinguishes from character a. While character evidence is generally excluded, evidence of habit is admissible i. Propensities toward conduct that's more consistent, routine, and repetitive tend to be characterized as "habit," while conduct that's less so tends to be called "character" ii. "Habits" tend to be somewhat more morally neutral, while behavior that's more morally loaded tends to characterized as "character" B. In terms of sheer volume, most evidence introduced in trial (civil or criminal) is circumstantial evidence, and evidence of character & past specific acts is a very commonplace and intuitive form of circumstantial evidence 1. Our personalities are often conceived as a set of "character traits" in a typical litigated case, where it's disputed whether a acted in a certain way, what could be more natural than to look at the kind of person the is, and what he has done before, to determine whether he committed the acts alleged in the litigation a. If a person is charged w/ fraud, it would be useful to know whether he's "honest," or if he's alleged to have committed an assault, it seems relevant to know whether he's "violent" i. The "character" inference is a commonsense form of reasoning which holds that a person w/ a dishonest character is more likely than an honest person to have committed the fraud in question, or that a violent person is more likely to than a nonviolent 1 to initiate a physical assault

C. It's crucial to see how past specific acts fit into the character inference 1. Character traits are ultimately generalizations drawn from specific instances of conduct thus, "past specific acts" are the intuitively obvious source of character evid. & in practice are often relevant to prove character, which in turn is relevant as circumstantial evidence of how a person may have acted on a particular occasion a. This chain of reasoning is precisely what the Fed. Rules prohibit while evidence of character may sometimes be used to prove or disprove conduct on a specific occasion, FRE 404(b) doesn't allow past specific acts to show character to prove conduct on specific occasion

II. GENERAL PROHIBITION ON USE OF CHARACTER & "PAST SPECIFIC ACTS" EVIDENCE TO PROVE CONDUCT ON A PARTICULAR OCCASION A. FRE 404 & 405
Rule 404: Definition of "Relevant Evidence" (a) Character evidence generally. Evidence of a person's character or trait isn't admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of accused. In a criminal case, evidence of a pertinent character trait offered by an accused, or by the prosecution to rebut the same, or if evidence of a character trait of the alleged victim of the crime is offered by an accused & admitted under Rule 404(a)(2), evidence of the same character trait of the accused offered by the prosecution; (2) Character of alleged victim. In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent character trait of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the 1 st aggressor; (3) Character of witness. Evidence of a witness's character, as provided in Rules 607, 608, and 609. (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts isn't admissible to prove the character of a person to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. Rule 405: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible (a) Reputation or opinion. In all cases in which evidence of character or a character trait of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On crossexamination, inquiry is allowable into relevant specific instances of conduct. (b) Specific instances of conduct. In cases in which character or a character trait of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

B. Interpretation & Illustration of FRE 404(a) & (b) 1. FRE 404(a) begins by prohibiting the use of evidence of a person's character to prove action in conformity therewith a. Under FRE 404(a), evidence of character isn't permitted to show conduct on a particular occasion this bars the basic inference shown in Diagram 5-1: EF
Evidence of a person's character trait (e.g., "careless driving")

IF
The person in fact has that character trait ( is a careless driver)

FOC
Conduct in conformity w/ that character on a specific occasion (e.g., negligence in colliding w/ )

2. FRE 404(b) makes clear that past specific acts can't be admitted to show conduct on a particular occasion by means of the prohibited character inference a. Evidence of past conduct similar to the acts that allegedly give rise to liability e.g., evidence of past driving infractions & accidents to show that it's more likely the driver was negligent in the incident in question is usually relevant precisely b/c we make the character inference i. Driver's past driving conduct shows him to be a certain type of driver, the kind who's more likely to do that type of thing negligent driving on further occasions b. FRE 404(b) thus prohibits the chain of inferences shown in Diagram 5-2: EF
Past specific acts (e.g., past traffic infractions & accidents)

IF
to prove
The character of a person (e.g., a character trait for negligent driving)

FOC
to show
Conduct in conformity w / that character trait on the occasion in question (negligence in hitting pedestrian)

(Note: The words "prove" & "show" in FRE 404 are used interchangeably.)

3. FRE 404(b)'s prohibition of a particular mode of proving character to show action in conformity w/ that character trait may seem unnecessary given the general prohibition in FRE 404(a) but there are 2 good reasons for spelling it out a. There are limited exceptions [set out in FRE 404(a)(1), (2), and (3)] in which character evidence may be offered to prove conduct on a specific occasion i. FRE 404(b) makes clear that even when these exceptions apply, the means of proving character can't be past specific acts b. Past specific acts are a common & intuitively obvious form of evidence that litigants are naturally inclined to look for i. Absent the express prohibition in FRE 404(b), it might not be sufficiently clear to courts & litigants that the specific acts evidence is in many instances relevant only b/c it proves character to show conduct in conformity w/ character i.e., that the relevance of this evidence depends on the prohibited character inference FRE 404(b) stands as a reminder that past specific acts evidence is objectionable on this ground C. Elaboration of the FRE 404(a) & 404(b) Character and Specific Acts Prohibitions 1. The Rationale for Restricting Evidence of a Person's Character There are good reasons for restricting the use of character evidence to show a person's action in conformity w / that character: a. Weakness of the Propensity Inference i. The probative value of character evidence to show action in conformity w/ character will seldom, if ever, be very great A person who's generally honest will at least occasionally be less than fully honest; a person whom we may fairly describe as having a violent character will on many occasions react to adverse situations in a peaceful manner Moreover, on the occasion giving rise to the litigation, there may have been particular stresses on the individual or some other unusual circumstances that increased the likelihood of action "out of character"

ii. In the Johnson case, evidence of Walker's reputation for violence is relevant to show that he was violent at the time of the alleged jail cell altercation Yet the evidence doesn't suggest that Walker was violent in a majority of his encounters w/ inmates if that were the case, it's unlikely that he would have retained his job - Rather, 's evidence suggests only that W happened to be violent somewhat more often than the other correctional officers Alternatively, consider prosecution's evidence about Walker's good character W may have been generally a peaceful person, but the stress of the incident w/ could have caused W to act "out of character" iii. Even if 1 fully credits the defense evidence & discounts the prosecution evidence (or vice versa), the evidence tells the fact finder very little about the likelihood that W behaved violently at the 1 specific time that's the focus of the litigation i.e., Inference in Diagram 5-1 from a general character trait like violence, peacefulness, honesty, or dishonesty (IF) to action in conformity w/ that character trait on a specific occasion (FOC) is likely to be quite weak b. Low Probative Value of the Evidence to Prove Character i. The inference from the evidence offered (e.g., testimony about Walker's reputation for violence) to what a person's character actually is (EF to IF) may itself be weak When character evidence is permitted, it must take the form of the witness's opinion about a person's character or that person's character "reputation" in the community - Such evidence often comes across as too vague & general to be convincing (how convinced were you by the inmates' testimony about W's reputation for violence in the Johnson case?) ii. Evidence of past specific acts e.g., specific instances in which W beat an inmate, if such evidence existed may be much more powerful than general opinions, but even that evidence may not be very probative of a person's character While a person's character is undoubtedly reflected in his conduct, how much conduct do we need to observe before we can make reliable "character" judgments? - Would 2 instances of W assaulting inmates suffice to prove that he had a "character" to be violent toward inmates? - What if those incidents were "out of character" for him? c. Diversion from Main Issues i. If the character evidence is disputed, there's a risk of digressing into a "minitrial" on character & diverting the fact finder's attention from the main issues in the case e.g., In Johnson, there was conflicting testimony about Walker's reputation for violence or nonviolence ii. Moreover, the risk of confusion of issues would be heightened if character was to be proven by past specific acts e.g., If the defense in Johnson wanted to introduce evidence that W had previously assaulted 2 inmates, we can easily see the potential for minitrials on those instances - Were those prior assaults similar in relevant aspects to Johnson's situation? - Did W provoke the assault or simply defend himself? - How many facts are disputed about the prior assaults, and how many witnesses are there to those events?

d. Bad Person Prejudice i. Character evidence may also be unfairly prejudicial, particularly if it's evidence of the character of a party to the lawsuit Inherent in the concept of character is a moral quality or sense of rightness/wrongness consider the meaning of the words we use to describe character traits e.g., honesty, dishonesty, peacefulness, and violence - Evidence that a litigant possesses 1 of these traits may arouse an emotional response & dispose the jury to decide in favor of that person if it's a positive character trait or against the person if it's a negative 1 ii. This danger's intensified when a negative character inference might be drawn from past specific acts Consider a murder case in which the prosecutor offers evidence that the has committed an unrelated murder on a prior occasion - 1 way that this evidence is relevant is to show that has a generally violent character and more specifically, a character trait to commit murder and thus may have committed the murder on the occasion in question - At the same time, the prejudicial impact of the evidence may be substantial o Jury's likely to have little sympathy for a 1-time murderer even if has a reasonable doubt about 's guilt on the current charge jurors may also make unfounded assumptions about the likelihood that someone who has committed murder in the past will do so again o Risk is probably especially great that a jury, on hearing about criminal 's bad character, may be willing to ignore a reasonable doubt & convict a person who may not (in jurors' view) have been sufficiently punished in the past & who may commit crimes in the future e. Character evidence raises classic FRE 403 issues, in which probative value must be weight against FRE 403 dangers of consumption of time, confusion of issues, and unfair prejudice i. FRE 404 can be understood as reflecting a judgment that the FRE 403 dangers inherent in character evidence will so often substantially outweigh the probative value that it makes sense to exclude it as a general rule rather than to permit case-by-case decisions on whether to admit it ii. And while character evidence admissible under the FRE 404(a) exceptions can be proven by opinion or reputation testimony, it can't be proven by past specific acts Although specific acts may be slightly more probative of character than vague, general reputation or opinion evidence, the FRE 403-type dangers of minitrials & unfair prejudice are probably much greater - Thus, you can see the reason underlying 404(b)'s categorical prohibition of specific acts to prove character to prove conduct on a particular occasion 2. Exceptions to the FRE 404(b) Prohibition Against the Use of Specific Acts a. There are limited instances in which it's permissible to use evidence of a person's specific acts to prove that person's character to show action in conformity w/ character i. FRE 608(b) & 609 explicitly authorize the use of specific acts for this purpose ii. The Fed. Rules dealing w/ the admissibility of sexual conduct evidence, FRE 413-415, also contemplate the use of specific acts to prove character to show action in conformity w/ character b. There are also a # of purposes for which specific acts are admissible b/c they aren't offered pursuant to the prohibited chain of inferential reasoning set out in Diagram 5-2 i. e.g., The admissibility of specific acts that are deemed relevant w/out a character inference, evidence of a person's character when character is an essential element of a claim or defense

KEY POINTS 1. Evidence of a person's character is relevant to show the person's action in conformity w/ character on a particular occasion 2. FRE prohibit the use of character evidence to show action in conformity w/ character except in situations set forth in FRE 404(a) 3. FRE don't define "character" or "character trait" typically, character traits are qualities or aspects of a person that tend to be reflected in occasional, rather than routine, conduct & tend to have more overtones (e.g., honesty or dishonesty) and, thus, inherent prejudice 4. Past specific acts, or instances of conduct other than the ones that form the subject matter of the litigation, are often relevant to prove character to show conduct in conformity on a specific occasion a. However, they are excluded from evidence for this purpose by FRE 404(b)

III. THE ADMISSIBILITY OF SPECIFIC ACTS THAT ARE DEEMED RELEVANT WITHOUT A CHARACTER INFERENCE
Basic provision of Rule 404(a) prohibits a certain kind of propensity inference specifically, a "character"

inference, 1 that asks the fact finder to infer that a person acted a certain way on the occasion in question b/c it was his "character" to act that way w o Basic provision of FRE 404(b) emphasizes this prohibition / respect to evidence of past specific acts that are relevant for some purpose other than to prove character to prove, in turn, conduct on a particular occasion i.e., Past specific acts that are relevant w/out making a full character inference illustrated in Diagram 5-2 aren't excluded by the 1st sentence of FRE 404(b)
b/c past specific acts are an important & common type of evidence, the drafters of the rules didn't leave this

point about their admissibility for noncharacter purposes to implication, but chose instead to spell it out in the 2nd sentence of FRE 404(b) o There are a variety of labels for the type of evidence considered here: specific acts evidence, prior bad acts, bad conduct evidence, uncharged misconduct, etc. we tend to use the term past specific acts Regardless of the terminology, the issues are the same A. Interpretation & Illustration of the 2nd Sentence of FRE 404(b) 1. Pursuant to the 1st sentence of FRE 404(b), a person's specific acts aren't admissible to prove the person's character to show action in conformity w/ character a. Specific acts may be admissible, however, pursuant to the 2nd sentence of FRE 404(b) to prove a fact of consequence that's not called "character" or a "character trait" i. While specific acts offered for some noncharacter purpose are often prior bad acts of a criminal offered by the prosecution, nothing in the rules of evidence limits the noncharacter use of specific acts to acts that are somehow "bad" or to acts of a criminal 2. To admit evidence pursuant to the 2nd sentence of FRE 404(b), the proponent must satisfy 3 requirements: a. Proponent must articulate some noncharacter purpose for which the specific acts evidence is relevant b. Proponent must introduce evidence that the person who allegedly committed the act in fact did commit the act c. Proponent must be prepared to respond to a likely FRE 403 objection to the evidence

3. e.g., Assume a case in which the is charged w/ shooting a police officer, and the prosecution wants to introduce evidence that robbed a bank shortly before the shooting a. The prosecution would 1st have to articulate a noncharacter purpose for introducing evidence of 's involvement in the bank robbery i. Prosecution would maintain the bank robbery evidence is offered, not to show more likely shot the officer in conformity w/ a general character for dishonesty or lawlessness, but rather to est. a motive for the shooting: b/c had recently robbed a bank, had a particular fear of capture and, thus, a motive for shooting the officer b. 2nd, the prosecution would have to have evidence e.g., a video of the robbery or eyewitness testimony suggesting was indeed the bank robber c. Finally, the prosecution would have to be prepared to respond to an objection that the probative value of the bank robbery evidence (to prove had a motive for the shooting and, thus, did shoot the officer) is substantially outweighed by the FRE 403 exclusionary factors 4. 4th requirement if proponent of evid. is prosecutor he must respond to criminal 's demand for notice a. Notice requirement's purpose: to reduce surprise & promote early resolution on the issue of admissibility i. The rule states no absolute time limits & no particular form that the request + response must take B. Elaboration of the 2nd Sentence of FRE 404(b) 1. The Permissible Use of Specific Acts Evidence
404(b) prohibits use of specific acts evidence only when offered to prove character to prove conduct in

conformity on a specific occasion any relevant purpose of specific acts evidence falling outside that chain of inferences (Diagram 5-2) falls outside the prohibition of FRE 404(b) & is potentially admissible nd o 2 sentence of 404(b) lists the trad'l purposes for which C/L permitted the use of specific acts but, the phrase "such as" in 404(b) expressly makes clear that the list isn't exhaustive nd o To secure admission under 2 sentence of 404(b), it's not necessary to identify 1 of the listed purposes It's sufficient for the proponent of specific acts evidence to convince the court the evidence is offered for some purpose other than proving a person's character to prove conduct in conformity w / character on a specific occasion
"Past specific acts" are acts that appear to be unrelated to the litigated events, although in many cases they

might themselves have been the basis for civil or criminal liability nd o 8 examples listed in 2 sentence of 404(b) motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident can be grouped into 3 broad & overlapping categories that may help discern patterns in kinds of specific acts evid. deemed to avoid 404(b) 1st sentence exclusion a. Evidence That's Essential to the Narrative of the Proponent's Case i. Sometimes the events giving rise to civil or criminal liability are an inextricable, essential part of a larger story involving other actions by a party these other actions are in turn relevant to an essential element, tending to prove who did the act or what the act was The prosecution in a homicide case might want to present evidence that the stole a gun in a burglary a week before the homicide to explain how he came into possession of the gun used in the crime an example of opportunity or preparation - In the same homicide case, prosecution might offer evidence that was involved w/ the victim in a drug deal that went bad, to establish 's motive to kill the victim Or, under a different set of facts, a homicide might be part of a broader plan or scheme to further a drug-dealing conspiracy if the victim were a potential witness against the conspirators, or a competing drug dealer in which the case prosecutor might offer specific acts evidence in the form of evidence of the (uncharged) drug dealing conspiracy

ii. "Motive," "opportunity," "plan," and "preparation" are terms that capture the idea of these various narrative elements litigants have strong interest in presenting evidence that tells the jury a story that's coherent & has "narrative richness" that doesn't leave the jury wondering "how" and "why" In addition, these kinds of facts are relevant in other ways, typically as circumstantial evidence tending to show identity who committed the crime or conduct that's the subject of the litigation or the fact that the crime or conduct occurred, where those facts are in dispute b. Evidence Showing Relevant States of Mind i. States of mind are at issue in litigated cases: mental states may be an element of criminal charge/civil claim, and can put his state of mind at issue by asserting mistake, accident, or lack of knowledge In such cases, past specific acts can be admissible for the noncharacter purpose of proving knowledge, intent, or absence of mistake or accident - The same evidence that showed "preparation" or "motive" in the homicide example, may also be relevant to show an intent to kill or the kind of premeditation that must typically be shown in a murder case Past specific acts might also show the requisite knowledge e.g., in a prosecution for conspiracy to distribute drugs, prosecutor might offer a prior conviction for dealing cocaine to show the 's knowledge that the substance he transported was in fact cocaine - This example also illustrates what's meant by absence of mistake or accident PSA may be relevant to rebut a 's assertion that he's not liable or guilty b/c he was mistaken about crucial facts or that the conduct was unintentional o e.g., If claims he didn't know the white powder was cocaine, his past conviction for dealing powder cocaine would be relevant to undermine that claim PSA are also occasionally offered to rebut a claim of "accident" under the doctrine of chances - e.g., In a case where an alleged sexual harasser claims that he mistakenly believed welcomed his sexual advances, it might be relevant to show that he has harassed several other women in the workplace on previous occasions, claiming "mistake" each time - Theory is that such accidents are unlikely to recur w/ the same person so frequently, implying that intentional conduct must be involved c. Evidence Showing Identity i. In cases where defense theory is that the wrongful conduct was perpetrated by some other known or unknown person, PSA can be relevant as circumstantial evidence that 's indeed the perpetrator ii. To be sure, "other conduct" offered for any of the other noncharacter purposes above is ultimately relevant to "identify" the as the culprit Identity is probably listed separately as a way of including the "modus operandi" theory: - Where other conduct is so distinctive & nearly identical in its attributes or methods to the litigated conduct as to suggest itself that the same perpetrator did the past & present acts, it can be admitted as showing identity 2. Preliminary Factfinding w/ Respect to Whether the Person in Question Committed the Act a. The probative value of specific acts evidence for any of the noncharacter purposes covered by 404(b) (2nd sentence) depends in part on the strength of the proof that the person committed the act and, if culpability is important to the relevance of the evidence, that the person did so culpably i. Standard the trial judge should use in determining whether to admit the specific acts evidence: the question of the person's culpable involvement is 1 of conditional relevance governed by FRE 104(b) Thus, under the FRE, the proponent of the evidence can satisfy the preliminary fact requirement by introducing "evidence sufficient to support a finding" by a preponderance of the evidence that the person was culpably involved in the act (this standard of proof is relatively low)

ii. Despite Huddleston, some state courts apply an FRE 104(a)-type standard in assessing a person's involvement in prior acts In these states, as a condition of admissibility, proponent of the evid. must persuade trial judge that (a) the person allegedly responsible for the act did in fact commit the act & (b) person did so culpably (if culpability in the commission of the act is important to its relevance, as it usually is) iii. Principle reasons for using the higher FRE 104(a) preliminary fact standard would be to protect criminal s from the unfair prejudice that inheres in the admission of a 's bad acts 3. Probative Value & Prejudice Generally a. Finding a relevant "noncharacter" purpose for specific acts evidence under 2nd sentence of FRE 404(b) and satisfying the preliminaryfact standard doesn't mean that the evidence is automatically admissible i. Term "may" in FRE 404(b) makes it clear that admissibility is subject to compliance w/ the other rules of evidence, the most important of which in the context of specific acts evidence is FRE 403 b. Past specific acts evidence offered under 2nd sentence of FRE 404(b) nearly always raises a potential FRE 403 objection i. This is b/c in virtuallyevery instance in which PSA are offered for 1 of FRE 404(b) (2nd sentence) purposes, there will still be the risk that the jury will consider the past conduct for impermissible purpose of proving character to prove conduct in conformity w/ character on a specific occasion e.g., If prosecutor in a homicide case offers evidence of 's burglary-theft of a gun to show preparation & opportunity, the jury may nevertheless use the evidence to determine has a character to commit crimes & is thus more likely to have committed the homicide or is just a bad person who should be punished on that basis ii. In other words, past specific acts evidence that fits w/in FRE 404(b) (2nd sentence) is likely to be relevant for 2 purposes 1 admissible, the other not Thus, a FRE 403 objection is presented, based on argument that the prejudice flowing from the impermissible purpose substantially outweighs the probative value of the permissible purpose c. Factors for the court to consider in making the FRE 403 balancing decision include: i. How probative the noncharacter purpose is of some contested issue in the case ii. How probative the specific act is to prove the noncharacter purpose (e.g., whether there's a sufficiently close temporal proximity btw the specific act & the crime charged; whether there's a "substantial similarity btw the past act & the crime charged) iii. How probative the evidence is to establish that the act occurred (e.g., whether there's a dispute about the nature of the act or the 's involvement in it) iv. How much of a risk of unfair prejudice would result from introduction of the evidence (e.g., how heinous is the specific act) v. How effective a limiting instruction is likely to be in reducing the risk of unfair prejudice d. When prosecutor offers specific acts evidence against criminal , inevitably will be risk of "bad person" prejudice: Jurors may be willing to ignore a reas'ble doubt b/c they regard as a bad person who perhaps hasn't been sufficiently punished for prior misdeeds & who may commit similar bad acts in the future i. In addition, there's a risk that the jury may use the act in an improper character-propensity sense as evidence committed the crime charged ii. FRE 403, however, is a rule favoring admissibility (probative value must be "substantially outweighed" by the countervailing factors) & that there's a long tradition of admitting prejudicial specific acts evidence for noncharacter purposes In practice, FRE 403 is seldom a barrier to the admissibility of specific acts evidence

KEY POINTS 1. FRE 404(b) prohibits use of specific acts only to prove character to show action in conformity w/ character 2. Admissibility of specific acts for noncharacter purposes requires the proponent to do 3 things: a. Convince the judge that there's a legitimate noncharacter purpose for the evidence; b. Satisfy the preliminaryfact standard w/ respect to the culpable involvement of the person who allegedly committed the act; and c. Respond to an FRE 403 objection 3. The list of purposes in FRE 404(b) for which specific acts evidence may be admissible isn't exhaustive a. Specific acts evidence may be admissible for any noncharacter purpose 4. Under the FRE, question of whether a person was culpably involved in the specific acts is an FRE 104(b) preliminaryfact question a. Proponent can satisfy the standard by offering evidence sufficient to support a finding by a preponderance of the evidence that the person was culpably involved in the act 5. FRE 403 may sometimes require exclusion of specific acts evidence offered for noncharacter purposes C. Further Elaboration of the 2nd Sentence of FRE 404(b)
Description of 3 categories of specific acts evidence admissible under 2nd sentence of FRE 404(b) narrative

completeness, states of mind, and identity not intended to suggest that any past specific act that can be shoehorned into 1 of these descriptions should be deemed admissible nd o On the contrary, lax application of 404(b) (2 sentence) categories poses real risk of undermining policies behind the basic 404(b) prohibition of PSA to prove character to prove conduct on a particular occasion 1. The Problem of "Res Gestae" a. While evidence of past acts to show "motive" or "opportunity" might supply elements that fill out the story of the case, they are also independently relevant e.g., a person w/ a motive is more likely to have done the act in question than someone w/ no motive i. However, parties sometimes argue for admission of evidence that's not technically relevant on the ground that it purportedly involves the "same transaction" as the conduct at issue in the case, or helps to "complete the story" of the case Such evidence = res gestae (give the argument to admit such evid. more weight than it deserves) ii. Courts take different views on how carefully to limit marginally relevant or irrelevant past acts evid. that's offered only to "complete the story" but, courts shouldn't admit such evidence unless it's necessary to a coherent & intelligible description of the conduct giving rise to civil/criminal liability 2. The Problem of Specific Acts Evidence to Prove Intent a. FRE 404(b) identities "intent" as 1 of the permissible noncharacter uses of past specific acts evidence b. Some courts formulate the admissibility of PSA evidence to prove intent this way: "Where a claims his conduct has an innocent explanation, prior act evidence is generally admissible to prove that the acted w/ the state of mind necessary to commit the offense charged" U.S. v. Zackson (2nd Cir. 1993) i. In Zackson, prosecution introduced evidence had previously participated in a marijuana-selling conspiracy to rebut 's contention he didn't willingly participate in a cocaine-dealing conspiracy How does prior marijuana selling prove intent w/out making a character inference? Relevance of prior marijuana conspiracy is to prove has a propensity to engage intentionally in drug-selling activities, offered to show he so intended on the occasion of the charged cocaine conspiracy - This use of PSA requires the very type of character inference prohibited by 404(b) (1st sent.)

c. Perhaps 1 could view "intent" as something other than "conduct," so the use of PSA to prove intent on a particular occasion is different from the prohibited use of PSA to prove conduct on a particular occasion i. Or perhaps the law of evidence could be seen as making an "intent exception" to the prohibition of specific acts to prove character to prove conduct on a specific occasion as a sensible concession to the need for circumstantial evidence to prove states of mind d. Whatever the justification, many courts & commentators seem willing to gloss over the difficulty that use of PSA to prove intent violates the prohibition in the 1st sentence of FRE 404(b) 3. The Intent/Specific Acts Problem where Intent Is Not Disputed
Danger of allowing PSA to prove character to prove intent is particularly troubling in the following hypo:

charged w/ knowing sale of heroin prosecution witnesses will include the alleged purchaser & individuals who can identify the substance as contraband and est. a chain of custody w o The defense will be that the police arrested the wrong person & that the had nothing to do / the heroin transaction to which the prosecution's evidence relates Prosecution offers evidence that the knowingly sold heroin 2 yrs ago on the ground that this prior sale is evidence of the 's knowledge, which is 1 of the elements of the offense objects that the evid. should be excluded according to FRE 403 in support of the objection, offers (a) to stipulate that whoever sold the heroin did so w/ requisite knowledge & (b) to accept a jury instruction explaining the stipulation to the jury
o is

a. The Argument for Exclusion i. The need for evidence is 1 of the factors to consider in making the FRE 403 determination even w /out the stipulation & jury instruction, there may be little need for the prior act evidence in the heroin sale case provided does nothing to suggest lack of knowledge It seems likely that the jury would infer knowledge from the facts of possession & sale and from the failure to deny knowledge - Thus, even if 1 believes there's a strong inferential link btw the prior knowing sale & present knowledge, the evidence, in context, appears to have low probative value (prosecutor not likely to consider dropping drug sale case even if it didn't have evid. of previous drug selling) - The stipulation & jury instruction further decrease the need for the evidence Against this low probative value, 1 must assess the FRE 403 risk of unfair prejudice if the evidence were admitted, there's a risk that the jury would consider it in 2 improper ways: - 1st, jury might infer that b/c sold heroin once before, 's the kind of person who has a character trait for selling heroin and, thus, probably sold it on this occasion this particular chain of inferences, however, is clearly prohibited by 1st sentence of FRE 404(b) - 2nd, there's the risk of "bad person" prejudice e.g., jurors may be willing to forgo a reasonable doubt to convict & remove from the streets someone who's involved w/ drugs The lack of need for the evidence coupled w/ the possibility of misuse of the evidence by the jurors creates a strong argument to exclude the prior heroin sale evidence on FRE 403 grounds ii. Early leading cases on this issue held PSA evidence should be excluded where offered to stipulate b. The Impact of Old Chief i. In Old Chief, Supreme Ct. acknowledged FRE 403 balancing process must include the "assessment of evidentiary alternatives" Court then held 's stipulation precluded prosecution from introducing evidence of 's prior conviction when the conviction was relevant only to show 's legal status as a former felon Ct. also observed probative value of evid. includes its descriptive richness, its contribution to the narrative integrity of a party's case, & its ability to convince a jury of what's morally reas'ble

ii. w/ respect to FRE 404(b) issues, the issue of substituting 1 statement (i.e., the stipulation) for the other (i.e., the evidentiary proof) normally arises only when the record of conviction wouldn't be admissible for any purpose beyond proving status, so that excluding it wouldn't deprive prosecutor of evidence w/ multiple utility If there was a justification for receiving evidence of the nature of prior acts on some issue other than status (i.e., to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident), Rule 404(b) guarantees the opportunity to seek admission iv. What impact should Old Chief have on the sale-of-heroin hypo? Superficially, Old Chief states 2 general rules about when prosecutors are free to decline defense stipulations that would eliminate prosecution evidence: - A general rule that prosecutors may decline such stipulations - A narrow exception in the circumstances of a 's "status Yet, Old Chief's central focus is less about "stipulations" than about FRE 403 balancing process - In drug-dealing hypo, seems to be no greater need to prove intent than to prove a 's status as a felon: b/c it's not disputed, intent is reduced to something of a technicality & isn't part of the narrative of the prosecution's case Under the FRE 403 balancing process, the past acts of drug dealing to prove (undisputed) intent should usually be excluded [author's view] However, most courts have taken the opposite view, holding that Old Chief generally supports the admissibility of such evidence - At least 2 courts of appeals have held that Old Chief overrules or at least greatly restricts prior circuit precedent allowing s to rely on stipulations to avoid the prejudicial impact of prior crimes offered to show intent or knowledge - These cases were mistakenly decided to the extent they seem to construe Old Chief as a sort of restriction on the need for a careful FRE 403 balancing in situations where s offer to stipulate to a technical issue to preclude prejudicial past acts evidence [author's view] 4. Past "Accidents" or "Coincidences" & the Anticoincidence Theory a. In cases where disputes intent by claiming mistake or accident and prosecution (or ) wants to offer evidence of prior similar purported "accidents" 404(b) (2nd sent.) has another application i.e., anticoincidence theory of relevance ("doctrine of chances") that carries potential for misuse i. Used to refute a defense of "mistake or accident," the anticoincidence theory is based on the generalization that if the specific acts are sufficiently numerous & similar to the crime charged, "coincidence" or "randomness" is unlikely to explain their occurrence Instead, it's more likely that there's some unifying causal explanation e.g., a single person's intentional, repetitive action for the occurrence of such numerous & similar events b. Hypo: W charged w/ aggravated battery on his 2-yr-old son, J, who suffered a facial bruise & a broken left arm W claims injuries occurred when J accidentally fell down a flight of stairs, but prosecution offers to prove that on 3 prior occasions when J was in the custody of his father he suffered broken bones, and on 2 occasions W brought J's younger sister, R, to the hospital w/ severe head injuries i. Defense counsel objects that the PSA are offered to prove W has a character trait for physically abusing his children & is thus barred under FRE 404(b) Prosecutor responds that the evidence is offered for noncharacter purpose of proving "absence of mistake or accident" pursuant to FRE 404(b) (2nd sentence) under the anticoincidence theory Defense counsel then objects that there's not ESSF, as req'd under Huddleston & FRE 104(b), that any of the prior incidences are (as prosecutor claims) intentional batteries by W rather than accidents or batteries committed by someone else

ii. Viewing each incident in isolation, defense argument seems to have merit: there's not ESSF of 's culpable involvement w/ respect to any single accident but how likely is it that mere coincidental occurrence of similar "accidents" can explain all of the injuries? Instead, it may be more rational to infer that intentional acts account for at least some of the injuries moreover, 's the only identifiable person present at the time the incidents occurred - Thus, it seems reasonable to believe perhaps even highly probable that was culpably involved in 1 or more of the incidents, even though we don't know which 1(s) Is the ESSF by a reasonable trier of fact under FRE 104(b) that was probably culpably involved in 1 or more of the past incidents as well as the present 1? - However the question is answered, it seems appropriate in this type of situation to focus attention for preliminary factfinding on the acts in the aggregate rather than on each individual incident viewed separately iii. Finally, defense counsel could object under FRE 403 that, even if there's ESSF the prior acts were intentionally committed W, it's insufficiently probative the current incident was nonaccidental to overcome the FRE 403 dangers of undue prejudice & confusion of issues c. Doctrine of chances allows past specific acts to prove intent where there may not be ESSF that any single PSA was itself intentional i. To be relevant, "anticoincidence" evidence has to support the inferences both that at least some of the past "accidents" weren't in fact accidents & that the # of past nonaccidents suffices to refute the defense of accident on the occasion giving rise to the current claim or charge d. This reasoning process poses an obvious danger of creating a significant "doctrine of chances" loophole in FRE 404(b)'s specific acts prohibition: i. Can always conceptualize the inference from specific act to character to action in conformity w/ character in terms of the doctrine of chances e.g., Evidence of a murder 's prior violent acts which would be objectionable as evidence of 's violent character to show action in conformity w/ that character can be portrayed as "doctrine of chances" evidence - Prosecutor could focus on the objective improbability that the prior acts & the act in question would've occurred randomly and suggest, thus, must be culpably responsible for them as well as the act that's the subject of the current prosecution ii. How do we know when we have enough past purported "accidents" to refute the current claim of accident or coincidence? Prosecutors have often argued sometimes successfully that 1 prior incident is enough But if 1 or 2 or even a few prior incidents are deemed enough to satisfy the anticoincidence theory much of FRE 404(b)'s basic prohibition could be eroded, at least in cases where a party claims mistake or accident e. Doctrine of chances looks like a version of the character inference prohibited by FRE 404(b) (1st sent.) i. If it is justified, it's in cases where the statistical inference is strong enough to make the evidence more probative than garden-variety evidence of past specific acts The question is: How frequently does a typical, innocent person suffer this type of loss? Once the inquiry focuses on relative frequency, it's evident that sometimes even just 1 unchanged incident will be admissible to trigger the doctrine of chances f. Are unaided intuitions of jurors sufficient to make what's arguably a complex statistical inference? i. An argument could be made that, in many if not all cases, courts should require expert statistical evidence to establish how many incidents are sufficient to trigger the doctrine of chances

5. Modus Operandi & the Character Inference a. A "modus operandi" = a pattern of behavior sufficiently distinctive or idiosyncratic to support the inference that the same person who committed the prior act must also have committed the 1 in question in the current case it's thus relevant where denies committing the act in the case before the court i. b/c a high degree of distinctiveness & similarity is req'd to establish modus operandi, the doctrine will necessarily apply only in limited circumstances b. Courts have traditionally accepted past specific acts evidence under a "modus operandi" theory under FRE 404(b) & its C/L analogues for the noncharacter purpose of proving "identity" i. Yet, as suggested above in the case of "intent," it's difficult to see how modus operandi evidence is relevant to prove identity w/out making a character inference Proponent asks the fact finder to infer that the has a propensity to act in a certain distinctive way, as shown by past instances, and therefore acted in that way on the occasion in question Only justification to treat modus operandi evidence differently from other character evidence is that, b/c of the high standard of uniqueness & similarity of the behavior, it's more probative than generic character evidence - In this respect, modus operandi may be simply a special case of the doctrine of chances KEY POINTS 1. FRE 404(b) (2nd sentence) permits the use of past specific acts to prove "intent" even though, arguably, the relevance of such evidence depends on making the same sort of character inference usually prohibited by the 1st sentence of FRE 404(b) 2. Where "intent" or "'knowledge" is an element of the criminal charge or civil claim but isn't disputed by the , the use of past specific acts to prove intent should arguably be excluded under FRE 403 a. However, at least in drug prosecutions, most courts have held that Old Chief usually supports admission of such evidence 3. "Doctrine of chances" allows admission of prior incidents as to which denies culpable involvement to rebut a defense of "mistake or accident" under the "anticoincidence" theory argument that it's extremely unlikely the past & current incidents could've occurred randomly w/out 's intentional involvement

IV. HABIT & ROUTINE PRACTICE

Although the Fed. Rules, like the C/L, severely limit the circumstances in which a party may introduce character

evidence to show action in conformity w/ character, both the FRE & the C/L permit the use of evidence of a person's habit to show action in conformity w/ that habit on a particular occasion
o Similarly,

the both permit evidence of business custom or routine practice of an organization to show action in conformity w/ that custom or practice

A. FRE 406 Habit; Routine Practice

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not & regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity w/ the habit or routine practice.

B. Interpretation & Illustration of FRE 406

FRE 406 serves 2 important functions:

FRE 406 places no special restrictions on admitting habit evidence i.e., no requirement of eyewitnesses or other corroboration to admit habit & routine practice evidence o 2nd, it provides a useful clarification that habit evidence isn't subject to the strictures of FRE 404-405 even though habit evidence closely resembles character evidence in its form & logic Like traits of "character," "habits" are tendencies or propensities of persons to behave in certain predictable ways Like character evidence, the relevance of habit evidence depends on a "propensity inference" the inference that a person is more likely to have acted in a certain way on a particular occasion if it was his propensity (character or habit) to act in such a way - Organizations may also have behavioral propensities, but FRE 406 implies that inadmissible character traits are understood by evidence law to be traits of individual persons, rather than collective groups of persons
o 1st,

1. The Importance of Habit & Routine Practice Evidence a. Habit or routine practice evid. can be very useful circumstantial proof of action on a particular occasion i. e.g., To show A was in the crosswalk of an intersection when she was hit by 's car, A may introduce evid. of her habit for using the crosswalk at the intersection to est. that habit H may testify, "I've seen A cross the street at this intersection hundreds of times, & every time she's used the crosswalk" b. Moreover, evidence of routine practice of an organization may sometimes by the only way to prove action on a particular occasion i. e.g., consider how an insurance company could prove it had sent out a cancellation notice it seems unlikely that any employee would have a specific memory of mailing the notice in question The ins. company, however, will probably be able to rely on its routine practice to prove that the notice was sent company could introduce a copy of the cancellation notice along w/ the following testimony of 1 of the company employees: - "This copy came from our filing cabinet. It's the routine practice of the company to put such copies in the file only when originals are prepared, signed, and placed in outgoing mailbox. Every day at 3 PM, a designated employee takes mail from our outgoing mailbox & deposits it w/ the U.S. mail." c. Routine practice evid. may also be admissible to help establish an organization's liability e.g., evidence of abusive pattern of insurance policy rescissions;company-wide, mgmt-directed scheme to mismeasure the volume of oil it produced on virtually all leases i. Sorts of orgs to which FRE 406 applies must be cohesive enterprises rather than loose associations 2. Methods of Proving Habit & Routine Practice a. FRE 406 doesn't deal w/ types of evidence a proponent may use to prove habit or routine practice to prove conduct on a particular occasion, but that'd be unnecessary FRE 404(b) prohibition on specific acts evidence to prove "character" doesn't apply to the use of specific acts to prove "habit," which by definition is distinct from character i. Typically proponents use evidence of the type described in the following illustrations: The habit witness is likely either to mention a # of specific acts or to offer a summary or "opinion" based on a large # of observations that aren't individually described - If the court characterizes the summary as opinion testimony rather than specific act testimony, that characterization should cause no problem so long as the opinion meets the helpfulness & 1sthand knowledge requirements of FRE 701, the lay opinion rule Routine practice wit. may describe specific instances or describe generally what the practice is

b. Although reputation evidence is 1 of the trad'l methods of proving a character trait, a proponent shouldn't be able to use reputation evidence to prove habit or routine practice i. Reputation evidence offered for this purpose would be hearsay, and while there's a hearsay exception for reputation evidence offered to prove character FRE 803(21) there's no exception for reputation evidence offered to prove habit or routine practice 3. The Distinction Btw Habit & Character a. FRE 404-406 restrict use of character evid. but not habit evid. to show conduct on a particular occasion, and b/c habit evidence closely resembles character evidence & relies on the same kind of "propensity" inference to be relevant, classification of a person's propensity as "habit" rather than "character" is frequently dispositive of its admissibility i. Habit refers to a propensity that's more specific & routine than a character trait e.g., Getting up every morning at 6 AM is an activity we would refer to as a habit, whereas being violent (which typically isn't something that occurs in a regularized, routine manner) is something we'd call a character trait Similarly, a court would probably regard testimony about A's crossing the same intersection in the crosswalk as habit evidence courts, however, would consider testimony that A acted carefully & cautiously generally as evidence of a character trait b. Although courts rely almost exclusively on the extent to which activity is specific & routine in deciding whether to call it habit evidence, there's another factor that tends to distinguish habit from character i. As the crosswalk & 6 AM rising examples suggest, activity that we think of as constituting a habit tends to be morally neutral, at least compared to character traits, which have a more salient moral connotation: being violent is bad; being careful is good c. Same factors that distinguish habit from character regularity, specificity, and moral neutrality inhere in what FRE 406 refers to as "routine practice of an organization" this phrase refers to "behavior on the part of a group" that's "equivalent" to the behavior of an individual that we characterize as habit 4. Judicial Factfinding on the Question of Habit a. Issue of whether a particular activity is a habit or a character trait is closely related, but distinct from the issue of whether the evidence establishes the existence of the habit or routine practice in the particular case which can arise both w/ proffered habit evidence & w/ proffered routine practice evidence i. H offering to testify about A's habit of using the crosswalk at a particular intersection 1st question: Whether the activity is the type that can qualify as a habit, rather than a character - Is crossing a particular intersection in the crosswalk, if sufficiently regularized, a habit as opposed to a character trait? If yes, 2nd question: Whether the witness's testimony can established that A's activity is sufficiently regularized to be her habit - If H had seen A cross the intersection many times, always using the crosswalk, the answer to this 2nd question would also be yes - On the other hand, if H offered to testify (1) that A used the crosswalk only 60% of the time or (2) that he had seen A cross at the intersection only 3 times, a court would exclude the evidence on the ground that it doesn't show A's habit st o In the 1 alternative, A's activity isn't sufficiently regularized or routine nd o In the 2 alternative, H's knowledge of A's activity is insufficient to determine whether the activity is regularized & routine

b. In situations in which it's arguably a close question (1) whether the type of activity could fit w/in the habit or routine practice category or (2) whether in the particular case the evidence is sufficient to est. the habit or routine practice, courts tend to exercise fairly tight control over admissibility of the evid. i. e.g., The court excluded proffered habit evidence on the ground that the witness hasn't observed the activity enough times to establish whether the habit in fact exists The court may have decided by a preponderance of the evidence pursuant to FRE 104(a) that the evidence didn't establish a habit Alternatively, the court, apply FRE 403, may have concluded that the relatively low probative value of the evidence (in light of the few instances in which the witness could testify) didn't warrant taking the time to litigate the matter Or, the court may not specifically have considered these 2 theoretically distinct justifications for its exclusionary decision C. Elaboration of FRE 406 1. The Rationale for Permitting Habit & Routine Practice Evidence a. The factors that tend to distinguish habit & routine practice from character the relatively more routine and specific nature of the activity and the absence of moral connotation suggest the rationales for permitting evidence of the former and severely restricting evidence of the latter i. b/c of the regularized, specific, nature of habit & routine practice evidence, it's likely to be much more probative of action on a particular occasion than is character evidence i.e., Generalization that ppl have a propensity to act in conformity w/ their habits is likely to be true more of the time than the generalization that ppl act in conformity w/ their character traits ii. To the extent that habit or routine practice evidence is morally neutral, it doesn't have the potential for prejudice that inheres in character evidence iii. In addition, given the difficulty of recalling a specific instance of routine, repetitive behavior, habit or routine practice may be the only evidence available for an individual, or particularly an organization to prove a particular instance of conduct increase of need 2. The Strategy for Distinguishing Btw Habit & Character a. Legal authority distinguishing habit from character is less clear than 1 would like Advisory Committee Note doesn't tell us much about any qualitative differences btw character & habit, or much of a basis for labeling activity that falls btw the fairly extreme examples of generality and specificity i. e.g., What about evidence that a person (a) is a careful driver, (b) always or usually stops at stop signs, (c) always or usually stops at a particular stop sign Case law indicates that 1st & probably the 2nd pieces of evidence would be character evidence, while the last piece of evidence would be habit evidence b. The advocate who wishes to convince a judge that evidence should fall into 1 category or the other should follow a 2-fold strategy: i. 1st, it will be important to look at the existing case law & to draw analogies to and distinctions from situations in which courts have designated evidence as habit or character ii. 2nd, one should try to relate the desired classification to the evidentiary justification for having different rules for habit evidence & character evidence in the 1st place e.g., If the specificity of the conduct, the consistency of the behavior, and its contextual similarity to the conduct at issue suggest relatively high probative value, argue that these specific factors warrant placing the evidence in the habit category Similarly, to the extent there's a risk of unfair prejudice, argue risk of prejudice is 1 of the hallmarks of character evid. & the evidence in question thus should fall in the character category

3. A Particular Application of the Character/Habit Distinction: Drinking "Habits" a. The occasional difficulties in distinguishing character from habit are well illustrated by the special situation of evidence of person's alcohol consumption practices offered as circumstantial evidence of intoxication on a specific occasion b. e.g., is charged w/ vehicular homicide following a hit-and-run accident on a Friday evening & the prosecution wants to establish that the was drunk at the time of the accident i. Prosecutor is prepared to introduce eyewitness testimony about the 's propensity to drink & drive Regardless of whether 1 regards a drinking problem as an illness, presenting such evidence to the jury is likely to be prejudicial in the sense that jurors may tend to ignore a reasonable doubt b/ of their lack of sympathy for a person who drinks & drives - Thus, in this respect, for evidentiary purposes a tendency to drink too much or at least a tendency to drink too much & then drive is like a character trait - On the other hand, if the evidence of drinking were quite specific e.g., drinking 6 or 7 shots of whiskey btw 5 PM & 6PM every Friday after work for the last 50 Fridays the activity is as regular and routine as much of the evidence that gets the label habit ii. Ultimately, admissibility of the prosecution's evidence will turn on comparing the precise nature of the evidence w/ existing case law As the Advisory Committee's Note to FRE 406 points out, "evidence of intemperate 'habits' is generally excluded when offered as proof of drunkenness in accident cases" A number of courts, however, admit evidence of a person's drinking propensities that tend to be specific & routine 4. Evidence of Custom or Routine Practice of an Organization a. The character evid. prohibitions set out in FRE 404 apply to evid. of the character "of a person" thus organizations, as far as the law of evidence is concerned, don't have character traits i. While corporations & other organizations may be treated as a "person" for certain legal issues, FRE 406 distinguishes btw the conduct of "a person" and that of "an organization" b. While a court may insist upon a showing that an organizational practice is routine & repetitive, it might not insist the conduct be morally neutral or even so commonly repeated as to happen on a daily basis i. e.g., Thus some courts would allow evidence that a police dept. has a custom or routine practice of using unlawfully excessive force, or a business corp. may be shown to have a practice of defrauding customers or discriminating against racial minorities in hiring, for the purpose of proving the organization's conduct on a specific occasion Numerous instances of police brutality or employment discrimination might be offered to show a "pattern & practice" of such misconduct as circumstantial evidence that the suffered such a wrong on a particular occasion - If the #s are sufficient to est. the "routine practice" of an organization, it should be permissible for the jury to infer conduct on a particular occasion so long as the proponent seeks to prove the organization's conduct, as opposed to the conduct of a particular person c. As w/ habit, an objection can be made to evidence of the custom or routine practice of an org. on the ground that the proffered specific acts of the org. are insufficient to establish the custom or practice, or that the witness offering an opinion of the organizational practice lacks sufficient 1st-hand knowledge of the claims practice i. In addition, the opponent can object to organizational practice evidence under FRE 403 by arguing that, for example, past bad acts of the organization have low probative value for proving a routine practice, but high prejudicial effect

d. However, in 1 important respect, the objections to organizational practice evidence may differ from the objections that can be made to individual habit evidence i. The opponent can object to evidence offered to show the habit of a person by arguing that the propensity is in fact not a habit, but rather a character trait ii. In contrast, there may be no "character" objection to evidence of organizational practice e. Note, however, that even where past specific acts of an organization may be deemed insufficiently routine to fit w/in FRE 406, the evidence may still be deemed admissible as "past similar happenings" KEY POINTS 1. FRE 406 places no specific limitations on the use of habit or routine practice evidence to show action on a particular occasion 2. The admissibility of habit or routine practice evidence is likely to turn on the resolution of 2 closely related but distinct questions: a. Is the activity in question a habit (or routine practice), or is it a character trait? b. Is the evidence in the particular case sufficient to est. the existence of the habit or routine practice?

