Evidence

Professor Sevier
Fall 2016

I. The Basics, Types of Evidence

II. What is Evidence?

a. Undefined in the FRE, but some jurisdictions have attempted to define it
b. A Conceptual Definition
i. Think of evidence as all information presented at trial (in various forms) to
a fact finder in order to render a legal decision.
1. Except:
a. Statements/objections/questions by attorneys
b. Items not formally entered into evidence
c. Information that is stricken from the record
d. Anything seen or heard outside the courtroom

III. WTF: Why the FRE? (Policy goals of the FRE)

a. Notice that “anything seen or heard outside the courtroom” does not count as
evidence
b. In federal trials, we determine what is seen or heard inside the courtroom through
the Federal Rules of Evidence
c. Why do those rules exclude some evidence while allowing other evidence?
d. Notes:
i. Think of them as rules of “exclusion.”
ii. More information is better than less information.
iii. Two competing policy interests
iv. What would you admit into evidence and what would you exclude?

IV. Federal Rules of Evidence

a. ARTICLE I. GENERAL PROVISIONS
i. Rule 101. Scope; Definitions
ii. Rule 102. Purpose
iii. Rule 103. Rulings on Evidence
iv. Rule 104. Preliminary Questions
v. Rule 105. Limiting Evidence That Is Not Admissible Against Other
Parties or for Other Purposes
vi. Rule 106. Remainder of or Related Writings or Recorded Statements
b. ARTICLE II. JUDICIAL NOTICE
i. Rule 201. Judicial Notice of Adjudicative Facts
c. ARTICLE III. PRESUMPTIONS IN CIVIL CASES
i. Rule 301. Presumptions in Civil Cases Generally
ii. Rule 302. Applying State Law to Presumptions in Civil Cases
d. ARTICLE IV. RELEVANCE AND ITS LIMITS
i. Rule 401. Test for Relevant Evidence
ii. Rule 402. General Admissibility of Relevant Evidence

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 iii. Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste
of Time, or Other Reasons
iv. Rule 404. Character Evidence; Crimes or Other Acts
v. Rule 405. Methods of Proving Character
vi. Rule 406. Habit; Routine Practice
vii. Rule 407. Subsequent Remedial Measures
viii. Rule 408. Compromise Offers and Negotiations
ix. Rule 409. Offers to Pay Medical and Similar Expenses
x. Rule 410. Pleas, Plea Discussions, and Related Statements
xi. Rule 411. Liability Insurance
xii. Rule 412. Sex-Offense Cases: The Victim’s Sexual Behavior or
Predisposition
xiii. Rule 413. Similar Crimes in Sexual-Assault Cases
xiv. Rule 414. Similar Crimes in Child Molestation Cases
xv. Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child
Molestation
e. ARTICLE V. PRIVILEGES
i. Rule 501. Privilege in General
ii. Rule 502. Attorney-Client Privilege and Work Product; Limitations on
Waiver
f. ARTICLE VI. WITNESSES
i. Rule 601. Competency to Testify in General
ii. Rule 602. Need for Personal Knowledge
iii. Rule 603. Oath or Affirmation to Testify Truthfully
iv. Rule 604. Interpreter
v. Rule 605. Judge’s Competency as a Witness
vi. Rule 606. Juror’s Competency as a Witness
vii. Rule 607. Who May Impeach a Witness
viii. Rule 608. A Witness’s Character for Truthfulness or Untruthfulness
ix. Rule 609. Impeachment by Evidence of a Criminal Conviction
x. Rule 610. Religious Beliefs or Opinions
xi. Rule 611. Mode and Order of Examining Witnesses and Presenting
Evidence
xii. Rule 612. Writing Used to Refresh a Witness’s Memory
xiii. Rule 613. Witness’s Prior Statement
xiv. Rule 614. Court’s Calling or Examining a Witness
xv. Rule 615. Excluding Witnesses
g. ARTICLE VII. OPINIONS AND EXPERT TESTIMONY
i. Rule 701. Opinion Testimony by Lay Witnesses
ii. Rule 702. Testimony by Expert Witnesses
iii. Rule 703. Bases of an Expert’s Opinion Testimony
iv. Rule 704. Opinion on an Ultimate Issue
v. Rule 705. Disclosing the Facts or Data Underlying an Expert’s Opinion
vi. Rule 706. Court-Appointed Expert Witnesses
h. ARTICLE VIII. HEARSAY