V. SIMILAR HAPPENINGS In thinking about "past specific acts" or occurrences other than those giving rise to the civil claim or criminal charge, 1 further category remains aside from those covered by FRE 404, 405, and 406 "similar happenings"
This category entails prior conduct by persons or occurrences involving inanimate objects that are offered for

some purpose other than to prove character, habit, or routine practice

Evidence of similar happenings (or nonhappenings) falls into 3 broad categories:

(1) Organizational Propensity

a. Past similar conduct of, or occurrences w/in, an organization, offered to show that the organization has a "propensity" toward certain acts or occurrences to prove the organization's conduct (strictly speaking, the conduct of 1 or more agents or employees of the organization) on a specific occasion i. Organizational "propensity" is some factor attributable to the organization, rather than to chance (typically a formal or informal policy), that would tend to cause the acts or occurrences b. Examples: i. Evidence of numerous instances of race discrimination against others to show a company-wide practice offered as circumstantial proof that the company discriminated against the ii. Evidence of other Ks btw the & offered to prove the terms of the current K btw and iii. Evidence of prior safety violations of a company to raise an inference of negligent behavior on the occasion giving rise to the 's injury iv. Past fraudulent transactions by a company to show fraud against the on a particular occasion
(2) Organizational Liability

a. Past similar conduct of, or occurrences w/in, an organization, offered to establish an element of liability, such as "notice" or "pattern or practice" liability, or to establish a standard of care b. Examples: i. Prior safety violations of a company to show that the company "knew or should have known" about potentially tortious conditions ii. Repeated acts of police misconduct to shown an institutional "policy, pattern or practice," the latter being an element of municipal liability for torts of employees iii. Evidence of a routine custom of vehicle safety inspections to show a standard of care that was breached in a case where no safety inspection was made prior to the accident in question
(3) Characteristics of Objects

a. Past similar behavior or operation of, or occurrences involving, an inanimate object b. Examples: i. Evidence that an instrumentality has caused other similar injuries in the past (e.g., that ppl have injured themselves falling on the same set of stairs, or that an allegedly defective product or machine has malfunctioned in the past) ii. Evidence that similar objects have had other characteristics similar to an object at issue in the case (e.g., evidence that similar real properties have a value comparable to the value claimed in a property dispute)

A. No Specific Federal Rule for Similar Happenings 1. No specific Fed. Rule deals w/ similar happenings courts & commentators usually treat evidence of similar happenings or nonhappenings as a distinct category of evidence, probably for 2 reasons: a. Similar happenings evidence bears close resemblance to the kinds of "past specific acts" evidence that's strictly regulated by FRE 404-406 b. The reasoning process that makes "similar happenings" evidence relevant often relies on a propensity inference similar to that involved in character evidence i. Thus, the same kinds of recurring FRE 403 dangers that undoubtedly underlie FRE 404 may arguably exist for similar happenings 2. Similar happenings evidence is governed only by FRE 401-403 B. Similar Happenings, Character, and Habit Evidence Compared 1. The examples of the 3 categories of similar happenings evidence have some obvious points of comparison w/ the kinds of "propensity" evidence covered so far in this chapter a. Category (1) resembles character evid. prohibited by 404(b), in that past similar happenings are being offered to shown organizational propensity to prove the conduct of the org. on a specific occasion i. FRE 404(b) doesn't apply b/c the propensity in question isn't that of a person, but a thing Even though most organizations consist of groups of ppl, so long as the propensity is being attributed to an organization, courts will usually not consider it to be "character" evidence b. Similarly, category (3) evidence is offered to show the propensity of a thing (like a machine or a piece of property) this too falls outside the scope of FRE 404 since character is an attribute of individual ppl, not inanimate objects c. Category (1) of similar happenings evidence probably overlaps w/ routine practice evidence under FRE 406, which allows proof of the routine practice of an org. to prove conduct on a specific occasion i. But there will undoubtedly be instances in which a court will find evid. of organizational behavior to be insufficiently routine or morally neutral to qualify as FRE 406 evidence e.g., a company may often defraud customers, but perhaps not so often as to make it a "routine Such evidence is analogous to evidence of an organization's "character," but the law of evidence recognizes character traits only of individual persons - Thus, specific acts to prove the (quasi) "character" of an organization to prove the organization's conduct on a specific occasion comes w/in the "similar happenings" rather than the "character" rubric d. Category (2) resembles evidence covered by FRE 405(b): the past similar happenings are offered to prove something other than conduct of an organization on a particular occasion the organization's "propensity" e.g., its pattern or practice is a fact of consequence or essential element by itself 2. Where the proponent offers evidence of an "institutional propensity," the opponent of the evidence should be alert to the possibility that the evidence is reallya disguised effort to prove the character of an individual a. The use of past specific acts to show organizational propensity makes sense if the acts tend to show a causal mechanism by which some factor intrinsic to the organization e.g., a formal or informal policy supports the inference that the individual acts or occurrences aren't based on random factors i. The relevance of such similar acts evidence may be, in effect, a kind of "doctrine of chances" theory raising similar dangers of misuse" 3. If the purported "similar happenings" are really the actions of a person offered to show how that person behaved on a particular occasion, the admissibility of the proffered evidence will necessarily involve a consideration of FRE 404-406

C. The Approach to the Admissibility of Similar Happenings Evidence 1. Assuming the propend of the similar happenings evidence offers witnesses w/ 1st-hand knowledge of these events, the only rules that a judge will probably have to consider are FRE 401-403 a. Since no rules make similarity a special condition of admissibility, it's not an FRE 104 preliminary fact for the judge to consider rather, judge's task is to determine only whether the evid. is relevant & if so whether the probative value is substantially outweighed by the countervailing FRE 403 factors i. As w/ any evidence, the probative value of similar happenings evidence depends on the purpose for which the evidence is offered the probative value may or may not depend heavily on the similarity of the proffered happenings e.g., In a civil rights suit alleging municipal liability based on a "pattern & practice" of excessive force by police, it may be that the only relevant "similarity"of the incidents is that they were all committed by members of the 's police force On the other hand, in a products liability case, courts may require a showing of similarity of past injury incidents to est. that the other users all used the product as directed & thereby eliminate possible causes of injury other than product defect 2. Similarity in this category of evidence really refers to the presence or absence of extraneous factors that will make the past happenings more or less probative for the case at hand a. This probative value is balanced against the FRE 403 dangers: waste of time, confusion of issues, and unfair prejudice caused by risk of improper inferences D. The Application of FRE 403 to Similar Happenings Evidence in Practice 1. Most courts are liberal in admitting similar happenings evidence when similar happenings evidence is offered to show notice of a possible defect a. When the issue is notice, the probative value of the evidence depends primarily on whether the was or should have been aware of the other incidents & not on how similar they are to the incident that gave rights to the litigation 2. By contrast, when the probative value of the evidence depends on the degree of similarity among the happenings, courts are likely to require a high degree of similarity as a condition of admissibility a. The probative value of similar incidents standing along might be sufficiently low so that it's substantially outweighed by the FRE 403 efficiency & confusion factors E. Similar Happenings Offered to Show an Institutional Policy or Practice 1. An important use of similar happenings is to show an institutional policy or practice a. e.g., In a prisoners' class action challenging the practices of violence at Pelican Bay Prison, s relied on testimony & records describing numerous incidents or excessive force against inmates to est. their claim that state prison officials were aware of the problem at Pelican Bay and, in fact, implicitly sanctioned the misuse of force and acted w/ knowing willingness that harm occur i. In that lawsuit, the institutional practice was itself the focal point of the suit: liability followed directly from the establishment by s of the institutional practice, w/out having to draw further inferences about conduct on a specific occasion b. In civil rights cases brought by individuals against a municipal police force in police brutality, evid. of other incidents of excessive force is legally necessary for s to win a jdgmnt against a city, county, or other municipality: i. A must prove a specific pattern of conduct or series of incidents violative of constit'l rights to sustain the existence of a municipal policy or custom

F. Evidence of Similar Nonhappenings 1. "Similar happenings" evidence includes evidence of nonhappenings offered to prove lack of notice, or that an event didn't occur, or didn't occur in the manner or for the reason alleged e.g., evidence of the absence of ppl falling down a staircase to rebut the 's claim that the staircase was dangerous a. In this type of case, a court is likely to require evidence that the conditions were similar during the time of the nonhappenings in addition, the court is likely to require a significant # of nonhappenings i. Whereas evid. that 2 or 3 ppl fell down a staircase may be quite probative to show the staircase was dangerous, evid. that 2 or 3 ppl managed to use the staircase w/out falling isn't very probative of the proposition the staircase is safe those 2 or 3 ppl may fortuitously have avoided the dangerous spot ii. Evidence that several hundred ppl used the staircase w/out falling under the conditions similar to the conditions that existed when fell, however, is quite probative of the proposition that the staircase wasn't dangerous at the time of 's fall KEY POINTS 1. Evidence of similar happenings or nonhappenings is offered to show such matters as: a. The behavioral propensity of an organization or an object, (analogous to the "character" of a person) to show the behavior of the organization (or its agents or employees) on a specific occasion, b. The institutional policy of an organization where that is a fact of consequence or essential element, or c. The behavior or characteristics of an inmate object 2. There's no specific Fed. Rule governing the use of similar happenings as a practical matter in most cases the controlling rules are likely to be FRE 401-403 3. b/c similar happenings evidence involves either no propensity inference at all, or else a propensity inference about organizations or things rather than individual persons, it's not considered to be evidence of "character" or "habit" & is thus not governed by FRE 404-406 4. Except when similar happenings evidence is offered to show notice, courts tend to require a showing of similarity as a condition of admissibility

V. EXCEPTIONS TO THE PROHIBITION ON USE OF CHARACTER TO PROVE CONDUCT ON A PARTICULAR OCCASION A. Interpretation & Illustration of FRE 404(a)(1)-(3) 1. FRE 404(a)(1) & (2): A Criminal 's Right to Open the Door to Character Evidence a. A criminal is free to introduce evidence of the 's own character [404(a)(1)] or the victim's character [404(a)(2)] i.e., "opening the door" to the character issue i. e.g., In Johnson, could've introduced evidence of his own peaceful character for the purpose of showing action in conformity w/ that character trait at the time of the altercation w/ prison guards (i.e., for the purpose of showing he was behaving peacefully & wasn't the aggressor) 404(a)(1) ii. Similarly, could've introduced evidence that 1 or more the guards who were victims had a violent character to suggest that they were the aggressors in the incident 404(a)(2)

2. FRE 404(a)(1) & (2): The Prosecution's Right to Respond to a 's Character Evidence a. When a elects to open the character evidence door, prosecution in its rebuttal case may introduce character evidence to rebut 's evidence i. e.g., If an assault introduces evid. of 's own good character for peacefulness, prosecution can respond w/ evid. that has a character trait for violence to show was the aggressor 404(a)(1) ii. Similarly, if an assault introduces evidence of the victim's character for violence to suggest that the victim was the aggressor, prosecution may respond w/ evidence of the victim's character for peacefulness 404(a)(2) b. When s open the door to a victim's bad character, they also open the door to their own bad character i. Thus, in the hypo where the assault introduced evidence of the victim's character for violence, prosecutor could respond not only w/ evidence of the victim's character for peacefulness, but also w/ evidence of 's character for violence c. Whenever the prosecution is rebutting 's character evidence, the prosecution's evidence must be about the same character trait addressed by 's evidence i. This limitation is implicit in the term rebut, and FRE 404(a)(1) makes the limitation explicit when prosecution responds to evid. of the victim's bad character w/ evidence of 's "same" bad character Thus in the hypos, prosecutor couldn't respond to 's evid. about the victim's violence or 's peacefulness w/ evidence of the victim's honesty or 's dishonesty this prosecution evidence wouldn't rebut 's evidence b/c a person can be both violent & honest or peaceful & dishonest 3. FRE 404(a)(2): The Prosecution's Right to Use Character Evidence to Respond to Defense Attacks on the Victim's Conduct a. Prosecution may introduce evidence of a homicide victim's character for peacefulness, if has suggested that the victim was the 1st aggressor 404(a)(2) i. e.g., had killed W & was being prosecuted for homicide or other defense witnesses testified that W was the 1st aggressor and that had acted in self-defense This defense testimony isn't character evidence isn't trying to show W's general character for violence rather, is offering evidence specific actions of W that constitute an element of the self-defense claim Prosecutor, however, can respond to this testimony w/ evidence of W's good character for peacefulness (to show action in conformity w/ character) - This character evidence is admissible b/c introduced evidence that W had been the 1st aggressor it's not dependent upon 's opening the door to his own or W's character But, prosecutor can't open the door to 's character for violence the prosecution can never introduce evidence of 's character unless has 1st introduced character evidence 4. The FRE 404(a) Requirement of Pertinence a. 404(a)(1),(2) 's & prosecution's character evid. must tend to establish a "pertinent" character trait i. e.g., In Johnson, it would have been permissible for to introduce evidence of his own character for peacefulness or evidence of a prison guard victim's character for violence to show that the guard, and not Johnson, was the aggressor ii. Similarly, it would be permissiblefor a charged w/ perjury to introduce evidence of 's character for honesty to show that didn't intentionally lie on the particular occasion in question iii. In Johnson, however, it wouldn't have been permissible for to have introduced evidence of a prison guard's character for dishonesty to show that the guard was the aggressor; and it wouldn't be permissibleto introduce evidence of a perjury 's character for peacefulness to show that didn't commit the perjury

5. FRE 404(a)(3): The Character of Witnesses a. FRE 404(a)(3) is a cross-reference to the rules that permit the impeachment & rehabilitation of witnesses w/ evidence of their character for truthfulness i.e., FRE 607, 608, and 609 b. The relevance of any witness's testimony depends upon the assumption that the witness is testifying truthfully thus parties are permitted to introduce evidence that either undermines or supports a witness's truthfulness i. 1 way to do this is to show the witness's character for truthfulness from evidence that a witness has a bad (or good) character for truthfulness, one can infer that the witness is acting in conformity w / that character trait by being untruthful (or truthful) on the witness stand B. Elaboration of the FRE 404(a)(1) & (2) Exceptions 1. The Relevance of Character Evidence in People v. Johnson The evidence of Walker's character in the Johnson case is relevant for 2 distinct purposes: a. Reputation evidence of W's character is relevant to show that W acted in conformity w/ that character on March 29, 1992 (i.e., to show that he may have been the aggressor against Johnson) i. The evidence, however, may not be admissible for this purpose under FRE 404(a)(2), which permits the to open the door to a pertinent character trait of "the victim of the crime" Although W was 1 of the correctional officers present at the scene, was charged w/ battery against only Officers Huston & Van Berg thus, W wasn't the victim of any crime b. b/c the reputation of W's violent character was introduced in conjunction w/ evidence that knew of the reputation, the evidence is relevant to a claim of self-defense i. 1 element of self-defense is that any aggressive action by a must be the result of a reasonable fear of bodily harm Johnson's awareness of W's reputation for violence suggests the reasonableness of 's actions Similarly, the prosecution testimony that W wasn't known among the inmates as a violent person is evidence from which 1 may infer that Johnson had no reason to fear W ii. This 2nd theory of relevance doesn't involve using a character evidence to show action in conformity w/ character thus, it's not w/in the scope of FRE 404 Rather, the admissibility of the evidence for this purpose depends solely on the application of the basic relevance concepts embodied in FRE 401-403 - The FOC is what Johnson was thinking when acted, not whether W acted in conformity w/ his character indeed, for the purpose of showing what was thinking, it doesn't matter whether W really was a violent or a peaceful person - What's important is whether had a reasonable (even if incorrect) belief that W was violent

2. The Rationale for the FRE 404(a)(1) & (2) Exceptions a. Although there are substantial concerns justifying the 404(a) prohibition against the use of character evidence to show a person's action in conformity w/ character, several reasons have be put forth as to why are there any exceptions to the FRE 404(a) general rule of exclusion i.e., FRE 404(a)(1) & (2) i. The problem of unfair prejudice is likely to be greatest w/ respect to evidence of a criminal 's bad character this type of evidence, however, will never be admissible unless the chooses to open the door to the character evidence inquiry ii. Despite the low probative value of character evidence to show action on a particular occasion & despite the risk of unfair prejudice to the prosecution (e.g., the jury may be willing to acquit a guilty who assaulted a person w/ a bad character), a criminal shouldn't have to face the consequences of conviction w/out having had every opportunity to establish a reasonable doubt Proof of the 's good character or the victim's bad character may establish such a doubt iii. Any risk of unfair prejudice to the from evid. of a victim's good character seems relatively remote The concern here is that jurors, on hearing of the victim's good character, would be willing to convict a about whose guilt they had a reasonable doubt but who they believe nonetheless may have committed a crime against a good person Moreover, the has the right to keep the victim-character evidence door closed except in homicide cases where the claims that the victim was the 1st aggressor - In these relatively rare instances, & the victim may have been the only persons present at the time of the killing the unavailability of the victim to contradict 's evidence arguably justifies allowing the prosecution to resort to character evidence to establish its case 3. Evidence of Character in Civil Actions a. FRE 404(a) expressly prohibits the use of character evidence to show action in conformity w/ a person's character in civil actions i.e., in a civil case, evidence of a person's character is NEVER admissible to prove that person acted in conformity w/ that character trait b. The circumstantial use of character evidence is generally discouraged b/c it causes serious risks of prejudice, confusion, and delay c. In criminal cases, the mercy rule permits a criminal to introduce evidence of pertinent character traits of & the victim but that's b/c the accused, whose liberty is at stake, many need a counterweight against the prosecutorial resources of the gov't concerns that don't apply to parties in civil cases KEY POINTS 1. The Federal Rules allow a criminal to open the door to the use of character evidence to show action in conformity w/ character in the situations set forth in FRE 404(a)(1) & (2): a. A criminal may open the door to 's own character, in which case the prosecution in rebuttal may offer evidence of 's character b. A criminal may open the door to the victim's character, in which case the prosecution in rebuttal may offer evidence of the victim's character or 's character c. In a homicide case, the prosecution may open the door to the victim's character for peacefulness to rebut claim that the victim was the 1st aggressor 2. Any party may introduce character evidence for impeachment & rehabilitation purposes to the extent allowed by FRE 607-609 3. When the use of character evid. is permissible,the character evid. must relate to a pertinent character trait 4. Except in the context of impeaching & rehabilitating witnesses, FRE 404 prohibits the use of character to show action in conformity w/ character in civil cases

C. Interpretation & Illustration of FRE 404(b) & 405(a): How Character is Proven 1. When character evidence is admissible under 1 of the FRE 404(a) exceptions, there are 3 possible forms the evidence can be offered: a. A witness might offer specific instances of conduct of the person whose character is in question b. A witness could offer to testify that in the witness's opinion, the person in question has the particular character trait c. A witness could offer to testify that the person has a reputation in the community for having the kind of character trait that's relevant to the litigation i. An individual's reputation is what ppl say about the individual, and when reputation evidence is offered to prove character, it's the truth of the reputation that's important Thus, reputation evidence is hearsay evidence of what ppl out of court say about the individual offered to prove the truth of what they say FRE 803(21), however, provides an exception to the hearsay rule for evidence of reputation offered to show an individual's character 2. FRE 404(b)'s prohibition on the use of specific acts to prove a person's character for the purpose of showing action in conformity w/ that character trait expressly applies to the FRE 404(a) exceptions a. Therefore, even where character evidence is admissible under FRE 404(a)(1) or (2), it may not be proven by past specific acts 3. FRE 405(a) provides that reputation evidence & opinion evidence are permissible means of proving character whenever a party offers admissible character evid. to show action in conformity w/ that character 4. For ease of reference, we'll refer to witnesses who give reputation or opinion testimony about a person's character pursuant to FRE 405(a) as "character witnesses" a. The last sentence of FRE 405(a) permits the opposing party to ask character witnesses specific acts questions on cross-examination D. Elaboration of the Permissible Methods of Proving a Person's Character to Show Action in Conformity w/ Character 1. The Prohibition Against the Use of Specific Acts a. There are substantial FRE 403-type countervailing concerns that justify excluding specific acts to prove character to show action in conformity w/ character: i. Bad person prejudice stemming from evidence of prior bad acts ii. Confusion of issues & undue consumption of time if there are factual disputes surrounding the alleged prior conduct iii. The relatively low probative value of the character inference generally b. However, there are limited instances in which it's permissible to use evidence of a person's specific acts to prove that person's character to show action in conformity w/ character: i. FRE 608(b) & 609 contemplate use of specific acts to prove the character of a witness for truthfulness or untruthfulness ii. FRE 413-415 contemplate use of specific acts to prove character to show action in conformity w/ character in certain cases of sexual misconduct

2. The Probative Value of Opinion & Reputation Evidence to Prove Character a. The probative value of opinion or reputation evidence to prove a person's character will depend in part on how long, how well, and in what contexts the witness has known (opinion) or has known about (reputation) the person whose character the evidence is offered i. Courts permit reputation testimony to be based on what a witness has heard in some relevant community perhaps the neighborhood where the person lives or the place where the person works (C/L req'd testimony of person's reputation throughout the entire community in which the he lives) b. Even if there's no difficulty in defining the relevant community, there may be a question whether the witness knows or knows about the individual well enough to testify in the form of opinion or reputation i. FRE don't deal specifically w/ the foundation requirement for character witnesses but, FRE 403 provides latitude for trial judges to exclude testimony that's marginally probative b/c the witness doesn't have much of a basis for knowing or knowing about the person in question c. Character witnesses are likely to be friendly, cooperative witnesses on direct examination i. Thus, if the witness in fact has a sufficient basis for offering character evidence, there should seldom be any difficulty in eliciting the appropriate found'l info & in getting responses in the form of reputation or opinion testimony to questions about pertinent character traits 3. Reputation Evidence Versus Opinion Evidence a. Opinions are generalizations from more specific acts, and an opinion about a person's character will naturally be a generalization based on the witness's perception of that person's behavior i. FRE 405(a) permits both reputation & opinion testimony in all instances in which character evidence is admissible ii. At the same time, however, the use of opinion testimony to prove character to show action in conformity w/ character should be confined to the nature & extent of observation and acquaintance upon which the opinion is based Opinion testimony shouldn't be allowed to evolve into testimony about specific acts on which the opinion may be based KEY POINTS 1. FRE 404(b) prohibits the use of specific acts to prove a 's character for the purpose of showing action in conformity w/ character, except in the limited situations governed by FRE 413-415, 608(b), and 609 2. FRE 405(a) permits proponent to offer both reputation & opinion testimony in the limited situations in which 404(a) allows the use of character evidence to show a person's action in conformity w/ character 3. If a character witness offers opinion testimony, it's NOT permissible to explore on direct examination the specific acts that may be the basis for the witness's opinion

4. The Cross-examination of Character Witnesses

Although a character witness can't testify about specific acts on direct examination, the cross-examiner is

allowed to question the character witness about specific acts relevant to character, pursuant to 405(a)
o e.g.,

John Smith () is charged w/ murder & that as part of the defense Mary Martin testifies, pursuant to FRE 404(a)(1), that has a good reputation in the community for peacefulness Prosecutor, when cross-examiningMary, can ask about various violent acts that supposedly committed

a. The Relevance of the Specific Acts Inquiries i. The permissible relevant purpose for asking specific acts questions in the hypo is not to prove 's character for violence 404(b) prohibits questions about specific acts to prove 's character Rather, the permissible relevant purpose of the prosecutor's questions is to test Mary's credibility as a reputation witness: - If she denies having heard of the acts of violence, 1 can infer that doesn't have a very good sense of what 's reputation is - And if she has heard of the acts, 1 may doubt that truth of her testimony (or question her conception of what a reputation for peacefulness means) ii. b/c the specific acts questions are admissible only to impeach the character witness & not to prove the character of the person who's the subject of the testimony, the party calling the character witness is entitled to a limiting instruction pursuant to FRE 105 e.g., In John & Mary hypo, judge may say "I instruct you that the questions prosecutor asked M about various acts of violence allegedly engaged in by J were asked for the sole purpose of assessing M's knowledge of J's reputation. You mustn't consider them as evidence of J's character." b. The Prejudicial Impact of Specific Acts Questions i. To the extent that jurors are unwilling or unable to follow a limiting instruction regarding specific acts questions posed pursuant to FRE 405(a), there's a 2-fold risk of prejudice e.g., In the hypo, the jurors may infer from the questions to Mary about 's violent acts that is a violent person & may have acted in conformity w/ that violent character trait by murdering the victim of the charged crime, as the prosecution has alleged - This use of evidence would violate FRE 404(b), thereby raising the FRE 403 danger of unfair prejudice in the sense that the jury may use the evidence in a logically relevant but legally impermissible manner In addition, the jurors may be willing to ignore a reasonable doubt if they regard as a bad, dangerous person - This possibility raises the FRE 403 danger of unfair prejudice in the sense that the jurors may base their decision on an emotional & legally improper ground ii. The most prejudicial specific acts questions are those that relate directly to the character trait about which the character witness testified These questions, however, are also likely to be the most probative for the legitimate purpose of testing a character witness's knowledge of the 's character for peacefulness iii. Since FRE 405(a) specifically authorizes these questions, and since high prejudice is likely always to be a concomitant of high probative value w/ FRE 405(a) specific acts questions, courts regularly permit the cross-examinerto ask character witnesses questions that are in fact extremely prejudicial

c. The Relationship Btw the Character Trait & the Specific Acts Inquiries i. Specific act inquiries made pursuant to FRE 405(a) must be "relevant" to the character trait about which the character witness testified on direct examination 1 aspect of this relevance requirement: the specific acts must relate to the char. trait in question - e.g., In the hypo involving Mary's testimony about 's reputation for peacefulness, it would be appropriate to ask M about 's specific acts of violence but not about acts of dishonesty - Similarly, if a character witness testifies as to 's honesty, it's improper to ask that character witness about 's conviction for possessing a controlled substance ii. 1 might argue that, in a minimal FRE 401 sense, any bad act is relevant to a bad character trait, and any good act is relevant to a good character trait Moreover, since the purpose of the inquiry is to test the character witness's knowledge of the principal witness's character, the key to relevance arguably should be the likely notoriety of the act, rather than its relationship to the character trait about which the witness testified iii. Nonetheless, courts are likely to require that FRE 405(a) specific acts questions to character witnesses relate to the character trait about which the witness has testified a result that 1 can probably justify under FRE 403, if not FRE 401 d. The Character Witness's Likely Knowledge of the Specific Act i. A 2nd restriction on the use of specific acts evidence to impeach a character witness is also a matter of relevance or at least probative value for the purpose of FRE 403 balancing the questions should be limited to acts about which the witness is likely to have known or to have heard e.g., If Mary on direct exam testified that she had known well for 5 yrs & was familiar w/ his reputation during that time, it may not be reasonable to expect that she would have heard about an isolated act of violence that occurred 15 yrs ago - Even if she had heard about the act, it may not be reasonable to expect a single 15-yr-old act of violence to affect her view of 's reputation for peacefulness during the past 5 yrs ii. Assessing whether a character witness is likely to have heard of any particular act will involve consideration of several factors e.g., In the Mary & John hypo: - How well & how long has Mary known or known about ? - Is 's act likely to have been the subject of discussion b/c of the nature of the act? - Is the kind of person whose activities are likely to be known to ppl situated similarly to M? Questions that are only marginally probative for legitimate impeachment purposes may be excluded b/c of their low probative value & high degree of unfair prejudice e. The Cross-examiner's Reasonable Belief that the Act Occurred i. A 3rd limitation on the use of specific acts questions [not specifically mentioned in FRE 405(a)] relates to the cross-examiner's belief that the specific acts occurred If the prosecutor had no knowledge about whether John, in the hypo, had committed any violent acts, it should be permissible to ask Mary in a non-suggestive manner, "Do you know of any violent acts that John has committed?" However, any but the most general inquiry about specific acts is likely to suggest to the jury that the cross-examiner believes that the act occurred when such an implication inheres in the question, the cross-examiner must have a reasonable basis for believing that the act occurred ii. Some courts have suggested that the better practice is to require the cross-examiner to demonstrate the factual basis to the judge, outside the presence of the jury, before asking the questions

f. Acts, Arrests, and Convictions i. Decisions under the FRE permit prosecutors to ask defense character witnesses not only about 's prior acts, but also about their prior arrests an arrest, however, is "conduct" by the police, not As a matter of logical relevance, asking about the arrest, rather than the conduct leading to it, is not inappropriate - The purpose of the question is to test what the character witness knows or has heard about the , and in some instances there may have been as much or more publicity about the arrest than the underlying acts On the other hand, if there's reason to believe that the didn't engage in the conduct leading to the arrest, the question may be particularly prejudicial there's always the risk that the jury may use a specific act question improperly to infer that the has a bad character - If the has engaged in the conduct suggested by the question, the jury at least gets an accurate assessment of the kind of person the is Evidence of the 's arrests creates not only this risk but also the risk that the jury will regard the arrest, perhaps incorrectly, as evidence that the actually engaged in the illegal activity Nonetheless, inquiry about arrests may be appropriate ii. Sometimes specific act questions to a 's character witness refer to the 's prior convictions Like an arrest, a 's prior conviction is logically relevant w/out regard to the truth of the underlying facts to test the character witness's awareness of the 's background or reputation Permitting questions about convictions, however, may be even more prejudicial than permitting questions about arrests - While there may be little likelihood that didn't commit the acts leading to a conviction, the very certainty of those facts, validated by the conviction, may make it especially difficult for the jury to disregard the improper influence that is a bad person g. The Form of the Questions on Cross-examination i. The distinctions in the form of the cross-examination questions are of slight, if any, practical significance & the 2nd sentence of FRE 405(a) eliminates them as a factor in formulating questions Thus, no merit to the argument that "Did you know ?" rather than "Have you heard ?" is improper in cross-examining a character witness 5. Limitations on the Use of Character Evidence in Practice a. The Inherent Weakness of Good Character Evidence i. The most common use of character evidence to show action in conformity w/ character pursuant to FRE 404(a)(1) & (2) is a criminal 's opening the door w/ evidence of the 's own good character Nonetheless, the occasions on which criminal s elect to open the door to the character evidence inquiry are relatively rare ii. In most cases, reputation & opinion evid. about 's good character isn't likely to be highly persuasive Ban on using specific acts to prove character means that the opinion or reputation witness can't provide persuasive or illustrative examples to support the opinion or reputation testimony as a result, that testimony will necessarily take the form of (often bland) generalities iii. In sharp contrast, cross-examinerof such char. witnesses can go into specific bad acts under 405(b) Depending on what the prior bad acts look like, they're potentially very persuasive & effective in undermining the positive character testimony

b. The Potential Unfairness of FRE 405 i. Courts may exclude on FRE 401-403 grounds questions about acts not relating to the character trait in issue & that are sufficiently remote from the time frame about which the char. witness testified However, FRE 403 isn't often applied to exclude Rule 405 specific acts questions as a result, FRE 405 appears to give a significant unfair advantage to the cross-examiner - e.g., In the murder hypo, (John), is limited to the use of relatively bland reputation or opinion evidence of his peaceful character the prosecutor, by contrast, can ask the character witness (Mary), about all sorts of violent acts in which may have engaged o Granted, in theory the purpose of the prosecutor's questions isn't to prove 's character, but only to impeach the credibility of the character witness o And granted, is entitled to a limiting instruction from the judge o How likely is it, though, that the jury will be able to confine its consideration of the violent acts to the theoretically legitimate impeachment purpose? KEY POINTS 1. Whenever a character witness testifies in the form of reputation or opinion about a person's character, FRE 405(a) permits the opposing party to ask the witness on cross-examination about specific acts committed by the person who is the subject of the character testimony a. Courts also permit questions about the person's arrests or convictions 2. The specific acts (or arrests or convictions) must relate to the character trait about which the witness has testified 3. The purpose of the specific acts questions is to impeach the testimony of the character witness, not to show the character of the person about whom the witness has testified

VI. EVIDENCE OF A PERSON'S CHARACTER WHEN CHARACTER IS AN ESSENTIAL ELEMENT OF A CLAIM OR DEFENSE
Consider an action in which Martha sues George for libel b/c George has circulated a leaflet claiming that

Martha was dishonest an element of Martha's claim is that the allegedly libelous statement is false o Since the statement that Martha's dishonest is a statement about her character, Martha's actual character for dishonesty is an essential element of her claim
Nothing in FRE 404 or in any other Fed. Rule specifically prohibits or restricts the use of character evidence

when character is an essential element of a claim or a defense o FRE 405, however, addresses the type of character evidence that 1 can use in this type of situation A. Interpretation & Illustration of FRE 405(b) 1. Occasionally the substantive law makes a person's character an essential element of a claim or a defense, as the element of falsity (or in some jurisdictions, the defense of truth) does in a defamation action when an allegedly defamatory statement is a statement about a person's character a. Examples: i. The fitness or character of a person is a factor to consider in deciding whether to award child custody to that person ii. A claim that a hospital was negligent in hiring a careless physician makes the physician's carelessness i.e., character for lack of care an element that the must establish to recover iii. In wrongful death cases, the 's damages may depend in part on the character of the decedent, thereby making the decedent's character an essential element of proof

2. All 3 forms of character evidence reputation, opinion, and specific acts are potentially admissible when character is an essential element of a claim or defense a. e.g., In the libel hypo in which G wants to est. the truth of the statement that M is a dishonest person, G could call witnesses to testify that (1) M had a reputation for dishonestly in the community, (2) in the witnesses' opinion M was dishonest, and (3) M had engaged in specifically described dishonest acts 3. The only limitation on the use of any of these types of evidence to prove character when character is an essential element of a claim or defense is FRE 403 a. In particular w/ respect to specific acts, courts should balance the probative value of the acts in proving the character trait at issue against: i. The risk that the evidence may engender an emotional response from the jury, and ii. The time & effort it would take to litigate the details of what the person may or may not have done B. Elaboration of FRE 405(b) 1. In General a. When the substantive law makes the character of a person an EE of a claim or defense, party w/ the initial burden of producing evidence will have to introduce character evid. to avoid a directed verdict i. By contrast, when character evidence is offered to show action in conformity w/ character, it's "circumstantial" evidence of a person's conduct, and it's never essential that character evidence be offered for this purpose e.g., Prosecution for a crime involving "dishonest" acts such as embezzlement or perjury where the defense offers evidence of 's good character for honesty - Substantive crim. law doesn't make 's character for dishonesty or honesty an element of the crime or any defense may be guilty or innocent of the charged embezzlement or perjury regardless of whether happens to be a generally dishonest or a generally honest person - Evid. of 's character for honest, however, is relevant in that it generates 1 possible, though not essential, inference that didn't act dishonestly by embezzling or committing perjury b. FRE 404 prohibits using character evidence only to prove conduct in conformity w/ that character trait on a specific occasion note here, however, character isn't being offered to show that someone acted a certain way on a particular occasion i. Proof of character in the examples is an end in itself it's proof of the EE or FOC rather than circumstantial proof of some further conduct 2. Reputation vs. Character In Defamation Cases a. Evidence of a person's reputation is 1 way to prove a person's character FRE 404(a) i. It's important to keep in mind, particularly in the context of defamation actions, the difference btw "character" & "reputation" Character is an integral part of a person Reputation, by contrast, is what ppl say about a person ii. In defamation actions, a 's reputation regardless of whether it happens to coincide w/ 's actual character is always relevant, b/c the substantive law makes injury to reputation the basis for assessing damages

b. The interesting question, not addressed in the FRE, is whether 1 should be able to use specific acts to prove a character trait for the purpose of establishing reputation i. On 1 hand, evidence of character is certainly relevant to prove reputation: If we know that a person is honest, it's more likely (than if we knew nothing about the person's character) that the person has a reputation for honestly ii. On the other hand, the same consideration that militate against using specific acts to prove character to infer action in conformity w/ character also exist when specific acts are offered to prove character for the purpose of inferring what a person's reputation is There may be time-consuming distracting litigation about a variety of specific acts, and proof of the specific acts may be extremely prejudicial KEY POINT 1. When character is an essential element of a claim or a defense, FRE 405(b) permits proof of character w/ specific acts evidence a. In addition, it's always permissible to prove character w/ reputation or opinion pursuant to FRE 405(a)

VII. EVIDENCE OF SEXUAL ASSAULT & CHILD MOLESTATION

FRE 413-415 relate to the admissibility of sexual misconduct evidence in cases involving charges of sexual

assault & child molestation o The Purpose of the rules is to make sexual misconduct evidence more freely admissible
Terms sexual assault & sexual misconduct include both sexual assault and child molestation (as used in the book)

A. FRE 413-415
Rule 413 Evidence of Similar Crimes in Sexual Assault Cases
(a) In a criminal case in which the is accused of an offense of sexual assault, evidence of the 's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it's relevant. (b) In a case in which the Gov't intends to offer evidence under this rule, the att'y for the Gov't shall disclose the evidence to the , including statements of witnesses or a summary of the substance of any testimony that's expected to be offered, at least 15 days before the scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be considered to limit the admission or consideration of evidence under any other rule. (d) For purposes of this rule & Rule 415, "offense of sexual assault" means a crime under Fed. law or the law of a State (as defined in 18 U.S.C. 513) that involved (1) any conduct proscribed by 18 U.S.C. ch.109A; (2) contact, w/out consent, btw any part of the 's body or an object & the genitals or anus of another person; (3) contact, w/out consent, btw the genitals or anus of the & any part of another person's body; (4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).

Rule 414 Evidence of Similar Crimes in Child Molestation Cases

(a) In a criminal case in which the is accused of an offense of child molestation, evidence of the 's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it's relevant. (b) In a case in which the Gov't intends to offer evidence under this rule, the att'y for the Gov't shall disclose the evidence to the , including statements of witnesses or a summary of the substance of any testimony that's expected to be offered, at least 15 days before the scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be considered to limit the admission or consideration of evidence under any other rule. (d) For purposes of this rule & Rule 415, "child" means a person below the age of 14, and "offense of child molestation" means a crime under Fed. law or the law of a State (as defined in 18 U.S.C. 513) that involved (1) any conduct proscribed by 18 U.S.C. ch.109A; (2) any conduct proscribed by 18 U.S.C. ch.110; (3) contact btw any part of the 's body or an object & the genitals or anus of a child; (4) contact btw the genitals or anus of the & any part of the body of a child; (5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or (6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).

[This rule is similar in structure & content to FRE 413, but it applies to offenses of child molestation rather than sexual assault. (d) defines "child" as "a person below the age of 14" and removes the "w/out consent" phrase that occurs in subdivisions (2) & (3) of FRE 413.]
Rule 415 Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation
(a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided by Rule 413 & Rule 414 of these rules. (b) A party who intends to offer evid. under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that's expected to be offered, at least 15 days before scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be considered to limit the admission or consideration of evidence under any other rule.

[This rule makes FRE 413 & FRE 414, including the notice requirement, applicable to civil cases in which a claim is based on a party's alleged sexual assault or child molestation.]

B. Interpretation & Illustrationof FRE 413-415 1. The Relationship Btw FRE 413-415 & Other Rules of Evidence a. FRE 413-415 & FRE 404 i. FRE 413-415 liberalizes the admissibility of character evid. in sexual assault & child molestation cases, by removing the 2 primary objections that would otherwise be available under FRE 404 1st, the prosecution is permitted to open the door to use of character evidence in such cases, a right otherwise reserved to criminals under FRE 404(a) 2nd, the prosecution may offer PSA of sexual assault or child molestation as evidence that committed the current offense, notwithstanding the FRE 404(b) ban on PSA to prove character to show action in conformity on a particular occasion ii. This liberalizationof pre-existing rules is consistent w/ the language of FRE 413-415: sexual assault evidence "is admissible & may be considered for its bearing on any matter to which it's relevant" iii. e.g., is charged w/ attempted rape & prosecution offers to prove that on 2 occasions w/in the past 5 yrs had sexually assaulted 2 women assume that the 2 women were unrelated to the victim of the attempted rape and that there were no unusual similar features among the 3 incidents Are the 2 prior incidents relevant to identify as the perpetrator of the crime charged? - Perhaps, but only b/c the evidence shows a general tendency to engage in sexual assaults - That sounds like a description of character evidence but FRE 413 removes the FRE 404 impediments to the admissibility of relevant sexual assault evidence b. FRE 413-415 & FRE 403 i. Sexual misconduct evidence is subject to FRE 403 balancing Thus, in the attempted rape hypo, could argue that the prior sexual assaults should be excluded on FRE 403 grounds c. FRE 413-415 & Other Rules of Evidence i. It seems likely that courts will conclude that other established rules e.g., the hearsay rule are also applicable to evidence offered pursuant to FRE 413-415 Thus, in the attempted rape hypo, it's unlikely that a court would permit the prior sexual assaults to be proven by out-of-court hearsay that wouldn't otherwise be admissible 2. FRE 413-415 & Preliminary Factfinding a. As in the case w/ specific acts evidence admissible pursuant to the 2nd sentence of FRE 404(b), there's no requirement that the sexual assault resulted in a conviction or even a criminal charge i. If there's a question about the nature of 's involvement in an alleged sexual assault, court should resolve this issue in the same manner that it resolves the issue when there's a question about a 's culpable involvement in other types of specific acts i.e., There must be "evidence sufficient to support a finding" [FRE 104(b)] that was culpably involved in the act ii. In the rape hypo, assume offers testimony of a friend who provides w/ an alibi for the times of the non-charged sexual assaults & prosecution's proof of those specific acts consists of the alleged victims' testimony + there's a history of personal animosity btw the alleged victims and Even though the judge may disbelieve the alleged victims, there's sufficient evidence to support a finding under FRE 104(b) that the assaults occurred, b/c the judge isn't permitted to take credibility into account - Thus the prosecution would've satisfied the preliminary fact requirement

3. The Broad Definition of "Offense of Sexual Assault" a. Any acts having the characteristics described in (d)(2)-(5) are apparently included in what constitutes an "offense of sexual assault" provided some state has enacted a criminal statute that embraces that conduct i. Assume in the rape hype that the prosecution seeks to introduce evidence engaged in consensual sexual activity that involves pain or injury If any state happens to encompass that sexual activity w/in its criminal law, the prosecution's evidence arguably falls w/in the scope of the rule as admissible even if that activity isn't a fed. crime or a crime in the state where is being prosecuted 4. The Meaning of "Without Consent" in FRE 413(d)(2) & (3) a. Nothing in FRE 413 indicates whether the term consent in (d) means legal or actual consent i. Consider a situation in which a is charged w/ the rape & the victim is an adult prior sexual conduct w/ other adults against their will (i.e., w/out actual consent) is w/out question a type of sexual assault that falls w/in the scope of FRE 413 What about prior sexual contact w/ a minor that was w/ the minor's actual consent, but not legal consent b/c of the minor's age? Should this type of evidence be admissible?

C. Elaboration of FRE 413-415 1. The Extent to Which FRE 413-415 Change the Law of Evidence a. Limiting Instructions & Closing Argument i. Pursuant to FRE 413-415, all admissible sexual misconduct evidence "may be considered for its bearing on any matter to which it's relevant" Presumably there's no right to a limiting instruction & no restriction on the prosecutor's making a character/propensity argument to the jury b. Previously Inadmissible Character Evidence i. As a practical matter, FRE 413-415's intended effect of overriding the FRE 404 restrictions on character evidence in sexual assault & child molestation cases may not have a significant impact on admissibility decisions The FRE 404(b) restrictions on admissibility have been limited, insofar as many courts have been quite liberal in admitting specific acts evidence in sexual misconduct cases - Indeed, in these types of cases some courts, including fed. courts prior to the adoption of FRE 413-415, have often admitted the kind of propensity evidence that they would probably exclude if the case weren't a sexual misconduct prosecution ii. On the other hand, even courts that readily admit sexual disposition might have formerly limited that evidence to sexual conduct w/ the same victim FRE 413-415 expresses no preference for prior conduct toward the same victim as opposed to sexual conduct involving 3rd parties Moreover, the trend prior to the adoption of FRE 413-415 had not been uniformly in favor of broader admissibility for prior sexual evidence

c. The Application of FRE 403 to Previously Inadmissible Character Evidence i. The clear intent of FRE 413-415 is to make previously inadmissible evidence admissible courts have taken a variety of approaches in how they take into account this mandate for more liberal admissibility in making the FRE 403 determination w/ respect to a particular piece of evidence At 1 extreme, some courts have held that child sexual abuse deservedly carries a unique stigma in our society and, thus, such highly prejudicial evidence should carry a very high degree of probative value if it's to be admitted - FRE 403 is likely to require exclusion of sexual misconduct evidence not falling w/in 1 of the traditional noncharacter purposes for admitting specific acts evidence as a matter of law, however, it's wrong b/c its makes FRE 413-415 a nullity At the other extreme, some courts have been willing to admit evidence of very old, seemingly isolated, and sometimes dissimilar instances of sexual misconduct - e.g., Courts have held that it was proper to admit 2 similar incidents of child molestation that occurred over 30 yrs earlier, despite no evidence of more recent incidents w/ 3rd parties to indicate a continuing pattern of conduct d. The Results of FRE 403 Balancing: Acquaintance Rape, Stranger Rape, Child Molestation, and Sexual Harassment i. Despite or perhaps b/c of the variety of approaches to FRE 403, the results in particular cases may sometimes have more to do w/ the nature of the case than w/ what the court articulates about the relationship btw FRE 403 & FRE 413-415 Although in the past courts have been divided on admissibility of sexual assault evid. in child molestation cases, trend seems to be strongly in favor of admitting such evid. under FRE 414 In rape cases, on the other hand, courts traditionally appear to have been less willing to admit prior sexual assault evidence in acquaintance rape cases than in stranger rape cases, and this tendency may be continuing - Both in acquaintance rape cases (FRE 413) & in sexual harassment actions involving acquaintances (FRE 415), courts have seemed particularly sensitive to unfair prejudice concerns and haven't been reluctant to exclude sexual misconduct evidence ii. The apparent willingness to exclude sexual assault evidence in cases involving alleged sexual misconduct by an acquaintance may be undermining 1 of the objectives of FRE 413 & FRE 415 In acquaintance rape cases in which s claim consent, may be a relatively greater need for sexual assault evid. also, there's not as likely to be physical evid. to est. that a rape occurred - Thus, 's prior sexual misconduct may be particularly important in resolving the inevitable credibility conflict btw & alleged victim 2. The Underlying Rationale for the New Rules
Regardless of how much or how little the new rules in practice will liberalize the use of sexual

misconduct evidence, their underlying premise must be: (1) that sexual misconduct evidence has a relatively high probative value to show action on a particular occasion and (2) that the probative value of this type of evidence isn't likely to be outweighed by its prejudicial impact (1) that sexual misconduct evidence has a relatively high probative value to show action on a particular occasion, and (2) that the probative value of this type of evid. isn't likely to be outweighed by its prejudicial impact

a. Unfair Prejudice i. The prejudice impact of any specific act evidence i.e., the extent to which it may make the jury willing to ignore a reasonable doubt & convict a bad, perhaps dangerous person is a function of how bad or dangerous the specific acts are in the minds of the factfinder Many jurors probably share the view that child molestation & sexual assault are among the most serious and heinous crimes - To the extent that this assessment is correct, the only justification for creating an exception to the prohibition against prosecution's opening the door to proof of 's character & doing so even w/ specific acts evidence is the relatively high probative value of such evidence b. Probative Value & Recidivism i. The already liberal admissibility of sexual misconduct evid. in some jurisdictions suggests that at least some courts regard sexual assault evid. as more probative than other types of character evid. ii. Moreover, some perhaps many ppl believe intuitively that prior sexual misconduct evidence is particularly probative propensity evidence The important empirical question is whether this intuition is in fact true w/ respect to sexual misconduct against 3rd persons - Repeated abuse of the same person particularly a spouse or son/daughter may be quite common evidence of repeated sexual violence against the same person, however, is likely to be considered noncharacter evidence and, thus, potentially admissible in any event pursuant to the 2nd sentence of FRE 404(b) c. A Contextual Assessment of Probative Value i. If 1 regards sexual assaults as largely analogous to all other violent crimes, then there's no reason for character evidence rules to differ across those crimes The generally low probative value of character evidence to show action in conformity w/ character & the potential for unfair prejudice to criminal s would militate against using the action-in-conformity w/ character inference in all cases ii. On the other hand, if 1 considers sexual assaults as 1 manifestation of a male-dominated social structure that tends to dominate against & oppress women especially women of color + poor women in a variety of ways, it's reasonable to expect that prosecutors, judges, and fact finders may approach sexual assault cases w/ some of the biases that inhere in that societal oppression Special rules of admissibility to compensate for those biases may be appropriate 3. The Significance of FRE 413-415 to Federal Litigation a. Sexual assault & child molestation are predominantly state crimes thus, although most of the limited # of FRE 413-415 cases to date are criminal cases, there will probably be relatively few opportunities for fed. courts to apply FRE 413 and FRE 414 i. By contrast, FRE 415 the civil counterpart to FRE 413 & FRE 414 may become the primary vehicle for giving content to the fed. sexual misconduct rules e.g., s w/ sexual harassment claims (including fed. civil rights suits) based on unlawful sexual touching may seek to introduce evid. of the s' prior sexual misconduct pursuant to FRE 415 KEY POINTS 1. FRE 413-415 permit the use of specific acts to prove a person's character or propensity for engaging in sexual assault to prove action on a particular occasion 2. Evidence potentially admissible under FRE 413-415 may be excluded pursuant to FRE 403

VIII. EVIDENCE OF AN ALLEGED VICTIM'S PAST SEXUAL BEHAVIOR OR DISPOSITION IN SEX OFFENSE CASES A. FRE 412 Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Disposition
(a) Evidence generally inadmissible. The following evidence isn't admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) & (c): (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove any alleged victim's sexual predisposition. (b) Exceptions. (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of sexual behavior by the alleged victim w/ respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; or (C) evidence the exclusion of which would violate the constit'l rights of the . (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it's otherwise admissible under these rules & its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. (c) Procedure to determine admissibility. (1) A party intending to offer evidence under subdivision (b) must (A) file a written motion at least 14 days before trial specifically describing the evidence & stating the purpose for which it's offered unless the court, for good cause requires a different time for filing or permits filing during trial; and (B) serve the motion on all parties & notify the alleged victim or, when appropriate, the alleged victim's guardian or representative. (2) Before admitting evidence under this rule the court must conduct a hearing in camera & afford the victim and parties a right to attend + be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

B. Interpretation & Illustration of FRE 412

FRE 412 has a 2-fold rationale:
o 1st,

the combination of relatively low probative value & significant countervailing FRE 403 concerns warrants, at least in criminal cases, a flat rule of exclusion rather than individual case-by-case balancing to determine admissibility independent of FRE 403 concerns, substantive policy considerations justify the exclusion of relevant evidence Thus FRE 412 excludes some evidence of an alleged sexual assault victim's sexual conduct to protect the alleged victim from harassment & embarrassment + to avoid deterring such a person from testifying about the sexual assault

o 2nd,

1. The Relevance of an Alleged Victim's Sexual Behavior or Disposition to Prove Conduct a. FRE 412(b)(1)(B) explicitly permits proof of sexual behavior btw & alleged victim to prove the victim's consent i. Moreover, no explicit limitation on the use of prior sexual conduct to prove consent in civil cases

2. The Underlying Propensity Theory a. Concept of relevance rests on the premise that individuals have propensities to behave in particular ways & that we can arrive at reasonable conclusions about historical facts by taking these propensities into account i. e.g., When a person says that X occurred, we regard the person's statement as relevant, at least in a minimal FRE 401 sense, to est. that X occurred b/c we assume, on the basis of our common experience, that individuals generally have a propensity to tell the truth ii. Similarly, a premise underlying the character evidence rules is that individuals have propensities to behave in characteristic ways & that if we know something about the individuals' conduct on some occasions, we can make reasonable inferences about their conduct on other occasions b. Given this pervasive reliance on the premise that we can infer something about an individual's conduct on some occasions if we know how the individual behaved on other occasions, and given the very low FRE 401 threshold requirement for "relevance," courts haven't been willing to reject all evidence of an alleged victim's prior sexual behavior as irrelevant to the issue of consent 3. The Scope of FRE 412
FRE 412 excludes most evidence of an alleged victim's prior sexual behavior & sexual predisposition,

even when it's relevant under the propensity theory a. The Meaning of "Other Sexual Behavior" & "Sexual Predisposition" i. The exclusionary provisions in FRE 412(a) come into play only w/ respect to evidence of "other sexual behavior" & "sexual disposition" Sexual behavior - All activities that involve actual physical conduct or that imply sexual intercourse or conduct e.g., use of contraceptives, birth of an illegitimate child, venereal disease - "Behavior" includes activities of the mind, such as fantasies or dreams Sexual Disposition - Evidence that doesn't directly refer to sexual activities or thoughts, but that the proponent believes may have a sexual connotation for the factfinder e.g., evidence relating to the alleged victim's mode of dress, speech, or lifestyle b. The Applicability of FRE 412 When the Issue Is the Victim's Behavior on a Particular Occasion i. If offers evidence for the purpose of showing the alleged victim's sexual conduct on a particular occasion, the theory of relevance presumably will be that the evid. shows something about the sexual disposition (i.e., propensity) of the individual & that from this predisposition 1 can infer how the victim behaved on a particular occasion Thus all evidence (whether in the form of reputation, opinion, or specific act) offered to show conduct on a particular occasion would be evidence of "sexual disposition" - If evid. of dressing in a provocative manner, telling lewd jokes, or soliciting sex were offered for this purpose, it wouldn't be necessary to determine whether the evid. constituted "other sexual behavior" o Such evidence, when offered to show the alleged victim's sexual conduct on a particular occasion, either is evidence of "sexual predisposition" or is irrelevant ii. Such character evid. offered by crim. would fall w/in 404(a)(2) opening the door to a "pertinent" character trait of the victim but character evid. relating to victim's sexual predisposition offered to show conduct on a particular occasion is governed by the more stringent provisions of FRE 412

c. The Applicability of FRE 412 in Other Contexts i. The definitions of "other sexual behavior" & "sexual predisposition" become important when evidence of an alleged victim's prior activity is offered for some purpose other than the to show sexual conduct on a particular occasion
ii. e.g., is charged w/ rape & claims the alleged victim (AV) has falsely accused him to suggest a motive for the false accusation, offers to testify that he had threatened to reveal to the AV's spouse that the AV had a secret job as a nude danger + had solicited sex from him

Do these activities constitute "sexual behavior"? - Perhaps the answer is yes w/ respect to soliciting sex, for the Advisory Committee's Note indicates that sexual behavior includes activities of mind, such as fantasies or dreams - Nude dancing, on the other hand, seems to fall more readily into the Advisory Committee's description of "sexual predisposition" activity that may have a sexual connotation for the fact finder such as mode of dress or lifestyle It's not clear, however, that evidence is governed by FRE 412 merely b/c it may suggest a sexual predisposition to the factfinder - If the activity in question isn't "sexual behavior," it falls w/in the scope of FRE 412 only if it's "offered to prove any alleged victim's sexual predisposition" Does the language "To prove sexual predisposition" apply only to evidence offered to show action in conformity w/ that predisposition, or does it apply to evidence that may suggest to the factfinder a sexual predisposition but that's offered for some other purpose? - In the hypo, would argue that the evidence of nude dancing (and soliciting sex, if that activity isn't "sexual behavior") is being offered to prove the alleged victim's motive for lying, not her sexual predisposition If nude dancing & soliciting sex fall w/in the FRE 412(a) general exclusionary rule for "other sexual behavior" or "sexual predisposition," the evidence is inadmissible unless it falls w/in 1 of the FRE 412(b) exceptions - If these activities don't fall w/in either of the prohibited categories of evidence, the only limits on the admissibility of the evidence are FRE 401-403 d. Hostile Work Environment Cases i. Hostile work environment cases are at least 1 line of cases holding that FRE 412 applies to evidence suggesting a sexual predisposition even when the evidence is offered to prove something other than the alleged victim's action in conformity w/ the predisposition
ii. In sex discrimination suits based on a hostile work environment, s frequently claim that the s welcomed or created the environment that they claim is discriminatory

To establish this defense they've offered to show that the s have behaved provocatively, used vulgar/sex-charged language, and engaged in other behavior that's similar to the activity about which they're complaining courts have held that FRE 412 applies to this evidence

e. The Admissibility of "Other Sexual Behavior" & "Sexual Predisposition" Evidence in Civil Cases i. In civil cases, balancing test in FRE 412(b)(2) governs admissibility of evid. of an alleged victim's sexual behavior & predisposition this test differs from the FRE 403 balancing test in 2 respects: It's a reverse FRE 403 test (which favors admissibility) FRE 412(b)(2), by requiring that the probative value must substantially outweigh countervailing factors, favors exclusion "Unfair prejudice" in FRE 403 refers only to prejudice against a party to the litigation by contrast, 412(b)(2) specifically refers to prejudice against a party and harm to the alleged victim - e.g., In an alleged rape victim's civil suit against a who claims that the consented to the intercourse, offers evidence of prior consensual intercourse w/ o Court weighs probative value of this evidence against both the risk that the evid. may make the jury unfavorably disposed toward (FRE 403-type prejudice) & the harm to the victim (e.g., embarrassment, invasion of privacy) from the presentation of evidence about the victim's prior sexual activity f. The Admissibilityof "Other Sexual Behavior" & "Sexual Predisposition" Evidence in Criminal Cases i. For criminal cases, FRE 412(b)(1) delineates only 3 exceptions to the general rule of exclusion FRE 412(b)(1)(A),(B) exceptions are quite narrow: evidence of (A) the victim's sexual behavior w / 3rd persons to suggest that they may be the source of semen or injury & (B) the victim's sexual behavior w/ to suggest consent - As a result, these exceptions may not encompass all of the situations in which, in fairness, a court should permit a criminal to introduce evidence of an alleged victim's sexual behavior or predisposition The rule acknowledges this possibility by providing in 412(b)(1)(C), the 3rd exception, for admission in those cases in which "exclusion would violate the constit'l rights of the " - This language is a reference to (1) the due process doctrine that a criminal has the constit'l right to present a defense & (2) to the 6th A. confrontation clause right to confront and crossexamine witnesses ii. If the 's evidence falls w/in either the 412(b)(1)(A) or (B) exception, it's not automatically admissible rather, the evidence must be "otherwise admissible under these rules" e.g., A rape case in which claims the alleged victim consented to the sexual intercourse to prove consent, offers to testify that on 1 occasion 3yrs ago he had consensual sex w/ the victim - This evidence falls w/in the FRE 412(b)(1)(B) exception, but the court retains discretion to exclude the evidence of FRE 403 grounds g. The Notice Requirement i. The notice & hearing requirement in FRE 412(c) is more demanding than any other notice requirement in the Fed. Rules (e.g., FRE 404(b), FRE 413-415)

C. Elaboration of FRE 412 1. The Rationale for a Rule Excluding Evidence of Prior Sexual Behavior & Sexual Predisposition
There are substantial reasons to be concerned about the liberal admissibility of an alleged sexual assault

victim's sexual history: a. The ability to introduce evidence of the victim's sexual history gives the opportunity to try to make the victim & the victim's character the focal point of the litigation i. The prospect of a degrading & humiliating examination by defense counsel may discourage many victims from cooperating w/ prosecutors, or even reporting sexual assaults in the 1st place b. In the cases that are tried, there may be disputes about whether the victim in fact engaged in any of the conduct that wishes to attribute to the victim i. In addition, risks that the jury may overestimate the probative value of the prior sexual history evidence on the question of consent or be prejudiced against the victim b/c of the sexual conduct There's evidence that juries may too readily acquit s b/c they disbelieve a female victim or believe that "she got what she deserved" - b/c of the prevailing racism, class biases, and sexual stereotypes, this phenomenon is particularly likely to occur when the victim is a woman of color or a poor woman or when she was acquainted w/ the man who raped her c. There's the problem that prior sexual history will frequently be of no more than marginal relevance to the question of whether the victim consented on the occasion in question i. Indeed, 1 of the principal reasons that the rules of evidence severely restrict the use of character to show action in conformity w/ character is that the strength of the inference from character to action on a particular occasion is almost invariably week No reason to believe that the inference from prior consensual intercourse especially if the activity is w/ 3rd persons to consent w/ the is a particularly strong propensity inference 2. FRE 412 & the Constit'l Rights to Present Evidence and to Confront and Cross-examine Witnesses a. Chambers v. Mississippi (1973) leading Supreme Ct. case dealing w/ the due process prong of the constitutionally req'd evidence doctrine i. charged w/ murdering a police officer, and there was conflicting testimony about whether or McDonald was the murderer McDonald had made a sworn statement to 's attorneys in which he admitted the killing, but before the trial McDonald repudiated his confession At trial, called McDonald as a witness & elicited the confession on cross-examination, prosecution established that McDonald had repudiated his confession - The trial court wouldn't permit to try to undermine the credibility of his own witness by challenging McDonald about the repudiation then sought to introduce the testimony of 3 witnesses that at different times, all before the sworn statement, McDonald had confessed to them that he killed the police officer the trial court excluded this evidence b/c it was hearsay ii. In reversing 's conviction the Supreme Court stated that the exclusion of this critical evidence, coupled w/ the State's refusal to permit to cross-examine McDonald, denied him a trial in accord w/ trad'l & fund'l standards of due process trial court deprived of a fair trial

b. Davis v. Alaska (1974) Supreme Court's leading confrontation clause case upholding 's constit'l right to cross-examine witnesses in a manner that violates state evidentiary rules i. charged w/ stealing a safe from a bar prosecution's case consisted of (1) scientific evidence suggesting that particles found in 's car could've come from the safe & (2) testimony of R. Green that shortly after theft he observed + his car where the safe was eventually discovered sought to introduce evidence that Green, who lived near the place where the safe was found, was at the time on probation for burglary due to an adjudication of delinquency - This evidence, argued, was relevant to show Green's bias i.e., his interest in deflecting suspicion to someone other than himself b/c of a fear that his probation might be revoked Relying on a state rule mandating the confidentiality of juvenile adjudication, the trial court rule that the defense could make no reference to the adjudication or the probation ii. The Supreme Court reversed 6th A. guarantees the right of an accused in a criminal case "to be confronted w/ the witnesses against him" confrontation means more than being allowed to confront the witness physically, as a primary interest secured by the confrontation cl. is right of cross-examination Cross-examination that defense counsel was permitted by the trial court was inadequate to develop the issue of bias properly to the jury - While counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased Defense counsel should've been permitted to expose to the jury the facts from which jurors, as the sole triers of fact & credibility, could appropriately draw inferences relating to the reliability of the witness Davis was thus denied the right of effective cross-examination c. Olden v. Kentucky (1988) Supreme Court considered the applicability of Davis to a case in which the trial judge had excluded evidence of the alleged victim's prior sexual conduct i. Alleged victim (Matthews) testified that kidnapped, raped, and sodomized her then, at her request, drove her to a location near the home of Bill Russell (whom claimed Matthews was having an extramarital relationship) claimed that Matthews had consented to their sexual activity 's theory of the case was that Matthews concocted the rape story to protect her relationship w/ Russell - To demonstrate Matthews' motive to lie, it was crucial, contended, that he be allowed to introduce evidence of Matthews' & Russell's living cohabitation Over 's vehement objections, trial court excluded all evidence of Matthews' & Russell's living arrangement from the jury - Moreover, when the defense attempted to cross-examine Matthews about her living arrangements, after she claimed during direct examination that she was living w/ her moth, trial court sustained the prosecutor's objection Jury convicted of only sodomy KY Court of Appeals affirmed, stating that there were undisputed facts of race (Matthews was white, Russell was Black) - If the trial court had admitted into evidence testimony that Matthews & Russell were living together at the time of the trial, it may have created extreme prejudice against Matthews ii. The Supreme Court reversed While a trial court may impose reas'ble limits on defense counsel's inquiry into the potential bias of a prosecution witness, to take account of such factors as "harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that would be repetitive or only marginally relevant," the limitation here was beyond reason - Speculation as to the effect of jurors' racial biases can't justify exclusion of crossexamination w/ such strong potential to demonstrate the falsity of Matthews' testimony

d. The Implications of Chambers, Davis, and Olden for Rape Shield Provisions i. 1 principle that the Court stressed in Chambers, Davis, and Olden is the general right of the states to regulate their own procedures (including evidence rules) nonetheless, those procedures must sometimes give way to a 's constit'l rights even when the procedures have laudatory goals Thus, 's right to present a reas'ble defense took precedence over the state's hearsay policy in Chambers, the state's confidentiality rule for juvenile records in Davis, and the state's interest in keeping prejudicial info from the jury in Olden Similarly, in some cases 's right to present a defense may override an evidentiary rape shield rule, despite its laudatory purpose & general reasonableness ii. A 2nd common principle in the cases is that the importance of the evidence is what triggers 's constit'l right Chambers, the Ct. referred to the evidence as "critical" Davis, the Ct. stated that evid. made a "serious challenge" to the state's case a "real possibility" Olden, the Ct. emphasized the evidence had a "strong potential" for demonstrating that a key prosecution witness was lying iii. 2 generalizations that can fairly be made about the case law involving constit'l challenges to the exclusion of evidence of a victim's prior sexual conduct or sexual disposition: 1st, the vast majority of the challenges are unsuccessful 2nd, probably the most common type of successful constit'l challenge occurs in cases like Olden, in which seeks to introduce evidence to impeach the alleged victim by showing bias - Courts, however, have admitted evidence of an alleged victim's prior sexual conduct for other purposes examples: o has constit'l right to present evid. showing alleged victim has sufficient knowledge to have fabricated charges o Constit'l right to present evid. that alleged victim was a prostitute when claims that the incident giving rise to the charge was an act of prostitution o In response to prosecution evid. that alleged victim was a born-again Christian who worked as a high school secretary, has constit'l right to show alleged victim applied for "escort's license" o Constit'l right to introduce alleged victim's inconsistent statement about prior sexual activity 3. Two Approaches to the Exclusion of Other Sexual Behavior & Sexual Predisposition Evidence a. FRE 412 presents 2 quite different approaches to the problem of regulating the admissibly of sexual behavior & sexual predisposition evidence: i. In civil cases, where there's no established doctrine of constitutionally req'd evidence, Congress chose to rely exclusively on a balancing test that favors exclusion ii. In criminal cases, where the constitutionally req'd evidence doctrine provides what's in effect a safety valve for an overly strict exclusionary rule, Congress created only 2 specific, very narrow exceptions to a general rule of exclusion 4. Rape Shield Rules & the 's Right to Testify a. When a criminal seeks to testify about a rape victim's prior sexual conduct, there may be a conflict btw the jurisdiction's rape shield rule & the constit'l right to testify, a right closely related to the due process and confrontation clause rights

5. FRE 412 & Discovery in Civil Cases a. The prohibition in FRE 412 raises recurring issues in certain civil cases, particularly sexual harassment cases, about the scope of pretrial discovery into, for example, the sexual behavior or predisposition of a alleging sexual harassment i. It's a black-letter principle of civil procedure that the scope of discovery is broader than the scope of evidentiary admissibility at trial FRCP require parties to respond fully to discovery requests that are "reasonably calculated to lead to the discovery of admissible evidence" FRCP 26 ii. Prospect of compelled disclosure of private or embarrassing info in discovery raises many of the same problems deterring s from filing meritorious claims or witnesses from coming forward addressed by FRE 412, but FRE 412 deals expressly only w/ admission of evidence at trial, not disclosure in pretrial discovery b. Courts have held, in the context of objections to discovery requests or motions for protective orders, that discovery requests into a 's sexual behavior are governed by FRCP 26(c) i. But, b/c that provision expressly incorporates the ultimate admissibility of evid. as a benchmark, it's clear FRE 412 should be taken into account in deciding discovery motions on these issues Indeed, Advisory Committee Note to FRE 412 states that courts should enter appropriate orders pursuant to FRCP 26(c) to protect the victim against unwarranted inquires & to ensure confidentiality, and thus not undermine the rationale of Rule 412 Courts should presumptively issue protective orders, barring discovery unless the party seeking discovery makes a showing the evidence sought to be discovered would be relevant - Arguably, the party seeking discovery should also show that the evidence wouldn't be barred by FRE 412

KEY POINTS 1. FRE 412 severely limits the extent to which a party can introduce evidence of an alleged victim's sexual predisposition or sexual behavior in both criminal & civil cases 2. FRE 412 (a) & (b)(1) prohibit a criminal from introducing such evidence unless it's: a. Specific instances of sexual behavior w/ a 3rd person offered to show the source of semen, injury, or other physical evidence; b. Specific instances of sexual behavior w/ offered to show consent; or c. Constitutionally req'd evidence 3. Constitutionally req'd evidence refers to the due process & confrontation clause rights to present evidence developed in cases like Chambers, Davis, and Olden and to the closely related right of a criminal to testify 4. In civil cases, evidence of an alleged victim's sexual predisposition or behavior is admissible only if it satisfies the FRE 412(b)(2) reverse FRE 403 balancing test that takes into account both prejudice to a party & harm to the alleged victim

THE OTHER RELEVANCE RULES

FRE 407-409, 411 relevance rules that make evidence inadmissible to prove fault or liability, but that permit such evidence for other purposes FRE 410 makes inadmissible certain evidence relating to guilty pleas Doctrine of Curative Admissibility no specific Fed. Rule I. INADMISSIBLE TO PROVE "NEGLIGENCE," "CULPABLE CONDUCT," OR "LIABILITY"
FRE preclude evidence of subsequent remedial measures (407), compromise & offers of compromise (408),

payment of medical & other similar expenses (409), and liability insurance (411) to prove fault or liability
o These rules

don't exclude evidence altogether rather, they prohibit the proponent from offering the evidence only to prove liability or fault e.g., FRE 408 which prohibits offer of compromise evidence for this purpose acknowledges that offers of compromise may be admissible for other purposes, such as showing the bias of a witness

Thus, as was true w/ the character evidence rules and as is true w/ the impeachment & hearsay rules your

analysis of admissibility must always begin w/ the question of relevance:

o What is

the proponent of the evidence trying to prove? What is the proponent's theory of relevance? Only after you answer this question will you be able to apply a relevance rule

If the answer to the relevance inquiry is that there's both a permissible & an impermissible purpose for which the

proponent may wish to offer the evidence, the ultimate admissibility of the evidence will depend on the application of FRE 403:
o Is

the probative value of the evidence for the permissible purpose substantially outweighed by the risk that the jury may consider the evidence for the impermissible purpose? If the answer is no (i.e., if the answer is that the evidence is admissible), the party against whom the evidence is admitted will be entitled to a limiting instruction pursuant to FRE 105

A. FRE 407 Subsequent Remedial Measures

When, after an injury or harm allegedly caused by an event, measures are taken that, if previously taken, would've made the injury or harm less likely to occur, evid. of the subsequent measures isn't admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule doesn't require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

B. Interpretation & Illustration of FRE 407 1. The Exclusionary Mandate a. The Inference of Negligence or Culpable Conduct i. When a person takes steps to alter a condition or object that caused an injury so as to make future injury less likely, 1 possible inference to draw from the remedial action is the person who made the alteration believed the object or condition before the alteration posed an unreasonable risk of injury If we know that the person responsible for the object or condition has this belief, it's more likely that the object or condition did create an unreasonable risk of injury than if we knew nothing about the person's belief - Indeed, pursuant to this theory of relevance, when a party to an action takes subsequent remedial measures, it's the equivalent of an admission of negligence or culpable conduct

b. Product Liability Actions i. FRE 407's exclusionary mandate extends to subsequent remedial measure evidence offered to prove product defects as a matter of consistency & logical relevance, the extension of FRE 407 to products liability actions is appropriate Typically, there's a notion of fault or culpability associated w/ the concept of defect - Defective products are ones that are more dangerous or less fit for their intended use than 1 might reasonably expect them to be - Such products exist b/c designers, manufacturers, or other persons made decisions about the products that were less reasonable than they could've been - And failing to measure up to the standard of reasonableness is acting culpably Given this understanding of "defect," the subsequent remedial measure evidence is relevant in a products liability case in precisely the same way that it's relevant in a negligence action: - From the remedial measure we infer that the individual taking the remedial action believes that the product wasn't as safe as it might reasonably have been, and from this belief we infer that the product indeed wasn't as safe as it might reasonably have been - Indeed, if there's no notion of culpability associated w/ defect, subsequent remedial measure evidence is simply not relevant to prove defect ii. Regardless of whether the underlying action is for negligence or strict liability, the evidence may be relevant & admissible for some other purpose e.g., to show that different design was feasible c. Activities That May Be Subsequent Remedial Measures i. A subsequent remedial measure is any action that a person takes after an event to reduce the likelihood of an event's occurrence e.g., it may include: Sending a memo to employees urging them to observe safety regulations Altering the design of a product Repairing or altering the condition of property Disciplining or firing an individual whose alleged negligence was reasonable for an accident Sending a recall notice Changing rules or regulations Posting warning signs d. The Effectiveness of the Remedial Action i. Courts rarely focus on the question whether a remedial measure "if taken previously, would in fact have made the injury or harm less likely to occur" e.g., Courts readily accept that firing an employee can be a subsequent remedial measure w/in the meaning of FRE 407 w/out examining whether the action is likely to reduce the chance of future accidents ii. However, there's precedent for the proposition that FRE 407 doesn't apply to investigations, which aren't "remedial measures" but only "initial steps toward ascertaining whether any remedial measures are called for" e. The Timing of the Remedial Action i. For evidence of a remedial measure to be inadmissible under FRE 407, it must occur "after an injury or harm caused by an event" the rule applies only to changes made after the occurrence that produced the damage giving rise to the action Thus, if changed a product design after was injured, FRE 407 would apply to prevent from introducing evidence of the design change to show defect On other hand, if took the remedial action subsequent to the injuries of several other ppl but prior to 's injury, FRE 407 wouldn't preclude admissibility of the design change

f. Remedial Action Taken Prior to 's Injury & FRE 403 i. Evidence that's not barred by FRE 407 may still be subject to exclusion on FRE 403 grounds when the dangers of prejudice or confusion substantially outweigh the probative value of the evid. At least 1 court excluded evidence due to the risk that jurors too readily equate subsequent design modifications w/ admissions of prior defective design 2. Permissible Uses of Subsequent Remedial Measure Evidence a. Subsequent remedial measure evidence may be admissible for other purposes under FRE 407 as in the case w/ FRE 404(b), the list of permissible other purposes isn't exclusive i. Subject to FRE 403 & other exclusionary rules, subsequent remedial measure evidence may be admissible for any purpose other than to show negligence or culpable conduct b. The purposes listed in the 2nd sentence of FRE 407 are the permissible purposes for which subsequent remedial measure evidence is most likely to be relevant i. e.g., The fact that repaired a staircase suggests that was the owner of the building containing the staircase or at least that , rather than somebody else, had control over the staircase & was responsible for keeping it in good order If a testifies that the staircase was in good condition at the time of the accident, the fact that had repaired or authorized the repair of the staircase is relevant to impeach 's credibility: - Making or authorizing the repair seems inconsistent w/ the witness's testimony that the staircase was safe at the time of the accident Taking subsequent remedial action rebuts a 's claim that it wasn't feasible to maintain the staircase in a safer condition 3. The "If Controverted" Requirement a. The "if controverted" requirement applies to all of the permissible uses of subsequent remedial measure evidence thus, the "if controverted" phrase governs the offer of SRM evidence not only to prove feasibility, but also to prove other purposes such as ownership or control i. By the terms of the rule, "if controverted" phrase doesn't apply to evid. offered for impeachment No need to for it do so, as impeachment evid. is evidence offered to undermine credibility of a witness, and every witness's credibility is regarded as a matter that can be controverted b. Even if the "if controverted" phrase didn't appear in FRE 407, FRE 403 should be a basis for excluding evidence of a subsequent remedial measure offered to prove an issue that's not controverted 4. The Relationship Btw FRE 407 & FRE 403 a. When a party offers subsequent remedial measure evidence for a legitimate, contested purpose, the question of admissibility in theory should turn on the applicability of FRE 403: i. Is the probative value of the evidence for the legitimate purpose (e.g., feasibility) substantially outweighed by the possibility that the jurors may use the evidence for the impermissible purpose of inferring negligence or other culpable conduct? b. In fact, if SRM evidence is relevant to prove some contested issue other than negligence, culpable conduct, defect, or need for a warning, the result almost invariably is that the evidence is admissible i. The party against whom the evidence is admitted, of course, is entitled to a limiting instruction

C. Elaboration of FRE 407 1. The Rationale for FRE 407 & the Other Inadmissible to Prove Negligence or Culpable Conduct Rules
4-fold rationale for FRE 407 & for the other rules FRE 408 (offers of compromise), 409 (medical

expenses), 411 (liability insurance) that exclude evidence to prove negligence or culpable conduct a. Low Probative Value i. 1st, the evidence has relatively low probative value for the prohibited purpose e.g., may take subsequent remedial action out of an abundance of caution even though there was no negligence or design defect Similarly, a party may offer to compromise a claim to avoid litigation costs, not b/c the party is at fault b. Countervailing FRE 403 Factors i. 2nd, countervailing FRE 403 considerations may warrant exclusion e.g., concern that admission of the evidence to prove negligence or fault may tend to mislead the jury or confuse the issues Jurors may reasonably expect that the evidence they hear has a bearing on what they're supposed to decide thus, if they hear evidence that in fact has very low probative value, they may be misled into thinking that the evidence is more probative than it really is Moreover, if the jurors happen to have only a vague understanding of their task, they may confuse the issues & focus on an improper issue ii. e.g., has made a design change following an accident & wants to introduce evidence of that design change If claims it wasn't feasible to have a different design, the evid. would be admissible not to show negligence or fault, but to show that a design change was feasible Assume, however, that doesn't claim lack of feasibility now the only way in which the design change is relevant is as an admission of fault or liability - The evidence has such low probative value for that purpose, but, that if jurors hear the evidence, they may become confused & use the evidence to decide an issue for which the evidence is more probative in this case feasibility - In other words, the jurors may decide for on the ground that a design change could've been made w/out regard to whether they believe was culpable Similarly, if evidence of liability insurance is admitted, jurors may infer, again incorrectly, that it's proper for them to place the loss on the insured rather than on the party who was at fault c. Not Discouraging Desirable Conduct i. 3rd, the rules excluding evidence to prove liability or fault traditionally have been justified on the ground that we don't want to discourage individuals from engaging in socially desirable conduct In this respect, these rules are similar to some rules of privilege we exclude evidence of confidential communications btw lawyers & clients in part b/c we don't want to discourage clients from being candid when they consult lawyers for legal advice Similarly, we exclude evidence of SRM, offers of compromise, payment of medical expenses, and maintaining liability insurance to prove fault in part b/c we don't want to discourage ppl from engaging in these types of socially desirable conduct

d. Not Punishing Desirable Conduct i. A 4th but less frequently articulated rationale for these exclusionary rules is that, regardless of deterrence, prejudice, or confusion, we don't want to punish or disadvantage individuals for doing good things This rationale is most frequently associated w/ the exclusionary rule for payment of medical expenses, sometimes referred to as the "good Samaritan" rule However, the rationale is equally applicable to and perhaps more compelling than the deterrence rationale for the limitations on the use of remedial measure, compromise, and liability insurance evidence 2. Subsequent Remedial Measures Taken by 3rd Persons a. In a typical case to which the exclusionary provisions of FRE 407-409 & FRE 411 apply, it's a party to the action who has made the implicit admission of fault by taking subsequent remedial action, offering to compromise a claim, offering to pay medical expenses, or procuring liability insurance i. Occasionally, however, the admission of fault will be that of a 3rd person Although the decisions aren't uniform, there's precedent, at least w/ respect to FRE 407, for the proposition that the exclusionary mandate doesn't apply in these situations examples: - Following 's injury, employer modified piece of road-widening equipment that injury ; evidence of modification admissible against mfr of equipment - Suit against ranch by couple whose car struck cattle on highway; FRE 407 not applicable to subsequent installation of fence by owner of land leased to ranch - Suit against bike rental company following fatal accident on Nat'l Park trail; evidence that Part Service posted sign prohibiting bikes following the accident not precluded by FRE 407 In Problem 6.2(b), where the decedent's employer, not a party to the lawsuit, took remedial action to make an industrial baling machine safer - Although a literal reading of FRE 407 suggests that the evidence shouldn't be admissible to prove the defective condition of the baling machine, the underlying rationale for the exclusionary mandate doesn't apply - Using the evidence against -mfr to prove a defect won't discourage the employer or other 3rd persons from taking remedial action o Rather, it furthers the policy of the rule to exclude the evidence only when the person taking the remedial action is a party or is taking the action on behalf of the party In Middleton v. Harris Press, the case upon which the baling machine problem is based, the court held that the FRE 407 exclusionary provision was inapplicable - The court, however, relied on FRE 403 to uphold exclusion of the remedial action evidence on the ground that the evidence may confuse the jury & divert their attention from question of defect at the time of accident KEY POINTS 1. FRE 407 makes evidence of subsequent remedial measures inadmissible to prove negligence, culpable conduct, defect, or need for a warning or instruction 2. FRE 407's exclusionary mandate applies only to remedial action taken after the event that's the subject of the litigation 3. Subject to FRE 403, subsequent remedial measures evidence may be admissible for other purposes, the most likely of which are those listed in FRE 407: to show ownership, control, or feasibility or to impeach the credibility of a witness a. The evid. should be admissible for these other purposes only if they are contested issues in the case

D. FRE 408 Compromise & Offers of Compromise

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

E. Interpretation & Illustration of FRE 408 1. The Exclusionary Mandate; Permissible Uses; FRE 403 a. 1 plausible inference to draw from offers of compromise is the offerors like ppl who take subsequent remedial action believe they were at fault in the incident giving rise to a claim against them if they have this belief, 1 can make the further inference that they were in fact at fault i. In short, 1 way in which compromising or offering to compromise a claim is relevant, is as a tacit admission of fault or liability b. As in the case w/ SRM evidence, there are other possible explanations for wanting to compromise a claim e.g., some individuals who adamantly believe they're not at fault may be willing to settle a claim b/c the potential litigation costs are significantly greater than the amnt of settlement c. The FRE 408 mandate excluding compromise evidence to prove the validity or amnt of a claim & the list of permissible uses for compromise evidence are the equivalent of the 2 sentences in FRE 407 i. To encourage settlements, FRE 408 excludes evidence of compromises & of offers to compromise on the questions of liabilityfor or the amnt of claims ii. At the same time, the rule makes it clear that such evidence may be admissible for other purposes The list of other purposes, which isn't exclusive, includes the purpose for which offers of compromise are most likely to be relevant examples: - To show the bias of a witness who testifies for , may want to est. that the settlement of that witness's claim against includes a provision for to pay the witness a portion of any judgment obtained against - A municipality's settlement of a police brutality action may be admissible to show that the municipality knew of & condoned the officer's conduct - Proof of negotiations & offers to compromise may indicate that a party was acting in good faith to resolve claim and thus rebut a charge of undue delay - Offers of compromise during an income tax audit may be admissible to show the taxpayer's knowledge & to rebut a claim of good faith in a tax evasion prosecution d. FRE 408 prohibits using compromise evidence to impeach a W "through a prior inconsistent statement of contradiction" b/c such compromise evidence would tend to swallow the exclusionary rule & would impair the public policy of promoting settlements e. The final sentence of FRE 408 doesn't contain "if controverted" language nonetheless, to have sufficient probative value to overcome an FRE 403 objection, the purpose for which the evidence is offered should be a contested issue in the case i. If it's a contested issue, the evidence is likely to be admissible despite the risk that the jury may use the evidence for the impermissible purpose of showing the validity or amnt of a claim

2. Conduct or Statements Made During Negotiations a. FRE 408 excludes not only compromises & offers of compromise, but also at least in civil actions conduct or statements made during compromise negotiations this is a significant departure from the C/L rule, which excluded only statements of offer and acceptance i. e.g., Amy & John are involved in a car accident Amy threatens to sue, asserting that John was at fault & must pay for the damage to her car John offers 1 of the following responses: (1) "Let's settle this matter ourselves so we don't have to pay fat fees to lawyers. I'll give you $500 & we'll call everything even." (2) "There's no need to deal w/ lawyers, who'll demand a fat fee. This was my fault. I'll give you $500 & we'll call everything even." ii. Assume that Amy rejects the settlement offer & sues John C/L & FRE 408 both would preclude use of offers of compromise against John to prove liability C/L, but not FRE 408, would permit Amy to use John's acknowledgement of fault in the 2nd statement to prove liability 3. Compromise Negotiations & Discovery a. Under FRE 408, a party can't insulate from discovery documents & info that would otherwise be discoverable merely by making reference to or relying on such evid. in the compromise negotiations i. e.g., Assume in the preceding hypo an insurance investigator w/ John's insurance company obtained a statement from Bob, an eyewitness, who confirmed that John had been at fault in the accident If that statement were discoverable by Amy, John couldn't insulate it from discovery by making reference to it during their compromise negotiations 4. The Attempt to Resolve a Disputed Claim Requirement a. Offers of compromise & statements of fault are inadmissible pursuant to FRE 408 only if made during compromise negotiations over a disputed claim i. If there's no disputed claim or if the statement of fault occurs outside the context of compromise negotiations, the statement of fault will be admissible e.g., in the preceding hypo if John made the offer & statement of fault before Amy made any claim, the statement would be admissible If John conceded full liability & wasn't attempting to reach a compromise, his statements also would be admissible b. In applying FRE 408, the trial judge must usually decided some preliminary questions of fact i. What type of info is likely to be important to the preliminary question of whether there's a disputed claim & a legitimate attempt to compromise that claim? Reconsider whether John's initial 2 statements, which were characterized as having been made after Amy threatened to sue, would be admissible under the following circumstances: (a) There had been no threat to sue. (b) The threat had been a spontaneous outburst at the time of the accident. (c) The possible suit had been mentioned in the context of a police but restrained conversation btw Amy & John about various options available to them. (d) The value of Amy's claim didn't exceed $500. (Does it matter whether John or a reasonable person would probably have been aware of this fact?) To what extent are the foregoing factors relevant to the judge's decision about whether Amy & John were engaged in compromise negotiations over a disputed claim? - The answer, of course, depends in part on how courts interpret compromising a claim which was disputed, and the courts of appeals provide varying answers

5. The Applicability of FRE 408 to Criminal Cases a. FRE 408 prohibits the use of actual compromises and offers + acceptances in criminal prosecutions, but it creates a limited exception to the general prohibition against the use of conduct or statements made during compromise negotiations i. The exception i.e., the right to use in criminal prosecutions conduct & statements made during civil compromise negotiations exists when "the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority" Where an individual makes a statement in the presence of gov't agents, its subsequent admission in a criminalcase shouldn't be unexpected b. 2 possible ways to prevent the use in criminal prosecutions of statements of fault made civil compromise negotiations: i. During civil negotiations, a person can seek to protect against subsequent disclosure through negotiation & agreement w/ the civil regulator, or an att'y for the gov't ii. Statements made in compromise negotiations of a claim by a gov't agent may be excluded in criminal cases where circumstances so warrant under FRE 403 e.g., A civil enforcement proceeding in which an individual wasn't represented by counsel 6. A Party's Own Offer of Compromise a. FRE 408 applies to a party's effort to introduce its own offer of compromise i. The "on behalf of any party" language was added to FRE 408 for 2 reasons: The offeror's revealing its own offer could reveal the fact that the adversary entered into settlement negotiations, which would undermine the policy of FRE 408 Proof of statements & offers made in settlement would often have to be made through the testimony of attorneys, leading to the risks and costs of disqualification 7. Compromises & Offers of Compromise by 3rd Persons a. Consider a case in which sues , a restaurant, for food poisoning i. claims that the restaurant was responsible for mishandling the food ii. seeks to introduce evidence that it had made a claim against its food supplier for $300k, and that the supplier had settled the claim for $250k argues that the settlement evidence is an admission by the supplier that the supplier provided the restaurant w/ adulterated food, and that the adulteration not 's alleged mishandling of the food was responsible for the food poisoning b. Just as evidence of a 3rd person's SRM doesn't implicate the policies underlying FRE 407, evidence of a 3rd person's offer of compromise doesn't implicate the policies underlying FRE 408 i. The negotiations & settlement have nothing to do w/ the party against whom the evidence is offered, and it will be adequate protection for the 3rd person to exclude the evidence if and when the 3rd person becomes a party ii. However, the "not admissible on behalf of any party" phrase may seem to support a claim that offers & settlements may not be offered by any party regardless of who made them

F. FRE 409 Payment of Medical & Similar Expenses

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

G. Interpretation & Illustration of FRE 409 1. The Exclusionary Mandate a. Just as evidence of a subsequent repair or evidence of offering to pay a certain sum to settle a claim may be relevant to prove liability on the theory that it's an implied admission of fault, paying or offering to pay another person's medical expenses may be an implied admission of fault: i. The payment raises an inference that the payor may feel legally responsible for the payment, and if the payor has that belief, it may be correct b. For reasons that are parallel to those underlying Rules 407 & 408, FRE 409 excludes such evidence to prove liability i. e.g., If a driver hits a pedestrian & offers to pay the pedestrian's medical expenses, neither the offer nor the payment is admissible to prove the driver's liability ii. Similarly, if an insurance company pays a person's medical expenses before any trial or settlement, evidence of the payment isn't subsequently admissible to prove the insurance company's liability 2. The Admissibilityof Statements Made in Conjunction w/ Medical & Similar Payments a. In 1 significant respect FRE 409 differs from FRE 408: Statements made in conjunction w/ the payments including statements of fault are not excluded i. This difference in treatment arises from fund'l differences in nature Communication is essential if compromises are to be effected, and consequently broad protection of the statements is needed This isn't so in cases of payments governed by FRE 409, where factual statements may be expected to be incidental in nature 3. The Question Whether FRE 409 Permits Evid. of Payment for Purposes Other than to Show Liability
1

a. Although FRE 409 unlike FRE 407, 408, and 411 doesn't include an illustrative list of possible permissible uses for evidence of medical & similar expenses, the C/L counterpart to FRE 409 permitted evidence for other purposes i. e.g., In a dispute over where 's injury occurred, a court admitted evidence of 's payment of medical expenses to prove that the injury occurred on 's premises b. There's no indication in the legislative history that the drafters of FRE 409 intended to depart from the C/L in this respect, and there's precedent under the Fed. Rules for admitting payments to prove something other than liability (e.g., maintenance payments to prove status as seaman) 4. The Question What Constitutes a "Similar" Expense a. FRE 409 is rarely invoked, perhaps b/c there aren't enough good Samaritans among us if there were, an issue that would undoubtedly arise in applying FRE 409 is what constitutes "similar expenses" i. e.g., Should evidence of paying to have a car repaired or paying subsistence income while an individual is recuperating from injury be excluded? How should the judge decide this preliminary question, and how should the proponent try to persuade the judge? - 1 trial ct. held that the state equivalent to FRE 409 wasn't a bar to evid. paid for some of the clean up following a fuel leak, and thus the evid. was admissible to infer 's negligence

H. FRE 411 Liability Insurance

Evidence that a person was or wasn't insured against liability isn't admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule doesn't 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.

I. Interpretation & Illustration of FRE 411 1. The Exclusionary Mandate a. This rule is similar in purpose, structure, and application to FRE 407-409 i. w/ respect to liability insurance, however, the probative value of the forbidden inference is particular weak: The underlying premise of the forbidden inference is that ppl w/ liability ins. are likely to be less careful than ppl w/out insurance, who'll be individually responsible for the injuries they cause ii. Moreover, liability insurance is so pervasive that it's doubtful that individuals take into account the rules of evidence in deciding whether to obtain or to forego obtaining liability insurance b. If evidence of liability insurance were admissible on the question of fault, there would be a substantial risk of unfair prejudice i. Jurors might be inclined to impose damages b/c of insurance or to forego or minimize damages out of sympathy for the uninsured ii. On the other hand, given the pervasiveness of liability insurance, if an uninsured party isn't able to present evidence of absence of insurance, there's a risk that the jury may assume the party is insured & impose damages on the basis of this incorrect assumption 2. The Permissible Uses of Evidence of Liability Insurance a. Like FRE 407-409, FRE 411 excludes evidence of liability insurance only to prove negligence or wrongful conduct i. The 2nd sentence of FRE 411 lists the most common permissible uses of evidence of liability insurance like FRE 407 & 408 lists of permissible purposes, the FRE 411 list isn't exclusive When there's a permissible purpose, the admissibility of the evidence should depend on the application of FRE 403, and FRE 403 should require at a minimum that the issue for which the evidence is offered is a contested issue in the case b. Liability insurance offered for some legitimate, contested purpose is usually admitted i. Examples include: Proof of purchasing insurance to rebut claim that K not in effect Proof of insurance covering alleged agent to prove agency Maintaining insurance introduced to show ownership or control ii. If, as is frequently the case, an ins. investigator testifies about the results of an investigation, evid. that the investigator represents a co. that insures 1 of the parties will probably be admissible both as part of general background info about the witness & as an indication of possible bias of the witness

KEY POINTS 1. Under FRE 408, 409, and 411, evidence of compromises, offers of compromise, payment or offers to pay medical & similar expenses, and liability insurance isn't admissible to prove liability 2. Subject to FRE 403, such evidence may be admissible for other purposes a. The permissible purposes listed in FRE 408 & FRE 411, like the permissible purposes listed in FRE 407, are the most common purposes for which evidence governed by those rules is likely to be admissible, but the lists aren't exclusive 3. When evidence is offered for a theoretically legitimate permissible purpose, FRE 403 should require exclusion if the issue isn't a contested 1 NOTE 1. If a person makes a direct out-of-court verbal acknowledge of fault, that statement would be regarded as hearsay to prove the truth of the proposition that the person was at fault

II. REFLECTION ON THE "INADMISSIBLE TO PROVE NEGLIGENCE" RULES A. w/ rules like FRE 407-409 & FRE 411, the judge still must engage in a balancing process that weighs probative value against countervailing efficiency & inaccuracy concerns 1. In addition, the judge must: a. Separate the permissible from the impermissible purpose for which the evidence is offered, b. Balance the probative value of the evidence for its legitimate purpose against the prejudicial impact resulting from the possible use of the evidence for its prohibited purpose, and c. Consider the efficacy of a limiting instruction

III. WITHDRAWN GUILTY PLEAS, PLEAS OF NO CONTEST, AND OFFERS TO PLEAD GUILTY A. FRE 410 Inadmissibility of Pleas, Plea Discussions, and Related Statements
Except as otherwise provided in this rule, evidence of the following isn't, in any civil or criminal proceeding, admissible against the who made the plea or was a participant in the plea discussions: (1) a plea of guilty which was later withdrawn; (2) a plea of nolo contendere; (3) any statement made in the course of any proceedings under Rule 11 of the Fed. Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or (4) any statement made in the course of plea discussions w/ an att'y for the prosecuting authority which don't result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statement is admissible (i) in any proceedings wherein another statement made in the course of the same plea or plea discussions has been introduced & the statement ought in fairness be considered contemporaneously w / it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the under oath, on the record, and in the presence of counsel.

B. Interpretation & Illustration of FRE 410 1. Withdrawn Guilty Pleas a. Once a has pleaded guilty, the may withdraw the plea only w/ the permission of the court there must be "cause" or some good reason to permit the withdrawal i. A court is likely to permit withdrawal of a plea if there's reason to believe that the plea is inaccurate b/c is innocent or if it appears that 's rights were violated in the process of procuring the plea 2. Pleas of No Contest a. Only some jurisdictions permit pleas of no contest, and where they're permitted the court usually must approve the pleas b. Pleas of no contest are by their nature compromises they constitute an acquiescence to a criminal conviction w/out an admission of guilt or a determination of guilt after an adjudicatory trial i. Their compromise nature makes uncertain their probative value to prove that the person committed the acts charged ii. Moreover, to use a no-contest plea for this purpose would tend to undermine the initial value of the plea as a device to encourage settlement 3. Statements Made in Conjunction w/ the Process of Making & Negotiating Pleas a. By specifically excluding (a) statements made in Fed. R. Crim. P. 11 plea bargaining proceedings and (b) statements made in the course of plea bargaining w/ prosecutors, FRE 410(3) & (4) operate in the criminal negotiating process as the counterpart to FRE 408's prohibition against using evidence of attempts to settle or compromise civil claims b. As a matter of general principal, and perhaps even as a matter of practical reality, 1 may question the soundness of such a rule i. An offer to plead guilty, at least if the plea is to a relatively serious charge, may have more probative value than the offer to settle even for a substantial amnt of money a civil claim ii. Moreover, the offers to plead guilty that are excluded by FRE 410 usually occur in the context of plea negotiations, and there are several reasons why settling or compromising criminal charges may be regarded as undesirable and, thus, something to be deterred 1st, the possibility of pleading guilty to a charge that's substantially less severe than the crime initially charged may have the undesirable effect of pressuring an innocent individual to plead guilty to avoid the risk of possible conviction on the more serious charge 2nd, the possibility of a plea to a lesser charge may have the arguably undesirable effect of undermining a legislatively dictated mandatory sentence for the crime initially charged or of limiting the range of the judge's sentencing discretion Finally, a consequence of encouraging or even condoning the plea bargaining is the possibility of unfairness or at least the appearance of unfairness from what are or seem to be inconsistent and arbitrary plea bargaining decisions from case to case by prosecutors - This, in turn, may lead to cynicism about or disrespect for the criminal law & perhaps undermine the force of criminal prohibitions + sanctions as general deterrents c. Despite these concerns, the Supreme Court has acknowledged that plea bargaining is an acceptable method for disposing of criminal cases i. Just as excluding statements made in conjunction w/ offers to settle civil suits may facilitate the negotiating process, excluding statements made during plea negotiations may facilitate obtaining guilty pleas

4. The Scope of FRE 410(4) a. There are 2 important limitations on the scope of the rule excluding statements covered by FRE 410(4) i. 1st, the statements must be made "in the course of plea discussions" e.g.., If is merely seeking leniency in the charging decision w/out suggesting any possibility of pleading guilty, a court may conclude that the conversation isn't a plea discussion Similarly, seeking dismissal of charges against 3rd persons may be outside the scope of plea negotiations, as are statements made following the completion of plea negotiations ii. 2nd, the 's statements must be made "to an att'y for the prosecuting authority" e.g., Statements to police officers, who have no formal authority to plea bargain in any event, don't fall w/in the FRE 410(4) exception Statements made to police offers as part of the plea negotiations, however, may be covered by the rule if the police are acting as agents of the prosecutor b. Even if the statements are made to a prosecuting att'y, they may not be protected there's a split of authority on the question of whether proffer sessions that explore possible cooperation w/ the gov't but that don't include discussions of a guilty plea fall w/in the FRE 410 exclusionary mandate c. There's substantial precedent for approaching the question whether FRE 410 is applicable from the perspective of the i. Statements won't be admissible if (or 's att'y speaking as an agent) had a subjective belief that plea negotiations w/ prosecuting authority were taking place & if that belief was objectively reas'ble 5. The Exceptions of FRE 410(3) & (4) a. The 2 enumerated exceptions to FRE 410(3) & (4) will rarely be of consequence i. The 1st exception merely acknowledges the rule of completeness encompassed in FRE 106 e.g., If introduces part of a statement made in conjunction w/ plea negotiations, prosecution can introduce other statements that provide a context or explanation for the statement introduced by ii. The 2nd exception in effect permits the prosecution to bring perjury charges against a who lies under oath during plea negotiations Perjury prosecutions are relatively rare, however; and in any event plea negotiations are seldom under oath 6. Waiver of FRE 410's Exclusionary Mandate a. A may waive the FRE 410(4) exclusionary mandate, at least w/ regard to the impeachment use of statements made in the process of plea negotiations i. Some courts have upheld waivers allowing prosecutors to use FRE 410 evid. in their cases-in-chief

KEY POINTS 1. FRE 410(1),(2) provide that 's withdrawn guilty pleas & pleas of nolo contendere aren't admissible against 2. FRE 410(3),(4) provide that 's statements made in the course of judicial plea acceptance proceedings & in the course of plea bargaining aren't admissible against a. According to the language of FRE 410, statements qualify for exclusion only if they are made (a) to the prosecuting att'y (b) during plea discussions 3. In determining whether the "plea discussions" & "att'y for the prosecuting authority" requirements are satisfied, many courts consider the matter from the 's perspective a. The statements will be excluded if the s have a subjective belief that they are engaging in plea discussions w/ a prosecuting att'y & if that belief is objectively reasonable 4. s may waive the right not to have plea bargaining statements used against them, at least for impeachment purposes

IV. "FIGHTING FIRE WITH FIRE" THE DOCTRINE OF CURATIVE ADMISSIBILITY A. Doctrine of curative admissibility "fighting fire w/ fire" permits a party to introduce normally inadmissible evidence in response to the opposing party's introduction of, or attempt to introduce, inadmissible evidence 1. e.g., sues local restaurant for food poisoning allegedly resulting from unsanitary conditions in the kitchen a. During the direct examination of the restaurant owner, defense counsel asks the owner to tell the jury about special awards for cleanliness that the restaurant has received over the last 5 yrs b. could object on the ground that this question calls for inadmissible character or propensity evidence i. Having an objection sustained & even having the jury admonished to disregard the question, however, may be of little benefit at least some jurors are likely to assume that awards were received & to draw the improper propensity inference ii. Indeed, 's counsel may reasonably believe that the best way to minimize this possibility is not to object at all c. In this type of situation, regardless of whether objected to the question, it arguably would be appropriate to permit , in rebuttal, to introduce evidence of citations the restaurant has received from the health dept. for unsanitary conditions i. Although this evidence normally would also be objectionable on character-propensity grounds, allowing it to come in will provide some antidote to the defense counsel's improper evidence B. Maintaining a "balance of errors" or permitting the "to fight ('s) fire w/ fire" may contribute to accurate factfinding 1. Moreover, this remedy is considerably more efficient than the alternatives of declaring a mistrial or reversing a judgment on appeal C. Most, but not all, jurisdictions recognize some version of the curative admissibility doctrine, and although there's no Fed. Rule of Evidence dealing w/ the subject, fed. courts have invoked the doctrine

D. 2 key factors prejudicial nature of the evid. & whether the opponent made a timely objection considered by courts in invoking the doctrine of curative admissibility The following generalizations, having some support in the decisions, are submitted as reasonable: 1. If the inadmissible evidence sought to be answered is irrelevant & not prejudice-arousing, the judge, to save time + to avoid distraction from the issues, should refuse to hear answering evidence; but if he does hear it, under the prevailing view the party opening the door has no standing to complain. 2. Suppose that the evidence, though inadmissible, is relevant to the issues & hence presumably damaging to the adversary's case, or though irrelevant is materially prejudicial and the adversary has seasonably objected or moved to strike. Here the adversary should be entitled to give answering evidence as of right. By objecting, he did his best to save the court from mistake. His remedy by assigning appellate error to the rule is inadequate. He needs a fair opportunity to win his case at the trial by refuting the damaging evidence 3. If the 1st inadmissible evid. is relevant, or though irrelevant is prejudicial, but the adversary has failed to object or to move to strike where an objection might have avoided the harm, the allowance of answering evid. should rest in the judge's discretion. The judge ought to weight the probable impact of the 1st evidence, the time & distraction incident to answering it, and the likely effectiveness of a curative instruction to the jury to disregard it. However, here several courts have indicated that introduction of the answering evidence is a matter of right. 4. In any event, if the inadmissible evid. or even the inquiry eliciting it is so prejudice-arousing that an objection or motion to strike wouldn't have erased the harm, the adversary should be entitled to answer it as of right. KEY POINTS 1. There's no Fed. Rule dealing w/ the doctrine of curative admissibility a. Nonetheless, in limited situations courts will permit parties to introduce otherwise inadmissible evidence to respond to an opponent's inadmissible evidence 2. The doctrine of curative admissibility is likely to apply only in situations in which a timely objection to the opponent's inadmissible evidence is unlikely to correct the unfairness of presenting or suggesting that evidence to the jury

THE IMPEACHMENT & REHABILITATION OF WITNESSES

The theory and methods of impeaching & rehabilitating the credibility of witnesses the rules of evidence est. the

framework w/in which the opposing parties may present evidence of witnesses' credibility to the jury

I. SOME BASIC CONCEPTS A. Impeachment: The Inferential Process 1. The Testimonial Inferences a. The strength & accuracy of any witness's testimony is dependent upon certain testimonial abilities: A witness must be able to observe events, to remember them, and to relate them honestly & accurately i. The jury must make inferences about these abilities the ability to be honest, to narrate accurately, to perceive, and to remember to credit the truth of what an in-court witnesses says (or what a hearsay declarant says if the hearsay evidence is admissible pursuant to a hearsay exception) ii. e.g., When a witness offers to testify, "'s car ran the red light," jury must infer that (1) W's trying to communicate that was driving a car that didn't stop at a red light, (2) W honestly believes this assertion, and (3) W's belief is based on his accurate perception & memory about what happened EF
W says, "'s car ran the red light"

IF1
W means, " didn't stop the car at the red light"

IF2

IF3

IF4
W remembers the event accurately

W honestly W perceived the believes that event accurately didn't stop the car at the red light

didn't stop the car at the red light

IF5

If any inference is false, the evidence isn't relevant to prove that didn't stop at the red light - To help ensure that they aren't false, the law requires witnesses to testify from 1st-hand knowledge (FRE 602) & to affirm that they will testify truthfully (FRE 603) b. To help ensure that the inferences the jury makes aren't false, the law requires witnesses to testify from 1st-hand knowledge (FRE 602) & to affirm that they will testify truthfully (FRE 603) i. For several reasons, however, the law doesn't generally require the proponent of the evidence to make any other special showing regarding the accuracy of these inferences 1st, although there are obvious exceptions, our common experience tells us that ppl tend to be honest & accurate in more situations 2nd, typically witnesses will testify to general background info about their residences & occupations, which will provide some minimal personal info for the jury to consider in assessing the strength of the inferences 3rd, the task of assessing the accuracy of these inferences traditionally has been 1 for the jury rather than the judge 4th, opposing counsel will have the opportunity to try to raise doubts about the strength of these inferences

2. Types of Impeachment Evidence a. Impeachment is the process of trying to raise doubts about the inferences the jury makes i.e., it's an attempt to show that a W may have inadvertently narrated the events incorrectly, been insincere (lied), misperceived the events about which the W testified, or forgotten some or all of what happened i. To the extent that the factfinder believes the impeaching evidence, the factfinder should conclude that what the W said is less likely to be accurate than if there had been no impeaching evidence b. If the W has offered an opinion or conclusion about some matter, there's a further impeachment concern i. e.g., Consider a witness's testimony that was drunk Even if W is sincere, is using the term "drunk" in a commonly understood sense, correctly perceived the events, and recalls them accurately, W may have misevaluated 's symptoms & used erroneous generalizations for either of 2 reasons: - 1st, W may not be a very good judge of drunkenness e.g., W may have associated loud, boisterous talk w/ drunkenness w/out realizing always speaks in a loud, boisterous manner - 2nd, 's symptoms, although indicative of drunkenness, may in fact have had some other source The impeaching party may suggest both of these possibilities to the fact finder may then tend to disregard the witness's opinion c. There are a variety of ways to discredit a witness: i. Evidence that a witness has a character trait for untruthfulness suggests that the witness may be untruthful on the witness stand ii. Showing that the witness has a bias or interest in the case suggests a motive for being untruthful iii. Attacks on other testimonial qualities such as the witness's narrative or perceptive abilities may also undermine a witness's credibility Such attacks may focus on general abilities (e.g., color-blindness) or on the specific exercise of those abilities on the occasion relevant to the case (e.g., witness not wearing glasses at the time event occurred) iv. Proof of a witness's inconsistent statements suggests that the fact finder should be skeptical about the accuracy of the witness's testimony v. Testimony from other sources that contradicts the witness may reduce the witness's believability 3. Impeachment Evidence Versus Substantive Evidence a. Evidence offered to impeach the credibility of a witness like all other evidence that's admitted must be relevant to prove or disprove some fact that's of consequence to the litigation if it weren't, the impeachment evidence would be inadmissible pursuant to FRE 402 i. The difference btw evidence offered for "impeachment" purposes & evidence offered for "substantive" purposes is in the relevance theory that leads to the ultimate destination i.e., to the proof or disproof of some fact of consequence b. The evidentiary facts dealt w/ here are those that relate to essential elements of a case b/c they may influence the jury's evaluation of witnesses (and hearsay declarants) as reliable sources of knowledge i. Sometimes evid. that tends to impeach the credibility of witnesses will be relevant & admissible as substantive evidence of an essential element when this is the case, there's no need to consider whether the evidence is admissible to impeach a witness ii. Often, however, impeachment evidence is inadmissible for a substantive purpose

iii. 3 examples to illustrate these points:

(1) In the case of a bank robbery, teller who handed money over to the robber may testify wasn't the robber. Other Ws, customers in the bank, may identify as the robber. A police officer may est. that the teller is the sister of . The testimony of the customers implicitly impeaches the credibility of the teller (and vice versa), but each W's testimony is independently admissible on the substantive question of the robber's identity. The testimony of the officer isn't independently admissible; its only relevance is to impeach the credibility of the teller by showing bias. (2) In the running the red light hypo, wishes to impeach 's W w/ the W's earlier statement, not made under oath, that the light was green when entered the intersection. b/c of the hearsay rule, the prior statement is inadmissible as substantive evidence that the light was green FRE 801(d)(1)(A). , however, may use the prior statement, w/out regard to its truth, to infer that W's direct exam testimony isn't accurate. Knowing that W has made inconsistent statements about the same subject, regardless of which statement is true, casts some doubt on W's credibility. On 1 of the 2 occasions W may have been lying; at the very least, the inconsistency shows that W isn't particularly careful about narrating the events of the accident. (3) Della Dean is charged w/ perjury & testifies in her own defense. To impeach D's testimony, the prosecution offers evidence that D was convicted of perjury 2 yrs ago. It would be impermissible under FRE 404 to introduce evidence of past perjury to prove that D committed perjury on the occasion charged in the current indictment. Since D has testified as a witness, however, it will be permissible to introduce her prior conviction to impeach her credibility FRE 609(a). The inferential process is as follows: b/c D committed perjury, she's a generally untruthful person, who may be lying on the witness stand.

c. To admit evid. for the purpose of impeaching the credibility of a W is to admit evid. that, but for its impeachment value, wouldn't be admissible either b/c it would be irrelevant [1st hypo], or b/c some exclusionary rule (e.g., 404(b) or the hearsay rule) would prohibit its substantive use [latter 2 hypos] d. When evidence is admissible only to impeach the credibility of a witness, the limited admissibility has 3 significant consequences: i. The proponent of the impeachment evidence in resisting a directed verdict or summary judgment motion can't rely on that evidence to satisfy a burden of production ii. The proponent in closing argument can't rely on the impeachment evidence as substantive proof of disputed facts iii. Whenever the evidence is relevant but inadmissible for some non-impeachment purpose, the party against whom the evidence is offered can make a FRE 403 objection and, if the evidence is admitted, is entitled to a limiting instruction e. Consider the hypo in which introduced evidence that a 's witness had made an inconsistent statement about whether ran the red light: i. couldn't rely on the substance of the inconsistent statement to support the production burden on the question of contributory negligence ii. If the case went to the jury, could argue that the inconsistency suggested the witness was mistaken or lying about the color of the light, but couldn't argue that the statement was a truthful assertion that the light was green for iii. would be entitled to an instruction that the jury could use the statement only to assess the witness's credibility, not as substantive evidence of the color of the light

B. Extrinsic Evidence & Impeachment 1. One can impeach a W (1) by examination (usually cross-exam) of W & (2) by introduction of extrinsic evid. a. Extrinsic evidence = any evidence other than that developed through direct or cross-exam of the witness i. Examples: An exhibit, such as record of a prior conviction The testimony of another witness that impeaches the 1st witness by showing, for example, bias or an inconsistent statement that the 1st witness denied making 2. If the cross-examiner weren't allowed to use extrinsic evid. to impeach a witness, the W could deny the facts relevant to the impeachment, and the impeaching party would be at a loss to correct W's misstatement a. It would seem unfair to prohibit use of extrinsic evid. to prove, e.g., a W's bias or inconsistent statement 3. On the other hand, excessive reliance on extrinsic impeachment evid. may substantially prolong trials & deflect emphasis from the critical substantive issues a. e.g., Consider a prosecutor's effort to impeach a criminal 's character witness, W1, by calling W2 to testify to W1's bias, followed by the criminal calling W3 to testify about W2's bad character for truthfulness, followed by prosecutor calling W4 to testify about W3's inconsistent statements, and so on i. At some point probably well before W4 is called as a witness FRE 403 concerns should require that this potentially endless chain of extrinsic impeachment evidence be broken C. Bolstering Credibility 1. FRE 608(a) prohibits introducing reputation or opinion evidence of a witness's good character for truthfulness unless the witness's character for truthfulness has been attacked a. This is a specific application of the general C/L rule that prevented a party from bolstering a witness's credibility until after there had been an attempt to impeach the witness's credibility i. e.g., If X testified for that 's car ran through a red light & if there had been no effort to impeach X's credibility, couldn't introduce evidence of X's character for truthfulness or X's prior consistent statements b. FRE contain no general prohibition against bolstering a witness's credibility prior to any impeachment i. When a party attempts to introduce pre-impeachmentbolstering evidence not specifically excluded by FRE 608(a), admissibility under the Fed. Rules should turn on the application of FRE 403 ii. Nonetheless, fed. courts continue to articulate the general C/L prohibition against all bolstering prior to impeachment Pre-impeachment bolstering may be appropriate, however, if an opening statement calls a witness's credibility into question 2. Although most reported cases dealing w/ pre-impeachment bolstering involve attempts to show that a witness is being sincere or truthful, sincerity is only 1 of several testimonial qualities a. The value of a witness's testimony depends not only on the witness's sincerity but also on the witness's perceptions, memory, and ability to narrate events accurately i. If the jurisdiction has a general pre-impeachment bolstering prohibition, it should apply to attempts to bolster these other testimonial qualities as well 3. In most cases of attempted pre-impeachment bolstering, a reasoned application of FRE 403 will probably bring about the same exclusionary result as the C/L rule a. In the absence of impeachment, jurors aren't likely to disbelieve a witness in such a case, the independent bolstering evidence will have little independent probative value and, thus, it's not worth the court's time to hear the evidence

4. There are, however, 2 potential problems w/ the C/L rule: a. 1st, the line btw improper bolstering & permissible examination may not always be clear i. At 1 extreme, it would undoubtedly be regarded as bolstering to ask a witness about W's own prior consistent statements, W's character for truthfulness, or W's acts reflecting truthfulness ii. At the other extreme, questions that merely complete the narrative or emphasize the strength of the witness's testimony aren't typically characterized as "bolstering" evidence e.g., It's permissible for an eyewitness to testify that the witness got a good look at or that the line of vision wasn't obstructed but how far should a direct examiner be allowed to go to suggest that an eyewitness's testimony is probably reliable? iii. Instead of trying to discern a line btw ordinary examination & bolstering, it would be preferable to deal w/ this type of issue as 1 of relevance and FRE 403 balancing b. 2nd, impeachment isn't the only thing that can raise doubts about a witness's credibility i. Examples: The physical appearance or nervousness of a W may cause the jury to question W's truthfulness Jurors may doubt a story b/c it sounds improbable Contradictory eye-witness accounts of 2 witnesses may implicitly impeach 1 or both of them ii. In at least some of these situations, evidence that would be regarded as bolstering under the C/L probably should be admissible, despite the absence of any effort to impeach the witness In such a case, the proponent of the bolstering evidence should argue that FRE 608(a)(2) applies only to reputation or opinion evidence, that the Fed. Rules haven't adopted the general C/L antibolstering rule, and that admissibility of bolstering evidence (other than reputation or opinion evidence) should be governed by FRE 401-403

II. IMPEACHMENT & REHABILITATION WITH CHARACTER EVIDENCE

1 of the FRE 404(a) exceptions to the general prohibition against using character evidence to show action in

conformity w/ character is the use of character evidence for impeachment & rehabilitation FRE 404(a)(3)
o Using evidence of

a witness's character for truthfulness to infer action in conformity w/ that character trait on a particular occasion (i.e., to infer that the witness is either lying or telling the truth on the witness stand) FRE 608 refers to a witness's "character for truthfulness or untruthfulness" (unless the context suggests a contrary meaning, our use of the term truthfulness includes both truthfulness & untruthfulness)

The rules governing impeachment & rehabilitation w/ character evidence, as well as the rules governing other

forms of impeachment & rehabilitation evidence, apply to all witnesses & to all kinds of cases
o
w

/ some minor exceptions, it makes no difference whether the witness happens to be a party

oA

party may use character evidence to impeach a witness in civil as well as criminal trials, and criminal s don't have the option to keep the door closed to inquiries about any witness's character for truthfulness

b/c the rules governing the use of character evidence for impeachment purposes (404(a)(3), 608, and 609) are

different from the rules governing character evid. for substantive purposes (404(a)(1) & (2), 404(b), and 405) and b/c both sets of rules are intricate, the general subject of character evidence may seem confusing
o The 1

question should always be: How is the evidence relevant? Once you answer this question, it should be relatively easy to apply the proper rules

st

A. FRE 608 Evidence of Character & Conduct of Witness

(a) Opinion & reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (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. (b) Specific instances of conduct. Specific instances of the conduct of the witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of a crime as provided by Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or by any other witness, doesn't operate as a waiver of the accused's or the witness's privilege against self-incrimination when examined w/ respect to matters that relate only to character for truthfulness.