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 i. Rule 801. Definitions That Apply to This Article; Exclusions from
Hearsay
ii. Rule 802. The Rule Against Hearsay
iii. Rule 803. Exceptions to the Rule Against Hearsay — Regardless of
Whether the Declarant Is Available as a Witness
iv. Rule 804. Hearsay Exceptions; Declarant Unavailable
v. Rule 805. Hearsay Within Hearsay
vi. Rule 806. Attacking and Supporting the Declarant’s Credibility
vii. Rule 807. Residual Exception
i. ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
i. Rule 901. Authenticating or Identifying Evidence
ii. Rule 902. Evidence That Is Self-Authenticating
iii. Rule 903. Subscribing Witness’s Testimony
j. ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND
PHOTOGRAPHS
i. Rule 1001. Definitions That Apply to This Article
ii. Rule 1002. Requirement of the Original
iii. Rule 1003. Admissibility of Duplicates
iv. Rule 1004. Admissibility of Other Evidence of Content
v. Rule 1005. Copies of Public Records to Prove Content
vi. Rule 1006. Summaries to Prove Content
vii. Rule 1007. Testimony or Statement of a Party to Prove Content
viii. Rule 1008. Functions of the Court and Jury
k. ARTICLE XI. MISCELLANEOUS RULES
i. Rule 1101. Applicability of the Rules
ii. Rule 1102. Amendments
iii. Rule 1103. Title

V. An exercise
a. Prosecution’s Case
i. Certificate of conviction showing David was convicted of filing a false
police report 3 years ago
ii. Testimony by Greg, who will claim that David pulled a gun on him during
a disagreement 2 weeks before the robbery took place
iii. Testimony from Sally (David’s friend), who will state that David told her
that he lost thousands of dollars gambling illegally
b. Defense’s Case
i. Testimony from Rachel (David’s friend), who will state that “David is
very gentle and kind; I can’t imagine he would ever threaten someone with
a gun”
ii. Testimony from a psychology professor who will describe recent studies
showing that eyewitnesses in criminal cases are accurate only 64% of the
time
c. Takeaways
i. It’s not always obvious whether certain information should (or shouldn’t
be) considered by a legal decision maker

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 ii. Often, there are good arguments for admitting information into evidence
and excluding it
iii. Those arguments often involve tradeoffs among certain types of concerns.

VI. Truth & Justice

a. “It’s a never-ending battle for truth, justice, and the American way!”
b. Truth
i. The decision maker applies the correct law to the correctly-found facts of
a legal dispute.
c. Justice
i. The decision maker’s legal decision is equitable and was arrived at
equitably.

ii.

VII. Types of Evidence

a. Oral Testimony
i. Character witness
ii. Fact witness
iii. Expert witness
b. Real Evidence
i. Objects/Things that are not testimony
ii. All real evidence must be authenticated—the proponent must offer some
proof that the piece of physical evidence is what she claims it to be.

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 c. Documentary Evidence
d. Stipulations
e. Judicial Notice
f. Demonstrative Evidence
i. Almost always created after the fact. (Vs. Real evidence which occurs
during the crime or beforehand).
ii. Two parts:
1. Demonstrations
2. Recreations

VIII. Review Questions:

a. A stick used to kill a victim is …
i. Answer: Real evidence
b. A plastic bag of powdered sugar at a cocaine trial probably is…
i. Answer: Demonstrative evidence
c. The morning after the murder, the defendant left town wearing a disguise. This
is…
i. Answer: Circumstantial evidence

IX. Forms of Evidence

 The witness saw the defendant  The witness saw the defendant
stab the victim wash a bloody knife

 Direct evidence  Circumstantial evidence

a. Notes:
i. Direct vs. circumstantial
1. Direct evidence = no leap
2. Circumstantial evidence = there’s an extra inferential leap
ii. Takeaways:
1. Even direct evidence requires inferences (although circumstantial
requires more)
2. How can we trust information from others at trial if we can’t trust
our own senses?

X. Direct Evidence

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 XI. Circumstantial Evidence

XII. Inferential Infirmities

XIII. Takeaways
a. Even direct evidence requires an inference.
b. How can we trust information provided by others at trial if we can’t trust our own
senses?
c. How do the rules of evidence address this question?