B. Interpretation & Illustration of FRE 608(a) 1. Reputation & Opinion Evidence to Prove Character for Truthfulness a. 1 method to impeach or to rehabilitate a witness is w/ reputation or opinion evid. offered to prove W's character for truthfulness to suggest that W is lying or telling the truth on the witness stand i. The usual method of impeaching or rehabilitating witnesses pursuant to FRE 608(a), however, is w/ extrinsic evidence i.e., opinion or reputation testimony offered by 1 witness about another witness's character for truthfulness e.g., In the Johnson case, could have called witnesses to testify that Officer Huston (or any other prosecution witness) had a bad reputation for truthfulness b. FRE 608(a) permits both reputation & opinion evidence of character for truthfulness c. 608(a)(1) limits the use of reputation or opinion evid. to "character for truthfulness or untruthfulness" i. In accordance w/ the bulk of the judicial authority, the inquiry is strictly limited to character for veracity, rather than allowing evidence as to character generally The result is to sharpen relevancy, to reduce surprise, waste of time, and confusion, and to make the lot of the witness somewhat less attractive 2. The FRE 608(a)(2) Limitation on Evidence of Truthful Character a. 608(a)(2) reputation or opinion testimony regarding a witness's good character for truthfulness isn't admissible until the witness's character has been "attacked" i. Kinds of impeachment that constitutes an attack on character for truthfulness: Reputation or opinion evid. of bad character for truthfulness will suffice 608(a)(2) In interpreting "or otherwise" courts traditionally have regarded impeachment by showing prior convictions [609], or bad acts that didn't result in convictions [608(b)], as an attack on a witness's character thus rehabilitation w/ reputation or opinion evid. would be appropriate - e.g., Since the prosecution in the Johnson case impeached the credibility of both inmate Green & w/ evidence of prior convictions, it would have been permissible for to call witnesses who would offer their opinions that Green and Johnson were truthful individuals

ii. On the other hand, courts have regarded proof of a W's bias as not being an attack on W's character Examples: - In the Johnson case, if prosecution could've established that & his cellmate belonged to the same gang, this evidence would show the cellmate's possible bias but not the cellmate's bad character for truthfulness - Similarly, proof in a civil case that a witness for had recently gone through an acrimonious, contested divorce w/ suggests that the witness may be biased against but not that the witness is a generally untruthful person Thus, FRE 608(a)(2) wouldn't permit Johnson or the in the civil action to rehabilitate the impeached W by offering opinion or reputation evid. of that W's good character for truthfulness b. When parties use other impeachment devices e.g., prior inconsistent statements or demonstrations of contradiction courts are divided on the propriety of allow the proponent of the witness to use reputation or opinion evidence to rehabilitate the witness i. The resolution should turn on whether the impeaching evidence tends to impugn the witness's character for truthfulness c. The Advisory Committee Note to FRE 608 expresses approval of the settled precedent, but offers no specific guidance w/ respect to the areas of dispute: i. Evidence of misconduct, including conviction of a crime, and of corruption fall w/in this category of attacks on character for truthfulness ii. Evidence of bias or interest does not fall w/in this category of attacks on character for truthfulness iii. Whether evidence in the form of contradiction is an attack upon the character of the witness must depend upon the circumstances

KEY POINTS 1. FRE 608(a) permits a party to impeach the credibility of a witness by offering extrinsic evidence in the form of opinion or reputation testimony about the witness's character for truthfulness a. The evidence must focus on truthfulness, not general moral character 2. FRE 608(a) permits reputation or opinion evidence offered to prove a witness's good character for truthfulness only after the opposing party has attacked the witness's character for truthfulness

C. Interpretation & Illustration of FRE 608(b)(1) 1. The Prohibition Against the Use of Extrinsic Evidence a. FRE 608(b), like the C/L, prohibits the use of extrinsic evidence of a witness's specific acts to prove character for truthfulness to show dishonesty or honesty on the witness stand 608(b) & a majority of states, however, do permit inquiry into a witness's own acts during the examination of the witness i. The prohibition against the use of extrinsic evid. means that the examiner is bound by the answer of the witness the impeaching party can't introduce extrinsic evidence to contradict the witness e.g., In Johnson, defense counsel could've asked Huston if he lied on his job application form - If Officer Huston denied lying, however, defense counsel couldn't prove the lie by introducing the job application form (which would be extrinsic evidence), and then proving w / other extrinsic evidence that he info contained on the form was false

2. The 2003 Clarifying Amendment a. The phrase "character for truthfulness" was substituted for "credibility" in the 1st sentence of 608(b) i. This change makes it clear that the extrinsic evidence ban applies only to specific acts offered to show character for truthfulness & not to specific acts offered for other impeachment purposes, such as to show bias, contradiction, mental capacity, or prior inconsistent statement The admissibility of extrinsic evidence for noncharacter impeachment purposes governed by FRE 402 & 403 b. The extrinsic evidence prohibition of FRE 608(b) bars any reference to the consequences that a witness might have suffered due to an alleged bad act i. e.g., FRE 608(b) prohibits counsel from mentioning that a witness was suspended or disciplined for the conduct that's the subject of impeachment, when that conduct is offered only to prove the character of the witness 3. The Limited Scope of Permissible Inquiry a. FRE 608(b), like the rule in the majority of C/L courts, is consistent w/ FRE 608(a) in that the specific acts must relate to character for truthfulness impermissible to inquiry into acts relevant to prove a generally bad moral character i. Advisory Committee's explanation for its limitation on the inquiry to acts relating to truthfulness: Effective cross-exam demands some allowance be made for going into matters of this kind, but the possibilitiesof abuse are substantial consequently, safeguards are erected in the form of specific requirements that the instances inquired into be probative of truthfulness or its opposite ii. Safeguards is plural b/c FRE 608(b) originally also contained the requirement that the acts be "not remote in time" that language was replaced by the "in the discretion of the court" language House Judiciary Committee amended the Rule to emphasize the discretionary power of the ct. in permitting such testimony & deleted reference to remoteness in time as being unnecessary and confusing (remoteness from time of trial or remoteness from the incident involved?) b. Despite the deletion of the time limitation, the time factor is obviously relevant in assessing probative value, and the concern w/ remoteness should be remoteness from the time of trial i. Since the theory of relevance is that W's character for truthfulness indicates W may be lying or truthful on the witness stand, the concern is w/ W's current i.e., at the time of trial character In considering the time factor, it should be appropriate to reason by analogy to FRE 609, which imposes specific time restrictions on prior convictions that can be used to impeach a witness 4. No 5th Amendment Waiver a. b/c of the centrality of cross-examination to our adversary system, the giving of testimony by a witness is regarded as a waiver or forfeiture of the witness's 5th A. right against self-incrimination, at least w/ respect to the subject matter of the witness's direct examination testimony i. The last sentence of FRE 608(b) makes it clear that testifying isn't a waiver of the privilege w/ respect to questions that are permissible only to undermine the witness's credibility e.g., Consider the hypo question about whether Officer Huston had lied on his job application form if making false statements on the form were a crime, Huston could rely on the 5th A. to refuse to answer

D. Elaboration of FRE 608(b)(1) 1. The Rationale for the Prohibition Against Extrinsic Evidence a. Not permitting the examiner to challenge the witness's answer w/ extrinsic evidence of bad character for truthfulness may sometimes appear unfair i. e.g., In our hypo in which Officer Huston denies that he lied on his job application form, assume counsel is prepared to authenticate the job application form & to call 10 witnesses who'll testify that the facts stated in the application are false What could be better impeaching evidence than this extrinsic proof that the witness had lied not only on the job application form but also on the witness stand? b. Perhaps the answer is that there couldn't be a more relevant or more effective impeachment i. The effectiveness of the impeachment, however, depends on the certainty w/ which the impeaching party can establish the lie e.g., It may be that the job application form is a forgery, that the statements on the job application are reasonably subject to more than 1 interpretation, or that the witnesses who would testify that Officer Huston lied on the application are themselves dishonest ii. If the impeaching party is allowed to introduce the extrinsic evidence, the party whose witness was impeached should have an opportunity to counter that evidence And if that opportunity exists, a substantial amnt of time & energy could be devoted to litigating the truth or falsity of facts whose only value is to impeach the credibility of a witness Moreover, there would be the potential for this type of minitrial w/ every witness c. Thus, while it may be true that catching the witness in a lie on the stand would be extremely effective impeachment, FRE 608(b), out of concern w/ the time & distraction that could result from litigating collateral matters, prohibits the impeaching party from introducing extrinsic evid. to prove the lie 2. The Scope of Permissible Questions a. The Meaning of Untruthfulness i. While the terms truthfulness & untruthfulness are intended to limit the types of specific acts about which 1 may inquire, there's not uniform agreement about the scope of the limitation At the extremes, courts tend to find that: - Perjury or other instances of making false statements suggest untruthfulness - Acts of violence don't suggest untruthfulness But, there's a large gray area where courts sometimes reach seemingly inconsistent results - Bribery probative of untruthfulness (7th Cir.) - Bribery not the kind of the conduct which bears on truthfulness or untruthfulness (3rd Cir.) ii. Whether activities such as failing to make a req'd report, knowingly purchasing stolen property, or engaging in theft should be considered acts that show a character trait for untruthfulness w/ respect to theft, the answer may turn on the specifics of the individual crime Forcibly taking property from another arguably doesn't suggest untruthfulness Obtaining money for false pretenses arguably is an act of untruthfulness

b. Questions about Arrests, Charges, and Administrative or Judicial Findings i. Sometimes an impeaching party will have evidence that a witness was arrested or charged w/ some offense relating to untruthfulness or that an administrative or judicial body has found that a witness behaved in a manner indicating untruthfulness Examples: - The witness may have been arrested for or charged w/ falsifying loan documents - The witness may have been disbarred for deceitful conduct - A judge in an earlier proceeding may have implicitlyor explicitly found that the W had lied In these situations FRE 608(b) permits the impeaching party to ask about the underlying conduct whether W in fact falsified documents, engaged in deceitful conduct, or lied in an earlier proceedings - But what about asking whether W was arrested or charged w/ falsifying documents, whether W was disbarred for the deceitful conduct, or whether a judge found that W had lied? ii. A W's arrest or a factual finding about W isn't a specific instance of the witness's conduct rather, an arrest or a finding is an activity engaged in by the arresting officer or the fact finder Moreover, this type of evidence is hearsay - W isn't being asked directly whether the witness engaged in the conduct instead, W is being asked whether somebody else the arresting officer (or person who authorized the arrest) or the fact finder said that W engaged in the conduct And, of course, that statement of the police officer or the fact finder is relevant to impeach W only if 1 believes the truth of what the officer or the fact finder said iii. Despite the hearsay nature of questions about arrests, charges, and findings, there's precedent for permitting these types of questions 3. Questions About Specific Acts & FRE 403 a. FRE 403 concerns may militate against even asking a witness about specific acts of untruthfulness i. In some cases W's conduct, even if relevant to show untruthfulness, may have low probative value ii. If W acknowledges an act of untruthfulness, there's a risk of unfair prejudice This risk is particularly great if W happens to be a party: The jury may be willing to decide against the party b/c the jury regards W as a bad person iii. If there are numerous inquires about the specific acts of truthfulness, there are likely to be concerns w / time-consumption & confusion of the issues iv. Even if W honestly denies having committed a dishonest act, there's a risk the jury may be more swayed by the suggestiveness of the question than by the answer v. If W is a party & if the question relates to conduct similar to the conduct that's the subject of the litigation, there's a risk the jury will consider the evidence, contrary to the dictate of FRE 404(b), as evidence that engaged in the conduct that's the subject of the litigation b. Despite the FRE 403 grounds for objecting to FRE 608(b) questions, courts typically are quite liberal in permitting inquiry about specific acts to prove character for impeachment purposes i. According to the Advisory Committee, "Effective cross-examination demands that some allowance be made for going into matters of this kind "

4. The "Discretion of the Court" to Exclude Questions About Specific Acts a. Consider the meaning of the "in the discretion of the court" language i. Even w/out that language, it's clear that a court could rely on FRE 403 to exclude questions about marginally probative, unfairly prejudicial specific acts thus there's no need to prove explicitly for judicial discretion w/ respect to FRE 608(b) ii. It seems likely that the phrase is nothing more than a reminder, albeit an unnecessary 1, to the court & litigants that FRE 403 may be a basis for exclusion 5. Good Faith Requirement; Practical Considerations a. b/c of the suggestiveness that's likely to inhere in a question about a specific act relating to truthfulness, courts have held that the examiner must have a good-faith basis for believing that the act occurred i. Such a requirement is probably satisfied, for example, by knowledge W had been arrested for the activity that's the subject of the question by hearsay info obtained during investigation of the case b. A litigant who suspects that the opponent may ask a question w/out a factual basis for the inquiry should request a hearing on that issue outside the presence of the jury i. Similarly, if a litigant suspects that the opponent may ask about some act falling outside the truthfulness limitation in FRE 608(b), the litigant should consider filing a motion in limine seeking a ruling on the issue Unless the litigant knows the opponent's aware of the potential impeaching evidence, however, filing such a motion may have the undesirable effect of alerting the opponent to the evidence 6. FRE 608(b)(1) Specific Acts Showing Good Character for Truthfulness a. FRE 608(b) specifically permits questions that are probative of truthfulness & untruthfulness, and there's precedent for permitting litigants to questions witnesses about good acts that tend to show W's truthful character i. Unlike FRE 608(a), FRE 608(b) doesn't provide that evid. showing a truthful character is permissible only after the opposing party has attacked W's character nonetheless, courts may rely on FRE 403 to prohibit pre-impeachment efforts to bolster a witness's credibility b. Likely reasons courts & commentators devote little attention to FRE 608(b)(1) good acts is that such evid. is obviously self-serving and, thus, seldom worth objecting to or even attempting to introduce i. While it may be important to rehabilitate a witness by putting in perspective or emphasizing the positive aspects of apparently bad acts that were the subject of impeaching questions, there's not likely to be much value in getting the witness to relate various other acts suggesting truthfulness All of us, after all, probably engage in enough activity appearing to demonstrate truthfulness in that such evidence would seem at best mundane Moreover, there's the risk that the introduction of such evid. could have the opposite of its desired effect: If the lawyer feels it necessary to rely on such mundane evid. to convince the fact finder of W's truthfulness, perhaps there's reason to doubt W's truthfulness c. The 1st sentence of FRE 608(b), which prohibits extrinsic evidence, applies to specific acts relating to both truthfulness & untruthfulness i. A witness responding to questions that put W in a favorable light, however, is likely to be cooperate thus there's virtually no risk that an examiner inquiring about good acts will receive an unfavorable answer

7. Cross-Examination a. Although most 608(b)(1) questions about acts probative of untruthfulness will occur on cross-exam, there are 2 reasons courts should probably not interpret the term cross-examination literally i. FRE 608(b)(1) appears to contemplate questions to a witness that are probative of both W's truthfulness & W's untruthfulness the same party, however, won't have an interest in asking both types of questions Rather, 1 party usually the party seeking to bolster W's credibility w/ questions about acts relating to truthfulness will be able to pursue such an inquiry only on direct or, more probably, redirect examination ii. FRE 607 permits the party who calls a witness to impeach W's credibility thus if a witness gives testimony that's unfavorable to the party who called W, that party may impeach W's credibility e.g., On direct examination the party calling W could show W's bias, inconsistent statement, or prior conviction (FRE 609) - There's no conceivable reasons why all of these impeachment devices, but not impeachment w / questions about specific acts relating to untruthfulness, should be available to the direct examiner E. Interpretation & Illustration of FRE 608(b)(2) 1. Issue addressed by FRE 608(b)(2): the cross-examination of reputation or opinion witnesses to test their knowledge of the reputation or the basis for the opinion about which they testify 2. Once a character W has given reputation or opinion testimony pursuant to 608(a), the opposing party in addition to impeaching the character W w/ questions about the character W's own acts of untruthfulness [608(b)(1)] may impeach the character W in the same manner in which a party may impeach character W who give reputation or opinion testimony pursuant to 404(a)(1) & (2): a. The impeaching party may ask the character W if the character W is aware of relevant specific acts committed by the person whose character was the subject of W's testimony i. e.g., In Johnson, if defense had called witnesses to testify that in their opinion was a truthful person, it would've been appropriate to ask these witnesses on cross-exam both about their own acts of untruthfulness [608(b)(1)] & about their knowledge of acts of dishonesty in which had engaged [608(b)(2)] It wouldn't have been appropriate, however, to ask them if they knew about 's previous rapes ii. As 608(b) makes clear, the specific acts must relate to the character trait about which the 608(a) character witness testified truthfulness and rapes aren't (very) probative of truthfulness KEY POINTS 1. FRE 608(b)(1) permits the impeachment & rehabilitation of witnesses w/ questions about the witness's own specific acts that show character for truthfulness a. The examiner is bound by the witness's answer to such questions & may not introduce extrinsic evidence to challenge the answer 2. FRE 608(b)(1) specific acts questions must relate to character for truthfulness, and they are subject to exclusion on FRE 403 grounds 3. When a FRE 608(a) character witness offers opinion or reputation testimony about another witness's character for truthfulness, FRE 608(b)(2) permits the opposing party to ask the character witness about specific acts probative of truthfulness that the other witness may have committed a. The purpose of the questions is to test the basis for the character W's reputation or opinion testimony

III. IMPEACHMENT & REHABILITATION WITH A WITNESS'S PRIOR STATEMENTS

A W's prior statement i.e., a statement made at another time & place prior to W's current testimony falls /in
w

core definition of inadmissible hearsay if the statement is offered to prove its truth FRE 801(a)-(c); FRE 802
o Prior inconsistent

statements, however, are also relevant & traditionally have been admissible for the nonhearsay purpose of impeaching W's credibility Proof of an inconsistency, regardless of which statement is true, suggests that W may have lied in making 1 of the statements or that W for some other reason e.g., faulty memory or lack of interest in the subject matter has on 1 occasion not reported accurately what happened - Such proof allows the impeaching party to argue to the jury that W isn't reliable

Similarly, proof that a W has made statements consistent w/ W's current testimony suggests, apart from the truth

of the prior statements, W is careful & thoughtful in speaking about the matter to which the statements relate
o Thus,

except to the extent that there's reason to believe W is deliberately telling consistent lies, knowing about the consistency gives us more reason to credit & rely on W's testimony than we would have w/out evidence of the consistency

Sometimes a witness's prior statement will be admissible for its truth b/c it falls w/in an exception to the hearsay

rule or an explicit exemption from the definition of hearsay

o Examples:

A 's statement to a physician for diagnosis or treatment would be admissible pursuant to the physical

condition exception to the hearsay rule FRE 803(4) Similarly, a prior statement offered against a party to an action would be admissible for its truth as an admission under FRE 801(d)(2)(A)
o In

addition, the Fed. Rules & other modern codifications of evidence create a hearsay exemption for some prior statements FRE 801(d)(1) exempts from the definition of hearsay i.e., allows to be used for their truth prior inconsistent statements made under oath in a proceeding, prior consistent statements offered to rebut a charge of recent fabrication or undue influence, and prior statements of identification

If a witness's prior statement is admissible for its truth, there's no need to consider whether it may also be

admissible for the non-hearsay purpose of impeaching or rehabilitating the witness

o Relying on

the truth of the prior statement will inevitably do more to discredit or credit the trial testimony than relying merely on the fact of inconsistency or consistency

A. FRE 613 Prior Statements of a Witness

(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. (b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness isn't admissible unless the witness is afforded an opportunity to explain or deny the same & the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision doesn't apply to admissions of a party-opponent as defined in Rule 801(d)(2).

B. Interpretation & Illustration of FRE 613

FRE 613 establishes the procedure by which an examiner may introduce evidence of a witness's prior

inconsistent statement for the purpose of impeaching the witness's credibility w o Typically the examiner will confront the witness / a prior inconsistent statement during cross-examination

1. FRE 613(a) a. FRE 613(a) makes it clear that the examiner need not disclose the contents of a prior inconsistent statement to the witness before asking whether the witness made the statement i. This provision formally abolishes Queen Caroline's Case rule, which req'd, at least w/ respect to written statements, that W be shown the statement prior to any questioning about the statement The rationale for that rule stems from a concern that the witness may honestly have forgotten what is or appears to be an inconsistent statement - If such a W weren't shown the statement prior to questioning, cross-examiner might be able to get W to deny having made the statement, thereby giving false impression W was a liar - On the other hand, showing the statement to W before questioning gives the dishonest W the opportunity to concoct a false story that minimizes the impact of the inconsistency o For this reason many commentators have criticized the Queen's Case rule, which the Advisory Committee characterizes as a "unless impediment to cross-examination" b. FRE 613(a) provides that opposing counsel has the right, upon request, to learn of the statement i. This provision is designed to protect against unwarranted insinuations that a statement has been made when the fact is to the contrary e.g., Assume that defense counsel has reason to believe that 1 of 's eyewitnesses to a car accident had made a statement inconsistent w/ W's trial testimony about who was at fault - Counsel could interrogate W about whether W had ever made such a statement w/out 1st revealing its contents to W upon request, however, defense counsel would have to reveal the inconsistent statement to 's counsel 2. FRE 613(b) a. FRE 613(b) also acknowledges that extrinsic evidence of inconsistent statements may be admissible, but it provides that in most instances there's a 2-fold condition for the admissibility of extrinsic evid. i. The witness must have an opportunity to explain the statement, and the opposing party must have an opportunity to explore the inconsistency w/ the witness To fulfill these requirements the party offering the prior inconsistent statement must generally do so when W is still testifying or must make sure that W is available for recall b. Requiring that W have the opportunity to explain the statement gives the fact finder a reasonable basis for evaluating the alleged inconsistency i. e.g., W may have a plausible explanation for why an apparent inconsistent statement isn't in fact inconsistent, or W may deny having made the statement, in which case the fact finder will have to assess the relative weight of the extrinsic evidence & W's denial c. The "interests of justice" exception exists b/c there may be situations in which it's not possible to give W an opportunity to explain the apparent inconsistency i. e.g., Consider a situation in which the impeaching party becomes aware of the prior inconsistent statement only after W has been dismissed & is no longer available In such a case it may further the search for truth to permit extrinsic evid. of the inconsistent statement w/out any opportunity for W's explanation rather than to exclude the impeaching evidence altogether d. 613(b) provides an exception to usual requirement that W have an opportunity to explain or deny the statement: The requirement is inapplicable to inconsistent statements by a party falling w/in 801(d)(2) i. 801(d)(2) provides that a party's prior statements may be admissible for their truth regardless of whether the party testifies thus there's no need to restrict admissibility under FRE 613 when the party happens to be a witness

C. Elaboration of FRE 613(b) 1. FRE 613(b)'s Departure from the Common Law a. The C/L imposed a rigorous foundation requirement as a condition for introducing extrinsic evidence of an inconsistent statement i. The impeaching party couldn't introduce extrinsic evidence of a witness's statement w/out 1st indicating the precise time + place of the statement and the person to whom it was made and then asking W whether W had made the statement This foundation requirement served at least 3 purposes: - 1st, it ensured that W wouldn't have to bear the inconvenience of being recalled later in the trial to explain the apparent inconsistency - 2nd, since witnesses occasionally won't be available to be recalled, the requirement ensured that W would have an opportunity to explain or account for the apparent inconsistency - 3rd, since there's no need for extrinsic evidence if W fully concedes the inconsistency, the foundation requirement contributed to the efficient resolution of disputes b. Despite these benefits of the C/L rule, the drafters of the Fed. Rules made clear their intent to have a more flexible foundation requirement i. The trad'l insistence that the attention of W be directed to the statement on cross-examination is relaxed in favor of simply providing W an opportunity to explain & the opposite party an opportunity to examine on the statement, w/ no specification of any particular time or sequence c. Due to this liberalization of the C/L foundation requirement, it's possible that an impeaching party may introduce extrinsic evid. of an inconsistent statement w/out ever having mentioned the statement to W i. e.g., Consider a situation in which W suggests on direct examination that was speeding now suppose that the opposing counsel has info that W had said wasn't speeding Under FRE 613, opposing counsel on cross-examination may do nothing more than get W to reconfirm the direct examination testimony then, later in the trial during the presentation of the defense case, counsel may attempt to introduce extrinsic evid. of the inconsistent statement - So long as W hasn't been dismissed & is subject to recall (or perhaps so long as W is available and can be called anew by the opposing party), extrinsic evidence of the statement may be admissible ii. Indeed, the Advisory Committee Note to FRE 613(b) specifically contemplates this possibility in a hypo that it offers to justify the departure from the C/L: Several collusive witnesses can be examined before disclosure of a joint prior inconsistent statement In the situation hypothesized by the Advisory Committee, there's a sound reason for departure from the C/L foundation requirement - Disclosure of the joint statement to the 1st witness would alert the other witnesses to the statement & as a result perhaps make cross-examination less effective iii. Outside of the probably infrequent joint statement context, however, there may be few situations in which legitimate tactical considerations of the impeaching party outweigh the benefits of the C/L foundation requirement

2. Extrinsic Evidence in Practice: Practical Considerations a. b/c of the benefits of the C/L foundation requirement, it's probably not surprising that some courts have been unwilling to give an expansive reading to FRE 613(b) i. Some trial judges have prohibited litigants from introducing extrinsic evid. of prior inconsistent statements that they made no effort to explore w/ W on cross-examination, and appellate courts have upheld these decisions on the ground that the trial judges were appropriately exercising discretion to control manner & order of proof FRE 611(a) Result: impeaching party in these cases lost the opportunity to show the inconsistent statement ii. To avoid this situation, counsel shouldn't rely on a literal reading of FRE 613(b) instead, unless counsel feels that there's a compelling tactical reason not to do so, the safe course of action is to lay the trad'l C/L foundation & to confront W w/ the inconsistent statement on cross-examination Indeed, many cross-examiners regularly use the elements of that foundation as part of their impeaching technique b. If the impeaching party lays the C/L foundation & W denies making the inconsistent statement, the door should be open to proof of the statement w/ extrinsic evidence i. If the party admits the statement, it's less clear whether extrinsic evidence of the statement will be admissible some courts take the position that W's acknowledgment of the statement removes any need for the extrinsic evidence, while other courts permit extrinsic evidence ii. The appropriate course of action isn't to have a flat rule of inadmissibility or admissibly, but rather to view the issue as 1 governed by FRE 401-403 (Authors' view) If W unequivocally acknowledges the inconsistency, there's no reason to waste the court's time w / cumulative, extrinsic evidence - As a matter of FRE 403 (if not FRE 401), the extrinsic evidence should be admissible - On the other hand, if W tries to minimize the apparent inconsistency & suggests that there's less of an actual inconsistency than the extrinsic evid. indicates, the extrinsic evid. should probably be admissible so the fact finder can evaluate the significance of the inconsistency 3. Probative Value & FRE 403 Concerns
Since everyone occasionally makes inconsistent statements, proof of an apparently trivial inconsistency

does little, if anything, to impeach a witness's credibility if the inconsistency relates to the subject matter of the lawsuit, however, it provides a reason to be wary generally of W's testimony - The inconsistency, regardless of which statement is true, suggests either W is willing to intentionally lie about the subject matter of the litigation or at least W has been careless & inaccurate in reporting info important to the resolution of the ligation a. The Risk of Improper "Substantive Use" i. When an inconsistent statement relates to an issue in the lawsuit, there's the possibly that the jury will consider the statement not merely for its impeachment value but also for its truth The risk of improper use is a danger of unfair prejudice w/in the scope of FRE 403 this risk of unfair prejudice, however, will seldom, if ever, be a basis for exclusion of the evidence - Inconsistent statements about the issues in the lawsuit are likely to be more probative for impeachment purposes than inconsistent statements about unrelated matters o Thus the most prejudicial inconsistent statements are also the most probative for their impeachment value - FRE 403 balancing test favors admissibility thus FRE 403 unfair prejudice argument isn't likely to succeed unless the objecting party can show some way in which the statement at issue is likely to be uniquely prejudicial in comparison to other inconsistent statements

b. Loss of Memory & Inconsistency i. There's at least 1 type of situation in which an FRE 403 unfair prejudice argument should have a reasonable chance of succeeding If a witness who testifies to a lack of memory about an event has made a prior statement about the event, some courts view the claimed current loss of memory & the prior statement as inconsistent w/ each other - When it's reas'ble to regard the loss of memory as feigned and, thus, tantamount to a denial of the earlier statement, the characterization of the statements as inconsistent is reas'ble - To the extent that the claimed loss of current memory seems plausible, however, there's no inconsistency btw W's testimony & the prior statement o Thus the prior statement has relatively low probative value for its legitimate impeachment use, but there's no reduction in the likelihood that the jury will consider the prior statement for its truth c. Inconsistent Statements About Collateral Matters i. Sometimes a W's alleged inconsistent statement will be about a collateral matter i.e., a matter that's wholly unrelated to the issues in the case If an inconsistent statement is about a collateral matter, its probative value may be so low that on at least some occasions the FRE 403 efficiency concerns should require its exclusion e.g., G sees a car accident as he's leaving a movie theater a month later, in an interview w/ an ins. investigator, G states he'd been going to the theater every night the week of the accident for a Bogart festival & had seen Casablanca on the night of the accident - At the trial, G's testimony is consistent w/ his earlier statement in every respect except that he says he had seen Key Largo on the night of the accident - Assume no dispute about what night the accident occurred, it was the night Key Largo was shown, and everyone concedes there wasn't an accident on night of Casablanca was shown o Despite the facts that the inconsistency is collateral to the issues in the case & that it seems plausible that a person might have conflicting memories about which of 2 Bogart movies was showing on a particular night during the Bogart festival, 1 might want to permit the impeaching party to examine G about the inconsistency o The very low probative value of the evid., however, may not warrant the consumption of time req'd to call an add'l witness to offer extrinsic evidence of the inconsistency o Indeed, this is the result mandated by a C/L rule that prohibited extrinsic evidence of an inconsistent statement about a collateral matter moreover, some fed. courts have specifically adopted this rule ii. Despite cases approving the "collateralness"doctrine, admissibility of extrinsic evid. of inconsistent statements under FRE shouldn't turn on whether the statements are collateral in some C/L sense Rather, important question for admissibility is whether the probative value of the inconsistent statement for its impeachment value is substantially outweighed by countervailing FRE 403 factors indeed, rigid application of C/L collateralness doctrine may not always be warranted The impeachment theory relies on the fact of inconsistency rather than the truth of the prior inconsistent statement to discredit W - Thus even an inconsistency that doesn't relate to an issue in the case may have relatively high prob. value to impeach W if the inconsistency doesn't seem innocuous or easy to rationalize - Moreover, concern the jury may improperly consider an inconsistent statement for its truth isn't a concern when the substance of the statement has no bearing on the issues in the case Thus a proper application of FRE 403 could result in permitting extrinsic evidence of statements that the C/L would preclude

iii. Application of C/L "no extrinsic evid. to impeach on a collateral matter" rule or achieving the same result by applying FRE 403 to exclude extrinsic evid. of the inconsistent statement means, in effect, the cross-examiner may ask W about the statement but the cross-examiner is bound by W's answer KEY POINTS 1. Prior inconsistent statements may be admissible for the non-hearsay purpose of impeaching the credibility of a witness 2. FRE 613(b) provides that normally a party may not introduce extrinsic evidence of a prior inconsistent statement unless W has an opportunity to explain or deny the statement & opposing counsel has an opportunity to question W about the statement 3. Although FRE 613(b) liberalizes C/L foundation requirement for extrinsic evid. of inconsistent statements, some fed. courts prohibit extrinsic evid. if the impeaching party doesn't call the statement to W's attention D. The Impeachment of Experts w/ Statements in Treatises 1. Before adoption of the Fed. Rules, some jurisdictions recognized a hearsay exception for learned treatises a. Statements in learned treatises were frequently admissible for the non-hearsay purpose of impeaching or rehabilitating the credibility of an expert witness i. Analytically, the process of using treatises in this manner is analogous to the use of prior statements for non-hearsay purposes: Initially, W had to acknowledge either reliance on the treatise or, in some jurisdictions, that the treatise was authoritative This acknowledgment, in effect, constituted an adoption of the statements in the treatise if statements in the treatise happened to be inconsistent w/ W's testimony, they were then admissible for the non-hearsay purpose of impeaching W's credibility ii. The expert, of course, could attempt to account for the apparent inconsistency in the treatise Such an explanation might involve reading add'l statements from the treatise for the purpose of putting the supposedly inconsistent statement in proper context or explaining why it wasn't appropriate to rely on that part of the treatise 2. FRE 803(18) contains a relatively broad hearsay exception for learned treatises a. In part the rationale for this hearsay exception is that it avoids the unreality of admitting evidence for the purpose of impeachment only, w/ an instruction to the jury not to consider it otherwise b. The hearsay exception, however, does more than merely eliminate the need for a limiting instruction i. 803(18) doesn't require any particular expert rely on or acknowledge the treatise as authoritative, nor does it require the statements in the treatise be inconsistent w/ any expert's testimony Thus, the purpose of the exception is to permit affirmative use of statements in learned treatises apart from whatever impeachment value they may have ii. If a statement in a treatise is admissible for its truth, there's no need to consider its possible admissibility for impeachment purposes iii. If the statement isn't admissible for its truth, then 1 must turn to the prior statement analogy to find a possible non-hearsay basis for admission E. Prior Consistent Statements
Prior consistent statements may be relevant for 2 distinct purposes:
o To

prove the truth of their contents, in which case they implicate hearsay concerns o To rehabilitate or bolster a W's credibility by demonstrating W has spoken consistently about a matter

1. Admissibility for Truth Pursuant to FRE 801(d)(1)(B) a. FRE 801(d)(1)(B) exempts from the definition of hearsay a witness's prior statement that's "consistent w / the declarant's testimony & is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive" i. This rule makes admissible for their truth prior consistent statements that previously were admissible only for the non-hearsay purpose of showing consistency b. U.S.S.C. (Tome v.U.S.) has interpreted 801(d)(1)(B) narrowly: Only prior consistent statements made prior to the time that a motive to fabricate or an improper influence arose fall w/in the scope of the rule i. Thus there are many prior consistent statements that can't be admitted under this hearsay exemption 2. Admissibility to Rehabilitate Pursuant to FRE 401-403?
Neither the Fed. Rules nor Tome explicitly addresses the question whether prior consistent statements that

don't satisfy the Tome-FRE 801(d)(1)(B) criteria may nonetheless be admissible, not for their truth but for the non-hearsay purpose of rehabilitating a witness - If yes, the party against whom the evidence is admitted would be entitled to a limiting instruction a. Putting Inconsistent Statements in Context Following Impeachment w/ Prior Inconsistent Statement i. When a witness has been impeached w/ prior inconsistent statements, contemporaneous prior consistent statements not satisfying the criteria of 801(d)(1)B) may be admissible to clarify or explain the alleged inconsistency e.g., After impeached a prosecution witness w/ specific portions of a prior statement that he claimed were inconsistent w/ W's testimony, prosecutor was permitted to show portions of the prior statement that were consistent w/ the testimony This view is consistent w/ both principle of completeness in FRE 106 & the FRE 613(b) requirement that a witness have an opportunity to explain or deny an inconsistent statement b. Rehabilitation w/ Consistent Statements in Other Contexts i. In other contexts courts are divided on the question whether 801(d)(1)(B) regulates the use of prior consistent statements offered to rehabilitate witnesses 2 views: 801(d)(1)(B) governs the use of prior consistent statements for both hearsay & rehabilitation purposes if the statement isn't admissible for its truth, it's not admissible to rehabilitate - This view holds that the primary objective of 810(d)(1)(B) is to eliminate the need for a limiting instruction when prior consistent statements are admissible - i.e., The objective is to make all consistent statements admissible for their truth, and the tacit premise is that the C/L limitations on the use of prior consistent statements for rehabilitation remain operative o Thus there will never be an occasion to admit a prior consistent statement & tell the jury it may not consider the statement for its truth 801(d)(1)(B) is nothing more than a hearsay exemption since there's no rule restricting the use of prior consistent statements for non-hearsay purposes, the admissibility of prior consistent statements to rehabilitate should be governed by FRE 401-403 - Thus there may be times when it's appropriate to introduce w/ a limiting instruction, if requested a prior consistent statement that doesn't fall w/in the scope of 801(d)(1)(B)

ii. 3 examples of consistent statements that are relevant to rehabilitate a witness on non-hearsay theories of relevance & that wouldn't be admissible for their truth pursuant to FRE 801(d)(1)(B): 1. brings an action for negligence b/c of exposure to a potentially fatal chemical. 's key witness, a former employee of , testifies that she caused the exposure. Assume that establishes W has been fired immediately after the incident, thereby giving W a motive to fabricate testimony damaging to . Assume further that W's son was exposed to the chemical at the same time & that W made a prior consistent statement 2 weeks after the firing while admitting the son, who had just developed symptoms of the exposure, to the hospital. Here, 1 might reasonably conclude that prior consistent statement made after the motive to fabricate arose rehabilitates W b/c the motive to be truthful about the son's exposure outweighs the motive to fabricate.
2. If a witness denies making a PIS or denies that it was inconsistent, proof of a prior statement consistent w/ W's trial testimony suggests that the alleged PIS may not have been made or that in context it may not have been as inconsistent as the impeaching party claims it is. 3. When a party has attacked a witness's character for truthfulness, proof of a prior consistent statement may suggest that W's testimony isn't behavior in conformity w/ the supposed dishonest character trait (or it may suggest that W is being consistent dishonest).

3. Extrinsic Evidence a. If a prior consistent statement is admissible, there's no specific prohibition against or limitation on proof of the statement by extrinsic evidence i. Typically, however, a party will be eliciting the statement from the witness who made it, and W is likely to be friendly to the examiner thus there will seldom be any need for extrinsic evidence KEY POINTS 1. Prior consistent statements offered to rebut an express or implied charge of recent fabrication or improper influence are admissible for their truth pursuant to FRE 801(d)(1)(B) so long as the statements were made before the motive to fabricate arose a. Such statements were admissible at C/L only for the non-hearsay purpose of rehabilitating a witness 2. Prior consistent statements made in conjunction w/ allegedly inconsistent statements are admissible to put allegedly inconsistent statements in context even if the consistent statements don't satisfy 801(d)(1)(B) 3. In other contexts, there's a split of authority on the question whether the Fed. Rules permit the non-hearsay rehabilitation use of prior consistent statements not falling w/in FRE 801(d)(1)(B)

IV. OTHER IMPEACHMENT TECHNIQUES

Impeachment = the process of attempting to raise doubts about the testimonial abilities of witnesses i.e., to

show that the witness is lying, careless w/ words, imperceptive, or forgetful o The Fed. Rules specifically address only 2 permissible methods for raising these doubts: attacking a witness's character & showing a witness's prior inconsistent statement The process of impeachment, however, isn't so limited the C/L permitted the impeachment of witnesses w/ evid. of unorthodox religious beliefs, bias, mental or sensory incapacity, and contradiction
FRE 610 prohibits relying on the content of a witness's religious beliefs to assess credibility: "Evidence of the

beliefs or opinions of a witness on matters of religion isn't admissible for the purpose of showing that by reason of their nature, the witness' credibility is impaired or enhanced"
For impeachment techniques that the Fed. Rules don't specifically address, courts rely on FRE 401-403 to

determine the admissibility of evidence

A. Bias 1. Relevance a. Modern courts & commentators frequently attach the label "bias" to what Wigmore identified as 3 methods of showing a witness's "emotional incapacity" 3 different kinds of emotion constituting untrustworthy partiality may be broadly distinguished bias, interest, and corruption: i. Bias covers all varieties of hostility or prejudice against the opponent personally or of favor to the proponent personally e.g., intimate family relationships w/ 1 of the parties ii. Interest signifies the specific inclination which is apt to be produced by the relation btw the witness & the cause at issue in the litigation e.g., the expectation of favorable treatment from the prosecutor or sentencing judge in return for the testimony iii. Corruption is the conscious false intent which is inferred from giving or taking a bribe or from expressions of a general unscrupulousness for the case at hand e.g., an attempt to bribe another witness or the receipt of money for testimony b. Proof of any of these types of bias can be particularly effective in discrediting a witness b/c it's highly probative of insincerity i. e.g., Compare the likely impact of a prior inconsistent statement or an FRE 608(b) bad act w/ proof of a witness's close relationship w/ or expected favorable treatment from 1 of the parties All of us make inconsistent statements at least occasionally, and having a bad character for truthfulness may mean nothing more than that the person is untruthful a bit more often than most ppl - Neither of these forms of impeachment suggest any particular reason to believe that the witness is being untruthful on the particular occasion of the witness's current testimony - By contrast, the types of bias described by Wigmore suggest a specific, concrete motive for fabricating testimony or at least being less than fully candid 2. Extrinsic Evidence a. All C/L courts permitted proof of a witness's bias both by examination of the witness & also by the introduction of extrinsic evidence, and in U.S. v. Abel, the Supreme Court upheld the proof of bias w/ extrinsic evidence under the Fed. Rules 3. Possible Limitations on Extrinsic Evidence of Bias a. Despite Abel, the right to introduce extrinsic evid. of bias isn't automatic under the Fed. Rules there are at least 2 possible limitations on the use of such evidence: i. Some fed. courts hold that when the evid. of bias is a witness's prior statement, extrinsic evid. of the statement isn't admissible unless W 1st has had an opportunity to explain or deny the statement This rule, in effect, is the foundation requirement for prior inconsistent statements applied to statements evincing bias regardless of whether they are inconsistent w/ the witness's testimony ii. There's always the possibility of a successful FRE 403 objection Typically evidence of bias is highly probative, but if the witness fully admits the bias or if the evidence in fact suggests little about the witness's possible bias, a court should probably sustain an FRE 403 objection to extrinsic evidence Evidence of bias may also raise the FRE 403 issue of unfair prejudice

4. Bias Versus Character a. A troublesome issue that sometimes arises particularly w/ the type of evid. that Wigmore refers to as "corruption" is whether the evidence should fit w/in the "bias" category or the "character" category i. e.g., Is proof that the witness attempted to bribe another witness evidence of corruption-bias, or is it evidence of character, or both? The issue is important b/c extrinsic evidence of the witness's conduct is admissible to prove bias but not to prove character under FRE 608(b) b. The issue is difficult to resolve in party b/c the term character isn't defined & is probably not definable in any very helpful sense i. Similarly, the contours of corruption, which the Advisory Committee's Note to FRE 608 equates w/ "character" & distinguishes from "bias" and "interest," aren't clear ii. Moreover, it's not clear to what extent 1 should regard the concepts of character & bias as mutually exclusive or as potentially overlapping e.g., Whether the FRE 608(d) prohibition against extrinsic evidence to prove character should apply when the evidence is relevant & otherwise admissible to show bias c. To the extent that it's reasonable to infer from the corrupt act that W has some particular concern about or interest in the outcome of the present litigation, the evidence has relatively high probative value on the question whether W's testimony is tainted b/c of this interest i. Thus it seems appropriate to attach the bias label to the evidence to permit exploration of the matter w / extrinsic evidence d. On the other hand, if the only reasonable inference to draw from the corrupt act is that the individual has a general lack of integrity or disregard for the truth, the probative value of the evidence to suggest untruthfulness on 1 specific occasion on the witness stand is relatively low i. This evidence should receive the "character" label to prevent the possibility of time-consuming & distracting exploration of the matter w/ extrinsic evidence

KEY POINTS 1. Showing a witness's bias is relevant to impeach the witness's credibility, b/c the bias suggests a particular reason or motive for the witness to lie or at least be less than completely candid 2. There's no FRE dealing w/ bias FRE 401-403 govern admissibly of evidence of bias 3. Extrinsic evidence of bias is admissible, but some courts impose, as a condition of introducing extrinsic evidence of a prior statement showing bias, a foundation requirement that's similar to the foundation requirement for prior inconsistent statements

B. Mental or Sensory Incapacity 1. Relevance a. Any sensory or mental deficiency that inhibits a witness's ability to perceive events accurately at the time they occur or to remember & to narrate accurately what happened at the time of trial is relevant to cast doubt on the witness's credibility i. e.g., Thus it's relevant to prove that a witness suffers from faulty memory, some form of mental illness that contributes to a witness's inability to distinguish fact from fantasy, intoxication at the time of the event to which the testimony relates or while on the witness stand, or color-blindness if accuracy w/ respect to color is important ii. Indeed, any fact relating to W's general testimonial capacities for narration, perception, and memory or about the exercise of these capacities on the occasion in question is relevant to impeach W Subject to a court's discretion to control the mode of cross-examination [FRE 611(a)] & to FRE 403, it's permissible to inquire about these matters during the examination of the witness whose sensory or mental condition is at issue 2. Extrinsic Evidence a. In addition to making inquiry on cross-examination, parties may introduce extrinsic evidence of a witness's mental or sensory incapacity i. Courts traditionally have regarded such evidence as showing something different from a moral incapacity or character trait thus the restrictions on the proof of character aren't applicable As a result, for example, courts have permitted extrinsic evidence of such matters as strange, seemingly irrational acts of a W, expert testimony from a psychiatrist about a W's mental capacity, and courtroom experiments to demonstrate a W's poor memory or eyesight b. It's appropriate to decide on a case-by-case basis how extensive a cross-examination to permit & how much, if any, extrinsic evidence to introduce about a witness's sensory or mental incapacity i. Fed. Rules take this approach in the absence of any exclusionary rule, admissibility decisions should turn on the application of FRE 401-403 and, if expert testimony is offered, FRE 702-706 3. Mental Incapacity as a Bar to Testimony a. In considering an individual's mental incapacity it's important not to confuse mental incapacity as a subject matter for impeachment w/ mental incapacity as a complete bar to testimony i. FRE 601 presumes that every person is competent to be a W, including a person w/ mental illness If an individual's mental condition prevents the individual from understanding the oath or the obligation to testify truthfully, however, that would be a legitimate reason for refusing to let the individual testify

KEY POINTS 1. Courts regard a W's sensory or mental incapacity as something different from a character trait thus impeachment on these grounds isn't limited by FRE 404 or FRE 608 a. Indeed, there's no Fed. Rule dealing specifically w/ this form of impeachment 2. FRE 401-403 and, if expert testimony is involved, FRE 702-706 govern proof of a witness's sensory or mental incapacity