XIV. The 4 ‘W’s’ of the Federal Rules of Evidence

a. The “Why”
b. The “Who”
c. The “Where”
d. The “When”

XV. The “Why”

a. “It’s a never-ending battle for truth, justice, and the American way!
b. Accuracy v. Equity
i. Under many circumstances the

XVI. Why the FRE?

a. Reason #1: protect the jury from misleading information
i. Character and propensity evidence (Rule 404)

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 1. We believe that fact finders (juries) will put too much weight on
b. Reason #2: ensure that evidence is sufficiently reliable
i. Hearsay (Rule 802)
1. We don’t allow out of court statements to be said in court for the
truth of the statement.
ii. Expert Testimony (Rule 702)
1. Several things have to be satisfied for someone to testify as an
expert.
2. Worry that expert testimony might get a lot of weight.
iii. Authentication (Rule 901)
1. Want to make sure the things you say they are what they are.
iv. Why do we care about this:
1. We believe this evidence is particularly prone to mistaken
inferences.
2. We also believe that this type of evidence is prone to abuse by the
parties.
c. Reason #3: Eliminate undue delay and promote judicial efficiency
i. Relevancy (Rules 401 & 402)
1. We believe that it is in the interests of all parties for the (relatively)
swift adjudication of legal disputes
d. Reason #4: Protecting social interests
i. 3 categories:
1. interests related to the trial
2. interests unrelated to the trial; or (bigger social issues)
3. both
ii. Related to the trial: presumptions (Rule 301)
1. In employment law actions, once the plaintiff establishes a prima
facie case, a rebuttable presumption of discrimination by the
defendant is created
2. Res ipsa loquitur does the same thing (negligence)
a. Byrne v. Boadle
iii. Unrelated to trial: privileges generally (Rule 501)
1. Privileges, such as the marital privilege, directly cut against the
“truth seeking” function of trials.
2. Nonetheless, they reflect relationships that we, as a society, have
decided that we value.
iv. Both: The attorney client privilege (Rule 502)
1. Reflects a relationship that society values (unrelated)
2. But we also believe, on balance, that legal representation aids the
truth-seeking function of trials (related)
v. Both: The “rape shield” law (Rule 412)
1. Reflects a policy that society values (unrelated)
2. Encourages victims to come to testify (related)

XVII. Truth vs. Justice

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XVIII. Justice

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XIX. The “Who”

XX. Who enacted the FRE?

a. Typical process of law making
i. Congress creates statutes
ii. Courts create case law
b. FRE is the result of a more complex process
i. 40 years ago (and beyond), evidence law was created by courts
ii. Congress occasionally created privilege rules
iii. But this changed in 1975

XXI. The Rules Enabling Act

a. 28 U.S.C. 2071 et seq. (2008)
i. Allows federal courts to create their own rules of procedure, instead of
“conforming” to the procedure of the state in which the court sits
ii. Allows rules committees (appointed by SCOTUS) to “transmit” rules of
evidence to Congress for approval.

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 iii. Once the proposed rules or amendments are “transmitted” to Congress for
approval…
1. Rules (or amendments) unrelated to privilege are approved if
Congress fails to act
2. Rules (or amendments) related to privilege are rejected if Congress
fails to act

XXII. Approving the FRE

a. Because of the Watergate scandal, the enactment of the Federal Rules of Evidence
was delayed by Congress for nearly two years
b. After Congress made substantial revisions to several Rules (including privilege),
it approved the Rules on January 2, 1975.

XXIII. The Who: Rulemaking Website

a. http://www.uscourts.gov/rules-policies

XXIV. The Who: Restylized Rules

a. On December 1, 2011, the Federal Rules of Evidence were amended so that the
language of each rule was “restylized”
b. This project arguably began in the early 1990s
c. Let’s see how the drafters did…

Old Rule 605 New Rule 605

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

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 d. [Old] FRE 1101(d): The rules (other than with respect to privileges) do not apply
in the following situations:
i. (3) Miscellaneous proceedings. Proceedings for extradition or rendition;
preliminary examinations in criminal cases; sentencing, or granting or
revoking probation; issuance of warrants for arrest, criminal summonses,
and search warrants; and proceedings with respect to release on bail or
otherwise.
e. [New] FRE 1101(d): These rules, except for those on privilege, do not apply to
the following:
i. (3) Miscellaneous proceedings such as: extradition or rendition; issuing an
arrest warrant, criminal summons, or search warrant; a preliminary
examination in a criminal case; sentencing; granting or revoking probation
or supervised release; and considering whether to release on bail or
otherwise.