C. Contradiction 1. Relevance a. The last trad'l method of impeaching a W's credibility is by means of contradiction i.e., introducing evidence that contradicts something W has said i. e.g., If W said that she was wearing a yellow dress when she saw the car accident, it would contradict her testimony to establish that she was wearing a blue dress on that occasion And if 1 can establish that a witness is incorrect about 1 thing, it's arguably appropriate to infer that W may be wrong about other things, including perhaps the substantively important aspects of W's testimony b. All of us, of course, from time to time make erroneous statements that can be contradicted i. Thus, at least in absence of showing many contradictions by the same W, proof of contradictions about matters unrelated to the issue being litigated e.g., that W was wearing a blue dress instead of a yellow dress are often of only marginal probative value to impeach W's credibility 2. Extrinsic Evidence a. FRE 401-403 govern the admissibility of evid. of contradiction, and as is the case w/ evid. of sensory or mental defects, courts applying FRE 403 may permit cross-examination but exclude extrinsic evid. to prove the contradiction if the contradiction appears to have little probative value to impeach W i. e.g., In the blue dress hypo, a court may permit some cross-examination about the color of W's dress, but if W doesn't admit being wrong about the color of her dress, the court may not permit the impeaching party to establish the contradiction w/ extrinsic evidence by calling other witnesses to testify that the dress was in fact blue Color of W's dress isn't relevant to any issue in the case; and although it's not uncommon for witnesses to include irrelevant details in their testimony, contradicting such matters is typically not very probative of how reliable the witness's testimony is on relevant, disputed facts Thus under FRE 403, it will seldom if ever be worth the time & risk of confusing the jury to prove these contradictions w/ extrinsic evidence 3. The "No Extrinsic Evidence to Impeach on a Collateral Matter" Doctrine
At C/L the admissibility of extrinsic evidence to contradict a witness was governed by the general

principle that 1 may not introduce extrinsic evidence to impeach on a collateral matter o e.g., In the blue dress hypo, the collateralness doctrine would require exclusion of extrinsic evid. contradicting W's testimony that she'd been wearing a yellow dress & also extrinsic evid. of a prior inconsistent statement in which she stated she'd been wearing a blue dress at the time of the accident The color of the dress is collateral in that it has no bearing on an issue in the case a. What Is Not Collateral Generally i. Whether extrinsic evidence is collateral & thus inadmissible pursuant to the collateralness doctrine isn't always intuitively obvious the inquiry is best answered by determining what facts aren't w/in the term 3 such types of facts: (1) Facts relevant to the substantive issues in the case (2) Facts relevant, apart from the contradiction, to impeach the credibility of a witness, if extrinsic evidence is generally admissible for the non-contradiction impeachment purpose (3) Facts recited by the witness that, if unsure, logically undermine the witness's story

b. Evidence That Is Directly Relevant to the Issues in Litigation i. Evidence that's directly relevant to the substantive issues can be introduced for its substantive value apart from any impeachment value that it may have in effect, the impeachment value of the evidence is secondary If evidence is independently admissible, there's no need to consider whether it's also admissible for impeachment purposes c. Evidence That Impeaches a Witness Apart from Contradiction i. Collateralness doctrine shouldn't prohibit use of extrinsic evid. that both contradicts the witness & also impeaches credibility in some other way, so long as it's clear that extrinsic evid. would be admissible for that independent impeachment purpose (e.g., to prove bias or a prior conviction) ii. On the other hand, if a specific impeachment rule prohibits extrinsic evid. as FRE 608(b) does, it would undermine that prohibition to admit extrinsic evid. on the theory that the evid. contradicts W Consider for example, the impact of a contrary rule w/ respect to FRE 608(b) - In every case in which the witness denied committing a bad act, the proponent of the extrinsic evidence could argue that extrinsic evidence of the bad act was being offered not to prove character for untruthfulness but to show a contradiction - If that argument were accepted, the prohibition against extrinsic evidence in FRE 608(b) would become meaningless d. Evidence That Logically Undermines a Witness's Story i. Contradictions that logically undermine the witness's story are also considered non-collateral e.g., A personal injury action in which X testifies for & explains that he happened to see the accident as he was walking home from the store where he'd gone to purchase milk for his kids - Proof that X bought beer instead of milk would contradict his story, but such proof wouldn't logically undermine his testimony what he bought is collateral o Thus on cross-examination counsel could question X about what he bought, but the counsel would have to accept his answers extrinsic evidence would be inadmissible - On the other hand, evidence that X hadn't been in the area of the store at all suggests that he may not have seen the critical events to which he testified o Just as there would be no general prohibition against use of extrinsic evid. that X was almost blind, there should be no prohibition against use of extrinsic evid. suggesting X might not physically have been in a position to observe what he claimed to have seen - In short, proof that X hadn't been near the store on the day of the accident tends to logically undermine his story about the accident thus it shouldn't be regarded as collateral, and extrinsic evidence of his absence from the store should be admissible

e. A Test for "Collateralness" i. Could the fact have been proven w/ extrinsic evidence for any purpose except to show a (mere) contradiction? If the answer is yes if, in other words, there's some relevant, permissible use for extrinsic evidence above & beyond its value as showing a mere contradiction it's not collateral On the other hand, if the only permissible purpose for offering the evidence is to prove a contradiction, the extrinsic evidence is collateral ii. Thus, in our preceding illustrations: It wouldn't be collateral to prove by extrinsic evidence (a) a prior conviction that the witness denied, (b) facts constituting bias that the witness denied, (c) substantively relevant events that the witness denied, or (d) X's absence from the store It would be collateral to prove (a) that the witness was wearing the blue dress instead of a yellow dress, (b) that the witness falsely denied committing a dishonest act, or (c) that X brought beer

KEY POINTS 1. Proving a contradiction is relevant to cast doubt on the credibility of a witness a. FRE 401 & 403 should govern the admissibility of evidence for this purpose since there's no Fed. Rule dealing specifically w/ contradiction 2. Rather than invoking FRE 401-403, some fed. courts rely on the C/L prohibition against the use of extrinsic evidence to impeach on a collateral matter to exclude extrinsic evidence that contradicts a witness on a collateral matter a. Extrinsic evidence is collateral pursuant to this C/L doctrine if the fact that the evidence establishes can't be proven w/ extrinsic evidence for any purpose other than to show the contradiction 3. In most cases proper application of FRE 403 would probably lead to the same result as the C/L prohibition against extrinsic evidence to contradict on a collateral matter

THE HEARSAY RULE

The hearsay rule establishes as a general proposition that when statements are made by ppl outside of court, those

statements aren't admissible when offered to prove the truth of the matters asserted therein
o FRE

802 is the primary rule of exclusion however, it's subject to 29 exceptions & 8 exemptions pursuant to which may kinds of hearsay statements are admitted

What hearsay is, how it's defined, and what justifies its exclusion from the fact-finding process of trial
o The classification

of evidence as hearsay or not hearsay isn't necessarily determinative of admissibility Evidence of an out-of-court statement that's not hearsay may be inadmissible for some other reason (e.g., privilege), and evidence that's hearsay may be admissible under 1 of the exemptions or exceptions

I. THE GENERAL RULE OF EXCLUSION & THE DEFINITION OF HEARSAY

Exclusion of hearsay requires a test that judges apply to individual items of evidence
o Under

FRE 801(c), hearsay is a statement offered "to prove the truth of the matter asserted"

A. FRE 801 & 802

Rule 801 Definitions
The following definitions apply under this article: (a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it's intended by the person as an assertion. (b) Declarant. A "declarant" is a person who makes a statement. (c) Hearsay. "Hearsay" is a statement, other than 1 made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. (d) Statements which are not hearsay. A statement isn't hearsay if (1) Prior statement by witness. The declarant testifies at trial or hearing & is subject to cross-examination concerning the statement, and the statement is (A) inconsistent w/ the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition, or (B) consistent w/ the declarant's testimony & is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motion, or (C) 1 of identification of a person made after perceiving the person; or (2) Admission by party opponent. The statement is offered against a party & is (A) the party's own statement, in either an individual or representative capacity.

Rule 802 Hearsay Rule

Hearsay isn't 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.

B. Interpretation & Illustration of FRE 801-802

A friend of yours, Sally, tells you that she saw a gray SUV run through a red light & hit a pedestrian
o Would

you believe Sally? Would you rely on her info?

If you know that Sally is a trustworthy person, and that she usually is a careful observer of things & has a good memory, you would probably have little reason to doubt what she says - You would view Sally as a reliable source of info about the accident
Sally's knowledge about the accident would be particularly useful in a lawsuit brought by the pedestrian

against the driver of the SUV

o There

are at least 2 ways in which the pedestrian could present Sally's knowledge to the jury

1st, Sally herself could be called as a witness - In response to a question about what she saw, she would testify, "On June 1, I observed the gray SUV run a red light & hit a pedestrian" 2nd, perhaps Sally made this same statement to her friend Jim on the day after the accident - Jim could then be called as a W & would testify in response to a question about what Sally saw: "On June 2, Sally told me that on June 1 she'd seen a gray SUV run a red light & hit a pedestrian"
o Sally's o Jim's

own testimony would be welcomed in any courtroom in America

testimony would be excluded by the hearsay rule apply the terms of FRE 801(a)-(c): Jim's testimony describes (1) a statement (an "oral assertion"); (2) the statement is made by a declarant (Sally is a "person who made the statement"); (3) the statement was made by Sally other than while testifying at the trial; and (4) the statement is being offered by the pedestrian to prove the truth of the matter asserted (that the gray SUV ran the red light) Thus, Sally's statement is hearsay & Jim's testimony about that statement would be inadmissible under FRE 802

The term hearsay applies to Sally's statement b/c she's the out-of-court declarant
o The hearsay rule

operates to exclude evidence of that statement no matter how it's presented through testimony such as Jim's, through a letter Sally wrote to Jim, through a tape recording of Sally speaking to Jim, and even through Sally's own testimony about her own out-of-court statement

There's no traditionally recognized hearsay exception that would admit Sally's out-of-court statement

1. The Relevancy of Sally's Statement a. Why should Sally's statement of belief about the gray SUV be admitted if Sally says it in court as a witness, but be excluded if Jim reports her statement to the jury? i. The answer, which involves an explication of hearsay policy, begins w/ relevancy Under FRE 401, Sally's statement is offered to prove that it's more likely that the SUV did run the red light & hit a pedestrian - Inferences about Sally's qualities of narration, sincerity, perception, and memory are necessary to connect her statement to the FOC (gray SUV really didn't stop at the red light) Following this theory of relevance, Sally's eyewitness statement is important evidence for the pedestrian's case against the driver of the SUV - Moreover, if any of the inferences about Sally's testimonial qualities are wrong, Sally's statement loses its relevance to the case o To the extent that there are doubts about the inferences, the evidence of Sally's statement loses probative value Notice the final inference from the accuracy of Sally's belief to the conclusion about the event itself is an inference that doesn't rest on a generalization about 1 of her testimonial qualities - Rather, it expresses the assumption underlying the model of rational factfinding, that ppl's beliefs about the work can & do correspond to reality 2. Sally's Statement Bears Testimonial Dangers a. It's possible that Sally didn't speak accurately & honestly, or didn't perceive accurately or remember accurately the event involving the SUV i. If this is so, then relying on her belief about this event generates risks of error i.e., testimonial dangers, or hearsay dangers when an out-of-court statement is being considered Narration danger Ambiguity danger Sincerity danger Perception danger Memory danger b. If Sally has mistakenly used the wrong words (a narration danger), then the SUV that she saw may be green, not gray i. A narration problem may exist if speakers use words w/ which they are unfamiliar, or if they speak carelessly or inadvertently omit a critical work c. Different problem arises if speaker's words are subject to more than 1 interpretation (ambiguity danger) i. An ambiguity problem exists if it's unclear from the context what the speaker is intending to assert e.g., If a person says, "Jon had a great catch," is the reference to fishing or baseball? - Frequently, but not always, the answer will be clear from the context w/in which the statement is made d. Thus, narration problems arise when the speaker mistakenly chooses the wrong words ambiguity problems arise when the hearer or reader misinterprets what the speaker is thinking & communicating e. If Sally is trying to deceive the listener (a sincerity danger), her words will misrepresent what she really believes i. If Sally is lying, then the inference from Sally's words to her belief about the SUV that we (or the jury) as listeners attribute to Sally i.e., Sally honestly believes the gray SUV didn't stop won't correspond to what she actually knows about the accident

f. Other possibly wrong inferences about Sally's eyewitness statement involve the congruity btw what Sally honestly believes she saw & what actually happened i. Relevance requires that her belief be an accurate reflection of the event that the SUV did fail to stop at the red light This won't be the case if Sally didn't observe the incident accurately (a perception danger) - Perception as used here includes impressions received from any of the sensory organs (the identification of an odor or the hearing of another's words would present perception issues) A memory problem arises if at the time she makes the statement Sally has forgotten details about the event she perceived e.g., the gray car was a truck not a SUV (a memory danger) ii. If there are perception or memory problems w/ S's statement, then the inferences of perception (S perceived event accurately) or memory (S remembers event accurately) will be incorrect & the ultimate inference that her belief accurately reflects what the SUV did (FOC) will also be incorrect g. If we could know w/ absolute certainty that Sally was lying or using the wrong words, or that she misperceived or had forgotten what happened, Sally's eyewitness statement wouldn't be relevant to prove that the gray SUV failed to stop at the red light i. We don't know & can't know these things for sure although we now there are always risks, we assume, on the basis of our common experience, that ppl generally tend to be truthful + accurate in their statements Thus, Sally's statement that the gray SUV ran the red light would be relevant to pedestrian's lawsuit, even though we (or the jury) may ultimately decide that the SUV did not fail to stop 3. The Relevancy of Hearsay a. The very same inferences about Sally's testimonial qualities are necessary if Sally is presented to the jury as a hearsay declarant i. This can be illustrated w/ the example of Jim testifying about S's out-of-court statement to the jury Inferences about S's testimonial qualities are necessary to the relevancy of J's testimony they are the same in form & in basic content - Essentially, then, the content of the jury's inferential reasoning process about the probative value of both of Sally's statements is the same - Moreover, the same risk of error arises from the same 4 testimonial or hearsay dangers b. Although this is the same structure of inferential reasoning that the jury would make if Sally were presented to testify as a witness, why then does the hearsay rule differentiate so sharply btw Sally's statement as a witness & her statement as a hearsay declarant? 4. Hearsay Policy Differentiates Btw Witnesses & Hearsay Declarants a. The most common answer to this question focuses on 3 factors that differentiate witnesses (like Sally speaking in court) from declarants (like Sally speaking out of court) i. 1st, the W in the courtroom is always under oath, thereby theoretically minimizing the likelihood of insincerity, whereas a declarant's out-of-court statement may or may not be made under oath Moreover, the seriousness & formality of the court proceedings may cause W to be particularly careful about properly narrating the event ii. 2nd, the jury is able to observe the demeanor of the in-court W Observing how W responds & reacts to questions, particularly on cross-exam, may give the jurors a somewhat better sense of W's sincerity, narrative ability, perception, and memory than they would get from having the content of the statement related to them by some 3rd person - Opportunity for the trier of fact to assess the credibility of witnesses in person is a principal reason for the deference that appellate courts afford to factual findings at the trial level

iii. 3rd, and most important, the in-court W is subject to cross-examination, which the opponent may use to elicit facts from W that are relevant to all 4 of W's testimonial qualities W's answers, and the behavior of W in responding to questions, may clarify ambiguity, reveal mistakes in narration, reveal weaknesses in perception or memory, and provide info about W's character for truthfulness, W's bias, or W's motive to misrepresent the facts of the case Fear of cross-exam may also motivate witnesses to be truthful & accurate in their testimony b. Opponent's lack of ability to cross-examine a hearsay declarant is primary reason for excluding h/s evid. c. While cross-examination of a hearsay declarant is usually not possible, it's not the only way to expose potential hearsay dangers i. e.g., It may be possible to show w/ other witnesses or exhibits that a hearsay declarant has made inconsistent statements, is biased against 1 of the parties, or has an untruthful character FRE 806 explicitly permits impeachment of hearsay declarants: "When a hearsay statement has been admitted into evidence, the credibility of the declarant may be attacked by any evidence which would be admissible for those purposes if declarant had testified as witness" d. Nevertheless, it's more difficult + burdensome for the opponent to obtain & present impeaching facts about hearsay declarants i. Cross-examination of a live witness does operate as an efficient means of providing relevant info about a witness's testimonial qualities to the jury ii. A proponent could also use hearsay as a strategic choice to keep a less-than-convincing declarant off the witness stand e. Hearsay policy summarized: A witness's oath, demeanor, and cross-examination are thought to reduce testimonial dangers & to make in-court testimony more reliable i. Cross-exam also increases the likelihood that testimonial dangers sincerity, narration-ambiguity, perception, or memory problems will be exposed & evaluated by the jury and it generates info that helps the jury decide whether to rely on a witness's statement Thus, b/c of these differences btw a witness's in-court testimony & declarant's out-of-court statement, hearsay is viewed as less reliable + more difficult for the jury to evaluate - It's excluded in the interest of increasing the accuracy of jury decisionmaking ii. Note: Whenever the relevance of an out-of-court statement requires inferences about all 4 testimonial qualities of the declarant, then the hearsay policy is implicated f. Another argument for excluding hearsay might be that W who's reporting the hearsay statement to the jury while on the stand (like Jim) may have misunderstood what the hearsay declarant (Sally) said, or might even have fabricated the existence of the declarant's statement i. However, all testimony bears some risks of misperception & fabrication we rely on cross-exam to test the sincerity + hearing ability of all witnesses, including Jim

g. Of course, the hearsay rule could operate as a rule of preference i. If a hearsay declarant like Sally is available to testify as a witness, it may be preferable to have her testify at trial Thus, it could be preferable to require the proponent of the hearsay declarant (the pedestrian) to produce that person as a witness instead The opposing party (the SUV driver) might understandably be reluctant to call Sally as a witness if her hearsay has already been admitted, b/c Sally might simply reaffirm & reinforce the substance of the hearsay ii. But what if the hearsay declarant isn't available to testify? Sally may be ill or out of the country if we still want to exclude her hearsay statement, we're not talking about a rule of preference but about whether the jury will hear Sally's info at all - If Sally is unavailable, how critical is it to prove the opportunity for the opponent to crossexamine her? - Should we exclude relevant evidence for the sake of whatever benefit cross-examination might have brought? KEY POINTS 1. Hearsay is a person's statement that's: (a) made at a time other than while the person is testifying at the hearing in which the statement is offered & (b) offered to prove the truth of the matter asserted in the statement 2. A hearsay statement may be oral or it may be written 3. Hearsay policy is to exclude hearsay b/c there's no oath, no observation of demeanor, and no opportunity to cross-examine the hearsay declarant to determine if there are sincerity, narration-ambiguity, perception, or memory problems (the testimonial or hearsay dangers) 4. If an out-of-court statement is offered to prove the sincere belief of the declarant in the matter asserted, and then to prove the accuracy of that belief about an event, then all 4 testimonial qualities of the declarant are involved in the relevancy of the statement & hearsay policy is implicated

C. Elaboration of FRE 801 & 802: Implications of the General Rule of Exclusion 1. Identifying What a Hearsay Statement Is Offered to Prove a. The truth-of-the-matter asserted test of FRE 801(c) requires the identification of the "matter" that an out-of-court statement is offered to prove i. In the hypo, the SUV failing to stop at the red light is the FOC that, for purposes of 801(c), the declarant's utterance is offered to prove This fact must then be connected to an EE in a lawsuit (e.g., driver of the SUV was negligent) - The only remaining inferential task is then to decide whether failing to stop at the red light violated the requisite standard of care & thus satisfies the essential element of negligence b. In many cases, however, several add'l inferences will be necessary for the utterance to be relevant to an essential element of negligence i. e.g., Jim might testify Sally said to him, "I had the green light & was just about to cross Main St. when I saw the gray SUV coming toward me down Main St. It passed in front of me + hit the pedestrian who was also crossing Main St. w/ the green light." (Evidentiary Fact offered into evid.) For this evidence to be relevant, inferences about Sally's testimonial qualities are necessary to prove that Sally's statements that she & the pedestrian had the green light are true - Sally did tell Jim she had the green light (Inferred Fact1) - Sally honestly believed that she had the green light (IF2) - Sally's belief is accurate (IF3) - Sally did have the green light (IF4) Then, further inferences can be made: - 1st, that if Sally & the pedestrian did have the green light, the red light must have been showing for oncoming traffic on Main St. (FOC1) - 2nd, that the SUV thus had the red light (FOC2) - 3rd, that the SUV thus failed to stop at this red light (FOC3) ii. Are Sally's statements to Jim hearsay? YES Clearly they are statements made by a declarant other than while testifying at the trial And they are offered to prove the truth of the matter asserted - You may have said they're not b/c it seems her statements are offered to prove SUV driver failed to stop at red light & S's statement didn't assert this but this isn't a correct analysis - The truth-of-the-matter-asserted test should be applied to the last inference that depends on Sally's testimonial qualities this is FOC1 that Sally did have the green the light o Sally's statement is being offered to prove the truth of this assertion only if FOC1 is true can the conclusion about the driver being negligent be drawn o The truth of FOC1 rests on generalizations about all 4 of S's testimonial qualities thus hearsay policy is implicated o The further inferences that connect S's statements to the EE in the case (driver of SUV was negligent) don't relate to her beliefs & don't require any further reliance on her narrative ability, sincerity, perception, or memory thus they don't implicate h/s policy - Don't be misled into applying 801(c) to the final conclusions that the light for the SUV was red, that the SUV failed to stop at the red light, or that the SUV driver was negligent o Sally's statements are hearsay they are offered to prove the truth of the matters they assert, which is another way to articulate the test of FRE 801(c) c. This same analysis must be made each time you apply the truth-of-the-matter-asserted test of 801(c) i. If an inference that the matters contained in the declarant's assertions are true is req'd for relevance, then the assertions are "offered to prove" those matters, even if those matters are just a necessary step in the chain of reasoning that continues to some further conclusion

2. Testimony by Witnesses About Their Own Out-of-Court Statements May Still Be Hearsay a. FRE 801(b) defines a "declarant" as a person who makes a statement this term is generally used to refer to ppl when they are making statements outside of court b. When ppl make statement to the jury in court, under oath, and subject to cross-examination, they are functioning as witnesses i. When witnesses testify in court about statements that they themselves made outside of court, those out-of-court statements may still be defined as hearsay by FRE 801(c) b/c they are "other than 1 made by the declarant while testifying at the trial or hearing" ii. e.g., In the case of the gray SUV, suppose that Sally testifies as a witness that "right after the accident, I remember telling Jim that the gray SUV ran the red light" Sally is testifying about her own hearsay statement In this circumstance, the hearsay declarant (Sally) is in the courtroom & can be cross-examined - Some commentators have thus argued that if witnesses report their own out-of-court statements, their evidence shouldn't be regarded as hearsay - Others disagree, contending that cross-exam is less valuable when it's conducted long after the statement was made and, if a W's prior statements weren't h/s, witnesses could refer to & rely on their own prior prepared statements in their testimony o This is undesirable b/c W wasn't subject to cross-examination or to the scrutiny of the jury when preparing those statements) c. Under 801(c), prior statements of a W are defined as h/s unless specifically exempted see 801(d)(1) 3. Hearsay, Lay Opinions, and the Firsthand Knowledge Rule a. Relationship btw lay opinion rule (FRE 701), 1st-hand knowledge rule (FRE 602), and the hearsay rule: i. Ellen, a bystander, testifies in the suit btw pedestrian & gray SUV driver that "The gray SUV ignored the red light + hit the pedestrian in the crosswalk" There are 3 possible bases for Ellen's belief: - 1st, she may have observed the entire incident; - 2nd, Sally may have told her what happened; or - 3rd, on the basis of her observation of the position of the car & the pedestrian after the accident, she could have concluded that 's SUV must have run the red light If the 2nd variation were true, Ellen would in effect be relating a hearsay statement she has no 1st-hand knowledge of the event itself In the 3rd variation, Ellen's testimony that ignored the red light would be a lay opinion, based on her 1st-hand knowledge of the position of the car & the person who was hit If she testified about the facts she did observe, instead of just stating her conclusion, the jury might be just as capable as she is to draw the appropriate inference ii. If the opponent is unsure about the basis for Ellen's testimony, the initial objection can always be "lack of 1st-hand knowledge" the objecting att'y should immediately ask the judge to permit inquiry, outside the presence of the jury, into the basis for Ellen's testimony The opponent should ask "how do you know that ignored a red light?" - If this inquiry reveals Ellen's in fact relating hearsay ("Sally told me what happened"), the objecting att'y can then change the objection to hearsay - If the inquiry reveals Ellen's expressing an opinion that's not based on her observation of the accident itself, then objection would be lack of 1st-hand knowledge or lay opinion objection

iii. What's important is for the att'y to make some objection that'll get the judge's attention & permit inquiry, preferably w/out the jury listening, into the basis for the witness's knowledge Once the basis for knowledge is established, it should be relatively easy for the parties to address the question of why the evidence should or shouldn't be admissible 4. Multiple Hearsay a. On some occasions evidence will contain multiple hearsay i. e.g., Consider the pedestrian's attempt to prove that the gray SUV went through a red light by offering a properly authenticated police report that states "Jim reports that 'Sally told me that the gray SUV ran the red light'" Here we have multiple hearsay we care about the sincerity, narration, perception, and memory of the police officer who wrote the report, as well as both Sally & Jim, and none of them is on the witness stand subject to cross-examination when making their statements ii. If called Jim as W to testify from memory about what Sally said, we'd have single hearsay iii. If called police officer to as W to testify about what Jim said, we'd still have double hearsay Sally is a declarant b/c the letter continues to be offered for the truth of what Sally said In addition, Jim is still a declarant as well b. In multiple hearsay situations, the evidence will be inadmissible unless there's a hearsay exception or exemption for each layer of hearsay i. FRE 805 provides that "hearsay included w/in hearsay isn't excluded under the hearsay rule if each part of the combined statements conforms w/ an exception to the h/s rule provided in these rules" KEY POINTS 1. If a statement made outside of court is offered to prove the truth of what it asserts, it's defined as hearsay even though the declarant is the witness who is testifying about the statement 2. A hearsay objection is appropriate after determining that a witness doesn't have 1st-hand knowledge of the events testified to, but is relying on what others have said 3. Some hearsay statements include add'l hearsay w/in them in such cases of multiple hearsay, each hearsay component must be admissible for through an exception or exemption

D. Interpretation & Illustration of FRE 801(c): Non-hearsay Statements w/ No Hearsay Dangers

Not all out-of-court statements are hearsay a critical aspect of the definition of h/s is that, under the

proponent's relevance theory, the statements are offered to prove the truth of the matters they assert
o Many out-of-court

statements aren't offered for this relevance theory they're offered for a non-h/s use

1. Non-hearsay Uses
In the gray SUV & pedestrian hypo, Sally testified about an event she witnessed: "In the morning, just

before the accident, when I was getting gas, I heard Mike, a mechanic, say to who was driving a gray SUV, 'Your brakes are in bad shape. It would be dangerous for you to drive that SUV.'"
o Is

Mike's statement hearsay? relevance theory of proving the truth of the matter Mike is asserting? - The proponent of Sally's testimony, , might argue that: "We're not offering this evid. to prove the truth of the matter asserted by the mechanic that the brakes were in fact bad. Rather, we're offering the evid. to prove only that the mechanic spoke those words. This is relevant to show that had notice of the dangerous condition of his brakes before he got into his car & drove through the red light. 1 of the things we must prove to prove our claim of negligence is that either knew or should've known about the dangerous condition of his brakes. This out-of-court statement is relevant to show he did have such knowledge."

It's a statement made by a declarant who's not testifying at trial, but is it offered to for the

o The trial

judge should overrule the hearsay objection

Sally's testimony tends to prove that Mike's statement was made, and Mike's statement is relevant

for the "non-hearsay" use of "notice" it tends to prove that the driver heard these words & knew his brakes were bad, a FOC in the case
In terms of FRE 801(c), the proponent isn't offering Mike's statement to prove that the matters

asserted are true - The proponent isn't offering Mike's statement to prove that the brakes were bad indeed, it's not being offer to prove anything about the declarant's belief
Relevancy doesn't depend on what belief was in the mind of the declarant, or on whether that

belief was accurate & correspond to some to some event in the real world - i.e., Relevance doesn't depend on Mike's memory, perception, sincerity, or narration thus, hearsay policy isn't implicated - There's no need to be concerned about the lack of oath, demeanor, and cross-exam of Mike

a. Effect on the Listener i. In sum, the proponent of Mike's statement is offering it for the relevant non-hearsay use of showing its effect on the listener Given the warning, the SUV driver had notice & thus had the opportunity to respond How the warning affected him his conduct in responding to it is relevant to whether he breached a requisite duty of care, which is an essential element of a negligence case - None of the inferences req'd for relevance depends on Mike's testimonial qualities EF: Sally testifies she heard Mike tell a gray SUV driver, "Your brakes are in bad shape" IF1: Mike did say to the driver of the gray SUV, "Your brakes are in bad shape" FOC1: Driver heard Mike's statement FOC2: Driver disregarded the statement & continued to drive the gray SUV FOC3: Driver failed to stop at the red light b/c the SUV's brakes failed EE: Driver was negligent in failing to exercise reasonable care after being warned We do care about IF1 whether Mike spoke any words at all (is S lying?), whether S heard the words correctly, and whether, at the time she testifies, S remembers accurately what was said - But Sally is a W, making her statements in court, under oath, and can be cross-examined on all these points In his own defense, the SUV driver may claim he didn't hear Mike's statement, or that it was reasonable for him to disregard what the mechanic said e.g., Mike may have "winked" when he made the statement, or Mike frequently gave such a warning as a joke But the proponent's theory of relevance that the driver was unreasonable in disregarding Mike's warning depends on Mike's apparent sincerity, not on Mike's actual sincerity - Thus, we also care about whether Mike's words were spoke loudly enough for the driver to hear, and whether the words were spoken in apparent seriousness or in a joking manner - The proponent can deal w/ these concerns through the direct examination of Sally o Mike's no more likely to remember what he said, and how loudly he spoke, than Sally is o Indeed, anybody who heard the warning can testify about the loudness of the warning & the apparent sincerity w/ which it was given ii. Out-of-court statements offered to prove their effect on the listener are relevant in many different kinds of cases Liability under the substantive law of torts & crimes often turns on the reasonableness of a listener's response to warnings, notices, instructions, and threats - In a civil rights action for an unwarranted shooting by police, brought against the officers & their supervisors, prior complaints charging abuse by 1 of the officers weren't hearsay b/c they were offered to show the failure of the supervisors to respond to the prior complaints The effect of a statement can also be to create a specific statement of mind, such as knowledge, duress, good faith, provocation, or reasonable apprehension of bodily harm - This state of mind may be an essential element in a civil or criminal case w o Whether a police officer acted / "probable cause" in making an arrest may be determined by what the officer was told the arrested person was doing o Reports of "homosexual violence" among prison inmates to prison officials are relevant to prove the officials' "deliberate indifference" state of mind req'd in a civil rights suit o Letters & reports received by an ins. company indicating the negligent maintenance caused a ship's sinking weren't hearsay they were offered to prove that the ins. company wasn't in bad faith when it rejected the claim for the ship Finally, statements made to a listener can provide a motive for conduct, and thus are relevant to explain the listener's subsequent behavior

b. Legally Operative Facts i. Another relevant non-hearsay use for an out-of-court statement is when the statement is itself a legally operative fact e.g., Pat says to Sara outside of court, "I offer to sell you my 5-yr old horse for $500" - To prove the age of the horse, Pat's statement to Sara is hearsay - In an action to establish that there was an offer for the sale of the horse, Sara or Pat or anyone else who heard the words could testify to what Pat said o Under substantive law of Ks, the words are themselves the event to be proved the offer o Anyone who heard Pat's statement can testify that it was made, just as any eyewitness to a car accident could testify to the event that the gray SUV ran a red light - Such utterances don't make truth claims and thus not w/in scope of the hearsay rule b/c none of the inferences req'd for relevance depend on Pat's testimonial qualities o No memory or perception danger exists b/c Pat's not relating some fact he has observed o Moreover, under the objective theory of Ks, there's no sincerity or narration-ambiguity danger, for we don't have to make any inference that Pat is sincere - Proponent's theory of relevance is that Pat said the words in an apparent manner such that the offeree might reasonably be expected to take it seriously (this would be valid offer) o And whether the words were spoken in an apparently serious manner is something about which anyone who heard the words can testify & be fully cross-examined - Pat's subjective intent or understanding may be relevant to the issue of mutual mistake, which Pat may raise as a defense but mistake only becomes an issue once there has been an offer & an acceptance o Therefore to prove the offer, Pat's statement is non-hearsay ii. Many different kinds of statements are legally operative facts b/c principles of substantive law give them immediate legal significance Some statements are acts done w/ words that give rise to civil obligations or consequences acknowledging debts, words of defamation or slander And some words are criminal acts perjury, extortionate threats, offers to sell drugs, statements forming a conspiracy - e.g., In a bank fraud case, testified about what he had said to gov't investigators this wasn't hearsay, but rather offered to show he didn't make the false statement as charged Sometimes verbal statements have immediate legal significance when they also accompany nonverbal acts - If info about the context w/in which such statements were made is necessary, it can be supplied by anyone who was there cross-exam of declarant isn't necessary to supply it

c. Identifying Non-hearsay Uses i. A proponent's stock response to a hearsay objection in court is "not offered for its truth" But, proponent should be able to articulate the non-hearsay theory of relevance e.g., that the statement is offered to prove an effect on the listener (regardless of its truth) & that this effect on the listener is a FOC in the case - Should also be able to explain why exclusion of the statement isn't appropriate i.e., why hearsay policy is not implicated The critical step in this process is to show that the evidence is relevant w/out reliance on the declarant's testimonial qualities ii. List of non-hearsay uses for out-of-court statements include (but not limited to): Statements relevant for their effect on the listener Statements that are legally operative facts ("verbal acts") Prior inconsistent statements offered to impeach witnesses Statements offered as circumstantial evidence of the declarant's state of mind iii. The key to understanding non-hearsay is to focus on the inferences necessary to the relevance of the out-of-court statement 2. Statements Relevant for Both Non-hearsay & Hearsay Uses Sally's testimony about what Mike the mechanic said to the gray SUV driver could also be relevant to prove that the brakes on the SUV were in fact bad a. If offered for this purpose, the evidence is clearly hearsay b/c relevance now depends on the mechanic's sincerity, narration, perception, and memory b. Assume that no hearsay exception applies to the mechanic's utterance i. The fact that the mechanic's statement would be excluded as hearsay for the purpose of proving that the brakes were bad creates a situation that frequently arises: A particular piece of evidence is admissible for 1 purpose (to prove notice), but inadmissible for another (to prove the brakes were bad) ii. The question of admissibilityis thus 1 of discretionary balancing for trial judge under FRE 403 In this situation, the risk of unfair prejudice is that the jury, even after being given limiting instructions, will use the evid. for its improper hearsay purpose (i.e., to prove bad brakes) Is the probative value of the evidence for the admissible purpose (i.e., notice) substantially outweighed by the danger of unfair prejudice? - Probative value is affected by whether there are alternative means to prove notice o If there aren't, the probative value of Mike's warning will be very high o And in many cases, other evidence to prove the truth of the content of the statement being offered to show notice that the SUV's brakes were bad will already have been admitted this diminishes the risk of unfair prejudice iii. The Rule 403 decision is made w/in these contextual facts of the specific case

KEY POINT 1. When an out-of-court statement is offered to prove its effect on the listener, or some legally operative fact, or some other matter where relevance doesn't depend on inferences about the accuracy of the declarant's belief about an event, the statement isn't hearsay a. It's not offered for the truth of the matter it asserts

E. Interpretation & Illustration of FRE 801(a)(2): Nonverbal Conduct 1. The Relevancy of Nonverbal Conduct a. In some instances hearsay is completely nonverbal e.g., police officer's testimony offered in a battery prosecution: "When I arrived at the bar that was the scene of the fight, I asked who threw the 1st punch. 1 of the women (Sue) who was present pointed to Jim Harris, , who was wearing a red shirt." i. This testimony is relevant b/c, as shown by her nonverbal conduct, Sue appears to believe that Harris threw the 1st punch EF: Officer testifies, "I asked, 'Who threw the 1st punch' and I saw the woman point at " IF1: Sue did point at IF2: Sue's pointing means that she thinks that threw the 1st punch IF3: Sue honestly believes that threw the 1st punch IF4: Sue perceived the event accurately IF5: Sue remembered the event accurately IF6: Sue's belief was accurate FOC: did throw the 1st punch EE: committed a battery ii. This theory of relevance depends on inferences about the testimonial qualities of the police officer, who's a witness, and of Sue The inference from the Sue's conduct (IF1) & the inference from her belief to the occurrence of the event at issue (FOC) show that all of the hearsay dangers are present - Sue may have been falsely representing her belief to get Harris in trouble (sincerity risk) - The arm movement may have been an involuntary tic that wasn't intended to express the intent that it appears to express (ambiguity risk) - Sue many not have seen clearly who threw the 1st punch (perception risk) - Sue may have forgotten who threw the 1st punch by the time the officer asked (memory risk) Indeed, in terms of the inferential process involved in using this evidence to prove that Harris threw the 1st punch, there's no pertinent difference btw the intentional pointing & a verbal response that indentifies Harris (e.g., "It was Jim Harris" or "It was the man in the red shirt")

2. Application of FRE 801(a)(2)

FRE 801(a) defines a "statement" as "(1) an oral or written assertion or (2) nonverbal conduct of a

person, if it's intended by the person as an assertion"

o Applying this

definition to the bar fight hypo raises a preliminary question of fact: Did Sue intend her nonverbal conduct (pointing) to be an assertion that Jim threw the 1st punch? If Sue did so intend, her act of pointing i.e., assertive conduct will be found to be a "statement" & will be excluded as hearsay If she didn't so intend, her act i.e., nonassertive conduct may be admitted b/c it's not a "statement" & thus not hearsay

a. Assertive Conduct i. Sometimes conduct is intentionally used by the actor as a substitute for words i.e., the actor wants to communicate a belief & uses conduct to do so Examples: - By raising your hand in class, you communicate "I want to speak" - By shaking your head side to side when asked a ?, you communicate your answer is "no" Both of these actions would usually be intended by the actor to be assertions of what the actor is thinking if they are so intended, then such conduct is clearly the equivalent of words, assertive in nature, and is to be regarded as a statement - Act of pointing typically found to be intended as the equivalent of words, and thus hearsay b. Nonassertive Conduct i. Sometimes conduct isn't intended by the actor as an assertion what if Sue didn't point at Jim, but instead carefully maneuvered Jim to the back door of the bar & gave him a push out the door If the police officer saw her do this & arrested Jim, would the officer's testimony as to what Sue did be relevant in the batter prosecution? Would it be hearsay? - It can be inferred from her conduct that Sue believed started the fight, that her belief was accurate, and that Jim did in fact start the fight - But unlike the act of pointing, the act of carefully pushing Jim out the back door may not be intended by Sue to assert her belief in Jim's guilt she may be trying to protect Jim, and the last thing she wants is for the police officer to arrest him o If she didn't intend to communicate her belief, then her conduct is nonassertive and, under the definition of FRE 801(a)(2), wouldn't be a "statement" & thus wouldn't be h/s However, you can see that the relevance of Sue's conduct, even if it's nonassertive, depends on inferences about all of her testimonial qualities - If any of these inferences are false, Sue's conduct isn't relevant to prove Jim started the fight o S may actually think J didn't start the fight but wants police to think he did (sincerity risk) o She may want him to leave the bar for other reasons, such as that he has illegal drugs in his possession (ambiguity risk) w st o She may have confused Jim / another man wearing a red shirt who actually threw the 1 punch (perception risk) o She may have forgotten what she actually saw (memory risk) - These are the same risks previously identified w/ regard to Sue pointing at Jim and if Sue shouted "Jim Harris" in response to the officer's question, the same risks would be present

c. FRE 801(a)(2)'s Intent Test i. FRE 801(a)(2) creates a doctrinal test for determining whether any particular item of nonverbal conduct evidence is or isn't hearsay Nonverbal conduct intended as an assertion is hearsay Nonverbal conduct not intended as an assertion isn't hearsay ii. This test thus involves a preliminary question of fact: Was the actor's nonverbal conduct intended as an assertion? This preliminary question will be decided on the basis of the nature of the conduct and the circumstances surrounding it as presented by both parties - There will be some close cases, and there may be situations in which conduct that's normally nonassertive is in fact intended to be asserted o e.g., If Sue pushing Jim Harris out of the back door made a lot of noise & called attention to the conduct, these contextual facts could generate the inference that she was intending to communicate her belief in Jim's guilt to the police officer iii. FRE 104(a) governs the preliminary factfinding that's necessary to judge's application 801(a)(2)'s interest test i.e., the question of "intent" is governed by FRE 104(a) Preliminary questions of fact are for the judge under FRE 104(a), unless they are necessary to the relevance of the offered evidence - In the hypos just discussed, Sue's intent to use her conduct to assert Jim's guilt isn't necessary to the relevance of that conduct o Relevance of her conduct does depend on her belief about who started the fight but that she intends to assert that belief isn't necessary to relevance Under FRE 104(a), the judge must be persuaded by a preponderance of the evidence on the question of intent - FRE 801 places the burden upon the party claiming that the intention existed ambiguous and doubtful cases will be resolved against him & in favor of admissibility

F. Elaboration of FRE 801(a)(2): Justification for the Distinction Btw Assertive & Nonassertive Conduct
Since the relevance of both Sue pointing & Sue pushing Jim out the back door depends on the accuracy of

her belief + requires inferences about her testimonial qualities, both kinds of conduct implicate hearsay policy o Yet only the assertive conduct of Sue pointing is defined as hearsay, while the nonassertive conduct of pushing Jim isn't hearsay under FRE 801(a)(2)'s definition why? 1. Absence of Hearsay Danger a. Nonassertive conduct shouldn't be defined as hearsay b/c of the probable absence of any sincerity danger if an actor has a belief about a disputed fact that Jim threw the 1st punch but isn't intending to assert or to communicate that belief, then the actor can't be "lying" about it i. A person can be insincere can tell a lie only if the person is intending to communicate a particular fact that would be the subject of the lie w/out the intent to assert that fact, there's no opportunity to fabricate it b. The testimonial qualities other than sincerity also don't present a high risk: "Admittedly nonassertive conduct is untested w/ respect to perception, memory, and narration (or their equivalents) of the actor, but the Committee's of the view that these dangers are minimal in the absence of an intent to assert" i. There seems to be nothing inherent in nonassertive conduct that tends to reduce or eliminate the other hearsay dangers Anything about Sue's conduct in pushing Jim out the door that reduces danger of ambiguity (she was worried about illegal drugs) or perception (she confused Jim w/ another man in a red shirt)? ii. The Advisory Note indicates that the actor's motivation to be accurate & the need to rely on the actor's own conduct can reduce the degree of perception + memory dangers But these factors aren't built into FRE 801(a), and Sue's conduct in pushing Jim could be admitted as not hearsay w/out any reduction in the perception or memory danger involved c. Thus you should ask yourself whether the probable absence of just 1 hearsay danger (sincerity) is sufficient justification for removing nonassertive conduct from the definition of hearsay altogether i. w/ respect to the hearsay exceptions, the probable absence of 1 or more of the hearsay dangers is a principal justification for many of them 2. Necessity a. In general, excluding relevant evid. b/c of some hearsay dangers may be too great a price to pay when it's very burdensome or perhaps impossible to obtain other, "better" evid. on the same point thus "necessity" is a reason for many of the exceptions to the hearsay rule i. The concern about nonassertive conduct is that it's so pervasive & so often relied on as a matter of course in our everyday lives that we'd be giving up too much relevant evidence by classifying such conduct as hearsay Examples: - If we look out the window & see ppl wearing heavy overcoats, we assume it's cold outside - If we see ppl begin to pick up their umbrellas, we assume they believe it's begun to rain - If a northbound vehicle proceeds through an intersection w/ a traffic light, we assume the driver thinks the light is green for that vehicle - If a shopkeeper repairs a loose board in the threshold to a shop after someone has tripped on it, we assume the shopkeeper thinks the loose board was dangerous In these situations, the individual actors have beliefs about events or conditions that motivate their conduct but they're probably not intending to assert the belief that it's cold, that the light is green, that it's raining, or that the loose board is dangerous - Their conduct wouldn't be defined as hearsay under FRE 801(a)

b. Another variation of the necessity argument for treating nonassertive conduct as not hearsay is that attorneys aren't immediately sensitive to the hearsay characteristics of such evidence i. If a rule treating nonassertive conduct as hearsay would be only sporadically applied, the rule arguably ought not to exist at all 3. Should Nonassertive Conduct Be Excluded from the Definition of Hearsay? a. The Difficulty of Accurate Classification i. 1 concern relates to the task of classifying conduct as assertive or nonassertive The judicial task of determining under FRE 801(a) whether conduct is intended as an assertion isn't easy, and inevitably entails the risk that the wrong decision will be made, either b/c: 1. The actor has cleverly disguised an assertion (e.g., Sue is trying to communicate that Jim is guilty by pushing out the door when she knows he's not), 2. Insufficient evidence of intent is available, or 3. The court misapplies the concept of intent to assert Even if judges reach the correct result most of the time, considerable time + effort is spent arguing & deciding the question of intent b. The Danger of Ambiguity i. A 2nd, perhaps greater, concern is that significant h/s dangers are still attached to such conduct Nonassertiveness of conduct, if a correct decision is made on the intent issue, eliminates danger of insincerity lack of intent to assert, however, inevitably increases the ambiguity danger - Conduct that the actor doesn't intend to use as an assertion of belief may be difficult to interpret, and the factfinder may attribute a belief to the actor that he doesn't in fact hold o Sue may have other reasons for pushing Jim out the back door o A driver going thru an intersection is unlikely to be intending to assert the light's green, but it may also be wrong to infer that he believes the light is green he may know the light is red, but b/c of some emergency he feels compelled to ignore the red light - A substantial ambiguity problem means the conduct has low probative value to prove the specific belief for which it's offered at some point the conduct may be so ambiguous, and the probative value so low, that a court could rely on FRE 403 to exclude the evidence - Moreover, if the driver of the northbound car is colorblind, the driver may have incorrectly perceived the color of the stop light o And there's nothing about all nonassertive conduct that tends to minimize perception or memory problems

c. Is Cross-examination Important for Evaluating Nonassertive Conduct? i. The principal impact of the rule excluding hearsay is to require the presentation of witnesses, subject to oath, demeanor, and cross-examination Examples: - If testimony about Sue pointing is hearsay, the proponent must produce Sue as a W (unless her conduct falls w/in a hearsay exception or exemption) - If testimony about her pushing Jim out the door isn't hearsay, she need not be called as a W How important would cross-examination be in either case? - Cross-examination might uncover some risk of insincerity and, specific info about Sue's belief would obviously reduce the ambiguity risk - Moreover, it's thought that cross-exam is most effective in exposing perception & memory problems, neither of which is minimized by the fact that out-of-court conduct is nonassertive ii. Thus, the usefulness of cross-examination of the actor may argue for defining nonassertive conduct as hearsay, which would require the proponent to bring the actor into court to testify iii. On the other hand, numerous h/s exceptions permit admission of statements (w/out cross-exam of the declarant) that may also contain serious perception or memory problems The ambiguity danger can be pointed out by the att'y for the opponent in closing argument to suggest that the nonassertive conduct isn't probative - This isn't as good as knowing for sure what belief motivated the conduct, but at least atty's argument can provide other plausible explanations for conduct w/ which the jury can grapple iv. There's a middle ground btw defining all nonassertive conduct as hearsay, thus excluding it wholesale, and FRE 801(a)(2)'s position of allowing it to be admitted wholesale It would be possible to define hearsay as including both assertive & nonassertive conduct, to create a hearsay exception for nonassertive conduct, and to condition the applicability of that exception on the unavailability of the actor - Or the exception could be conditioned on a case-by-case showing of the kind of motivation or reliance by the actor that minimizes perception & memory problems 4. Disguised Assertions a. Sometimes evidence that appears to be nonassertive conduct is in fact relevant only b/c of underlying assertive behavior of particular persons i. e.g., When a judgment of conviction for a crime is used to prove that did do the illegal act The conviction is relevant b/c it's evid. that 12 jurors voted or 1 judge decided did do the act - Such conduct clearly is intended to assert that belief - b/c the jury's vote may not appear on the face of the judgment of conviction itself, it's called a disguised assertion ii. Convictions are uniformly classified as hearsay Locating the hidden declarant (the jury) who's making the disguised assertion (the verdict of guilt) depends on your identification of the inference of belief that's necessary for the relevance of the offered item of evidence

b. Consider evidence that Ron was arrested (not convicted) for robbery is the arrest hearsay, if used to prove that Ron actually the illegal act? i. The answer depends on whether the arrest is assertive or nonassertive conduct of the hidden declarants, the officers who arrested Ron there are several ways to analyze this problem: The officers may have been making the arrest b/c they observed Ron in the act & thus believed that he did commit the robbery - If so, it's appropriate to regard their conduct as their intended assertion of that belief Alternatively, the officers may have been executing a warrant or acting in response to a victim's accusation - They have no 1st-hand knowledge of Ron's behavior & may not be intending to assert their belief about his criminal activity - But even if this is so, officers are making the arrest only b/c another hidden declarant e.g., the person who signed the complaint or officer who signed the affidavit accompanying a warrant application did make a specific assertion of belief that Ron committed robbery o The apparently nonassertive arrest is occurring only b/c of, and is relevant only b/c of, this disguised assertion of belief in Ron's guilt the factual proposition that the evidence is being offered to prove - The evidence, therefore, should be regarded as hearsay c. Consider also testimony that John's driver's license was revoked, which is offered to prove that John engaged in unsafe driving i. It may well be that the hidden declarant, the person who generated the paperwork that officially revoked John's license, was acting in a bureaucratic manner & wasn't intending to assert anything about how John drove Nonetheless, the revocation is occurring only b/c somebody presumably the judge who found John guilty of a traffic offense asserted that John had engaged in some illegal driving activity d. The characterization of the arrest & revocation evidence as assertive is either a minority position or a refinement that most discussions of nonassertive activity don't bother to make i. McCormick's classification of nonassertive conduct: The revocation evidence The payment by underwriters of the amnt of an ins. policy offered to prove that a ship was lost Conduct that leads to the institutionalization of a patient ii. Morgan, conversely, characterizes the institutionalization evid. & the revocation evid. as assertive KEY POINTS 1. Evid. of nonverbal conduct is sometimes offered to prove the accuracy of the actor's beliefs about events a. If the actor is intending to communicate that belief through conduct, then the evidence is defined as hearsay the actor's testimonial qualities of sincerity, perception, and memory are involved in the relevancy of the conduct b. If the actor isn't intending to communicate belief, then the evid. is defined as not h/s & is admitted to prove the truth of that belief, even though the actor's testimonial qualities of perception + memory are still involved 2. Question of the actor's intent is a preliminary question of fact for judge to decide pursuant to FRE 104(a) a. The burden to persuade the judge on the question of intent is on the opponent who's objecting to the admission of the actor's conduct as hearsay

II. A GENERAL APPROACH TO THE ADMISSION OF H/S UNDER THE EXEMPTIONS & EXCEPTIONS
Many out-of-court statements are admitted into evidence to prove the truth of the matters they assert
o FRE o FRE

801(d) exempts 8 types of out-of-court statements from the definition of hearsay 803, 804, and 807 create 29 explicit exceptions to FRE 802's rule of exclusion

In terms of the process by which judges admit these various statements, there's no difference btw an FRE 801(d)

hearsay exemption & an FRE 803, FRE 804, or FRE 807 hearsay exception A. Justification for the Exemptions & Exceptions 1. There are differences, however, in the justifications for admitting the various types of hearsay statements a. Primary rationale for exemptions to admit h/s statements is the possibility for cross-examining declarant i. Under 801(d)(1), which admits some prior statements of a W, there's an opportunity for delayed cross-examination of declarant-witness at the trial or hearing at which the prior statement is offered ii. In the case of admissions of a party opponent, under 801(d)(2)(A), the party can take the stand & be subjected to direct + cross-examination iii. The cross-examination rationale for the exemptions, however, has limits: Only some prior statements of a witness fall w/in FRE 801 And, a party may not be able to take the witness stand & explain fully any prior statement made by a loosely affiliated person admitted against the party under FRE 801(d)(2) b. Most hearsay exceptions admitted under FRE 803, 804, and 807 are justified by the presence of circumstances that tend to minimize 1 or more of the hearsay dangers i. Thus these statements may be more "trustworthy" than other hearsay & there is, in theory, less reason for concern about the absence of cross-examination B. The Categorical Approach 1. FRE 801(d), FRE 803, and FRE 804 all apply a categorical approach to the admission of hearsay a. Categorical approach = the rules establish specific categories of out-of-statements that can be admitted for their truth i. These categories are sometimes defined by: Who the declarant is The content of the statement The circumstances in which the statement is made 2. FRE 807 applies a non-categorical "trustworthiness" approach

C. The Process of Admission Typical process of admission under FRE 801(d), FRE 803, FRE 804: 1. A proponent usually offers to prove a declarant's out-of-court statement through the testimony of a witness who overheard it or through an exhibit that contains it e.g., a document in which the statement is written or a tape of some other recording of it 2. The opponent usually objects on grounds of hearsay 3. To rule on this objection, the judge must decide whether the statement is hearsay under FRE 801(a)-(c) a. If it is, then judge decides whether it fits w/in the categorical terms of a specific exemption or exception b. Burden is on proponent of the statement to produce found'l evid. typically evid. of who the declarant is, what the content of the statement is, or the out-of-court circumstances in which the h/s statement was made that satisfies the categorical terms of the specific exemption or exception aimed for i. From the text of a categorical hearsay exemption or exception, you can analyze the doctrinal terms of the category that it establishes these doctrinal terms tell you what found'l evid. needs to be produced if the proponent is to secure the admission of a hearsay statement D. The Foundational Requirements 1. This found'l evidence is called foundation facts a. Proponent of an exhibit must produce foundation facts that satisfy the standard for authentication & identification set by FRE 901(a) b. In the same way, under FRE 801(d), FRE 803, and FRE 804, proponent must produce foundation facts that satisfy the standards set by the categorical subsections of those rules i. Typically this will mean that the proponent must produce a witness who can testify about these foundation facts this witness is called a foundation witness 2. Found'l requirements for FRE 801(d)(1)(A): a. The statement was made by a declarant who is now testifying in court as a witness; b. The declarant is subject to cross-examination concerning the statement; c. The contents of the statement are inconsistent w/ testimony given at trial; d. The statement was made under oath subject to the penalty of perjury; and e. The statement was made at a trial, hearing, other proceeding, or in a deposition

3. Example: a. A witness, Joe, testifies in court & identifies Sam (), as the perpetrator of a crime or tort b. At a lineup held at a police station just a few days after the crime or accident, Joe made a statement that the perpetrator was Peter, not Sam i. Sam () wants to offer this prior statement into evidence to prove that he was not the perpetrator ii. Can Joe's prior statement be admitted for the truth of the matter it asserts? Yes, if it fits w/in a categorical exemption or exception c. Focusing for now just on the 4th requirement of FRE 801(d)(1)(A), the proponent will have to produce found'l evidence as to whether the statement was made under oath i. A foundation witness who can present foundation facts about the oath might be: Joe himself; The police officer at the line; or Anyone else who observed Joe & who could say, "Joe took the oath + made the statement" ii. After hearing this found'l testimony, judge decides whether the categorical requirement has been satisfied this is a preliminary question that's necessary to the application of an evidence rule As a general principle, FRE 104(a) applies unless the facts listed above as found'l requirements Preliminary are necessary to the out-of-court statement's relevancy questions governed by - Here, they are not FRE 104 o Joe's prior statement would be relevant to prove that Sam was not the perpetrator whether or not it was under oath - Thus the judge would have to be persuaded by a preponderance of the evidence, pursuant to FRE 104(a), that the found'l requirement was satisfied o This is the proponent's burden, and it's the key to the admission of hearsay E. Multiple Exemptions & Exceptions May Apply 1. An out-of-ct statement may sometimes be admissible pursuant to more than 1 hearsay exemption/exception a. Examples: i. Deposition testimony given by a party who's now testifying as a W could be admissible against the party as an admission [801(d)(2)(A)], or as a prior inconsistent statement under oath [801(d)(1)(A)] ii. A statement may be both a present sense impression [803(1)] & an excited utterance [803(2)] iii. A document may qualify for admission as a public record [803(8)] & as a business record [803(6)] 2. When this is the case, it's sufficient to overcome a hearsay objection to show that the evidence falls w/in 1 exemption or exception 3. Similarly, except in 1 context (????), the fact that evidence does not quite fit w/in a particular exemption or exception doesn't prevent its admission under a different 1 F. The Confrontation Clause 1. In criminal prosecutions, s have a right to be confronted w/ the witnesses against them, which is protected by the 6th Amendment a. This right means testimonial hearsay statements may not be used by the prosecution in criminal trials i. Crawford affects some, but not all, of the hearsay exceptions, and there are also exceptions to its prohibition, including that the declarant is testifying as a witness at the trial or that has had a previous opportunity to cross-examine the declarant, who's now unavailable 2. Some of the hearsay statements that you will find to be admissible under a hearsay exemption or exception must still be tested under the interpretation of the Confrontation Clause in Crawford as well

III. HEARSAY EXEMPTIONS

FRE 801(d) exempts certain types of out-of-court statements from the definition of hearsay these statements

are admissible to prove the truth of the matters they assert, assuming that they are otherwise unobjectionable
o 801(d)(1) o 801(d)(2)

exempts certain kinds of statements previously made out of court by a testifying witness

exempts out-of-court statements made by a party or by persons affiliated w/ a party, so long as the statements are offered against that party

A. FRE 801(d)(1) & (2)

Rule 801 Definitions
(d) Statements which are not hearsay. A statement isn't hearsay if (1) Prior statement by witness. The declarant testifies at trial or hearing & is subject to cross-examination concerning the statement, and the statement is (A) inconsistent w/ the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition, or (B) consistent w / the declarant's testimony & is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motion, or (C) 1 of identification of a person made after perceiving the person; or (2) Admission by party opponent. The statement is offered against a party & is (A) the party's own statement, in either an individual or representative capacity.

B. Interpretation & Illustration of FRE 801(d)(1): The Testifying Witness Must Be "Subject to Cross-examination Concerning the Statement"
FRE 801(d)(1) admits statements made outside of court by a person who's testifying as a witness at trial
o
w

/ the declarant-witness in court, subject to cross-examination, you might think that all of that witness's out-of-court statements should be admitted as exempt from the hearsay rule of exclusion this is not the case, however, as the rule admits only 3 categories of prior statement 2 basic requirements that apply to all 3 categories: (1) The out-of-court declarant is testifying at trial; and (2) The declarant is subject to cross-examination concerning the statement

Example: Joe is an eyewitness to a crime or accident & he testifies in a criminal or civil case brought against

Sam, the alleged wrongdoer

o At

trial, Joe identifies Sam as the wrongdoer

o Just

a few days after the incident Joe had been brought to a police lineup that included Sam in it after viewing the lineup Joe identified Peter, not Sam, as the perpetrator Sam would like to offer evidence of this prior statement in his own defense would it be admissible under FRE 801(d)(1)(A), or (B), or (C)? - The judge would 1st determine whether Joe was the "declarant" + "is subject to cross-examination (by Sam's opponent) concerning the statement" - Then the judge would determine whether Joe's prior statement fits w/in the specific categories of (A), (B), or (C)

1. Preliminary Factfinding a. The Declarant Is Testifying at Trial i. 1st found'l requirement: The person testifying Joe be identified as the same person Joe who made the out-of-court statement The proponent of Joe's hearsay statement can fulfill this requirement through Joe's own acknowledgement that he made the out-of-court statement, or through the testimony of another witness who can say that the witness Joe was the out-of-court speaker b. Examination Concerning the Statement i. Then the judge must determine that Joe is subject to cross-examination concerning the statement The opponent's opportunity to cross-examine the declarant-witness is the principal justification for admitting FRE 801(d)(1) statements Although the rule speaks in terms of cross-exam only, it means redirect examination as well - Thus, either party may introduce a prior statement of a witness o If the proponent presents W's prior statement during direct, W must then be subject to cross-examination about it by the opponent w st o However, if W is presented / the prior statement for the 1 time by the cross-examiner, then it's the direct-examiner (the orig'l proponent of W) who must now have the opportunity to re-examine W on redirect - Prior statements can also be admitted after W has testified, thru the testimony of a 3rd person o The declarant-witness must still be available in court or subject to recall by the opposing party to satisfy the requirement of cross-examination concerning the statement, if W wasn't asked about it during the orig'l cross-examination ii. b/c the declarant-witness's prior statement is now being offered for its truth, the opponent of the statement will want to cross-examine the declarant-witness concerning the statement to expose reasons why it shouldn't be relied on by the jury If the declarant-witness remembers both making the prior statement & the events that are the subject of the statement, the cross-examiner can elicit info pertinent to evaluating the declarantwitness's testimonial qualities at the time the statement was made - If the declarant-witness denies the truth of the prior statement, or attempts to explain it, the jury will decide what weight to give it - If W adopts as true the contents of a prior inconsistent statement, there's then no hearsay problem b/c the adopted inconsistency corrects & becomes a part of W's in-court testimony o But "adoption" of a prior consistent statement doesn't eliminate the hearsay problem c. Denial of, or Inability to Remember, the Prior Statement i. What if the witness denies making or can't remember making the prior statement? If prior statement is an authenticated writing or recording, there may be little doubt it was made If prior statement wasn't recorded, then it will be the subject of testimony from someone who was present at the time e.g., the officer who was w/ Joe at the police lineup when Joe identified Peter & not Sam - At trial, if Joe denies making the prior inconsistent identification, should Joe still be considered to be a witness subject to cross-examination concerning the statement? o How would you cross-examine him? o There's likely to be nothing more than a swearing contest btw 2 witnesses (e.g., Joe & the police officer) about whether the statement was made

d. Inability to Remember the Underlying Events i. W may also be unable to remember the underlying event that's the subject of the statement should the witness be considered to be a witness subject to cross-examination concerning the statement, in fulfillment of FRE 801(d)(1)? Ordinarily a witness is regarded as "subject to cross-examination" when he's placed on the stand, under oath, and responds willingly to questions - Assertions of privilege by W may undermine the process to such a degree that meaningful cross-examination w/in the intent of the rule no longer exists o e.g., W may assert a privilege or refuse to respond these possibilities may make an individual not subject to cross-examination for purposes of FRE 801(d)(1)(C) - But that effect isn't produced by W's assertion of memory loss which is often the very result sought to be produced by cross-examination, and can be effective in destroying the force of the prior statement - FRE 801(d)(1)(C), which specifies that cross-examination need only "concern the statement," doesn't on its face require more 801(d)(1)(C) is satisfied when W has been subjected to cross-exam "concerning the statement" - It doesn't matter that W denies making, or can't remember, either the prior statement or the underlying event, or perhaps even both o By taking the stand & responding willingly to questions, W's impaired memory doesn't mean that cross-examination was lacking o Confrontation Clause doesn't bar this evidence this right is satisfied when has the opportunity to bring out such matters as a bad memory during the examination Advisory Committee Note to FRE 801(d)(1)(C) expresses a preference for admitting prior statements of identification b/c of the problem of fading memories ii. Statements governed by 801(d)(1)(A) if W claims not to remember the underlying event, or answers questions about it evasively, courts sometimes regard W's prior statement about the event as inconsistent w/ the current testimony Thus, a witness who claims to have forgotten both the underlying events & the making of the prior inconsistent statement is nevertheless subject to cross-examination concerning it - When a witness has forgotten the basis for + the giving of testimony under oath in an earlier proceeding & that testimony is then introduced into evidence, defense questioning, though impaired, isn't futile - It's still possible to bring out on cross-examinationW's bias, his lack of care & attentiveness, and even (what's the prime objective of cross-exam) the very fact that he has a bad memory e. Personal Knowledge Req'd i. Requirement of personal knowledge applies to statements admitted under FRE 801(d)(1) Some courts have applied FRE 104(a) to the personal knowledge requirement for hearsay declarants this requires a higher threshold of proof to be met by proponents, and requires a decisions by the judge under the preponderance of the evidence standard - Particularly in cases of failed memory, such a decision may be difficult to make

2. Other Justifications for the FRE 801(d)(1) Exemptions a. In addition to the witness-declarant being currently under oath & subject to some form of cross-exam, prior statements may be more reliable than in-court testimony i. The witness's memory, for example, will have been fresher when making the prior statement ii. And prior statements are admissible for the non-hearsay purpose of impeaching (if inconsistent) or rehabilitating (if consistent) the credibility of the witness If prior statements can be admitted to impeach or rehabilitate W, it's arguably appropriate to admit them for their truth as well, rather than trust that the jury will understand & apply a limiting instruction C. Interpretation & Illustration of FRE 801(d)(1)(A): Prior Inconsistent Statements 1. Preliminary Factfinding Found'l requirements for FRE 801(d)(1)(A) are: The contents of the statement are inconsistent w/ testimony given at trial; The statement was made under oath subject to the penalty of perjury; and The statement was made at a trial, hearing, other proceeding, or in a deposition a. Inconsistency i. In the example of Joe's prior identification of Peter, the found'l requirement of its inconsistency w/ his in-court identification of Sam is determined by comparing the contents of the 2 statements Generally, the inconsistency will appear from the contents alone, particularly when the statements are diametrically opposed such the truth of 1 implies the falsity of the other - But inconsistency isn't limited to such opposition any substantive divergence btw 2 statements will permit use of the prior statement Sometimes there may be doubt about the fact of inconsistency - If the allegedly inconsistent statement is ambiguous (if Joe also said that the perpetrator might be Sam), or - If W claims to be able to explain away an apparent inconsistency (if Joe said he got the #s in the lineup confused & really meant to identify Sam) ii. The judge should make a FRE 104(a) determination of inconsistency under the higher standard of preponderance of the evidence as a condition of admitting the statement for its truth The relevancy of the prior statement is to prove the truth of its own content relevancy isn't dependent on whether the statement is actually inconsistent w/ W's trial testimony The FRE 104(a) standard would also apply to the found'l requirements of oath & hearing b. Inconsistency Due to Evasion i. Some courts have found inconsistency when a witness claims a loss of memory of relevant events while testifying at trial, but had previously testified in detail about them before a grand jury Inconsistency may be found in evasive answers, silence, changes in position, or in a manifest reluctance to testify at trial ii. 1 court noted the Advisory Committee's stated policy to admit prior inconsistent statements for their truth to protect against a turncoat grand jury W who deliberately changes stories at trial, should also apply when trial ct. concludes W is feigning loss of memory & the loss isn't genuine iii. 7th Cir. has held, however, that admission of a prior statement may be inconsistent w/ a claimed loss of memory even when the lack of memory isn't found to be attributable to recalcitrance or other improper motives

c. Under Oath at a Trial, Hearing, or Other Proceeding i. The circumstances in which the inconsistent statement was made are also part of the 801(d)(1)(A) foundation Proponent must show that: - The statement was made under oath, - The person administering the oath had legal authority to do so, - The penalty of perjury attached, and - The statement was made in a trial, hearing, deposition, or other proceeding These foundation facts are relatively easy to prove, although you can see that Joe's prior inconsistent statement that it was Peter who committed the crime or tort, made at the lineup, wouldn't satisfy the requirement of being made at a hearing - But is a lineup an other proceeding that would satisfy the rule's requirement? w o Typically, statements made in the course of interviews & lineups are held not /in the meaning of other proceedings formality of trials, hearings, and depositions is thought to be conducive to reliability + truthfulness; informality of most other interrogations isn't - In US v. Perez (7th Cir.), the transcript of defense counsel's pre-trial interview w/ an adverse gov't witness wasn't admissible under FRE 801(d)(1)(A) o The statement was under oath & recorded by a court reporter but it didn't meet the requirements of a deposition under the Fed. Rules of Criminal Procedure (the gov't wasn't present & the court didn't authorize the interview) 2. Justification for the FRE 801(d)(1)(A) Limitations a. A witness's inconsistent statements may be used for its truth only if made at a trial, hearing, other proceeding, or in a deposition, but w/out the requirement of cross-examination i. In many of these settings, the opportunity for cross-examination will have been available ii. But in a grand jury proceeding, while witnesses are placed under oath, the proceeding is secret & is held w/out the presence of Admission of statements made to grand juries permitted under FRE 801(d)(1)(A), used most commonly when gov't witnesses change their stories at trial or claim not to remember the facts about 's culpability to which they testified previously b. Most hearings or other proceedings are likely to be transcribed, so the fact that the prior statement was made at all will be easier to prove c. Reliability of prior inconsistent statements the requirement of oath & of being made at a hearing were intended to increase the trustworthiness of the statement i. Speaking under oath may reduce sincerity danger ii. Speaking a formal hearing may positively impact the declarant's narration & sincerity 3. Prior Inconsistent Statements Not w/in FRE 801(d)(1)(A) a. An allegedly inconsistent statement that doesn't fit w/in FRE 801(d)(1)(A) may be admissible for the non-hearsay purpose of impeaching the credibility of a witness, or may still be admitted just to show that the witness has said inconsistent things & shouldn't be relied on

D. Interpretation & Illustration of FRE 801(d)(1)(B): Prior Consistent Statements 1. Preliminary Factfinding Found'l requirements for FRE 801(d)(1)(B) are: w The contents of the statement are consistent / testimony given at trial; and The statement is offered to rebut a charge of recent fabrication or improper influence or motive In the previous example, Joe might have told the police the license plate # of the car involved in the crime or tort & then testified to this same # at trial the statement to the police could be admissible for its truth as a prior consistent statement if the requirements of FRE 801(d)(1)(B) are satisfied The consistency of Joe's 2 statements would be apparent If there are doubts about consistency, the preliminary question would be decided similarly to the question of inconsistency a. A Charge of Recent Fabrication or Improper Influence or Motive i. FRE 801(d)(1)(B) applies only if the credibility of the testifying witness has been attacked in the particular way spelled out in the rule Proof of such attack will be apparent from the opponent's cross-examination of W or from the admission of other impeaching evidence, and prior consistent statements shouldn't be admitted ii. A common example of a motive to fabricate arises in criminal cases where confederates of negotiate a plea bargain & then testify against The defense will seek to impeach such witnesses w/ the suggestion that they've received favorable treatment from the gov't in exchange for testimony inculpating b. To "Rebut" the Charge i. In Tome v. US, the Supreme court held that the consistent statement could rebut the charge of improper influence or motive, as req'd by 801(d)(1)(B), only if it was made prior to the date at which the improper influence or motive allegedly arose Limits scope of 801(d)(1)(B) to statements made before the motive to fabricate arose only pre-motive statements can rebut an improper motive b/c their consistency would show that the in-court testimony isn't tainted by that motive ii. When does a motive to fabricate arise? When several persons are complicity in a crime, each may seek to cooperate w/ the gov't to receive more lenient treatment typically, cooperation involves giving incriminating testimony against others - Courts are split as to whether the motive to fabricate arises at the time of arrest, or not until discussions begin about what benefits (if any) are to be received in exchange for cooperation 2. Justification for the FRE 801(d)(1)(B) Limitation a. Only consistent statements made before the motive to fabricate arose are admissible b/c broader admissibility would create a risk of admitting manufactured consistent statements, and could unfairly surprise the opponent 3. Prior Consistent Statements Not w/in FRE 801(d)(1)(B) a. Consistent statements that don't fall w/in FRE 801(d)(1)(B) may still be relevant to bolster credibility on other grounds they are, however, not admissible for their truth

E. Interpretation & Illustration of FRE 801(d)(1)(C): Prior Statements of Identification 1. Preliminary Factfinding Found'l requirements for FRE 801(d)(1)(C) are: The statement is 1 of identification of a person; and The statement was made after the declarant perceived that person In the lineup example, now assume that Joe identified Sam at the lineup as the perpetrator of the crime or tort & also identified Sam when testifying in court
Statements identifying a person are admitted under FRE 801(d)(1)(C) w/out any necessary predicate

testimony from the declarant-witness that's consistent or inconsistent w/ the out-of-court identification o Joe's identification of either Sam or Peter at the lineup clearly qualifies o Indeed, the statement may be made in contexts other than lineups, and no oath is req'd w w A prior identification that's consistent / in-court testimony (Joe's id of Sam) can be admitted /out proof of an express or implied charge of recent fabrication or improper influence or motive - In fact, the prosecution can ask Joe about his lineup identification of Sam even before Joe makes an in-court identification at all If a pre-trial identification is inconsistent w/ in-court testimony (Joe's id of Peter), it can admitted even if not admissible under FRE 801(d)(1)(A) b/c not made under oath or a hearing
o The jury as

fact finder determines the accuracy of an out-of-court identification The inability or hesitancy of a witness to make an in-court identification, recantation of a prior identification, or discrepancies in the descriptions given of the person identified, are all w/in the jury's role of determining weight & credibility

a. Made After Perceiving a Person i. According to the Advisory Committee Note, FRE 801(d)(1)(C) was intended to include statements of identification made at trad'l lineups & show up The declarant would be reperceiving the person whom the declarant had seen previously committing a crime or participating in some other disputed event ii. But the language used in the rule isn't so limited to reperceptions at lineups FRE 801(d)(1)(C) has been interpreted very broadly to include statements that identify: - A person seen after the disputed event in a chance encounter - The photo of the person - A police artist sketch of the person - Persons (e.g., in surveillance photos) who are known to the declarant, but when the declarant didn't perceive the underlying disputed event iii. "Identification" a used in Rule 801(d)(1)(C) requires designation of a particular person (or photo) as being the same as the person previously perceived iv. Courts are split as to whether a physical description of a person given by the declarant to the police, also w/out any reperception of the person, fits w/ FRE 801(d)(1)(C) Statements of accusation & description are frequently admitted under the hearsay exceptions for spontaneous & excited statements under FRE 803(1) + (2) If they are admitted instead under FRE 801(d)(1)(C), it's w/out any of the requirements of spontaneity & stress that those exceptions impose, although the declarant must testify as a witness + be subject to cross-examination

b. Identification of a Person i. As drafted, FRE 801(d)(1)(C) appears to be limited to statements about the physical characteristics of persons Why should identifications of persons, but not, for example, cars be admissible? If that seems too far an extension of the exemption, what about descriptions of the clothing worn by the person? - The answer to how narrowly or broadly to construe the language of 801(d)(1)(C) lies in the justification for the admission of prior statements identifying ppl o In gray areas, 1 should be able to state the reasons for the exemption & argue by analogy for exclusion or admission of a particular piece of evidence 2. Justifications for the Admissibility of Prior Statements of Identification a. The basic justification for the FRE 801(d)(1) exemptions is the opportunity to cross-examine the witness-declarant but since all prior statements aren't admitted, why are prior statements of identification included w/in the exemption? i. 801(d)(1)(C) is justified by the need for prior identification testimony although it applies to both civil & criminal actions, this exemption is of primary benefit to prosecutors in criminal proceedings In some cases, the prosecutor's use of the prior statement of identification for its truth may be essential to avoid a directed verdict of acquittal - Some witnesses may have genuinely lost the ability to make an in-court identification o In this situation, neither a prior inconsistent statement nor a prior consistent statement would be admissible w/out 801(d)(1)(C) - There's also a risk that a prosecution witness may testify falsely at trial b/c of intimidation or threats to self or family members The categorical approach to admission, however, doesn't permit such a case-by-case assessment of need if the out-of-court statement satisfies the categorical requirements, it's admissible b. It's not clear that the reliability of the declarant's testimonial qualities are enhanced by 801(d)(1)(C)'s found'l requirements i. The out-of-court statement may be more reliable b/c it was closer in time to the event in which the person identified participated ii. On the other hand, an oath isn't req'd, the setting may be quite informal, and no circumstance decreases the risk of improper motive for making the identification Moreover, when the statement is made in the context of a police-arranged lineup, neither W nor even the police officers who arranged for the identification may have been aware of possible subtle suggestive factors that could have influenced it iii. Studies have demonstrated that individuals' memories fade quickly thus the argument for the admission of prior identifications is strongest w/ respect to identifications made soon after the perception of the person identified c. Whether items of clothing or objects should be included w/in 801(d)(1)(C)? i. The necessity justification is most compelling for identification of persons ii. In addition, the requirements of 801(d)(1)(A) & (B) have been interpreted quite narrowly, evincing judicial concern that all prior statements of testifying witnesses not be admitted wholesale, which is what would happen if 801(d)(1)(C) were broadened The words identification of a person should, given this concern, be regarded as a serious substantive limitation on the scope of FRE 801(d)(1)(C)

3. Constitutional Concerns a. In addition to the hearsay issue, there's a substantial body of case law that focuses on whether a prior identification violated a criminal 's constit'l right to counsel or due process of law i. Criminal has right to counsel at post-indictment confrontation btw witness & ii. Due process requires exclusion of unnecessarily suggestive pre-trial identification if identification is likely to be unreliable KEY POINTS 1. The prior out-of-court statement of a testifying W may be admitted for the truth of the it asserts if it's (A) inconsistent w/ the witness's testimony, (B) consistent w/ the witness's testimony & rebuts a charge of recent fabrication or improper influence or motive, or (C) a statement of identification of a person, made after perceiving that person 2. The judge must be persuaded, pursuant to FRE 104(a), that the found'l requirements are satisfied prior to admitting the statements 3. W must be subject to cross-examination concerning the statement by answering questions willingly a. W need not necessarily remember the underlying event or making the prior statement

F. Interpretation & Illustration of FRE 801(d)(2): Party Admissions in General 1. Each subsection of FRE 801(d)(2) defines a specific type of out-of-court statement made by a declarant who's either a party in the case or has a particular type of affiliation w/ a party a. Found'l requirements of 801(d)(2)(A)-(E) focus primarily on the relationship btw the party & declarant i. The single common requirement for all of the subsections is that the proponent must offer the declarant's statement against the opposing party It's the proponent's choice whether or not to use an opposing party's own statements, or statements of affiliates, to prove the case against that party at trial 2. Example:
Day & Moore are partners in a business. They're being tried jointly for preparing + filing a false partnership income tax return in 1999. The govt's evidence tends to show that D & M diverted income from the partnership themselves by cashing checks made out to the partnership. The gov't claims that D & M didn't account for the proceeds in either the partnership or their own income tax returns. At trial, M testifies in his own defense + denies all knowledge of & participation in such a scheme. The gov't then seeks to introduce against both D & M a properly authenticated tape recording of a statement that M made, unbeknownst to D, in an interview w/ an IRS agent who was investigating the 1999 partnership return. M's recorded statement implicates both D & M in the income diversion + tax evasion scheme. It wasn't made under oath however, and wouldn't be admissible as a prior inconsistent statement under FRE 801(d)(1)(A).

a. Would Moore's recorded statement be admissible against Moore under FRE 801(d)(2)(A)? i. Would it be admissible against Day? b. If you can fit the statement under (A) against Moore, then although it's offered for the truth of the matter it asserts that Moore & Day both participated in the illegal scheme to file a fax tax return it will be exempt from the definition of hearsay + will be admissible as substantive evidence for its truth

G. Interpretation & Illustration of FRE 801(d)(2)(A): A Party's Own Statements 1. Preliminary Factfinding Found'l requirements for a party admission [FRE 801(d)(2)(A)] are: The statement is made by a party; and The statement is offered against that party a. This is perhaps the simplest foundation of all the hearsay exemptions & exceptions i. Moore's recorded statement easily satisfies it, so long as it's offered against Moore himself b. Any out-of-court statement made in any context (whether or ) to any action (whether civil or criminal) may be admissible, unless otherwise objectionable, if offered against that party i. Statement of a 6-yr-old , made after she'd suffered brain damage when the car she was riding in was hit by a train, was admitted to prove that the car's driver hadn't been keeping a proper lookout Trustworthiness isn't a separate requirement for admission under FRE 801(d)(2)(A) c. The party's statement must be relevant & not subject to exclusion under other rules of evidence i. Guilty pleas, depositions, personal documents, and prepared charts, as well as controversial oral statements, have all been admitted for their truth under FRE 801(d)(2)(A) ii. If a party's nonverbal conduct is hearsay under FRE 801(a) b/c it's intended as an assertion, it's a statement for the purposes of this or any other hearsay exception or exemption e.g., A nod of assent in response to an incriminating question would be admissible as an admission against a in a subsequent prosecution d. If a proponent offers a FRE 801(d)(2)(A) statement against a party at trial, the proponent must think that the statement is adverse to the interest of that party i. However, don't refer to party admissions as "admissions against interest" 1st, the found'l requirements for the admissions exemption don't require that the statement be "against interest" when it's made, nor that the person making the statement think that it is - Sometimes a party's statement attains its "against interest" significance long after it's made 2nd, there's a completely distinct exception to the h/s rule for "declarations against interest" 2. Individual & Representative Capacity a. 801(d)(2)(A) controls the admission of statements made by an individual person that are offered against that same individual person at trial i. But a person can speak, and can be a party, either as an individual or as a representative a trustee, executor, or guardian of some other entity or individual The rule provides for the admission of statements against the individual person even if those statements were made when the individual was speaking as a representative outside of court And statements made outside of ct. by a person, whether as an individual or as a representative, will be admissible against that person if he appears as a party solely in a representative capacity ii. When an entity such as a corporation is a party, the statement of its representatives can be admitted against the entity under FRE 801(d)(2)(C) or (D), but not pursuant to FRE 801(d)(2)(A)

3. Admissions, Personal Knowledge, and Lay Opinions a. In 2 respects the admissions exemption operates differently from other hearsay exceptions: i. There's no requirement that a party admission be based on 1st-hand knowledge This is in contrast to all other hearsay exceptions & Rule 801(d)(1) statements ii. Courts are liberal in admitting statements of opinion if the evidence is an admission Since the party against whom an admission is offered can take the witness stand & explain the basis for the opinion, declining to exclude the lay opinion rule in this context seems reasonable b. Combining freedom from the personal knowledge requirement & the lay opinion rule means a party's admissions may be based on hearsay statements of others, or the party's inferences from circumstances

H. Elaboration of FRE 801(d)(2)(A): Justification for the Admissibility of Party Admissions

As you can see from the breath of FRE 801(d)(2)(A), the justification for its admissibility can't rest on a

claim of enhanced reliability o There are no limitation in the rule concerning the content of the out-of-court statement or the circumstances in which it was made it need not have been "against interest" when made
Instead, FRE 801(d)(2)(A) is justified by considerations relating to the adversarial system of trial & to values

of freedom of choice + personal responsibility in our larger society 1. The Opportunity to Explain a. The trad'l rationale for permitting statements of a party to be used against that party for their truth is straightforward & related directly to the adversarial rationale for the hearsay rule: i. Hearsay is excluded primarily b/c the opponent lacks the opportunity to expose weaknesses in the declarant's narration, sincerity, perception, and memory through cross-examination b. In civil cases, however, a party to an action can't reasonably complain about the lack of an opportunity for self-cross-examination, for there's a viable alternative i. Party can take the stand on direct exam & have a full opportunity to explain any difficulties w/ the party's own sincerity, narration, perception, or memory when the statement was made ii. In short, it seems absurd for a party who's directly affected by the outcome in the case, and who's sitting in the courtroom, to complain about not being able to cross-examine herself 2. Fifth Amendment Concerns a. In criminal cases, while it's true that the criminal has the same right as any other litigant to testify, it's also true that the criminal has the 5th A. right to refuse to testify admitting a criminal 's statements under 801(d)(2)(A) may put some pressure on to abandon that right b. The FRE 801(d)(2)(A) exemption applies to criminals as well as to all other parties to actions 3. Responsibility for 1's Own Statements & Fairness a. Adversarial fairness as a justification for admitting party admissions the proponent may want to use as evidence what the opponent knows about the facts that are in dispute i. But the civil party may not want to call the opponent to the witness stand during the case-in-chief e.g., The civil can't prepare as W, thus what might say is unknown & could be harmful ii. And the prosecutor can't call the criminal to the stand b/c of the 5th Amendment b. Offering opponent's hearsay statements thus may be the fairest way and in a criminalcase the only way, thus adding the element of necessity for the proponent to prove what the opposing party knows

I. Further Elaboration of FRE 801(d)(2)(A) 1. Preliminary Factfinding on the Identity of the Declarant The found'l requirements for all hearsay exceptions & exemptions are preliminary questions of fact subject to FRE 104, and are typically for the judge to decide pursuant to FRE 104(a) These requirements are imposed by h/s policy they don't est. the relevance of the out-of-ct statement But consider a case in which relevancy & hearsay policy are determined by the same question of fact a. Suppose that it's alleged that started a fight w/ a coworker (CW) denies starting the fight i. What if CW had previously received an unsigned letter expressing great animosity toward CW? CW claims that wrote this letter & that the animosity is relevant to prove started the fight ii. denies sending the letter iii. Since the letter is hearsay, CW offers it under 801(d)(2)(A) against should FRE 104(a) or (b) control the judge's factfinding on whether wrote the letter? b. In this case, this same fact is necessary for both the relevance (and authentication) of the letter under FRE 401 & to the admissibility of the hearsay statement under FRE 801(d)(2)(A) i. FRE 104(b) governs the relevance question ii. FRE 104(a) governs the hearsay policy question iii. Which should control? FRE 104(b) The difference btw them would be that: - Under FRE 104(b), the judge would have to admit the letter w/ less found'l evidence only evidence sufficient to support a finding that wrote it - Under FRE 104(a), the judge should admit the letter only if the judge is actually persuaded by a preponderance of the evidence that wrote it c. In this example, the letter can only be relevant & harmful to if in fact wrote it if didn't write the letter, the animosity it expresses couldn't rationally be used in a way that's harmful to i. Thus, since the FRE favor admissibility of relevant evidence, it would seem that the question should be decided under Rule 104(b) as a matter of relevance policy it would be much easier for CW to meet the FRE 104(b) standard & to get the letter admitted than if 104(a) were to apply Of course, can still deny being the author & the jury will ultimately decide the question The crucial point is that if the jury finds that it wasn't written by , we're fairly confident that the jury can disregard the letter as irrelevant d. What if a 2nd letter contained facts that would be harmful to even if he weren't the author e.g., the letter might state that many ppl, including , hate CW i. It has been argued that when the contents of the out-of-court statement could be relevant & harmful to a party, even if not made by that party but by another person, the judge should decide whether it was 's own statement under FRE 104(a) as a matter of hearsay policy ii. If 's authorship of the 2nd letter is left to the jury to decide under FRE 104(b), there'd be a risk the jury could rationally use its contents against even though the jury decided wasn't the author This would violate FRE 801(d)(2)(A) & hearsay policy iii. If instead judge applies 104(a), and was persuaded under the preponderance of the evid. standard that the 2nd letter was from , there'd be more found'l proof, thus more certainty, is the author Thus the jury will be more likely to get the authorship issue right, and hearsay policy will be better served if it then uses the contents of the letter against iv. The 1st hypo letter written to CW doesn't require application of the higher standard of FRE 104(a) b/c its contents have no relevance for CW's case against unless it was authored by

2. Admissibility of Party Admissions in Multiparty Cases: The Bruton Problem a. In some cases, there are multiple s or s i. 1 party's admission isn't admissible against anyone other than the party who made the statement b. In Bruton v. US, Bruton & Evans were tried jointly for armed robbery E didn't testify but was in ct. i. Prosecution introduced into evid. an earlier confession by Evans that implicated both E & B Since the confession was admissible as a party admission only against Evans, the trial court instructed the jury that it could consider the confession as evidence only against Evans ii. The Supreme Court, relying in part on the probable inability of the jury to limit its consideration of the confession to E, held that introduction of the confession had violated B's confrontational right Thus whenever 1 declarant-'s confession implicates another co-, Bruton may preclude admission unless the declarant- can be cross-examined KEY POINTS 1. Under FRE 801(d)(2)(A), any statement made out of court by a party may be used against that party to prove the truth of the matter it asserts, so long as it's relevant & not otherwise objectionable 2. The judge must be persuaded, typically pursuant to FRE 104(a), that the found'l requirements of the 801(d)(2)(A) exemption are satisfied a. The judge may use the statement itself in deciding the preliminary questions 3. The primary justification for the FRE 801(d)(2) exemptions is that the party can't fairly complain about the loss of cross-examination of the declarant b/c the party can explain the unreliability in the statement, or b/c it's necessary & fair to impose on the party the risk + burden of not being able to do so

IV. HEARSAY EXCEPTIONS NOT REQUIRING THE UNAVAILABILITY OF THE DECLARANT

FRE 803 excepts 23 different types of hearsay statements from the general rule of exclusion
o No

requirement in this rule that the declarant be unavailable to testify as a witness thus the justifications for admitting this much hearsay are especially important for your overall evaluation of the h/s rule in practice

The premise for all FRE 803 exceptions is that these types of statements are reliable enough to be used in the

jury's fact-finding even w/out cross-examination of the declarant by the opponent

o These kinds

of statements possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available This means that something about the hearsay statement its content, its source, the circumstances in which it was made reveals something "trustworthy" about the declarant's testimonial qualities is the "reliability approach" to the admission of hearsay that we saw at work in FRE 801(a) + (c) and in the FRE 801(d) exemptions as well

o This

The Rule 803 exceptions are categorical they each define a specific type of out-of-court statement that may be

admitted for the truth of the matter it asserts, and they each establish found'l requirements that the proponent must satisfy pursuant to the same process of admission as under FRE 801(d) & FRE 804
o Other

rules may operate to exclude a hearsay statement even if it fits w/in a Rule 803 exceptions relevancy, authentication, best evidence, the relevancy rules (e.g., the character prohibitions), privilege, and FRE 403, may all have to be applied as well

2 other general points apply to all Rule 803 (and Rule 804) exceptions:
o b/c

the declarant's statement is offered for its truth, the declarant is a source of knowledge for the jury, analogous to a witness testifying at trial thus the found'l requirement that witnesses must speak from personal knowledge applies as well to hearsay declarants under FRE 803 & FRE 804 addition, the opponent to an item of hearsay can attack the credibility of hearsay declarants in most of the ways that witnesses can be attacked
It's more difficult, of course, to impeach a hearsay declarant w/out the tool of cross-examination

o In

A. FRE 803 Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness. (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. (3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (e.g., intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment & describing medical history, or past or present symptoms, pain, or sensations, or the inception of general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. (5) Recorded recollection. A memo or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable W to testify fully & accurately, shown to have been made or adopted by W when the matter was fresh in W's memory + to reflect that knowledge correctly. If admitted, the memo or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. (6) Records of regularly conducted activity. A memo, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from info transmitted by, a person w/ knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memo, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification in compliance w/ Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of info or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. (7) Absence of entry in records kept in accordance w/ the provisions of paragraph (6). Evidence that a matter isn't included in the memo, reports, records, or data compilations in any form, kept in accordance w/ the provisions of (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memo, report, record, or data compilation was regularly made & preserved, unless the sources of info or other circumstances indicate lack of trustworthiness. (8) Public records & reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers + other law enforcement personnel, or (C) in civil actions & proceedings and against the Gov't in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of info or other circumstances indicate lack of trustworthiness. (9) Records of vital statistics. Records or data compilations, in any form, of birth, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. (10) Absence of public record entry. To prove the absence of a report, record, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made & preserved by a public office or agency, evidence in the form of a certification in accordance w/ Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation. (11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules of practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or w/in a reasonable time thereafter. (13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings or rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like. (14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the orig'l recorded document & its execution + delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. (15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings w/ the property since the document was made have been inconsistent w/ the truth of the statement or the purport of the document. (16) Statements in ancient documents. Statements in a document in existence 20 yrs or more the authenticity of which is established. (17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used & relied upon by the public or by persons in particular occupations. (18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of W or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. (19) Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, marriage, ancestry, or other similar fact of his personal or family history. (20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located. (21) Reputation as to character. Reputation of a person's character among associates or in the community. (22) Judgment of previous conviction. Evidence of a final judgment entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of 1 yr, to prove any fact essential to sustain the judgment, but not including, when offered by the Gov't in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but doesn't affect admissibility. (23) Judgment as to personal, family, or general history, or boundaries. Judgments as proof of matters of personal family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

B. Interpretation & Illustration of FRE 803(1): Present Sense Impressions

There are 2 exceptions that provide for the admission of 2 different kinds of spontaneous hearsay statements:
o Present

sense impressions o Excited utterances 1. Preliminary Factfinding Found'l requirements for present sense impressions are: The occurrence of an event or condition; The contents of the statement describe or explain the event or condition; and The declarant made the statement while perceiving the event or condition, or immediately thereafter a. Sally's out-of-court statement "the gray SUV ran the red light & hit a pedestrian" would be hearsay, if reported by George at trial i. But Sally's statement might have been made to George either while Sally was seeing the SUV, or w /in seconds or minutes of seeking it thus it might be admissible hearsay, if it qualifies as a present sense impression Pedestrian, the proponent of the statement, must present evidence to show that it falls w/in the categorical terms of FRE 803(1) - These are preliminary questions for the judge to determine pursuant to FRE 104(a) court should be convinced by a preponderance of the evidence that there was an event occurring just before Sally's statement was made, and that Sally's statement describes it b. Many present sense impressions are presented in court through the testimony of witnesses who also perceived the event or condition themselves i. If George saw the accident, he would be the foundation witness who could provide evidence showing that the event occurred & that Sally made the statement contemporaneously w/ it The judge can determine whether the statement describes or explains the event or condition from the contents of the statement itself 2. Justification for the Admissibilityof Present Sense Impressions a. The primary justification for admitting present sense impressions is that the contemporaneity of the statement & the event it's offered to prove tends to ensure the declarant's sincerity i. This rationale is based on the generalization that contemporaneity btw statement & event means that the statement is spontaneous rather than premeditated If the statement is spontaneous, there's no time to develop the intent to fabricate If there's no time or opportunity to fabricate, the statement is sincere ii. Additionally, contemporaneity of the statement & event virtually eliminates any memory problem

C. Interpretation & Illustration of FRE 803(2): Excited Utterances 1. Preliminary Factfinding Found'l requirements for excited utterances are: The occurrence of a startling event or condition; Contents of the statement relate to the startling event or condition; The statement was made by the declarant while under stress of excitement; and The stress of excitement was caused by the startling event or condition a. Sally's statement to George might also be an excited utterance i. Again, the proponent must present evidence to satisfy the found'l requirements, and the judge will decide the preliminary questions pursuant to FRE 104(a) Judge may conclude an SUV running thru a red light & hitting a pedestrian is a startling event - Again, George would be the foundation witness to testify that the event occurred & that Sally was under stress of excitement when she made the statement - George might also establish that Sally's stress was caused by the startling event, if he said, "She was perfectly calm before the accident" b. Factors relevant to the question of whether the declarant was under the stress of excitement from the startling event at the time the statement was made include: i. The age of the declarant ii. The nature of the event iii. The lapse of time btw the event & the statement iv. Whether the statement was made in response to questions v. The declarant's physical & mental condition 2. Justification for the Admissibilityof Excited Utterances a. The justification for the exception is similar to the argument that present sense impressions are reliable i. A statement made under the stress of a startling event or condition is likely to be spontaneous, and a person under stress isn't likely to develop the intent to fabricate If there's no opportunity to fabricate, the statement is likely to be sincere ii. There's no found'l requirement of "contemporaneity" btw the event & statement stress of excitement is the substitute for contemporaneity A longer time lag won't defeat application of the FRE 803(2) exception if the declarant remains under stress so long as stress is operative, there's assumed to be no opportunity to plan to make a false statement & thus the statement is likely to be sincere - Since the duration of the declarant's stress of excitement is likely to be relatively short, memory danger may also be lessened b. However, the stress that decreases the sincerity danger may increase perception dangers & memory dangers, and perhaps even narration dangers as well

D. Elaboration of FRE 803(1) & (2): Effects of the Categorical Approach 1. The Categories Determine Admissibility a. How do we know that Sally has good eyesight & could perceive the SUV from the distance at which she was standing, or could perceive that the light was red? i. The only facts about Sally's testimonial qualities that FRE 803(1) & (2) require to be presented to the jury are the facts about spontaneity that satisfy the categorical requirements of the exceptions b. The effects of this categorical approach are 2-fold: i. 1st, if a statement clearly fits w/in the broad categorical generalizations of the specific exception, it must be admitted (unless there's some other objection to its admissibility unrelated to hearsay) Except for 3 specific exceptions [FRE 803(6), 803(8), and 804(b)(3)], there's no explicit judicial discretion to exclude a particular statement that fits w/in a categorical exception b/c the judge doubts the sincerity, perception, memory, or narration of the hearsay declarant ii. 2nd, if a judge thinks that a hearsay statement seems to be particularly trustworthy but it's neither contemporaneous w/ an event (it was made an hr later) nor made under the stress of excitement (it was made calmly), the judge has no explicit discretion under FRE 803(1) or (2) to admit it The categorical requirements of each exception determine admissibility only FRE 807 permits the admission of hearsay based on judicial determinations that it's trustworthy 2. The Categorical Terms Require Judicial Interpretation
Although there's no explicit discretion in most of the hearsay exceptions, judges do have some leeway

when they interpret & apply the categorical terms of the exceptions to particular statements o How long a time lag is permitted by the term "immediately thereafter" in FRE 803(1)? o Just what is "stress of excitement" in FRE 803(2), and how long does it last?
There are no clear-cut answers to these questions in some cases in many of the Rule 803 & Rule 804

exceptions that there's considerable room for judicial interpretation o Since the categorical requirements are determinative of admissibility, judicial interpretation of these requirements is crucial to the administration of hearsay policy these requirements are intended to ensure the trustworthiness of 1 or more of the declarant's testimonial qualities w Judges should thus interpret & apply the doctrinal terms / awareness that different interpretations can either increase or decrease the apparent trustworthiness of admitted hearsay statements

a. Time Lapse Btw Event & Statement i. Not all seemingly contemporaneous statements are really spontaneous They might have been thought up in advance, if the declarant had any foreknowledge that the relevant event might occur and a time lapse of more than a few minutes may be plenty of time to think up something self-serving to say - Particularly if a statement is obviously self-serving, 1 may doubt its spontaneity and, thus, its sincerity Many courts have interpreted "immediately thereafter" in FRE 803(1) to mean w/in a matter of seconds, or as soon as is possible - Some courts have stretched the interpretation of that doctrinal phrase to admit apparently spontaneous statements made 10 to 15 minutes after the event they describe or explain - A time lapse of 1 hr, however, has been held not sufficiently contemporaneous - And if the time lapse is unknown, courts may be cautious ii. FRE 803(2) places no specific time restraint on the scope of the exception the temporal gap is therefore not dispositive, but is a relevant consideration in determining whether the statement is made while the declarant is still under stress Other relevant factors include: - The characteristics of the event - The subject matter of the statement - Whether the statement was made in response to an inquiry - The declarant's age, motive to lie, and physical + mental condition In cases where the event is less startling, courts tend to require a shorter time lapse btw event & statement iii. Statements of young children about incidents of sexual abuse are frequently made hrs or even days after the alleged incident occurred Some courts admit these statements under FRE 803(2) citing various justifications "1st real opportunity" to speak to an adult or caregiver, or fear & guilt causing child to delay reporting, or lack of capacity to fabricate while other courts are suspicious of such lengthy delays iv. For a teenager, a time lapse of 3 hrs has been held to be too long to reduce the risk of deliberate fabrication, particularly when the declarant had not appeared to be stressed in the interim Stress can be rekindled by events that remind the declarant of the startling event or that generate add'l anguish v. Cases involving domestic violence may also justify courts in extending the period of time during which the declarant is under stress: Trauma & anxiety prompted by a spousal assault which form predicate for calling something an excited utterance don't suddenly dissipate when the assailant leaves the scene - Excited utterances about criminal activity made to 911 operators & police present challenging issues under Crawford v. WA's holding that the Confrontation Clause applies to "testimonial" statements b. Content of the Statement i. The FRE 803(1) requirement that the declaration be 1 describing or explaining an event or condition is intended to be a limitation that's consistent w/ the exception's underlying rationale Handwritten notes reciting what someone said at a meeting fall w/in the exception ii. The Advisory Committee Note explains that the language of FRE 803(2) relating to a startling event "affords a broader scope of subject matter coverage"

3. Use of the Statement Itself in Preliminary Factfinding a. In general, the judge's preliminary factfinding necessary to apply the categorical terms of Rule 801(d) exemptions & the Rule 803 exceptions is governed by FRE 104(a) i. b/c FRE 104(a) permits the judge to use inadmissible evidence, he's permitted to rely on the content of the hearsay statement itself to establish the existence of the preliminary facts b. This issue frequently arises w/ regard to present sense impressions & excited utterances when proponent wants to use the content of these statements to prove that an event (or startling event) actually occurred i. Other witnesses, including the foundation witness who testifies about the present sense impression or excited utterance, may be able to give testimony that the event occurred but often, such independent evidence won't be available e.g., If Sally was speaking to George on her car phone when she said "a gray SUV just ran the red light & hit a pedestrian," George can't provide independent evidence that the event described by Sally actually occurred ii. Statements admitted under FRE 803(1) & (2) can also be in writing, so there may be no other person present to verify either the event or when the written statement was made The contents of the statement itself may be used by the judge to decide that an event occurred, when it occurred, and what kind of an event it was c. May the statement alone satisfy the Rule 104(a) burden of proving that an event occurred? i. Yes an excited utterance may of itself be sufficient to est. the occurrence of the startling event As a practical matter, there'll usually be ample independent evid. that a startling event occurred - The nature of the event is likely to attract attention; and even if there are no eyewitnesses to the event other than the declarant, the declarant's nervousness or injuries or quivering voice would constitute at least some independent evidence of an exciting event ii. Declarant as an unidentified bystander Trustworthiness of the statement is bolstered by the declarant's status as a mere bystander w/ no apparent motivation for providing false info 4. Proof of Personal Knowledge a. The proponent of a present sense impression or excited utterance must show that "the declarant had personally perceived the event or condition about which the statement is made" i. The content of the statement, and the circumstances surrounding the making of it, may be sufficient, even when the declarant is unidentified b. The issue of personal knowledge is treated by most courts as an FRE 104(a) issue for the judge

KEY POINTS 1. Generalizations about the lack of sincerity + memory dangers provide the justification for the present sense impression & excited utterance exceptions, but statements falling w/in these exceptions remain untested w/ regard to perception + memory dangers 2. The rigor w/ which courts interpret + apply the terms defining the time lapse btw the event or condition & the statement itself affects the degree of sincerity danger in both exceptions 3. The judge may use the statement itself to determine whether & when the event or condition occurred pursuant to FRE 104(a), and in some cases may require no independent evidence

E. Interpretation & Illustration of FRE 803(3): State-of-Mind Declarations 1. Preliminary Factfinding Found'l requirements for statements of state of mind are: The contents of the statement expresses the declarant's state of mind that's currently existing at the time of the statement; State of mind may include emotion, sensation, physical condition, intent, plan, motive, design, mental feeling, pain, and bodily health; and A state of mind of memory or belief may not be used to prove the fact remembered or believed unless it relates to the declarant's will a. As w/ all exceptions that depend on content as a categorical requirement, the judge can determine content from proof of the statement itself i. Thus the statements "I like Ted the best of all my children" or "I'm miserably unhappy at work" fall w /in the 803(3) exception, and will be admissible for their truth, if those current feelings are relevant No other found'l facts concerning the declarant or the circumstances w/in which the statement was made are req'd b. FRE 803(3) defines state of mind broadly to include any sensation present in the mind of the declarant, including emotion, intent, and pain i. The state of mind of a party, or of any person who becomes involved in litigated events, may be relevant at trial: A criminal 's state of mind of "love" or "hate" can be relevant to show motive for the crime A civil 's state of mind of "knowledge" can be relevant to prove notice In any type of case, a witness's state of mind of "bias" or "malice" toward 1 of the parties can be relevant to impeach the witness's credibility c. But the scope of the FRE 803(3) exception is specifically limited i. Statements of memory or belief may be used to prove a declarant's then-existing relevant state of mind, but may not be admitted to prove the fact remembered or believed, unless that fact relates to the declarant's will Thus the statement of belief "I think my brakes are bad," or the statement of memory "My brakes squeaked yesterday," may be used to prove declarant's current state of mind of knowledge (notice), but not the fact that the brakes are bad In contrast, the statement "I want Ted to inherit all of my estate so I've left it all to him in my will" is admissible to prove the state of mind of declarant as well as the terms of declarant's will 2. Justification for the State-of-Mind Exception a. A statement relevant to prove the declarant's current state of mind requires inferences about declarant's sincerity & narration i. The FOC is what's going on inside the mind of the declarant, and declarant's statement must sincerely & accurately express what that is The declarant isn't perceiving anything outside declarant's own mind, so there's no trad'l risk of misperception And, since the statement expresses the then existing mental state, there's no memory problem ii. Thus, primary rationale for state-of-mind exception is there are no perception or memory dangers Under the reliability rationale of the Rule 803 exceptions, the absence of these dangers provides circumstantial guarantees of trustworthiness, and therefore diminishes the important of crossexamining the declarant

b. There is, however, a weakness in the trustworthiness justification for the state-of-mind exception i. Although it has been said that statements that express a present state of mind are likely to be spontaneous & thus since, there's no independent requirement of proving spontaneity + there's no limit to the circumstances in which such statements can be made The statement "I love my spouse" may be spontaneous, or it may be calculated to mislead if declarant has a reason to want to create the false impression of affection ii. There are no definitive means of proving that declarant really has the mental state that's being spoken about thus the sincerity risks in FRE 803(3) statements are substantial If the statement isn't spontaneous, then declarant has the opportunity to fabricate c. Necessity may justify the admission of state-of-mind statements despite their sincerity risks i. Mental states are such a pervasive part of our substantive law that it would be unwise to bar from admissibility 1 of the primary sources for evidence about mental states But, this rationale, isn't always compelling the state-of mind exception isn't limited to situations in which a person's mental state is an ultimate issue in litigation, where declarant's statement might indeed by the only (or best) available evidence - Moreover, we're frequently able to infer mental states from the conduct of individuals, and we may rely on people's actions even more than people's words in assessing mental states d. Statements of memory or belief used to prove facts concerning declarant's will do require reliance on declarant's memory & perception, as well as sincerity + narrative ability making a will is an external event that declarant has perceived, and remembers i. Admission of these statements is justified by the likelihood that persons will speak carefully about their wills & the necessity that arises from the unavailability of declarant 3. State-of-Mind Utterances Are Classified as Either Direct or Circumstantial a. Some utterances directly assert the declarant's state of mind i. e.g., To prove that a witness has a motive to lie in favor of , could offer evidence that W once said, "I can't stand " this is a direct statement of W's feelings & state of mind ii. But what if W said, " is a vile person who has done me great harm"? This statement isn't a direct assertion of a mental state, but it probably reflects a state of mind of intense dislike b/c the mental state isn't directly asserted, this type of statement is called "circumstantial evidence" of W's state of mind b. Utterances that are circumstantial evidence of declarant's state of mind aren't offered to prove the truth of the literal matters they assert i. W's statement isn't offered to prove that is vile, or that has done great harm to W thus some courts have taken the position that utterances that are circumstantial evid. of state of mind are h/s ii. But unlike the categories of non-hearsay effect on listener & legally operative facts the relevancy of state-of-mind utterances does involve potential sincerity + narration risks If W is lying or joking, and doesn't sincerely believe that is vile & has done wrong, then W's statement isn't relevant to prove a motive to lie in favor of thus, utterances that are circumstantial evidence of state of mind aren't a true non-hearsay category c. Rather, these utterances seem more like statements offered to prove declarant's unstated belief about declarant's own state of mind i. Statements of "unstated states of mind" don't involve perception or memory risks, but they don't necessarily bear diminished narration + sincerity dangers if they are intending to communicate the mental state this is also true, of course, for direct assertions of statement of mind ii. 803(3) provides such a broad h/s exception for statements of declarant's then-existing state of mind that labeling them as direct or circumst'l, h/s or non-h/s, is futile in terms of admissibility under FRE