XXV. Where do the FRE apply?

XXVI. FRE 101(a)

a. These rules apply to proceedings in United States courts. The specific courts and
proceedings to which the rules apply, along with exceptions, are set out in Rule
1101.

XXVII. FRE 1101(a)

a. These rules apply to proceedings before:
i. United States district courts
ii. United States courts of appeals
iii. United States Court of Federal Claims
iv. District courts of Guam, Virgin Island, and the Northern Mariana Islands

XXVIII. Where do the FRE apply?

a. Criminal Proceedings
i. Answer: Yes
b. Civil Proceedings
i. Answer: Yes

XXIX. FRE 1101(b)

a. These rules apply in:
i. Civil cases and proceedings, including bankruptcy, admiralty, and
maritime cases
ii. Criminal cases and proceedings
iii. Contempt proceedings, except those in which the court may act summarily

XXX. When do the FRE apply?

a. Trial only
i. Different policy preferences govern other phases

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 1. Not during grand jury proceedings
2. Not during summary contempt “proceedings”
3. Not during preliminary hearings or sentencing
4. Not during ADR (or most administrative hearings)
5. Not at SCOTUS!
ii. Exception: Privilege rules always apply (1101c)

XXXI. Conclusions
a. Trials are diminishing in frequency
i. 95% of criminal cases are pled out
b. If the FRE only apply at federal trials, are they at all important?
i. All negotiations and settlements are done in the shadow of what can be
proven at trial

XXXII. Trial Structure : Phase 1: Pre-Trial Motions

a. Motion in Limine
i. Arguments detailing why information should be excluded from evidence
(or limited)
b. Motion to suppress
i. A party filing a motion to suppress is claiming that the opponent’s
evidence was illegally obtained.
c. Advantages
i. Helps plan your trial strategy
ii. Better argumentation
iii. Removes consequences of objecting at trial

XXXIII. Phase 2: Jury Selection

XXXIV. Phase 3: Opening Statements

a. Each party gives a factual overview of the case
i. Will tell the fact finder what he or she expects the evidence to prove
b. Order of Statement
i. Party with the burden of proof goes first
ii. Gets to frame the case first
c. NOT evidence, but do present evidence

XXXV. Phase 4: Case-in-Chief

a. Typically, the plaintiff in a civil trial and the prosecutor in a criminal trial present
first
b. They can call witnesses in any order they like
c. The witnesses are subject to direct examination and cross examination

XXXVI. Phase 4b: Intermediate Motions

a. Between the plaintiff’s case and the defense case, the defendant will move for a
judgment as a matter of law
b. In a criminal matter, the defense will move for an acquittal

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 c. These motions are almost always denied

XXXVII. Phase 5: Defense-in-Chief

a. Often there isn’t one!
i. Prosecutor’s burden in criminal cases
ii. Strategic decision to avoid impeachment
b. Defense case-in-chief follows the same pattern as the prosecutor’s (or plaintiff’s)
case-in-chief

XXXVIII. Phase 6: Rebuttal

a. Plaintiff or prosecutor then gets to present additional evidence, as does the
defense
b. Not required by the FRE, but many jurisdictions allow some form of it
c. An example…

XXXIX. Phase 7: Closing

a. Each party then sums up the evidence and can apply it to the relevant law
b. The party with the burden of proof goes first
i. Also gets to present last
c. Likely to see demonstrative evidence
i. Why?
1. It’s the last thing juries see. Giving them a visual right before they
deliberate is a good strategy.

XL. Final Phases

a. Phase 8: Instructions to the Jury
i. Usually read to the jury at the close of the case
b. Phase 9: Jury Deliberations
i. Secretive (Rule 606)
c. Phase 10: Verdict Delivery
i. General or Special

XLI. Objections

XLII. FRE 103(a)(1) – Rulings on Evidence

a. A party may claim error in a ruling to admit or exclude evidence only if the error
affects a substantial right of the party and:
i. (1) if the ruling admits evidence, a party, on the record:
1. (A) Timely objects or moves to strike; and
2. (B) States the specific ground, unless it was apparent from the
context

XLIII. FRE 103

a. Key components
i. Objections vs. motions to strike
ii. Must “timely” object

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 iii. Specificity of objection
b. Exception: Where the reason for objection is “apparent”
i. It’s a trap: don’t do it!