F. Elaboration of FRE 803(3): Relevant Uses of State-of-Mind Evidence 1. Future & Past State of Mind of the Declarant a. For a declarant's state of mind to be relevant, the currently existing state of mind need not be an ultimate issue in the case evidence of a person's existing state of mind may be just 1 step in the inferential process to establish some fact of consequence i. Frequently, inferences both forward & backward in time are made from statements of currently existing mental states e.g., Consider a case in which a criminal wishes to establish that some 3rd person had a motive for killing the victim, to suggest that the 3rd person was in fact the killer - The 3rd person's statement, "I hate the victim," made a week before the killing, is admissible under FRE 803(3) to prove that 1 week before the killing the 3rd person hated the victim - From hatred at the time we infer a future state of mind there was probably still hatred a week later, when the killing occurred o The inference is based on the generalization that strong emotional feelings about an individual aren't likely to change over a relatively short period of time - Hatred a week later is relevant to show a motive to harm the victim, and from motive we infer the possibility that the 3rd person killed the victim b. Just as state of mind can be used to prove future state of mind, it can also be used to prove a past state of mind w/out relying on declarant' perception or memory i. Consider in the preceding murder case that the 3rd person said 2 days after the murder, "The thought of the victim fills me w/ rage" Present state of mind of "rage" would be relevant to prove declarant was probably also angry at the victim 2 days earlier, again b/c of a generalization about the stability of such states of mind - If angry 2 days earlier, declarant may have had a motive to kill the victim at the time - Statements made months after the time at which declarant's state of mind was relevant have been held too remote to be probative 2. Future Conduct of the Declarant a. Mary's statement on Monday "I plan to leave on my vacation to Hawaii on Tuesday" may be relevant to prove that she in fact left on Tuesday, and that she went to Hawaii i. We 1st must infer the truth of the matter she asserts that on Monday, Mary sincerely planned to leave on Tuesday for her vacation in Hawaii ii. Then, from this state of mind, we can infer that she probably had the same intent on Tuesday and, then, that she carried it out & did go to Hawaii b. The generalizations underlying the inference from Mary's state of mind to her future conduct concern the behavior of ppl e.g., that ppl w/ intentions or plans of the type that Mary had aren't likely to change (in 1 day), or that ppl generally do the things (like go on vacation) that they intend or plan to do i. The probability of each inference from intent to future conduct will vary depending on the nature of the intended activity & the time lag involved In some situations the inferences may be so speculative that a person's stated intent may have very low probative value intent may be stated so far in advance, or may be so contingent, that there's little probative force to the generalization that ppl act in conformity w/ intent What's important is that the inferences from Mary's state of mind to her conduct don't require any further evaluation of Mary's testimonial qualities - Thus FRE 803(3) could be used to admit Mary's statement of intent to show that she had the same intent at some future time, and that she acted on it

3. Evidence of State of Mind Used to Prove Past Facts a. FRE 803(3) provides that statements of memory or belief to prove the fact remembered or believed may not be admitted through the state-of-mind exception (unless they concern wills) i. It's common that past facts are asserted in the context of state-of-mind evidence but proof of the truth of the past facts isn't an acceptable use of FRE 803(3) To show the bias of Emily, who's testifying as a witness against John, evidence might be offered that Emily said outside of court, "I'm angry at John b/c he stole all of my money last yr" - The statement about the theft is a statement of memory or belief 803(3) couldn't be used if the statement is offered to prove John did steal the money, the fact remembered or believed - Why? o b/c the past fact of theft is an event outside Emily's mind her accurate perception & memory would be necessary to the statement's relevance o Since the justification for the FRE 803(3) exception is that perception & memory risks are nonexistent, the exception can't be used when those risks are present The same is true if Emily, the declarant, said "I believe that John stole all my money last yr" - All statements about past facts contain an implicit "I think" or "I believe" admitting such statements as expressing a state of mind of "belief" would swallow the h/s prohibition b. It's possible that if the past fact or theft isn't relevant to the litigation, then declarant's entire statement might be admissible simply to prove the relevant fact Emily's anger at John i. Theft would be a good reason to feel angry & it makes her statement all the more probative of her relevant state of mind of bias against John ii. Indeed, the past fact or theft need not even be true if Emily believes it, however, her state of mind of anger is more probable FRE 403 might be the basis for objection if the statement about the theft raises dangers of unfair prejudice against a party or confusion of the issues 4. The Hillmon Case (Mutual Life Insurance Co. of NY v. Hillmon, US Supreme Court 1892)
Hillmon was an action by Sallie Hillmon to recover the proceeds of life insurance policies on the life of

her husband John Hillmon, who, she alleged, died in Crooked Creek, Colorado on March 17, 1879 The principal issue in the case was whether a body found in Crooked Creek was Hillmon's o contended that it was o insurance companies tried to establish that Hillmon wasn't dead they alleged a man named Walters had traveled to Crooked Creek w/ Hillmon & that the body was Walter's, not Hillmon's Their evidence included the contents of a letter Walters had written to his sister, stating that he intended to go to Colorado The sister testified that she received the letter around March 4, 1879, that the letter was in Walter's handwriting, that she had searched for the letter but couldn't find it, and that she remembered the contents of the letter - She then orally related the contents: Dear sister & all: I now in my usual style drop you a few lines to let you know that I expect to leave Wichita on or about March 5, w/ Mr. Hillmon, for Colorado or parts unknown to me The trial court sustained a hearsay objection & excluded proof of this & a similar letter from Walter's, and the jury found in favor of Sallie Hillmon In reversing this judgment, the Supreme Court explained why proof of the letters was admissible: o Letters in question were competent, not as narratives of facts communicated to the writer by others, nor yet as proof he actually went away but as evid. that, shortly before the time when other evid. tended to show that he went away, he had the intention of going, and of going w/ Hillmon which made it more probable both that he did go & that he went w/ Hillmon, than if there had been no proof of such intention o In view of the mass of conflicting testimony introduced upon the question whether it was the body of W that was found in H's camp, this evidence might properly influence the jury in determining that question

a. Walters's Future Conduct i. Walters's statement in his letter is relevant to prove his own intent to leave Wichita & to go to CO The Court held as much in the same ii. The Court's "nor yet" language simply refers to steps in the logical chain of inferences: 1 must 1st infer from Walters's expression of intent to leave that he actually intended to leave (i.e., that the words are a sincere expression of his intent) Until 1 makes that 1st inference, it's not (yet) possible to infer from the letter that Walters did leave Wichita - A declarant's statement of intent to do an act in the future fits w/in the FRE 803(3) exception, and may generate the further inference that the declarant actually did go w/out involving any add'l hearsay dangers iii. Walters's statement would be admissible to prove his own intent & his own future conduct b. Hillmon's Future Conduct i. Some courts have interpreted Hillmon to stand for the proposition that Walters's letters could also be used to show Hillmon's future conduct that Hillmon went to Crooked Creek w/ Walters As a result, these courts have used a declarant's statement about what a 3rd person plans to do to prove what that 3rd person in fact did, and they've justified admission of these statements under the state-of-mind exception ii. Such use of this exception is problematic, however, b/c the relevance of W's assertion that Hillmon planned to go to Crooked Creek is necessarily dependent on W's accurate perception & memory Walters could know that Hillmon planned to go to Crooked Creek only if Walters had properly perceived & remembered some past fact something that Hillmon (or perhaps some 3rd person) said or did to indicate that Hillmon was going to C.C. + wanted to travel w/ Walters - Thus all hearsay dangers are potentially present Except regarding wills, however, the state-of-mind exception [FRE 803(3)] applies only to declarations that don't have perception & memory problems - If W's letter directly expressed the fact on which his knowledge of H's intent was based (e.g., H invited W to go w/ him), such an add'l statement wouldn't be admissible under 803(3) it would be a statement of memory or belief, offered to prove the fact believed - The exception doesn't permit a declarant to relate why he held the particular state of mind, or what he might have believed that would have induced the state of mind iii. In W's letter, past facts about H's conduct are implied, not expressed, by W's plan to travel "w/ H" Still, using W's own state of mind for the purpose of proving state of mind of another person (H's intent to travel) or the future conduct of another person (H did travel to C.C.) depends on an inference about W's perception & memory of some past fact about that other person - Otherwise, W's belief about what the other person will do would be irrelevant speculation Permitting the state-of-mind exception to admit statements for purposes that so clearly depend on the declarant's perception & memory of past facts would undermine the policies of the rule

c. Recent Interpretations of Hillmon i. A # of fed. courts have held that FRE 803(3) doesn't support the use of declarant's state-of-mind declaration to prove the conduct of a 3rd person House Judiciary Committee approved the Rule 803(3) exception under the explicit assumption that the rule would limit the Hillmon doctrine to use of the declarant's state of mind to prove only the declarant's own conduct ii. Other courts, however, have admitted declarants' statements of intent to meet a 3rd person against that 3rd person, to prove that the declarant & that person did meet Most of these decisions have req'd independent corroboration of the 3rd person's conduct - Declarant's statement that she would meet w/ her drug source at noon that day was admissible to prove S's participation in a drug conspiracy where agents observed S meet w/ the declarant at noon iii. Another possible interpretation of the Court's language in Hillmon is that it would be appropriate to infer that Walters planned to take the tripe only if Hillmon would accompany him It would be an intent conditioned on the occurrence of a future event, Hillmon's independent decision to accompany Walters, that may or may not occur - Since W wasn't in Wichita, this interpretation of W's intent permits the further inference, w /out reliance on W's perception or memory, that H did decide to go to C.C. - It would be reasonable to infer that W left Wichita, acting on his intent to leave only in the company of H, and thus that H left too Treating W's statement as admissible hearsay, expressing only his own state of mind w/ no reliance on his perception or memory, depends on inferring from his letter that his plan was to take the trip only if H were going too iv. How should the problem of using state-of-mind statements against 3rd persons be resolved? Concern w/ the inference from W's own intent (or belief) to W's own future conduct is not a h/s problem rather, it's a problem of relevance that can be resolved in applying FRE 401 & 403 If we're willing to invest trial judges w/ discretion to evaluate the strength of the inference from a declarant's intent forwards to future conduct, should we also be willing to commit to the trial judge's discretion the evaluation of the inference from intent (or belief) backward to a 3rd person's conduct that caused the intent (or belief)? - To do so would mean abandoning the h/s rule as we know it in favor of judicial discretion

KEY POINTS 1. Statements expressing a declarant's current state of mind, both directly & circumstantially, are admissible under FRE 803(3) to prove that state of mind, if it's relevant in the case a. Although sincerity & narration dangers are present, there are no perception + memory problems 2. State-of-mind evid. may not be admitted under 803(3) if its relevancy is to prove an historical event or condition, typically the fact that caused the state of mind if statements of state of mind were used to prove past facts, or to prove the conduct of 3rd persons, perception + memory dangers would be involved a. Some courts do permit statements of a declarant's intent to be used to prove the future conduct of a 3rd person, as well as the declarant's conduct, if there's corroboration 3. Statements of past state of mind & past fact relating to the declarant's will may, however, be admitted under FRE 803(3)

G. Interpretation & Illustration of FRE 803(4): Statements for Medical Diagnosis or Treatment 1. Preliminary Factfinding Found'l requirements for FRE 803(4) statements are: The statement must describe medical history, past or present symptoms, pain, sensations, or the inception or the general cause or external sources of symptoms; A statement about the cause or source must be reasonably pertinent to diagnosis or treatment; and The statement must be made for the purpose of medical diagnosis or treatment a. Some overlap btw this exception & statements of mental state admitted under FRE 803(3) a patient's description of currently existing sensation ("I feel dizzy") could fall w/in both i. But FRE 803(4) also admits statements to prove current symptoms that exist outside the mind of the declarant ("The thermometer says I have a temperature of 102") & to prove past symptoms as well ("I had a runny nose yesterday, and I coughed a lot") Relevance of these statements depends upon the accuracy of declarant's perception & memory, as well as sincerity + narration thus hearsay policy is implicated The test is that declarant's motive in making the statement must be consistent w/ the purpose of promoting treatment b. 803(4) doesn't specify the declarant be the patient, relating declarant's own medical history + symptoms i. Family, friends, nurses, and other medical personnel may convey info for purposes of medical treatment that will be admitted under FRE 803(4) ii. Even an unidentified declarant speaking to an ambulance crew may qualify under the exception if the court is persuaded that the declarant spoke for purposes of securing medical care for the patient iii. And if the patient is speaking to an intermediary e.g., a child to a parent, so that the parent can relate the symptoms to a doctor the terms of the exception could still apply so long as the purpose of seeking medical help exists c. There's also recent case law that the rule covers statements made to psychotherapists, social workers, and other health care personnel, not just physicians & nurses i. Admissibility is based not on the person to whom made, but on the purpose for which they're made, which gives rise to the presumption of reliability However, FRE 803(4) has been interpreted to apply only to statements by persons seeking care, not giving care thus statements made by doctors to patients, or by consulting physicians to treating physicians, aren't w/in the FRE 803(4) exception

2. Justification for the Admissibility of Statements for Medical Purposes a. The justification rests on the declarant's "selfish motive to be truthful" in making the statement i. The assumption is that a person seeking medical diagnosis & treatment is highly motivated to speak carefully + honestly about symptoms & conditions to receive the proper medical care ii. Thus even though the declaration may not be spontaneous, and even though there may be perception & memory risks when past conditions + causes are related, the statement bears less danger of insincerity & inaccuracy

3. Statements About the Cause or External Source Must be "Pertinent" a. It's common for persons seeking medical treatment to describe how their injury occurred ("I was hit from behind while sitting in my car, and my neck aches terribly") i. 803(4) explicitly includes such h/s statements to prove the truth of the matters they assert (declarant was hit from behind in her car) if they are "reasonably pertinent to diagnosis or treatment" But sometimes, patients' statements make more specific attributions of causation, naming specific persons or entities that caused them harm b. In general, pertinence is determined from testimony of the medical professional as to the type of info "reasonably relied on by a physician in treatment or diagnosis" i. If the declarant's statements aren't medically pertinent, there's some reason to suspect the declarant's motivation in speaking & therefore to suspect lack of sincerity Thus a statement such as "I was hit from behind by a red Mustang, w/ license plate # 445HCN, while I was sitting in my car" isn't likely to fall w/in FRE 803(4) c. The issue of pertinence frequently arises in cases of child abuse & molestation when the victim names the abuser to the health care professional i. Child declarant's statements indentifying her father as the abuser held to fall w/in the "pertinence" requirement Physician generally must know who the abuser was to render proper treatment b/c physician's treatment will necessarily differ when the abuser is a member of victim's family or household - In domestic sexual abuse cases, for example, the treating physician may recommend special therapy or counseling & instruct the victim to remove herself from the dangerous environment by leaving the home + seeking shelter elsewhere ii. Most courts agree that the identity of the abuser is pertinent in domestic abuse cases, and the definition of who is a member of the family or household is quite broad wasn't victim's natural father but had an intermittent relationship w/ victim's mother, and both victim + her mother stayed in his family home several months each yr d. Statements made by victims of domestic violence have also been admitted when the name of the abuser is stated to a treating physician i. As in sexual abuse cases, the physician in domestic violence cases "must be attentive to treating the victim's emotion & psychological injuries, which often depend on the identity of the abuser" e. Other past facts about causation of physical + mental problems are also subject to the dual test of "motivation" & "pertinence" i. 's description of her arrest, including a gun being pointed at her, was admissible for diagnosis & treatment of her emotional trauma + physical injuries ii. Statements that injuries were caused by "assault" were admissible as statements relating to cause more than to fault 4. Requiring Proof of Medical Purpose a. Courts are likely to assume that adults, and even teenagers, understand the purpose for which they're asked to give info to medical personnel i. w/ young children being examined for sexual abuse, however, this assumption may not be justified In the 8th Cir., identifications of abusers by child abuse victims are admissible only "where the physician makes clear to the victim that the inquiry into the identity of the abuser is important to diagnosis & treatment, and the victim manifests such an understanding" 9th & 10th Cir., however, have rejected the 8th Circuit's requirement of such a specific showing - Absent some indication that the child declarants didn't understand that they were seeking medical treatment, the declarant's self-interest in being truthful will be assumed

5. Statements Made for Diagnostic Evaluations for Litigation a. The sincerity rationale may not apply when a statement of physical condition is made for the purpose of diagnosis in preparation for litigation i. The treatment motive that tends to ensure sincerity is lacking ii. Moreover, possibility of receiving a high damage award is an incentive to exaggerate present + past symptoms or suffering b. However, most courts have held that admission of statements made to physicians only for the purpose of proving expert testimony is permitted by FRE 803(4)

H. Elaboration of FRE 803(4): Patients' Statements as the Basis for Expert Opinion 1. FRE 803(4)'s admission of statements made to testifying experts may not be justified by the reliability of such statements, but it's understandable when 1 considers this exception in conjunction w/ the rules regulating expert opinion testimony a. When a person's physical condition is at issue, there frequently will be an expert witness to testify about the nature of the condition b. Moreover, the expert is likely to have reached conclusions about the person's physical condition at least in part on the basis of what the person said outside of court about present & past symptoms 2. At C/L, such self-serving hearsay statements of physical condition weren't presented to the jury expert witnesses had to base their opinions solely on admissible evidence a. This req'd the patient to testify about the physical condition at issue & then the treating physicians to testify (and be cross-examined) about the patient's treatment b. The expert would then be asked to offer an opinion in response to a hypothetical question that incorporated the info already described in court 3. Well aware of the problems w/ hypothetical questions, the drafters of the Fed. Rules consciously sought to avoid them in providing for the presentation of expert info see FRE 702, 703, and 705 a. A medical expert who has been consulted for diagnosis in preparation for litigation is almost certainly going to rely on the patient's statements about past & present symptoms i. So long as the statements are of a type reasonably relied on by medical experts, the expert will want to recite these statements when explaining the diagnosis b. Having made this commitment to facilitate the testimony of experts, the drafters of the Fed. Rules further chose to take full advantage of the info that medical experts can supply i. FRE 803(4) establishes this priority by making statements of physical condition fully admissible

KEY POINTS 1. Statements describing medical history & symptoms are admissible under FRE 803(4) even though they involve inferences about all 4 of the declarant's testimonial qualities a. The context of speaking for the purpose of medical treatment reduces the sincerity danger, and ppl may take care in perceiving + reporting their medical symptoms 2. The statements may be made by the patient or by anyone who's seeking care by providing medical info about the patient 3. If the statement contains info about the cause or source of the medical condition, there must be evidence that such info is reasonably pertinent to treatment or diagnosis a. Such evidence is typically supplied by the physician seeking the info 4. Statements made for the purpose of medical diagnosis only, including a diagnosis undertaken in preparation for litigation, are included w/in the FRE 803(4) exception

I. Interpretation & Illustration of FRE 803(5): Past Recollection Recorded 1. Preliminary Factfinding Found'l requirements for the past recollection recorded exception are: The declarant is testifying as a witness; The statement is in the form of a memorandum or record; The statement concerns a matter about which W can't remember sufficiently to testify fully & accurately; The witness once had personal knowledge of the matter; The statement was made or adopted when the matter was fresh in the witness's memory; and The statement correctly reflects the witness's knowledge

a. The Contents of the Statement i. FRE 803(5) places no limit on the subject matter or contents of a statement admitted as a past recollection recorded Examples: - Notes of all your school assignments - Lists kept of objects/belongings packed in particular moving boxes - Any form of record of any sort of event that later becomes relevant in litigation (e.g., record of threatening phone call from a veteran made by a Veterans' Administration representative) ii. If the record is made as part of the functioning of a business or of a public or governmental institution, other exceptions for business & public records may also be available, and the more onerous found'l requirements of FRE 803(5) wouldn't need to be satisfied b. The Declarant Must Be a Witness w/ Failed Memory i. FRE 803(5) is unique in the Rule 803 exceptions in that it requires the presence of the declarant in court, as a witness In this respect, therefore, the exception is analogous to the FRE 801(d)(1) exemptions for prior statements of a witness ii. Under 803(5), however, it's categorically req'd that W not have sufficient memory of the underlying events that are the subject of the out-of-court statement, and that statement must be in written or recorded form e.g., In employment discrim. case, excerpts from 's diary concerning episodes w/ his employer were improperly admitted under 803(5) b/c didn't testify that he couldn't remember the events iii. Thus in 1 sense W is both available (on the witness stand) & unavailable (no adequate current memory of the events recorded

c. Made w/ Personal Knowledge & Fresh Memory i. Explicit requirement of a showing that W had personal knowledge of the matters when the memo or recording was made, and that it was made when that knowledge was "fresh" in W's memory Typically if W remembers making the written recollection, W will be able to testify about the circumstances in which it was created If W can't remember making the written record, then the record's own contents, or the testimony of someone who saw the record being made, or other circumstantial evidence, would be used to satisfy the requirement of personal knowledge & fresh memory ii. Record can either be made or adopted by W thus if W didn't actually write/record the statement, but read over & adopted the written statements made by another, the requirement can be satisfied Contents of the record reflected what W knew from 1st-hand knowledge still has to be shown iii. No bright-line rule to determine whether W's memory was "fresh" when the record was made The trial court may consider the lapse of time along w/ other circumstances that may be relevant in determining whether W had an accurate memory 3-yr & 15-month delay have been held not excessive under the circumstances Add'l evidence, such as lack of motive to misrepresent, clarity of statement, richness of detail, making changes + corrections, can show that W's recollection was still vital Time lapses btw a W's making a statement & later adopting its recorded version may also be lengthy, creating risks that inaccuracies in the record wouldn't be spotted - However, the trial court is in the best position to gauge the significance of these difficulties, and thus why arbitrary time limitations are inappropriate d. The Record Reflects the Witness's Knowledge Correctly i. Some evidence that the statement is correct i.e., both sincerely + accurately recorded is req'd But if W can't adequately remember the events recorded, it may be impossible for W to testify truthfully that the record is a correct reflection of what W knew when the record was made - What may often happen is that the witness-declarant simply answers "yes" to the question "Is this statement accurate?" & the basis for W's ability to so testify isn't probed Several ways, however, to lay an adequate foundation on the requirement of "correctness" - Sometimes the record itself contains info relevant to its accuracy o Lists of items packed in moving boxes could contain a statement that W double-checked contents of each box; erasures + corrections in the list may indicate care about accuracy o A written statement signed by a suspect in criminal custody could contain the language, "This is an accurate statement to the best of my recollection" - W may present circumstantial evidence as to why the statement is likely to have been accurate at the time it was made These found'l requirements are FRE 104(a) questions for the judge to decide

e. The Record May Only Be Read to the Jury i. FRE 803(5) limits the use of a past recollection recorded statement it may be read to the jury, but may not be received as an exhibit Thus, it may not be handed around by the jury or taken into the jury room for deliberation ii. It's thought that jurors might put undue weight on a past recollection recorded merely b/c it's recorded & has status as an exhibit When testimony in a deposition is admitted into evid., it's typically treated in the same manner: - The contents of the deposition are read to the jury, but the dep. isn't itself admitted as an exhibit, or at least isn't allowed into the jury room, unlike other admissible docs or records iii. If for some tactical reasons of advantage the opponent wishes to have the FRE 803(5) record before the jury as a document, the opponent may offer it as an exhibit

2. Justification for the Admissibility of Past Recollection Recorded a. Absence of adequate memory creates need for admission of statements that record W's past recollection b. In addition, the FRE 803(5) found'l requirements tend to indicate the record's increased trustworthiness i. The fact that the record was made when the matter was fresh in W's mind may minimize any memory problem ii. Similarly, the requirement that the record be shown to be a correct reflection of W's knowledge provides info concerning W's sincerity in making the statement and accuracy + care in recording it iii. The found'l requirements don't address the accuracy of W's perception of the matter reported in the statement, but W's current availability for general cross-examination may furnish info pertinent to perception ability & opportunity c. The degree to which these foundation requirements are effective in increasing the trustworthiness of past recollection recorded, however, depends on the strictness w/ which trial courts apply them i. e.g., If the trial judge doesn't probe the basis for a W's testimony that a written memo is "correct," we can't be sure that sincerity & narration dangers are decreased

J. Elaboration of FRE 803(5) 1. Past Recollection Recorded Can Be Created by Multiple Declarants a. Sometimes 1 person observes events occurring outside of court & tells them to a 2nd person who then makes a record based on what was said when that occurs, there are 2 levels of h/s contained in 1 doc i. e.g., John might do the packing of his household goods & then call out what he puts into each box while a 2nd person, Bob, makes the list There are 2 declarants in this situation: - The observer, John, who has observed the event (what item was packed) - The recorder, Bob, who transfers info obtained from the observer into the record If the observer doesn't check & adopt these lists, then the observer can't later say in court that the lists correctly reflect what the observer saw - Thus, the observer alone can't provide a complete FRE 803(5) foundation b. FRE 803(5) doesn't specifically address the effect of multiple person involvement in making the record i. Advisory Committee Note to FRE 803(5) states, "Multiple person involvement in the process of observing & recording is entirely consistent w/ the exception" Courts have held the written statement admissible if the person reporting the facts testifies to the correctness of the oral report (although at the time of the testimony, the detailed facts can't be remembered) & the recorder of the statement testifies to faithfully transcribing that oral report ii. The proponent of the cooperative report can satisfy all the FRE 803(5) requirements only if both out-of-court declarants the orig'l observer of the info + the later recorder of the info testify about the observing & recording process This also gives the opposing party the opportunity to cross-examine both the observer & the recorder about their part in the creation of the record iii. Thus if the proponent relies solely on 803(5) to admit a record produced by multiple declarants, each declarant in the hearsay chain must be presented as a witness (this can be a cumbersome process for the proponent, and some of the declarants may not be available) 2. Multiple Hearsay Requires a Hearsay Exception or Exemption for Each Level a. There are other strategies to admit a cooperative report created by multiple declarants i. FRE 805 provides: "Hearsay included w/in hearsay isn't excluded under the hearsay rule if each part of the combined statements conforms w/ an exception to the hearsay rule provided in these rules" ii. This means whenever multiple layers of h/s & multiple declarants are identified, each declarant's h/s statement must fall w/in either an FRE 801(d) exemption or a FRE 803, 804, or 807 exception Burden is on the proponent of multiple h/s to satisfy the found'l requirements of all of the rules being used any combination of exceptions, exemptions, and non-h/s statements is permitted iii. e.g., Several friends help John pack up his household goods, and each 1 tells the recorder what's in each box the recorder later compiles a list based on their hearsay statements All of the friends aren't available to testify, but their statements are probably present sense impressions w/in FRE 803(1) The combination of this exception for the friends & the past recollection recorded exception for the recorder who'll testify in court will satisfy FRE 805 & overcome any multiple h/s objection Other combinations are also possible, if a record is made of an excited utterance or an admission by a party opponent, for example b. If the recorder isn't available, or has no memory of the accuracy of the particular recording, another exception might apply to the recorder e.g., FRE 803(1) or the exception for business records, 803(6) i. It's important in applying the past recollection recorded exception that the recorder be truly recording, as opposed to interpreting or editing, what the witness was saying & has now forgotten The absence of interpretation ensures that W's memory, not the recorder's consciously altered version of that memory, is what's recorded

3. Present Recollection Recorded a. The past recollection recorded exception shouldn't be confused w/ the process of refreshing memory i. When a W initially can't recall something, it may be possible to refresh W's memory by presenting that W w/ a doc or something else that the examiner thinks, or that W suggests, may jog W's memory e.g., John might remember actually packing the objects that he placed in a particular box if he looks briefly at a pack list use of this list to "refresh" would be permissible b/c, under the FRE, there are no substantive limits on the type of item that may be used to refresh recollection b. If some physical object, like a document, is used to refresh memory, it will 1st be marked as an exhibit for the purpose of identifying it in the transcript i. Use of the object to refresh memory, however, is not using the document as evidence rather, the object is only a device to try to jog W's memory ii. If W's memory is refreshed, W will then proceed to testify on the basis of current (revived) recollection, and there will be no need for further reference to the object that revived W's memory In the case of John's refreshed memory, it will be for the court to decide whether John can actually remember packing the objects or whether he's simply testifying from the packing list - If John's testifying from the list, then it must itself be admissible into evidence under a h/s exception any exception would suffice, including FRE 803(5) - Indeed, a standard (but not absolutely req'd) way to satisfy the 803(5) found'l requirement of insufficient current memory is to show W the record, ask if it refreshes W's memory, and offer it if the memory isn't refreshed c. If the object is a writing that refreshes W's memory, the opposing party is entitled to inspect the document & to introduce into evid. "those portions which relate to the testimony of the W" FRE 612 i. If the writing has refreshed W's memory, however, it will probably contain info that corroborates what W has said thus it's unlikely that the opposing party would want to introduce it into evid. d. If the object doesn't revive W's memory, there will be no further occasion to refer to the object, unless the object happens to have some independent relevance to the lawsuit 4. The Impact of FRE 612 on Refreshing Recollection a. w/ a friendly witness, the process of refreshing memory is likely to take place outside the courtroom while discussing + rehearsing the direct & anticipated cross-examination i. If during this or any other preparation for courtroom or deposition testimony W uses a writing to refresh memory, the opposing party may be entitled to inspect the writing FRE 612 b. FRE 612 isn't merely a rule of admissibility it's also a rule of discovery i. Any documents a person looks at in preparing for a deposition may be discoverable by the opposing party including perhaps documents that would otherwise be protected by the work-product doctrine or some privilege

KEY POINTS 1. Recorded statements concerning any relevant matters may be admissible for their truth under FRE 803(5) if the declarant testifies as a witness & isn't able to fully recollect those matters, and if the foundation regarding the freshness + correctness of the statement is satisfied 2. FRE 805 provides that each part of a multiple h/s statement must conform to a h/s exception or exemption 3. If a statement is the product of reporting & recording by 2 or more out-of-court declarants, then all declarants must testify if FRE 803(5) is the sole hearsay exception relied on to admit the statement a. FRE 805 can be used in combination w/ other exemptions & exceptions to admit statements containing multiple levels of hearsay

K. Interpretation & Illustration of FRE 803(6): Business Records 1. Preliminary Factfinding Found'l requirements for business records are: The statement is in written or recorded form; The record concerns acts, events, conditions, opinions, or diagnoses; The record was made at or near the time of the matter recorded; The source of the info had personal knowledge of the matter; The record was kept in the course of regular business activity; and It was the regular practice of the business activity to make the record In addition to these requirements, FRE 803(6) also contains 2 unique features: Proponent req'd to produce a "custodian or other qualified W" to testify about the found'l requirements or to present a written declaration certifying such foundation facts purpose to FRE 902(11) or FRE 902(12)
Also contains a clause that permits judge to exclude a business record that otherwise fits the exception, if

"the source of info or the method or circumstances of preparation show lack of trustworthiness" a. The Broad Scope of What Constitutes a Business Record i. FRE 803(6) defines "business" very broadly When record-keeping activity assumes a public role, or provides a function w/in a formally organized institution, the terms of the exception probably apply ii. Kinds of records that would not fall w/in FRE 803(6)'s terms: Probably your notes as a student don't, nor would casual records you keep of your household expenses But a person's own records of expenses, or income, kept for business reasons such as balancing bank accounts, maintaining a budget, or preparing tax returns can qualify under 803(6) so long as they're "systematically checked and regularly + continually maintained" Receipts you receive when you have a car fixed, or bills you, as a consumer, receive in the mail from the phone & credit card company, are business records generated by the body shop or the phone or the credit card company, but they're your own personal, not your business records - Courts don't treat ppl as being in the business of being a consumer iii. The term record also defines a broad range of dos memos, reports, records, or data compilations The distinguishing feature of the business record is that info has been stored somewhere outside of the human mind & can be recalled in some form other than oral testimony iv. Permissible contents of a business record are likewise broad, and include acts, events, conditions, opinions, or diagnoses so long as they're topics that are regularly recorded as part of the regular business activity of the author

b. Personal Knowledge & Near Contemporaneity Are Req'd i. The orig'l source of the business records like the observer in a FRE 803(5) exception must have knowledge of a matter & must start the process of making a record of that matter The source may make the record alone, or may transmit info to a series of other ppl who record the info in various formats ii. FRE 803(6) also requires that the orig'l source start this process of record-keeping at or near the time that the source observed the matter iii. Example: In suit for breach of K, purchaser claims that goods purchased from seller were delivered in a damaged condition To prove the damaged condition, P offers a doc entitled "Damage Report," which identifies the shipment of goods as coming from S & describes the damaged condition of the items - Joan, P's employee who wrote the report, has left the company & can't testify - Since the report is offered to prove the truth of the matters it asserts that the boxes were labeled as coming from S, and that the goods were damaged it's hearsay To fit w/in the business record exception, the proponent must prove that Joan had personal knowledge close in time to her observation of the shipment - The judge must be persuaded, under FRE 104(a), by a preponderance of the evidence that these requirements are fulfilled iv. It's important to identify the activity w/ which the record should be contemporaneous e.g., A financial statement is never created contemporaneously w/ the underlying business records it's filed months after the end of the fiscal yr c. Made Pursuant to a "Business Duty" i. Unlike the past recollection recorded exception, FRE 803(6) doesn't require testimony as to the accuracy of the contents of the record trustworthiness is inferred from the 2 found'l requirements that contain the word regular The record must be shown to be kept in the course of regular business activity i.e., an activity w /in the customary business purposes of the enterprise - That the declarant had a business duty to keep the record is a term often used to describe a regular business activity 803(6) also requires a showing that it was a regular practice to make the record i.e., making such a record, or records like it, happens systematically or repeatedly

d. Custodian or Other Qualified Witness i. Whether the proponent of a business record produces the custodian of the record or some other "qualified" witness, courts have interpreted this language in FRE 803(6) to require that W be able to explain the record-keeping procedures of the business organization Personal knowledge of the specific records at issue isn't req'd: - FRE 803(6) doesn't require that the custodian personally gather, input, and compile the info memorialized in a business record - The custodian need not be in control of or have individual knowledge of the particular corporate records, but need only be familiar w/ the company's recordkeeping practices The foundation W need not be an employee of the business, so long as there's a showing of familiarity w/ the record-keeping system ii. FRE 803(6), together w/ FRE 902(11) & (12), now permit for business records to be provided by a written declaration, rather than a living testifying witness While the found'l requirements remain the same, it appears from some cases that he declarations speak in wholly conclusory terms: "The records were made & kept in the course of business by an employee who had personal knowledge of the facts recorded. this is sufficient" - In such a case, neither the opponent nor the jury is provided w/ any detailed, context-specific info w/ which to evaluate the reliability of the record - The notice requirement is intended to give the opponent the opportunity to take discovery to test the adequacy of the foundation in the declaration, but this results in increasing the costs of the opponent's pre-trial discovery 2. Justification for the Admissibilityof Business Records a. The business records exception is justified on the grounds of necessity & reliability i. The necessity is 2-fold: 1st, there's frequently multiple person involvement in the production of a business record - It would be time-consuming & inconvenient to call to the witness stand each individual who had a part in generating the record and many individuals responsible for making records may be unidentifiable or no longer associated w/ the business for which the record was made - Thus the "necessity" for the business records exception is sometimes described as the need to bring the rules of evidence into conformity w/ modern business practices 2nd, even if the ppl who were responsible for making the record were on the witness stand, they might not have any present memory of matters contained in the record - When this is the case, which is likely w/ respect to routine matters recorded in the ordinary course of business, all they can testify about is their routine practice in making such a record - The record itself is the only accurate source of the substantive info ii. The reliability rationale for the business records exception is based on several factors: The requirement that the record be made at or near the time of the matter recorded minimizes any memory problem 1 who makes a record in the regular course of business has an incentive to be honest & accurate to advance in the business The fact that the record is kept in the regular course of business suggests that it may be relied on or checked for accuracy, which provides an added guarantee of trustworthiness + an incentive for the record maker to be accurate in the 1st place The routine nature of many records that are made & kept in the regular course of business suggests that there's not likely to be an incentive to lie about routine matters The regularity of the record-making process often gives the record maker some expertise in record-making that tends to ensure accuracy

L. Elaboration of FRE 803(6) Not all records that are made & kept in the regular course of business are reliable o Consider, for example, records that are created for self-serving purposes, such as for promotion & public relations, or in preparation for litigation o Or the difference btw job site accident reports filed by injured employee or by an official public investigator 1. Exclusion for Untrustworthiness FRE 803(6) permits the judge to exclude a business record if "the source of info or the method or circumstances of preparation indicate lack of trustworthiness" w o The approach of 803(6) is to permit the judge to deal / untrustworthiness on a case-by-case basis a. Burden of Persuasion i. Opponent to the business record has the burden of persuading judge that a record lacks trustworthiness The proponent of the record must still be prepared to respond to the opponent's attack w/ facts that show trustworthiness b. Circumstances Indicating Lack of Trustworthiness i. Greatest concern about trustworthiness focuses on sincerity dangers e.g., motivation of the preparer The significance of the record for the business is central records specifically prepared for litigation are viewed as infused w/ a motive to distort the truth ii. Where the orig'l source of the info or the method of preparation of the record is unclear or unknown, or when a record on its face is irregular or contains serious mistakes or inconsistencies, courts may find untrustworthiness 2. Opinions & Diagnoses a. FRE 803(6) states that opinions & diagnoses contained w/in business records are admissible i. The difficulty w/ admitting opinions & diagnoses is that there won't necessarily be an opportunity to cross-examine the person who made these statements Opponent will be less able to explore the underlying factual bases for the opinion or diagnosis and, in the case of expert opinions, to explore the purported expert's degree of expertise ii. In some cases, info about the expert or about the factual support for the opinion may be available from the foundation W or may be contained in the document itself To the extent that such info isn't available, the party against whom the evidence is offered can argue for exclusion on several possible grounds: - The source hasn't been qualified as an expert (FRE 702) - Bases for the expert opinion can't be disclosed (FRE 705) - Probative value of the evid. is substantially outweighed by the time that it will take to present the evid. + the risk that, in the absence of critical evaluation, the jury will be misled & will give undue weight to the opinion (FRE 403)

3. Records Containing Multiple Levels of Hearsay If several ppl contribute to the creation of a business record, there are multiple levels of h/s in the doc w o Under FRE 803(5), each level must fit /in a hearsay exception or exemption If only FRE 803(6) is used to admit the entire document, then all declarants must be shown to satisfy all of its found'l requirements
a. Sources of Info w/ No Business Duty i. FRE 803(6) is intended to exclude, w/out regard to the trustworthiness clause, statements from persons w / no business duty to transit info to the record keeper ii. Any declarant to whom the business records exception applies must transmit knowledge in the course of a regular business activity i.e., have a business duty to make the out-of-court statement If not, FRE 803(6) may not be used to admit the recorded statement iii. If info is provided by outside persons not acting w/in a business duty, FRE 803(6) may still apply if it's the business's standard practice to verify or otherwise assure the accuracy of the info transmitted b. Use of Multiple Exceptions & Exemptions i. The source of info in a business record may be a declarant whose statement falls w/in another hearsay exception or exemption

KEY POINTS 1. FRE 803(6) requires testimony from a found'l W (or a written declaration) to provide evidence of the foundation requirements for the exception a. Once these requirements are satisfied, to obtain exclusion the opponent bears the burden of submitting evidence to show the record's lack of trustworthiness, arising from the record's sources of info or the method or circumstances of its preparation 2. Each link in the chain of supplying & recording the info contained in the business record must have personal knowledge of the underlying event or have perception of the info transmitted about it, and must be acting in the course of a regular business activity in passing the info on or recording it a. If info is supplied or recorded by a declarant w/ no business duty, the info must be either verified or the FRE 803(6) exception alone can't be used to admit the record b. Any other hearsay exemption or exception may be used for that declarant, however, and the record may be admitted using a combination of exceptions & exemptions

M. Interpretation & Illustration of FRE 803(8): Public Records & Reports 1. Preliminary Factfinding Basic found'l requirements for public records under FRE 803(8) are: The statement is in the form of a record or report from a public office or agency; and The contents of the record involve: o The activities of that office or agency; o Matters observed & reported pursuant to a duty imposed by law, but not matters observed by police or law enforcement in criminal cases; or o Factual findings resulting from an investigation authorized by law, but not against in a criminal case Person w/ knowledge of the contents of the proffered public record isn't req'd to lay this foundation & some public records, if identified + authenticated, can satisfy the found'l requirements w/ their contents alone Like FRE 803(6), this exception also includes a general exclusionary clause that permits the judge to exclude public records if the sources of info or other circumstances indicate lack of trustworthiness a. Activities of the Office or Agency i. FRE 803(8)(A) is generally interpreted to admit records pertaining to a public agency's own internal "housekeeping" functions such as its own personnel records & budgetary info It also includes records of official activities of the agency that are necessary to the performance of its public duties independent of any specific investigation or litigation, such as a county's registry of applicants for a firefighter position, or the record of an automobile's title history

b. Matters Observed & Reported Pursuant to a Duty Imposed by Law, Excluding Matters Observed by Police Officers + Other Law Enforcement Personnel in Criminal Cases i. Records that report what public employees have observed pursuant to their public duties are admitted under FRE 803(8)(B) upon a minimal foundation Consider the differences btw these public reports & the business record exception of 803(6) - The foundation for business records under FRE 803(6) requires evidence of near contemporaneity & regularity circumstances increasing the trustworthiness of the records - These indicia of reliability aren't req'd by FRE 803(8)(B) ii. Observing & reporting matters under a "duty imposed by law" rarely requires independent proof of the pertinent law duty is presumed from the legal purpose of the public agency itself + the scope of employment of the public employee Such public records span many fields, and may include weather reports, records of border crossings, accident scene measurements + descriptions, or damage reports Many public records & reports are the product of multiple levels of h/s, when 1 public employee observes + reports observations to a colleague or subordinate who's also a public employee, and who then records them - So long as each link in the chain bears a public duty, 803(3)(B) encompasses the entire report iii. The exclusionary terms of FRE 803(3)(B) apply to criminal cases & operate against the admission of reports of matters observed by "police officers + other law enforcement personnel" Reports authored by police officers are readily identifiable whether reports are authored by "other law enforcement personnel," depends on how broadly courts interpret the term It's generally held that criminal s may offer FRE 803(8)(B) records against the gov't c. Factual Findings in Investigative Reports i. A wide range of gov't investigative reports have been admitted in civil cases pursuant to 803(8)(C): Findings of official misconduct, accident reports of police or incident reports by specialized agencies, safety + diagnostic studies relating to public health issues, and reports + studies on house & employment discrimination - Such reports are powerful evidentiary tools, both b/c of the allegedly neutral weight of gov't investigation behind them & b/c of the persuasive impact of their findings + conclusions ii. Whether evaluative opinions + conclusions contained in public investigative reports should be admitted as "factual findings" under FRE 803(8)(C) So long as the conclusion is based on a factual investigation + satisfies the Rule's trustworthiness requirement, it should be admissible along w/ other portions of the report iii. The scope of "factual finding" isn't unlimited however Examples that don't satisfy this "factual finding" requirement of FRE 803(8)(C): - Preliminaryor interim evaluative opinions of agency staff, interim reports, preliminary memo - An FBI report that's nothing more than a transcript of statements from informants 803(8)(C) permits use of factual findings only in civil cases & against the gov't in criminal cases - Prohibition against use against criminal s is grounded on concern that multiple, potentially inadmissible hearsay sources in such reports could run afoul of the 6th A. Confrontation Cl. that protects a criminal accused's right to confront & cross-examine witnesses - Thus, Advisory Committee's continual reference to FRE 803(8)(C) as covering "evaluative reports," a term that suggests reliance on or evaluation of info supplied by 3rd persons

d. Exclusion for Lack of Trustworthiness i. The exclusionary clause can be applied to FRE 803(8)(A)-(C), although most cases involve concern about factual findings under 803(8)(C) ii. Like 803(6), burden is on the opponent to persuade judge as to the record's lack of trustworthiness The proponent must also be prepared to respond by citing factors that show trustworthiness iii. Factors of trustworthiness include: The timeliness of the report; The skill, expertise, and motivation of the investigator; and The procedures followed in preparation of the record iv. The identity & completeness of the sources of underlying info are also important, and it has been held that the exception should be applied "in a common sense manner in determining whether the hearsay document has sufficient independent indicia of reliability to justify its admission" 2. Justification for the Admissibility of Public Records a. The rationale for the public records exception at least w/ respect to routine matters is virtually identical to the rationale for the business records exception: Inconvenience of calling public officials to testify & likelihood the public officials may not recall the info in the records create the need for 803(8) i. The public official's duty & the likelihood that public access to the records will reveal inaccuracies tend to ensure the records' reliability b. As w/ all h/s exceptions, must be a sufficient showing of personal knowledge in 803(8)(A) & (B) records i. There are no specific found'l requirements, however, that the record be made at or near the time of the event or that it be a regular practice of the public agency to make the record c. Opinions & conclusions admitted under 803(8)(C) may rest on info outside the investigator's own 1st-hand knowledge i. It's the methodology of factual investigation which provides a threshold safeguard against untrustworthiness

N. Elaboration of FRE 803(8)(B): The Meaning of "Other Law Enforcement Personnel" 1. The Meaning of Law Enforcement Personnel a. United States v. Oates (2nd. Cir, 1977) i. Court reviewed the admission at trial of 2 public records the handwritten worksheet & the official report of a Customs Service chemist these docs recorded the testing procedure + test results on a white powder seized from , found to be heroin The examining chemist didn't testify due to illness, and there were inconsistencies btw the 2 documents regarding the chain of custody ii. Holding: The chemist's reports were hearsay The reports were "factual findings" under FRE 803(8)(C), thus inadmissible against a criminal The documents were also inadmissible under FRE 803(B) - Full-time chemists of the U.S. Customs Service are "law enforcement personnel" iii. Rule: "Other law enforcement personnel" includes, at the least, any officer or employee of a governmental agency which has law enforcement responsibilities b. Prosecutorial Functions i. Since Oates was decided, many courts have interpreted "law enforcement personnel" more narrowly In light of Congress's concern that it might violate a 's confrontation right to use a police report instead of the live testimony of a police officer, particularly when the report contained the officer's eyewitness account of criminal conduct, these courts include only individuals whose functions are similar to police officers w/in the exclusionary language of FRE 803(8)(B) - This includes public employees who perform "prosecutorial" or investigative function in specific cases (e.g., customs inspectors & border patrol agents), as opposed to those who perform administrative duties in a regulatory scheme, make administrative decisions, or seek compliance w/ fines + citations ii. In a case that seemingly controverts the holding in Oates, the 2nd Cir. upheld admission of factual observations contained in autopsy reports from the medical examiner's office b/c the employees of the office had no responsibilities for enforcing the law But, the conclusions in the report as to manner + cause of death were excluded under 803(8)(C) iii. Courts have held the following kinds of records to be admissible under 803(8)(B) b/c the authors weren't law enforcement personnel: Records of fire code violations Computerized printouts of currency records of the Fed. Reserve Board (including that certain currency wasn't in circulation) Records of drivers' license tests Tickets for moving & parking violations iv. In criminal cases, the focus on admissibility of many types of public records now includes the question of whether such report & records are "testimonial" statements under the interpretation of the Confrontation Clause set forth in Crawford v. Washington

c. Routine & Regular Activities i. Routine, bureaucratic, and nonadversarial reports made by law enforcement personnel, and even by police officers, need not be excluded in criminal cases Thus courts haven't applied the exclusionary terms of FRE 803(8)(B) in cases involving: - Records of serial #s of weapons received in Northern Ireland - Reports of the time + date of crimes, but not the facts & circumstances involved - A log of all 911 calls - Stolen vehicle reports - Records relating to the regular maintenance checks of a breathalyzer unit All of these records were considered reliable b/c they were routine & not made in an adversarial setting whereas observations made in adversarial settings, such as crime scenes or interrogations, are said to be less reliable b/c of the nature of the confrontation btw police & ii. Again, even for routine reports, the question remains whether the statements made therein are "testimonial" under Crawford

2. The Relationship Btw FRE 803(8)(B) & (C) and Other Exceptions a. Under Oates, if a document is inadmissible under FRE 803(8) b/c of the specific exclusionary terms in 803(8)(B) & (C), it would be a subversion of the legislative intent to permit the document to be used as an FRE 803(6) business record i. The justifications for admitting business records & publics records are, after all, very similar b. In addition, it shouldn't be permissible to circumvent the specific limitations on the scope of 803(8) by resorting to the residual exception of FRE 807 c. Prohibiting resort to all other exceptions, however, is unsound i. FRE 803(5), for example, requires the attendance of the author as a witness If the police or law enforcement officer does testify & is available for cross-examination, a court shouldn't forbid the use of FRE 803(5) by the gov't in criminal cases merely b/c the recorded recollection also happens to be a public record falling w/ FRE 803(8)(B) or (C) d. Some records of a gov't entity may contain info that's neither a "matter observed" nor a "factual finding" i. When that's the case, the report isn't covered by FRE 803(8)(B) or (C) at all and, therefore, can't fall w /in the exclusionary terms of FRE 803(8)(B) or (C) ii. Thus it wouldn't be a subversion of those limitations to resort to 803(6) or to any other h/s exception

O. Elaboration of FRE 803(8)(C): The Problem of Multiple Hearsay Sources w/in Investigative Reports
Many investigations that result in factual findings are based on h/s info factual findings might be based on

interviews of witnesses conducted by the investigator or on research evaluating both public & private records o Unlike business records under 803(6) & public records under 803(8)(B), where all sources must be operating under a business or public duty to conform to the requirements of the exceptions, sources relied on under 803(8)(C)need not be operating under any sort of public duty in relaying info to the investigator Some of these hearsay sources may fall w/in their own exception or exemption to the rule of exclusion e.g., excited utterances, statements of parties, or business records - This would both satisfy FRE 805 & provide some circumstantial guarantees of trustworthiness
If the underlying h/s sources aren't admissible, 1 safeguard is the public agency's ability to evaluate

such sources before it decides to rely on them - If the orig'l source has personal knowledge & no reason to misrepresent the info to the public official, under the circumstances, then the public report may be admitted
Another safeguard is the court's ability to exclude the public report under the lack of trustworthiness

clause in FRE 803(8) - Courts have used this clause to exclude records of findings that are based on h/s sources that are unidentified or that the court finds to be unreliable 1. Are Otherwise Inadmissible Hearsay Sources Admissible for Their Truth? a. FRE 803(8)(C) doesn't by its terms admit otherwise inadmissible h/s sources for the truth of the matters they assert, even when they're relied on by the investigator & appear to be trustworthy i. If these sources appear in the text of the public report, the jury might use them to decide what really happened, regardless of the investigator's conclusions Fed. Rules don't trust the jury to exclude inadmissible h/s from its decisionmaking Thus there's a conflict btw admitting the investigator's entire report including the substantive conflicts of all of its sources and keeping inadmissible h/s from the jury ii. A similar conflict exists when opinions of testifying expert witnesses are admitted together w/ all of the expert's underlying, potentially inadmissible sources b. FRE 703 now provides its own approach to this conflict i. It has been held that public reports that state conclusions based on scientific or technical expertise must comply w/ the requirements of "validity" of methodology under FRE 702 c. Thus it seems possible that the balancing test provided in FRE 703 could be applied to FRE 803(8)(C) reports as well i. The jury would be instructed that the underlying h/s sources are admitted not for their truth, but for the jury to evaluate the basis for the investigation's findings ii. Otherwise, the h/s sources would be redacted from the report, or application of the trustworthiness clause of FRE 803(8) could be used to exclude the report altogether 2. Administrative Findings a. The findings + conclusions that result from judicial proceedings don't fall w/in FRE 803(8)(C) b. However, agency hearings w/in the executive branch, even those presided over by officials called Administrative Law Judges, do qualify as investigations i. ALJ factual findings aren't automatically admissible trial judge has discretion pursuant to FRE 403 to assess the probative value of such reports & findings, as well as their Rule 403 dangers