XLIV. FRE 103 Example

a. Plaintiffs’ witness in an action involving a car accident says the following:
i. “I heard from my friend that the defendant was known to have robbed a
bank twenty years ago!”
b. Problems with the witness’s statement
i. Relevance
ii. Character/propensity
iii. Hearsay
c. Which do you raise when you object?
i. All of them

XLV. FRE 103(a)(2)

(a) A party may claim error in a ruling to admit or exclude evidence only if the
error affects a substantial right of the party and:

(2) If the ruling excludes evidence, a party informs the court of its substance
by an offer of proof, unless the substance was apparent from the context.

XLVI. FRE 103

a. Response to an objection to your evidence
i. Offer of Proof: on-the-record explanation of the value of the evidence
ii. FRE 103(c): governs the form of the offer of proof
b. Failure to do so waives objections on appeal
i. Exception: unless context makes it clear
ii. Don’t do it!
c. Preserving objections for appeal
i. At common law: “exception!”
ii. Now: automatic if the objection is “rule upon definitively”
d. Implications for motions in limine
i. If the judge defers the motions to trial, you must renew your objection
ii. Judge doesn’t have to rule at the outset on a motion in limine. They can
reserve judgment for trial. Trials tend to evolve and a judge may want to
see how it plays out at the trial before ruling.

XLVII. Trial Judges

Hammer Approach Scalpel Approach

Sustain Sustain In Part
Overrule Curative Instruction
Limiting Instruction

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XLVIII. FRE 105: Limiting Instructions
a. If the court admits evidence that is admissible against a party or for a purpose –
but not against another party or for another purpose – the court, on timely request,
must restrict the evidence to its proper scope and instruct the jury accordingly.
b. If the affected party requests the limiting instruction, the judge must give it. Rule
105 differs from most other rules by denying discretion to the trial judge.

XLIX. Objections: Appeals

a. Standard(s) of Proof
i. Abuse of Discretion
1. Familiarity with evidence
2. Familiarity with the evolving trial
3. Familiarity with the jury
ii. De Novo
1. Judge applies the wrong legal standard
2. Judge applies the standard incorrectly
b. FRE 103(a)
i. (a) A party may claim error in ruling to admit or exclude evidence only if
the error affects a substantial right of the party…
ii. An appeals court will reverse the trial court’s judgment ONLY if the
trial judge abused her discretion AND the error affect a party’s
substantial right
c. What’s a “substantial right”?
i. “A reasonable probability that, if the judge had made the correct ruling,
the outcome of the case would have been different.”
ii. Otherwise, the error is harmless
d. Failure to Preserve Objection
i. “Plain Error Test” (FRE 103e)
1. Clear and obvious mistake under current law
2. Affects a substantial right
3. “Seriously affects the fairness, integrity, or public reputation of
judicial proceedings if uncorrected” (7th Cir.)

L. Takeaways
a. Attorneys self-police the submission of evidence
i. FRE are designed to do that in as efficiently as possible
b. Appellate courts engage in limited review
i. Evidence law is “courtroom by courtroom”
ii. Evidence law is “fuzzy” and there are no do-overs.

LI. Relevancy I: Relevancy and its Limits

LII. Relevancy
a. Fundamental Rule of Evidence
i. Always a threshold evidence

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 ii. Rule’s language is important
iii. Straightforward concept but has nuances
b. Notes:
i. Threshold question.
ii. All relevant evidence is in unless…

LIII. Why have Relevancy?

a. Saves time
b. Focuses Attention

LIV. Nomenclature

Facts in Evidence Facts of Consequence

Facts that are proven in the courtroom Facts that are related to the controversy

 Had six beers  Defendant was drunk

 Stumbled home

LV. FRE 402

a. Relevant evidence is admissible unless any of the following provides otherwise:
i. The United States Constitution
ii. A federal statute
iii. These rules or other rules prescribed by the Supreme Court.
b. Irrelevant evidence is not admissible.
c. Notes:
i. The Rule’s language makes clear that the default rule is for relevant
evidence to be admissible.
ii. But what’s the test for admissibility?
iii. All of the other rules are about keeping evidence out. The relevance rule is
the only one about keeping evidence in.

LVI. FRE 401

a. Evidence is relevant if:
i. (a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and
ii. (b) the fact is of consequence in determining the action.
iii. Can be anything from an essential issue to a witness’s credibility
b. Establishes a very low threshold for relevance
i. Phase 1: “Any tendency”
1. (Not “strong tendency”)
ii. Phase 2: “More or less probable”
1. (Not “likely or unlikely”)
iii. Phase 3: “Fact of consequence”
1. (Not “material fact”)

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LVII. Relevancy Roadmap
a. All relevant evidence is admissible unless
i. Conflicts with Constitution, statute; other rule
b. “Relevant evidence” is information that
i. Has any tendency (Phase 1)
ii. To make a fact more or less probable (Phase 2)
iii. And that fact is ‘of consequence’ (Phase 3)

LVIII. Phases 1 & 2

LIX. Brick Example

a. A brick is not a wall. You need a wall of bricks to cement your burden of proof.
But any one piece of evidence doesn’t have to be that wall. Any one piece of
evidence can be a brick in the wall.
i. The color of the car might be a brick.
ii. The type of car might be a heavier brick.
iii. The type and color of the car and the license plate number might be the
wall.

LX. Angela Example

a. Angela tried to commit suicide. What type of evidence is that? Circumstantial.
The inference we have to make is that they have a guilty mind.

LXI. Continuum Example

a. If it moves at all along the continuum than it is relevant. Something is either

relevant or its not (like a light switch or pregnancy).

LXII. Highly probative

a. “Highly” relevant
b. How persuasive it is.

LXIII. Takeaways: Phases 1 & 2

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 a. An evidentiary “brick” is not a “wall”
b. If the evidence moves the probability meter at all, it is “relevant”
c. “Relevancy” is binary, like a light switch

LXIV. Phase 3
a. Rule 401 requires the evidence to relate to a “fact of consequence”
b. Only limiting factor to the Rule’s generous admissibility threshold.

LXV. Phase 3: Lewis Example

a. Knowingly Making False Statements
i. Knowingly omitted income from one business
ii. Lied when signing form
iii. But I neglected to take some deductions!
b. Notes:
i. Look at the underlying law, look at the elements of it and look to see if
any of the facts of consequence make anything more or less relevant.

LXVI. Takeaways: Phase 3

a. “Fact of consequence” limits the admissibility of evidence under Rule 401
b. Pay attention to the relevant substantive law that governs the dispute

LXVII. Relevancy
a. Language of FRE 401 & 402 is straightforward
b. There are several nuance that appear in practice, however.

LXVIII. Nuances
a. Factual concessions
b. Negative Evidence
c. Cultural Effects
d. Timing (and “door opening”)
e. State of Mind (a Bar exam favorite)

LXIX. Cultural Effects Example: Samwise Gangy

a. Sam got arrested for cocaine possession. The prosecutor wants to put forth
evidence that Sam uses marijuana on a daily basis.

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 LXX. Negative Evidence Example: John Example
a. John is in first class. He sues KLM Airlines. KLM wants to put forth evidence
that there were other people on the flight, none of which sued them. Can KLM put
forth that evidence

LXXI. Timing (and “door opening”) Example: Greg and Martha

a. Things can happen during trials that make things more relevant over time—or
they can open a door.

LXXII. State of Mind Example: Gumpler

a. Psychic’s vision is not good evidence.
b. Motive and state of mind go to identity—you being the person that committed the
crime.

LXXIII. FRE 403 Balancing

a. Prejudicial vs. probative value
b. Almost entirely argumentation. No per se rules.
c. It’s all how well you argue the probative value and the prejudicial effect of it.

LXXIV. Rule 403

a. The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following:
i. Unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.
b. Notes:
i. Rule says may exclude, you are not required.
ii. These are policed by the attorneys. The attorneys have to raise it.

LXXV. Three Key Concepts in Rule 403

a. May
b. Unfair prejudice
c. Substantially outweighs probative value

LXXVI. “Unfair Prejudice”

a. “Lures the fact finder into declaring guilt [or liability] on a ground different
from proof specific to the offense charged.”