P. Other Exceptions for Records Under FRE 803 1. In addition to the business & official records exceptions, FRE 803 contains a variety of exceptions for other types of records e.g., FRE 803(9), (11), (12), (13), (14), (15), (16), and (17) a. These exceptions for the most part are based on the notion that the records are likely to be reliable b/c of the nature of the entity preparing them, the routine nature of their preparation, and their subject matter 2. FRE 803(7) & 803(10) set forth hearsay exceptions for the absence of entries in business + public records, offered for the purpose of proving the nonoccurrence or nonexistence of a matter that probably would have been included in the particular record if the matter had occurred or existed a. It's unlikely that the failure to make the entry is the result of a conscious intent to assert that an event didn't occur thus the failure to make an entry may not constitute a h/s "statement" in the 1st place i. Nonetheless, there's some precedent for treating the absence of an entry as hearsay b. The exceptions exists to set the question at rest in favor of admissibility c. The search for public records must be diligent, and a showing must be made that the documents searched are proper business or public records i. The results of such a search have been held not to be excluded criminal cases by the exclusionary clauses of FRE 803(8)(B) & (C)

KEY POINTS 1. FRE 803(8) provides for the admission of (A) Records of the activities of public offices & agencies, (B) Matters observed pursuant to public duty by employees of public offices & agencies, and (C) Public investigative reports, including factual findings The testimony of a foundation witness may be necessary, but isn't req'd by FRE 803(8) 2. All public records are subject to exclusion by the trial court for lack of trustworthiness 3. In criminal cases, the prosecution may not use FRE 803(8)(B) to admit reports of matters observed by police or law enforcement officials against criminal s a. This limitation may not apply to records of public officers not engaged in the investigation or prosecution of individual criminal cases, nor to routine & regular records kept by police 4. Under FRE 803(8)(C), factual findings include opinions & conclusions a. Investigative reports & factual findings may not be used by the prosecutor against s in criminal cases i. Multiple hearsay contained in such reports may be used as the basis for the findings, but unless it falls w/in an exemption or exception, isn't admitted for its truth b. Courts also exclude factual findings as lacking trustworthiness b/c of reliance on inadmissible & unreliable hearsay

Q. Interpretation & Illustration of FRE 803(22): Judgment of Previous Conviction

A judgment on the merits in a criminal or civil action is relevant to prove the actual occurrence of the facts

essential to support the judgment o The judgment is hearsay evidence of those facts indeed, it may be multiple hearsay A 's plea of guilty is itself a h/s statement, and a judge's or a jury's conclusions about the evidence presented in a trial or summary proceeding are offered to prove the truth of those conclusions 1. Preliminary Factfinding Found'l requirements for the use of a judgment are: The judgment must follow a criminal trial or guilty plea; The judgment must be for a crime punishable by death or more than 1 yr's imprisonment; The judgment must be offered to prove the truth of a fact essential to the judgment; and A judgment offered against a criminal must be a judgment entered against that , unless it's offered only for impeachment The relevance of a judgment to prove underlying events requires a determination as to what "essential" facts were necessarily decided by the judge or jury The jdgmnt serves only as some evid. of those facts 803(22) doesn't raise issues of the possible binding effect of a prior jdgmnt a matter to be resolved under principles of collateral estoppel or issue preclusion 2. Justification for the Admissibility of Criminal Judgment a. FRE 803(22) reflects confidence that a judgment of guilt in a criminal felony case is reliable proof of the facts essential to sustain the judge the high standard of proof beyond a reasonable doubt is probably the strongest argument in favor of reliability b. The exclusion of judgments entered a plea of nolo contendere is based on the fact that a nolo plea, which can be entered only w/ the leave of the court, is specifically designed to resolve a criminal matter w /out the expense of a trial or 's acknowledgment of guilt c. Judgments entered against persons other than are excluded from criminal trials, unless used for impeachment, b/c of concern about 's right to confront & cross-examine those adverse witnesses whose testimony provided the basis for judgment d. Confidence in reliability of judgments in civil cases isn't so deeply felt i. When claims involve substantial monetary damages or important principles, it's reasonable to believe that the parties will put forth their best efforts in trying to vindicate their positions ii. Nevertheless, the standard of persuasion a preponderance of the evidence is significantly lower than in criminal cases If the stakes are small, a litigant may not have a serious interest in devoting the resources that would be necessary to vindicate the litigant's position iii. Even if 1 wanted to include judgments from major civil cases, any attempt to define the difference btw major & minor cases would probably seem quite arbitrary 3. The Admission of Misdemeanor Convictions for Impeachment a. The most frequent use of judgments is to impeach testifying witnesses pursuant to FRE 609 i. Courts invariably admit misdemeanor convictions for crimes of deceit to impeach witnesses pursuant to FRE 609(a)(2), even though misdemeanors aren't included w/in FRE 803(22)

V. HEARSAY EXCEPTIONS REQUIRING THE UNAVAILABILITY OF THE DECLARANT

FRE 804 provides 5 categorical hearsay exceptions that may be used only when the h/s declarant is unavailable
o Former testimony o Dying declarations o Declarations

against interest o Statements of personal & family history o Statements offered against a party whose wrongdoing procured the unavailability of the declarant as a witness A. FRE 804 Hearsay Exceptions; Declarant Unavailable
(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; (2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of the declarant's statement; or (4) is unable to be present or to testify at the hearing b/c of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing & the proponent of his statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b) (2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.
A declarant isn't unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

(b) Hearsay exceptions. The following aren't excluded by the h/s rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance w/ law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity & similar motive to develop the testimony by direct, cross, or redirect examination. (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position wouldn't have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability & offered to exculpate the accused isn't admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. (4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated w/ the other's family as to be likely to have accurate info concerning the matter declared. (6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

B. Interpretation & Illustration of FRE 804(a): Grounds for a Finding of Unavailability

FRE 804(a)'s broad definition of unavailability applies uniformly to all of the exceptions under FRE 804(b)

1. Preliminary Factfinding These preliminary questions are to be decided by the judge pursuant to FRE 104(a) a. Representations of counsel have been held sufficient to establish the absence or unavailability of a W under 804(a)(5), so long as good faith efforts have been made to secure W, including requests for voluntary attendance & subpoenas b. But when the issue is a W's claim of privilege under 804(a)(1), some courts hold that statements from counsel are insufficient to show that W actually won't testify i.e., W must claim the privilege in court c. Invocation of 804(a)(2) requires W's presence in court & a court order directing W to testify d. Invocation of 804(a)(3) requires testimony from W as to failed memory, but not a court order e. Evidence that a mental or physical infirmity (confined to home b/c of heart condition, unable to walk b/c of back condition, incapacitated by stroke) will continue for some length of time is usually necessary under 804(a)(4) i. Otherwise, court may seek a continuance to call a W who's merely ill, if the testimony is significant 2. Preference for Former Testimony or Deposition a. 804(a)(5) states a preference for former testimony that applies when declarant is absent (no deceased) i. The proponent of an absent declarant's dying declaration, declaration against interest, or declaration of pedigree must 1st use the declarant's former testimony or deposition ii. If none exists, proponent must make reas'ble efforts to obtain the declarant's deposition testimony (and seek declarant's attendance as a W) as a precondition to declarant being held to be unavailable b. Unfortunately, this preference sometimes produces problematic results: i. Where the absent declarant has flatly denied wrongdoing in a deposition taken for a tort case, but has made inculpatory h/s statements to various ppl that seeks to admit, it has been held that the deposition must be used pursuant to 804(a)(5) & the oral statements are inadmissible for their truth 3. Reasonable Means to Procure Attendance a. "Reasonable means" to procure the attendance of an absent witness under FRE 804(a)(5) requires a good faith effort on the part of the proponent of hearsay, but not the doing of a futile act i. When the gov't has the name + address of a foreign witness, some effort must be made to contact that witness in the witness's native country or else a finding of unavailability will be error ii. Offers from the gov't to pay airfare, met w/ refusal by the foreign witness, held to be a reas'ble effort iii. A decision by the gov't not to personally serve subpoenas on 2 allegedly unavailable witnesses until after the 1st day of trial was found not to be "reasonable" absent further extenuating facts b. There are also constit'l issues in criminal cases i. Introduction of declarant's former testimony where declarant was technically beyond subpoena power of the state, but was likely the prosecutor could've secured declarant's attendance held to violate 's 6th A. right to confront witnesses ii. Failure to try to contact h/s declarant who was out of country + had been extensively cross-examined at an earlier proceeding, held not to violate the confrontation clause

4. Unavailability Caused by the Proponent a. If a witness is unable to, or refuses to, testify b/c of the conduct of the proponent of the h/s statement, FRE 804(a) directs that W not be found to be unavailable i. Proof of threats made against a witness aren't enough there must be an actual finding of presumptive unavailability ii. There must also be a finding of "purpose" underlying the proponent's conduct b. The govt's carelessness in losing custody of a witness, or an inability to keep track of a witness, may not qualify as procurement or wrongdoing that would prevent a finding of unavailability c. It has been held that the govt's refusal to grant immunity to a witness who exercises a 5th A. right not to testify is neither "procurement" or "wrongdoing" & doesnt negate W's status as "unavailable" under FRE 804(a)(1), so that prior testimony may be admissible

C. Interpretation & Illustration of FRE 804(b)(1): Former Testimony 1. Preliminary Factfinding Found'l requirements for former testimony are: The statement must be in the form of testimony given at a hearing or in a deposition; In a criminalcase, the party against whom the statement is being offered must have had an opportunity & similar motive to develop the testimony at the prior hearing or deposition by direct, cross, or redirect examination; and In a civil case, either the party against whom the statement is being offered, or a predecessor in interest to that party, must have had an opportunity & similar motive to develop the testimony at the prior hearing or deposition by direct, cross, or redirect examination a. Opportunity to Develop by Same Person or a Predecessor in Interest i. Former testimony of a witness who has become unavailable can be offered against a criminal in the current case so long as that is the 1 who had the earlier opportunity & similar motive to "develop" that former testimony The former proceeding in which the testimony was given could've been either criminal or civil ii. In a current civil case, the party against whom the former testimony of a now-unavailableW is being offered need not be the same 1 who had the earlier opportunity & motive to develop the former testimony it's permissible if a 3rd-party "predecessor in interest" developed the former testimony Again, that former testimony may have been given in either a civil or criminal case iii. Concern w/ a criminal 's personal opportunity to confront + cross-examine witnesses underlies this FRE 804(b)(1)'s differing treatment of criminal & civil cases

b. Opportunity & Similar Motive Consider the following example: Paula has sued Dan for personal injuries caused in a car accident. Bob, a passenger in Dan's car, testifies for Paula that Dan was drunk at the time & had been driving on the wrong side of the road. There's a judgment for Paula, but the judgment is reversed on appeal b/c of improper jury instructions & a new trial is ordered. Bob dies before the trial, so Paula offers a transcript of Bob's testimony from the 1st trial. i. Even though Bob's former testimony is hearsay, it will be admissible against Dan in the retrial under FRE 804(b)(1) all of the found'l requirements are satisfied Bob's statement was given at the 1st trial, a hearing Dan was the adverse party at that trial - b/c exactly the same factual issues about which Bob testified are disputed in the retrial, Dan's motive to develop the testimony fully was a great at the 1st trial as it is now - Moreover, Dan had an opportunity to develop the testimony thru cross-examination and it's clear that opportunity is enough, even if Dan didn't take advantage of it Nor is it necessary that the former testimony have been given in a trial or formal hearing: So long as the opportunity + similar motive requirements are satisfied, testimony taken in Bob's deposition during discovery could be admitted under FRE 804(b)(1) as well ii. Similar motive doesn't mean identical motive, thus a factual inquiry is req'd Factor to be considered in determining whether a prior party, in a prior proceeding, had a sufficiently similar motive to develop the testimony of a witness: - The questioner must be on the same side of the same issue at both proceedings, and must have a substantially similar interest in asserting & prevailing on the issue Add'l circumstances or factors which influence a party's motive to develop W's testimony: - The type of proceeding in which the testimony was given - Trial strategy - The potential penalties or financial stakes - The # of issues & parties - Similarity btw the factual issues in dispute in the 1st & 2nd proceeding c. No Opportunity i. In some proceedings where the former testimony was given, a party may have had no meaningful opportunity to examine the witness e.g., was a fugitive from justice, tried in absentia, and wasn't represented testimony taken against him wasn't admissible in a later proceeding under FRE 804(b)(1) ii. If the former testimony is taken at a proceeding where, due to its nature or due to the conduct of the judge, a party was present but had no meaningful opportunity to develop testimony, courts have held that the prior testimony is inadmissible under FRE 804(b)(1) d. No Requirement of "Offered on Same Issue" i. Under FRE 804(b)(1), there's no requirement that the evidence be "offered on the same legal issue" e.g., Assume that the judgment in the Paula v. Dan hypo was reversed b/c the jury was instructed to apply a gross negligence standard, rather than a negligence 1, to the 's conduct - Bob's former testimony shouldn't be precluded at the 2nd trial b/c the issue to which the testimony relates is now somewhat different - The testimony is undoubtedly still relevant, and it's difficult to believe that the motive of the parties to develop the testimony is any different b/c of the different legal standard against which 's culpability will be measured

2. Justification for the Admissibility of Former Testimony a. A principal justification for admitting former testimony under FRE 804(b)(1) is necessity i. Since Bob is dead, the choice isn't btw live testimony or hearsay, but rather hearsay or nothing ii. This all-or-nothing choice always exists when h/s declarant is unavailable (although there may sometimes be other relevant evid. on the same point, so need for the h/s will vary from case to case) Although perhaps the law should be otherwise, the all-or-nothing choice isn't itself enough to justify the admission of hearsay evidence there must also be circumstantial guarantees of trustworthiness or some other reasons to justify the loss of the opportunity for cross-examination b. The prior opportunity & motive to develop testimony are important justifications for the lack of present cross-examination i. If Dan's cross-examination of Bob had cast any doubt on the truth of what Bob said, Dan could introduce relevant parts of the cross-examination at the retrial ii. In fact, given the oath, courtroom formalities, and the prior opportunity to develop testimony, prior testimony seems far closer to live testimony than any of the FRE 803 exceptions c. Yet the reason for imposing an unavailability limitation on use of former testimony is readily apparent i. w/out such a limitation, parties could make wholesale substitutions of former trial transcripts for live testimony in cases retried after a hung jury, mistrial, or reversal on appeal ii. Indeed, depositions or preliminary hearing transcripts could be substituted wholesale for live witness testimony in the initial trial D. Elaboration of FRE 804(b)(1) variations of the Paula v. Dan lawsuit illustrate add'l applications of 804(b)(1) 1. The Opportunity to Develop Testimony Although usually thought of as cross-examination, the requirement of an opportunity to develop testimony has a broader meaning:
Bob, called as witness by Paula at the 1st trial, surprised Paula by testifying on direct examination that Paula had been speeding and that Paula drove across the center line + hit Dan's car. At the 2nd trial, Dan offers this former testimony, and Paula objects on the ground that she didn't have an opportunity to cross-examine Bob.

a. Under 804(b)(1), it doesn't matter P didn't have an opportunity to "cross-examine" Bob it's sufficient that P had the opportunity & similar motive "develop the testimony by direct, cross, or redirect exam" i. FRE 804(b)(1) specifically permits a party to impeach the credibility of any witness, including a witness called by the party, under FRE 607 ii. And, FRE 611 sets forth general guidelines for the "mode + order" of presenting evid. and provides sufficient flexibility for Paula to develop & explore weaknesses in Bob's testimony thus, unless trial judge unduly restricted P's direct and redirect exam, she has nothing about which to complain 2. Identity of Parties Returning to the orig'l hypo in which Bob testifies for Paul & adversely against Dan, what if another party, not Paula, offers Bob's testimony against Dan at another proceeding? Jo, also a passenger in P's car, has sued D for his own personal injuries. B has died by the time J's case goes to trial, and J offers B's testimony from 1st P v. D trial about D's being drunk + driving on wrong side of the road. a. Under FRE 804(b)(1), there's no requirement that the party offering the former testimony must have been a party to the orig'l proceeding in which the testimony was given rather, it's sufficient if the party against whom the evidence is offered had an opportunity to develop the testimony i. In hypo, b/c D had an opportunity to develop the testimony, it doesn't matter that the person now offering the testimony is J rather than P so long as the "similar motive" requirement is also satisfied

3. Former Testimony Offered Against a Party Who Was Not a Party to the Orig'l Action What if P offers B's testimony against a new party someone who was an outsider to the orig'l P v. D trial? Paula now sues Rick to recover damages for her injuries in the accident w/ Dan. Rick is the owner of the tavern where Dan had been drinking before the accident. Bob has died, and Paula offers Bob's testimony from the 1st Paula v. Dan trial about Dan's being drunk + driving on the wrong side of the road.
In a criminalcase, former testimony can't be offered under FRE 804(b)(1) against a who wasn't a party

to the 1st proceeding

Offering Bob's testimony against Rick, even in a civil case, is somewhat troublesome
o Here,

Rick didn't have an opportunity to develop Bob's testimony when it was given he wasn't a party to that proceeding Of course Rick can use the prior cross-examination of Bob from the 1st trial but this is, in effect, to impose upon him Dan's selection of counsel - If Dan was represented by a mediocre att'y who didn't do a good job of cross-examining Bob, Rick would be stuck w/ that result even though his att'y might have done a substantially better job at discrediting Bob the other hand, Dan did have the opportunity to develop the testimony & to discredit Bob's opinion that Dan was drunk, and his motive for doing so was identical to Rick's Given the fact that the alternative is to forego highly relevant evidence, whatever Dan's lawyer accomplished w/ the cross-examination of Bob is arguably sufficient to permit admission of the evidence against Rick Moreover, as a practical matter, Dan himself may not have been aware of the skills or able to control the actions of his att'y while it may at 1st blush sound unfair to characterize use of the evidence against Rick as sticking Rick w/ Dan's choice of att'y, it may be no more "unfair" to do this than to stick Dan w/ the choice of att'y that he initially made & that he may later regret

o On

o Thus,

a. In a Civil Case, the Party in the Former Proceeding May Also Be a Predecessor in Interest i. It's generally unfair to impose upon the party against whom the hearsay evidence is being offered responsibility for the manner in which the witness was previously handled by another party The sole exception to this is when a party's predecessor in interest in a civil action or proceeding had an opportunity & similar motive to examine the witness b. What Is a Predecessor in Interest? i. Courts have interpreted the term predecessor in interest in 3 different ways: Narrow includes only relationships in which individuals stand in privity to each other in some trad'l property or K law sense Intermediate privity expanded to include subsidiary + parent corporations, or co-employees such a district att'y & a city solicitor Broad equating interest w/ motive: Any party to an earlier proceeding who had a similar motive to develop the testimony fully is a predecessor in interest ii. Under the narrow interpretation, Dan wouldn't be a predecessor in interest to Rick iii. Under the broad view, Dan would be considered a predecessor in interest to Rick b/c Dan would've had a similar motive to develop Bob's testimony The same factual issues are in dispute in both the 1st & 2nd proceedings, and Dan + Rick are on the same side of those issues w/ the same interest in discrediting Bob's opinion

4. Lack of Similar Motive Due to Difference in Procedural Context a. In some procedural context, parties don't have the same motive to develop a witness's testimony that they will have later a full trial on the merit i. e.g., A criminal 's offer of former testimony given by W at his guilty plea hearing may be excluded b/c govt's motive to test the voluntariness of the plea, and its factual basis, isn't the same as a trial b. Whether grand jury testimony could be offered by a criminal , against the gov't, when grand jury witnesses were unavailable due to an assertion of privilege i. Witnesses A & B had been presented to the grand jury by the prosecution Their grand jury testimony, however, tended to exculpate the prosecutor, presumably, then had a motive to develop their testimony i.e., to impeach or challenge it ii. At trial, sought to use the former testimony of A & B in his own defense iii. Gov't admitted that it was the "same party," but contended that it hadn't had, and would never have, a "similar motive" to develop testimony at a grand jury proceeding as it would at trial: Prosecutor must maintain secrecy during the investigatory stages of the criminal process + thus may not desire to confront grand jury witnesses w/ contradictory evidence iv. The 2nd Cir. held that the grand jury testimony shouldn't have been admitted under FRE 804(b)(1) The proper approach to similarity of motive must consider whether the party resisting the offered testimony at a pending proceeding has 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 2 proceedings both what's at stake & the applicable burden of proof and, to a lesser extent, the cross-examination at the prior proceeding both what was undertaken + what was forgone will be relevant though not conclusive on the ultimate issue of similarity of motive v. The 2nd Cir. believed that the gov't had no motive to press these particular witnesses at the grand jury hearing b/c had already been indicted b/c the grand jury was already persuaded that a conspiracy existed, the gov't had little incentive to attack A's & B's exculpating testimony - The prosecutor did attack them somewhat, by accusing them of lying & confronting them w/ contradictory evidence but the court held that this wasn't full-blown cross-examination, and the questions were carefully limited to matters already publicly disclosed - Therefore no secret info was used, as it might be at trial c. Traditionally, preliminary hearing testimony can be admitted under 804(b)(1) against later at trial, even though had little actual motive to develop the testimony fully at the preliminary hearing however: (1) the preliminary hearing is at such an early stage of the proceedings that may not have sufficient info to cross-examine W adequately; (2) like the prosecutor at the grand jury, at the preliminary hearing has no wish to "tip his hand" by aggressive cross-examination, and would much prefer to attack W at trial; and (3) b/c of the minimal standard of proof, it's often a foregone conclusion that will lose at the preliminary hearing, so that any attempted cross-examination or impeachment of inculpatory witnesses will be so much wasted effort at that point d. These concerns about the adequacy of opportunity to cross-examine will also affect 's right to confrontation under Crawford if preliminary hearing testimony is offered at trial

5. Method of Introducing Former Testimony a. When former testimony is admissible, any witness w/ personal knowledge of the content of the former testimony can relate what was said b. Most common method of getting former testimony before the fact finder, however, is to introduce a properly authenticated transcript of the testimony i. Use of a transcript for this purpose actually involves multiple hearsay: 1st, there's the out-of-court statement of the now unavailable witness 2nd, there's the activity of the court reporter in taking down what the witness says 3rd, there's the activity of the court reporter in making a transcript of the testimony ii. Business or official records exceptions of 803(6) & (8) will generally apply to the court reporter's h/s 6. Objections to the Contents of the Former Testimony a. Regardless of what method is used to introduce former testimony, there's a possibility that the former testimony may itself be objectionable for some reason i. Examples: The former testimony may have been elicited in response to a leading question It may have contained an impermissible lay opinion It may have been privileged It may recite inadmissible hearsay ii. In these situations, the question arises whether objections can be made to exclude former testimony that meets all the requirements of FRE 804(b)(1) (the former testimony exception) Objections which go merely to the form of the testimony as on the ground of leading questions, unresponsiveness, or opinion must be made at the orig'l hearing when they can be corrected On the other hand, objections that go to the relevancy or the competency of the evidence may be asserted for the 1st time when the former testimony is offered at the present trial KEY POINTS 1. Assuming unavailability, testimony given at a prior hearing (or deposition) may be admitted against a civil or a criminal party if that party was present at the prior hearing, had a meaningful opportunity to examine the witness, and had the same motive to examine the witness as at the current trial 2. The party may not have had the same motive at the prior hearing if different facts are at issue in the 2 proceedings, or if the procedural context in the prior hearing eliminated the party's incentive to fully examine the witness 3. Testimony given at a prior hearing (or deposition) may also be admitted against a civil party if a predecessor in interest to that party someone w/ the same motive b/c disputing the same factual issues had the opportunity to examine the witness at the prior hearing

E. Interpretation & Illustration of FRE 804(b)(2): Dying Declarations 1. Preliminary Factfinding Found'l requirements for dying declarations are: The statement concerns the cause or circumstances of what the declarant believes is impending death; The statement is made while the declarant believes death to be imminent; and The statement is offered in a homicide prosecution or a civil case a. Statements concerning the cause or circumstances of the declarant's death include identifications of the perpetrator, and descriptions of accidents & of past events that led up to the moral injury or disease i. Even though the belief in imminent death may generally enhance a declarant's sincerity, contents other than the cause or circumstances of death aren't included w/in the exception ii. The hearsay statement presumably has to concern the cause of only the declarant's own death, not extending to the cause of death of another b. A belief in imminent death means the lack of hope or recovery "a settled hopeless expectation that death is near at hand & what's said must have been spoken in the hush of its impending presence" i. This state of mind can be shown by: The declarant's own statement, Circumstances such as the nature of the declarant's wound, Evidence that the declarant was told that death was imminent, or The opinion of a physician ii. This preliminary question is to be decided by the judge, pursuant to FRE 104(a) Thus the jury's not instructed that it must find the declarant's belief in imminent death before it may consider the statement, but evidence that tends to show that the declarant didn't have this belief may be used by the opponent to argue to the jury that the statement isn't reliable c. Homicide s have invoked 804(b)(2) in homicide cases to show some 3rd person committed the murder i. As a practical matter, however, it will usually be prosecutors who want to take advantage of the dying declaration exception 2. Justification for the Admissibilityof Dying Declarations a. The rationale for the exception is 2-fold: i. As usual, the unavailability of the declarant mens that there may not be another means of obtaining the same or similar evidence thus creating a necessity ii. Reliability inheres in the notion that ppl who realize that death is imminent will be especially likely to be sincere, since their condition obviates any motive to misstate the truth or, declarants may believe it's in their interests to "meet their maker" w/ clean hands b. However, both necessity & reliability justifications for this exception are subject to criticism i. It's not clear that the need for a dying declarant's statement about the cause or circumstances of death is any greater than the need for the statements of any unavailable witness There may be an absence of available eyewitnesses to all sorts of events and there may be alternative forms of evidence available to prove the cause of death in a homicide or civil case ii. The proposition that individuals who believe death is imminent are particularly likely to be sincere is sheer speculation There's no requirement that dying declarants be shown to be religious, and no requirement of other circumstances that tend to reduce a motive to misrepresent the cause of death Furthermore, even if 1 assumes that dying declarants are likely to be sincere, the circumstances surrounding a dying declaration may exacerbate other hearsay dangers - If the declarant is the victim of a sudden attack, there's reason to question the accuracy of the victim's perceptions - Additionally, an individual who's suffering enough to believe that death is imminent may have somewhat reduced capacities for narration & memory

KEY POINT 1. Assuming unavailability, statements made by a declarant who believes that death is imminent are admissible in civil cases & in homicide cases so long as the contents of the statement concern the cause or circumstances of the declarant's impending death

F. Interpretation & Illustration of FRE 804(b)(3): Declarations Against Interest 1. Preliminary Factfinding Found'l requirements for declarations against interest are: The content of the statement, at the time the statement was made, was Against the pecuniary or proprietary interest of the declarant; Could subject the declarant to civil or criminal liability; or Could render invalid a claim held by the declarant; The statement was against any of the above interests of the declarant to an extent great enough such that a reasonable person, in declarant's position, wouldn't have made such a statement unless it was true; and If the statement exposes the declarant to criminal liability & is offered to exculpate the accused, evidence of corroborating circumstances that clearly indicate the trustworthiness of the statement must be offered a. Content Against Interest i. Focus of against-interest requirement is usually on the content of the statement this content must be contrary to 1 of the specific interests of declarant identified in the rule when the statement is made At trial, the statement is offered to prove the truth of those facts - Assume Mark tells a friend that he owes a lot of money to Russ the fact of owning money is against Mark's pecuniary interest - Suppose Mark told his friend that he had robbed a bank to pay the debt this statement could subject Mark to criminal liability & thus would be against Mark's penal interest - We assume that ppl in general have an interest in maintaining ownership of their money as well as their possessions, so Mark's statement that he owes money should qualify as contrary to his proprietary interest as well ii. To be against a declarant's pecuniary, penal, or civil claims interests, a statement under 804(b)(3) need not have been said in the face of immediate adverse consequences For instance, the rule doesn't require that Mark's admission of robbing the bank have been made to a police officer; conversely, Mark's belief that his friend would keep his statements confidential doesn't alter their against-interest quality A better test is whether the statements would harm Mark's interest if disclosed publicly or to the relevant authorities iii. Nevertheless, in other respects the context of the statement does matter: Sometimes a statement that on its face appears to be against interest isn't in fact against the declarant's interest b/c of the surrounding circumstances A statement by Mark that he owes Russ $500 may not be against Mark's interest if Mark knows that Russ claims that the debt is really $2,000 If the facts in the statement can no longer cause trouble for declarant (e.g., he has been convicted of the crime whereof he speaks), then the against-interest element may not be satisfied And, if the context w/in which the statement is made gives declarant a strong self-serving motive, then the exception may not apply On the other hand, although 1 might confess a crime to a spouse or close friend & expect the confession never to be disclosed, in admitting such statements courts typically focus + rely on the against-interest content of the facts disclosed

b. Ascertaining the Declarant's Knowledge i. The declarant's knowledge comes up in 2 different senses under FRE 804(b)(3): Like other FRE 803 & 804 exceptions, 804(b)(3) requires a showing that the declarant (Mark) had personal knowledge of the against-interest fact when the statement was made In addition, 804(b)(3) applies only if Mark knows (or reasonably should know) that the fact is against his interest - If the particular facts affect declarant's assessment of what's against interest, then these facts will be taken into account - 804(b)(3) calls for evaluation of the probable understanding of an individual by asking what a reasonable person in that individual's position would be thinking o We typically apply "objective," reas'ble person standards in light of the circumstances & facts known to the particular individual whose conduct or statement is at issue c. Distinct from Party Admission i. It's important not to confuse FRE 801(d)(2)(A) admissions of a party w/ declarations against interest ii. FRE 804(b)(3) requires many more found'l requirements iii. 804(b)(3) also applies to statements made by anyone, not just a party, and is typically not offered against the person who made the statement (and who is unavailable) but against someone else 2. Justification for the Admissibility of Declarations Against Interest a. The content of Mark's statement that he owes money reflects damage to his pecuniary interest i. This against-interest factor is thought to give the statement a sufficient circumstantial guarantee of trustworthiness to warrant admissibility, at least if the alternative is foregoing evidence altogether, which it is since the exception requires unavailability b. The underlying theory of human behavior is that most ppl generally tell the truth in the absence of a motive to lie, and motivations to lie are nearly always self-serving statements against interest, which are the opposite of self-serving by definition, are thus seen as reflecting an absence of a motive to lie i. Such a statement is therefore likely to be reliable, even though oath & cross-examination are lacking c. The other types of interests that are included w/in the exception not being subjected to civil & criminal liability, possessing valid claims against others are also assumed to be important enough that ppl should have no reason to life if they say something that reflects badly on such interests

G. Elaboration of FRE 804(b)(3) 1. Doubts About the Underlying Rationale for the Exception
The most serious problem / the declarant against interest exception is its empirical assumptions
w

o The 1

premise underlying the exception is that ppl seldom intentionally state facts that truly reflect against their interest however, is the next inference: That if such statements are made they wouldn't be lies, and thus are likely to be trustworthy It seems much more likely that a statement that appears to be against interest is in fact not against interest, but reflects an ulterior motive that may be difficult to discern

st

o Troublesome,

Most statements characterized as declarations against interest are likely to fall into 1 of 2 categories:

a. Mixed Motive Statements i. "Mixed-motive" statements appear to be against interest, but have a high risk of being unreliable if there was an ulterior self-interested motive for making the statement e.g., A declarant might say he owes money to justify asking the listener for a loan, or declarant may "admit" robbing a bank or dealing drugs to impress the listener Numerous criminal cases involve statements to law enforcement officials made by declarants who both admit culpability while also blaming others to procure favor w/ the authorities, or to secure immunity from prosecution ii. Sometimes, however, there may not be much available info bearing on declarant's real motivation & the court may fail to see that declarant also had a self-serving reason to make the statement If courts don't discern such mixed motives, untrustworthy statements may be admitted b. Statements Made w/ No Motive to Lie i. The 2nd type of admitted statements are reliable statements whose reliability has more to do w/ lack of motivation to lie & less to do w/ their against-interest characterizations Mark's statement that he owes money may be, to him, merely a neutral recitation of a fact The fact that the statement may be characterized as being against interest may have nothing to do w/ its sincerity in this respect the statement is no different from many other h/s statements that don't fall w/in the declaration against interest (or any other h/s) exception

2. Requirement of Corroboration for Statements Against Penal Interest Offered to Exculpate the Accused a. FRE 804(b)(3) imposes special corroboration requirements on declarations against penal interest that are offered by s in criminal cases to exculpate themselves in such cases, an out-of-court declarant has made a statement assuming criminal responsibility for the crime w/ which the is charged i. The requirement is framed in terms of "corroborating circumstances" that "clearly indicate the trustworthiness of the statement" Courts look to circumstances that corroborate either the content of the statement (other evidence that the facts that exculpate the are true) or the trustworthiness of the declarant (voluntariness, lack of motive to procure favor, lack of subsequent inconsistent statements) - Recantation of exculpatory statements, and assertions of the 5th A. privilege, have been held to weigh against trustworthiness Doubts about the credibility of the testifying witness shouldn't be a factor in assessing the trustworthiness of the declarant's statement

3. Statements That Inculpate Accomplices a. Mixed-motive statements raise special, recurring problems in criminal cases i. Consider a case in which prosecutors have charged 2 s, X and H, w/ robbing a bank H makes a written confession to the crime at the police station & in the confession names X as his accomplice At a separate trial, H successfully asserts his 5th A. right not to testify & is therefore unavailable - Prosecutors offer H's written confession against X, arguing that it's a statement against the penal interest of the declarant, H, under FRE 804(b)(3) b. A key question presented in cases of potential statements against penal interest that inculpate the in addition to the h/s declarant will be whether the statement constitutes "testimonial" h/s under Crawford i. If it does, then the statement is barred by the Confrontation Clause, unless had a prior opportunity to cross-examine the declarant & the declarant is currently unavailable Inadmissibility under the Confrontation Clause cuts off any inquiry into whether the statement qualifies for admission under FRE 804(b)(3) - Any statement given under police questioning at the station house, whether a written confession as in the W-X hypo or tape recorded interview, as in Crawford itself, plainly falls w /in the core application of the Crawford definition c. If the h/s offered under FRE 804(b)(3) is held to be not testimonial, then it's necessary to analyze whether a mixed motive statement like H's is truly against the declarant's interest i. Pre-Crawford authorities analyzing this question in the context of statements made to law enforcement have held that FRE 804(b)(3) shouldn't allow admission of statements that inculpate purported accomplices unless they also specifically self-inculpate the declarant as well A broad narrative that's only generally self-inculpatory might not be found to be sufficiently against interest, while statements that intertwine self-inculpation could be genuinely against the interest of the declarant - e.g., "I hid the gun in Jo's apartment" could show both self-incrimination & Jo's involvement

KEY POINTS 1. Assuming unavailability, statements that are against the declarant's pecuniary, proprietary, penal, or civil liability interest may be admissible a. The statement must be so far against that interest that a reasonable person wouldn't be lying when making that statement 2. To determine whether the statement is against interest, the court should examine the situation & motives of the declarant 3. Statements of fact that inculpate others, made in the context of a self-inculpating statement, are admissible only if each specific statement is against the declarant's interest a. Courts are divided as to whether such statements, made in custody, can be admitted as against the declarant's interest 4. Statements against penal interest offered by a criminal for exoneration must be corroborated as to contents, the trustworthiness of the declarant, or both

H. Interpretation & Illustration of FRE 804(b)(4): Statements of Personal or Family History 1. Preliminary Factfinding Found'l requirements for statements of personal or family history are: The content must concern the declarant's own personal or family history; or The statement concerns the personal or family history of 1 to whom the declarant is related or was intimately associated a. Personal Knowledge of 1's Own Personal & Family History i. FRE 804(b)(4)(A) doesn't require that the declarant have personal knowledge Obviously, a declarant has no personal recollection of birth or place of birth However, any declarant meeting the requirements of FRE 804(b)(4)(A) is inevitably going to have knowledge of circumstantial evidence of personal & family relationships b. Statements of Relations & Intimate Associates i. The C/L req'd that a declarant speaking about personal or family history of another be related by blood or marriage to the person about whom the declaration is made ii. FRE 804(b)(4(A) expends the C/L exception to close family members & intimate associates so long as the relationship is such that declarant would have accurate info about the family history Independent evidence may be req'd that the declarant was a family member or so intimately associated w/ a family as to be knowledgeable c. Concerning Personal History i. The exception is limited to past facts & events of an objective, rather than subjective, nature Statements as to motives or purpose for marriage are beyond the scope of FRE 804(b)(4)

2. Justification for the Admissibility of Statements of Personal or Family History a. Statements about the declarant's own personal or family history are assumed to be reliable enough to be admitted if the declarant is unavailable no special assurances of reliability are req'd i. C/L hearsay exception req'd that the declaration be made prior to the time of the controversy that's the subject of the litigation ACN to 804(b)(4) explains the absence of this requirement on the ground that the time of the statement has a bearing more appropriately on weight than admissibility

KEY POINTS 1. Assuming unavailability, a statement asserting the declarant's own family history may be admitted w/out a showing of personal knowledge 2. A statement asserting the family history of another person may be admitted if the declarant had accurate knowledge as a result of being relating to or intimately associated w/ the other person's family

I. Interpretation & Illustration of FRE 804(b)(6): Forfeiture by Wrongdoing

Admission of the unavailable witnesses' hearsay statements was justified on a theory of waiver
oA

criminal 's 6th A. right of confrontation may be waived by 's misconduct

The waiver principle was extended to include the h/s rule waiver of confrontation rights simultaneously

waived the right to object on h/s grounds to the admission of the out-of-court statements 1. Preliminary Factfinding Found'l requirements for forfeiture-by-wrongdoing statements are: The party engaged or acquiesced in wrongdoing; The wrongdoing was intended to procure the unavailabilityof the declarant as a witness against the party; The wrongdoing did render the declarant unavailable as a witness; and The declarants statement is offered against the party a. The Declarant Was a Witness or a Potential Witness Against a Party i. The forfeiture rule applies to wrongdoing against both actual & potential witnesses The purpose of 804(b)(6) is to secure the admission a trial of hearsay statements made by unavailable declarants who were serving as witnesses against a party, for example by giving grand jury testimony or by being scheduled to appear in an upcoming trial If there was instead only an ongoing criminal investigation, declarants are potential witnesses if they are assisting in this investigation b. The Party Engaged in Wrongdoing that Did Procure the Unavailability of the Declarant i. The party against whom the declarant's statements are offered must be shown to have "procured" the unavailability of the declarant by engaging in or acquiescing in "wrongdoing" Proponent of the statement must persuade the judge by a preponderance of the evidence, pursuant to FRE 104(a), that the party did so act ii. In general wrongdoing is defined broadly to mean threats, intimidation, kidnapping, hiding, acts of violence, and ultimately, murder to secure the silence of the then-unavailable declarant Engaging in wrongdoing means "he or she participated directly in planning or procuring the declarant's unavailability" iii. Evidence use to prove the party's engagement in wrongdoing may include declarant's h/s statements FRE 104(a) permits the court to "bootstrap" a finding of a found'l fact by relying on the contested h/s statement itself c. Intent to Procure the Declarant's Unavailability as a Witness i. A specific finding must be made by the trial court that the party acted w/ the intention of making the declarant unavailable as a witness Gov't need not, however, show 's sole motivation was to procure declarant's absence rather, the gov't need only show that was motivated in part by a desire to silence the witness

d. Content of Declarant's Statement i. In the classic forfeiture by wrongdoing case, the unavailable declarant's statements pertain to past events or offenses (e.g., racketeering or drug sales) that the declarant could have testified about at the time the declarant was silenced by 's wrongdoing The statements are then admitted against to prove these past offenses ii. Increasingly, however, the gov't prosecutes for the act of wrongdoing typically murder that has made the declarant unavailable The content of some of the declarant's h/s statements may concern the murder itself, not 's past offenses as to which the declarant would have been a witness or potential witness iii. s have argued that this is an improper extension of the forfeiture-by-wrongdoing principle since the declarant's status as "witness" isn't related to the content of the out-of-court statements But courts have unanimously declined to impose any limit on the application of FRE 804(b)(6), holding that its broad terminology includes w/in its reach the admission of statements by the declarant when the murder of the declarant is the crime charged Of course, the rule still requires that the intent of be at least in part to prevent declarant from testifying in some other proceedings thus, the requirement that there be some other ongoing criminal investigation or legal dispute in which declarant might participate must still be satisfied

2. Justification for the Admissibilityof Forfeiture by Wrongdoing Statements a. Justification for the admissibility of forfeiture by wrongdoing statements is straightforward: The law will not allow a person to take advantage of his own wrong b. There's no reliability inquiry authorized by FRE 804(b)(6) i. The trial court need not look for indicia of trustworthiness under either the hearsay rule or the confrontation clause once has waived these rights, the court isn't req'd to assess independently the reliability of those statements

3. Acquiescence in Wrongdoing a. FRE 804(b)(6) permits its application to co-conspirators who didn't plan or in any way participate in wrongdoing that caused the unavailability of the declarant b. Principles of conspiratorial liability to define "acquiescence": i. may be deemed to have waived his Confrontation Clause rights (and, w/ greater reason, hearsay objections) if a preponderance of the evidence establishes that the wrongful procurement of the declarant's unavailability was in furtherance, w/in the scope, and reasonably foreseeable as a necessary or natural consequence of an ongoing conspiracy ii. Actual knowledge isn't req'd for conspiratorial waiver by misconduct of these elements are satisfied c. Scope of the conspiracy isn't necessarily limited to a primary goal e.g., bank robbery but can also include secondary goals relevant to evasion of apprehension & prosecution for that goal e.g., escape, or, by analogy, obstruction of justice

4. Application of FRE 403 a. Admission of the unavailable declarant's statements isn't automatic, however, as the courts must still perform the balancing test under FRE 403 i. It would be highly unusual for the court to exclude a statement that falls w/in the categorical exception on the basis of "low probative value" based on the court's doubts about its reliability However, since FRE 804(b)(6) is a categorical exception that requires absolutely no indicia of reliability, perhaps Rule 403's balancing test should take reliability into account ii. There also remains the danger of ambiguity, confusion, and undue prejudice from the inflammatory nature of the evidence or its context for the court to consider

5. Is a FRE 104(c) Hearing Req'd? a. Several courts have ruled specifically that the district court must hold an evidentiary hearing, outside the presence of the jury, in which the gov't has the burden of proving by a preponderance of the evidence that did procure the unavailability of the declarant by wrongdoing, and did intend to do so to prevent declarant from being an actual or potential witness b. The 8th Circuit, however, has held that the trial court can admit the h/s evidence at trial, in the presence of the jury, contingent upon proof of the underlying murder by a preponderance of the evidence

KEY POINTS 1. If a party has procured the unavailability of a hearsay declarant by wrongdoing, and intended to do so to prevent the declarant from being an actual or potential witness, then the declarant's statements are admissible against that party 2. The party's conduct may have involved planning of, participation in, or acquiesce in the wrongdoing

VI. THE RESIDUAL EXCEPTION A. FRE 807 Residual Exception A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to prove the adverse party w/ a fair opportunity to prepare to meet it, the proponent's intention to offer the statement, and the particulars of it, including the name & address of the declarant. B. Interpretation & Illustration of FRE 807 Found'l requirements for FRE 807 are: The statement must have circumstantial guarantees of trustworthiness; These guarantees should be "equivalent" to the exceptions in Rules 803 & 804; The statement is offered to prove a material fact; The statement is more probative on the point for which it's offered than any other evidence that can be secured through reasonable efforts; Admission will serve the general purposes of the rules & the interests of justice; and Notice is given to the opponent 1. Preliminary Factfinding a. FRE 807 isn't a categorical exception i. There are no categorical requirements concerning the identity of the declarant, the content of the statement or the circumstances in which the statement was made ii. There is no categorical requirement that the declarant be unavailable b. Instead, the principal requirements for admission are that the statement has "circumstantial guarantees of trustworthiness" & that it's "more probative" than other reasonably available evidence (clearly individualized judgments to be made by the trial judge) i. These 2 requirements reflect the 2 primary justifications for admitting hearsay under the categorical system of hearsay exceptions: reliability & necessity Example illustrates some of the major preliminary fact-finding issues in applying the residual exception: Ed Barns has sued Acme Used Cars for injuries that he sustained when he & a friend were examining a used car at the Acme lot. The car wouldn't start, so Fred Anders, an Acme mechanic, offered his assistance. Ed was pouring gasoline from a small can into the carburetor while his companion attempted to start the engine. The engine backfired & ignited the can, and Ed suffered severe burn injuries. At trial, Ed claimed that he was acting pursuant to Fred Anders's instructions to pour the gasoline directly into the carburetor. Acme claimed that, to the contrary, Fred warned Ed to stop what he was doing. Fred died before the trial. Acme offers into evidence Exhibit B, an authenticated handwritten statement signed by Anders that describes the incident & states that he warned Ed not to pour the gasoline. Acme offers the found'l testimony of Fred's supervisor, Georgia Breen: I learned of the accident w/in several hrs of its occurrence. I immediately instructed Fred to go into a room, not to talk to anyone else, and to write down everything that happened. Fred obeyed my instruction & came back w/ a handwritten statement w/in 30 minutes. I recognized his handwriting + he signed the document in my presence. I recognize Exhibit B as that document. Exhibit B doesn't fall w/in any of the categorical requirements under FRE 803 & FRE 804 should it be admitted into evidence under FRE 807?

2. Circumstantial Guarantees of Trustworthiness

Looking at Exhibit B, what foundation facts would you use to argue that Fred's statement bears

"circumstantial guarantees of trustworthiness"?

Case law has established 2 principal means of establishing trustworthiness:

a. Reliability of Testimonial Qualities i. The most common means of satisfying the trustworthiness requirement is to show that 1 or more of Fred's testimonial qualities appears to be reliable b/c of the circumstances w/in which it was made All of the trad'l hearsay exceptions minimize 1 or more of the 4 hearsay risks: - (1) Insincerity; - (2) Faulty perception; - (3) Faulty memory; and - (4) Faulty narration The Court must determine the relative degree to which the proffered item is prone to the hearsay risk, and if any of the risks are minimized by circumstantial guarantees of trustworthiness ii. Considered for their effect on testimonial qualities: Facts relating to the identity, knowledge, qualifications, and motivation of the declarant The content of the statement The circumstances in which the statement was made iii. U.S. v. Tome (10th Cir. 1995), considered the admissibility under the residual exception of statements made by 's daughter concerning acts of alleged sexual abuse Statements made to a social worker were considered to be trustworthy b/c: - The social worker was trained in interviewing children & used open-ended, non-leading questions (context promotes sincerity), and - Declarant used childish language while describing the abuse w/ specificity & detail (content indicates sincerity & memory) Other circumstances however, case doubt on the statement's trustworthiness: - The statement wasn't spontaneous b/c declarant knew that she was taken to the social worker to say what had done to her (context provides opportunity for insincerity), - The statement was made a yr after the events described (context affects memory), and - The statement was made when declarant arguably had a motive to lie b/c she wanted to live w / her mother, not her father (identity of declarant provides motive to lie) Statement held not to qualify for the residual exception b/c of these equivocal circumstances iv. Motive & incentive to lie commonly figure in evaluations of trustworthiness: Facing the threat of criminal charges Self-serving statements made when declarant knew he was under investigation b. Independent Corroboration i. The 2nd means of establishing trustworthiness is to show by way of independent corroborating evidence that the facts asserted in the particular hearsay statement are probably accurate News account of a specific quotation from met "circumstantial guarantees of trustworthiness" requirement when 3 independent newspapers attributed similar quotations to Testimony given before a grand jury was frequently admitted under the residual exception when its contents were corroborated under Crawford v. Washington, however, grand jury testimony qualifies as a "testimonial" statement - b/c the criminal isn't present during the grand jury proceeding & can't cross-examine the witness there, the prosecution is prohibited from using grand jury testimony under the Confrontation Clause in criminal cases, unless the declarant also testifies - But, it's possible that this testimony might still be admitted under FRE 807 in a civil case

3. Equivalency a. FRE 807 also requires that the guarantees of trustworthiness be "equivalent," presumably to the guarantees in FRE 803 & FRE 804 i. Since the apparent trustworthiness of the hearsay admitted under all 28 categorical exceptions varies widely in both kind & degree, it's impossible to identify a single standard, and a rigorous showing of "equivalence" isn't req'd ii. But courts sometimes do analogize the h/s sought to be admitted to the indicia of trustworthiness of some categorically admitted hearsay, such as spontaneity, against interest, or careful routine

4. Near Miss a. A "near miss" occurs when a hearsay statement almost, but not quite, fits w/in 1 of the categorical hearsay exceptions & would thus be inadmissible but for the residual exception i. Many courts have held that a near miss doesn't necessarily prevent admission under FRE 807, and that closeness to an established exception may be viewed as enhancing trustworthiness ii. But others have expressed concern that admitting near miss statements will undermine the categorical approach of the FRE & violate the intent of the drafters that FRE 807 by used sparingly b. The majority of Circuits now agree that the language of FRE 807 means that statements found to be inadmissible under the Rule 803 & Rule 804 categories may still be considered under Rule 807

5. Offered to Prove a Material Fact a. FRE 807(A) requires the proponent to show that the statement is offered as evidence of a "material" fact i. Typically this term means nothing more than that the statement is relevant, but it might be argued that this requirement implements a policy of necessity in that it protects against overuse of FRE 807 to prove minor points or points on which the content of the statement has low probative value Statement of belief that person was hired b/c of his race "not so material that it must have been admitted in the interests of justice" b/c it couldn't by itself raise a genuine issue of discrimination

6. More Probative on the Point Than Other Reasonably Available Evidence a. FRE 807(B) requires a showing that the proponent has been reasonably diligent in attempting to secure evidence Ws or other kinds of h/s that would substitute for h/s admitted under the residual exception i. Courts have req'd parties to: Produce an available hearsay declarant as a witness Present the declarant through affidavits or depositions Produce orig'l records underlying secondary evidence such as summaries ii. If the declarant is deceased & once had knowledge about a central fact that would be otherwise admissible, courts weigh this need heavily in making the Rule 807 decision iii. If diligence in seeking alternative proof can be demonstrated, and nothing better is available, then the proponent has a legitimate case of need to use the residual exception

7. Serve the General Purposes of the Rules & Interests of Justice a. b/c of the generality in which these lofty ideals are expressed in FRE 807(C), they are not likely to be of much assistance to the trial judge in deciding whether to admit individual items of hearsay

8. Notice a. The proponent is req'd to inform the opponent of the intent to use the residual exception, and of the particulars of the statement + location of the declarant

C. Elaboration of FRE 807: How Much Hearsay Is Admitted Under the Residual Exception? 1. The trial judge's decision whether to admit a statement under FRE 807 might be influenced by the general policy underlying the residual exception a. According to the Senate Judiciary Committee: It's intended that the residual h/s exceptions will be used very rarely, and only in exceptional circumstances the committee doesn't intend to establish a broad license for trial judges to admit h/s statements that don't fall w/in 1 of the other exceptions contained in Rules 803 & 804(b) 2. Application of the Confrontation Clause following Crawford v. Washington a. Grand jury testimony is "testimonial," and statements made to law enforcement by accomplices, spouses, and victims may also be found to be "testimonial" these types of statements would be prohibited in criminal cases unless declarant is unavailable & has had a prior opportunity to cross-examine b. Crawford permits the introduction of all prior statements of a testifying W, b/c the witness-declarant would be subject to cross-examination at trial

KEY POINTS 1. Under FRE 807, the judge has discretion to admit hearsay statements that appear to be reliable i.e., they have circumstantial guarantees of trustworthiness either b/c the circumstances indicate that the declarant has reliable testimonial qualities or b/c the contents of the statement are corroborated 2. The statement must also be more probative than other available evidence, typically b/c the hearsay declarant is unavailable 3. The proponent of the statement must also notify the opponent of the intent to invoke the residual exception, preferably before trial but not in cases of necessity