LXXVII. Rule 403

a. Unfair Prejudice
b. Confusion
c. Undue Delay
d. Notes:
i. First question: Is it relevant. (Then 403 comes into play and) then ask:
ii. Second question: Is there unfair prejudice, confusion or undue delay?

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 iii. Once evidence is classified as relevant, you can raise a 403 objection; do
this when probative value is low!

LXXVIII. Probative vs. Prejudicial: Balancing Tests

a. If equal, it gets admitted.

b. If slightly tipped in favor of prejudicial effect (more prejudicial than probative), it

could still get admitted, but not guaranteed.

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 c. If the prejudicial effect substantially outweighs the probative value, then it will
not be admitted.

LXXIX. “Substantially outweighed”

a. Unfair prejudice, by itself, is not enough for exclusion under FRE 403
b. The unfair prejudice (or confusion or delay) must substantially outweigh the
probative value of the evidence
i. The unfair prejudice cannot be equal to (or just slightly more than) the
probative value

LXXX. Evidence of flight or hiding from the police

-Court frequently admit evidence of flight to suggest that a D had a guilty state of
mind. Evidence of flight is almost always relevant, and the probative value of the
evidence usually outweighs any unfair prejudice.
- The same analysis should apply to hiding from the police. If anything, the
probative value of hiding is higher than that of flight, bc there are fewer innocent
explanation for hiding (as opposed to travel)

LXXXI. FRE 403 in Practice

a. Angela Johnson attempted suicide after bodies of victims found
b. Is evidence of her suicide at trial relevant? Yes.
c. Next do a 403 challenge.
d. Would a 403 motion win in this case?

LXXXII. Felon in Possession of Gun

a. D possessed gun
b. D was convicted of felony
c. General rule tends to be: Stipulating to a fact does not destroy its relevance.

LXXXIII. Old Chief v. United States

a. D offered to stipulate fact of prior felony conviction
b. Evidence of prior conviction was still relevant

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 c. But, given offer to stipulate, evidence was unfairly prejudicial  evidence that he
was convicted for a violent felony had little to no probative value; just the fact
that he was a convicted felon sufficed

LXXXIV. Takeaways from Old Chief

a. Stipulation does not destroy relevance
b. Offer to stipulate affects prejudice
c. For felon-in-possession-of-gun cases, D’s stipulation to prior conviction excludes
other evidence under 403
d. In most other cases, offer to stipulate has little effect under 403

LXXXV. In a bench trial, you are most likely to argue when raising a 403 motion…
a. Unfair prejudice
b. Confusion of issues
c. Misleading fact finder
d. Waste of time

LXXXVI. Rule 403: In Sum

Lowers Probative Value Heightens Unfair Prejudice

 Involves evidence the jury  Arouses emotions and irrational
predictably overvalues prejudices

 Weak connection between  Alternative routes to the dispute

evidence and elements of the case fact are available

a. Argue that the probative value is low and the prejudice is high.
b. A judge “may” exclude evidence if it is substantially more prejudicial than
probative.
c. Think of the word “may” as saying if it is not raised by one of the parties through
the objection process than a judge’s failure to invoke it anyways means that the
judge did not abuse their discretion. The judge is allowed sua sponte to not make
a 403 ruling.
d. Courts are very careful with demonstrative evidence; slight probative value that is
outweighed by substantial prejudice will likely be barred by Rule 403

LXXXVII. Evidential Fish Example

a. At the outset is the threshold question (relevancy). Then you’re swimming down
stream, you survive relevancy, then you are trying to get to rule 403. Your
opponent has a bunch of nets: hearsay, character evidence, etc. Every other rule of
evidence is a tool to try to keep your evidence out. If you survive the other nets
then you get to 403. If you survive 403 then you get to the end.

LXXXVIII. In-Class Exercise on FRE 403 balancing

a. Scenario 1

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 i. This is a criminal murder trial. The defendant is accused of arriving home
late one night and slicing her husband’s throat while he slept. The
defendant claims that she arrived home at midnight, found her husband
dead, and called the police. The murder weapon was a carving knife from
the couple’s kitchen that was found beside the bed. The only fingerprints
on the knife are from the defendant and the victim. There was no physical
evidence (e.g., blood) found on the defendant or her clothes. There was
also no sign of forced entry into the home and nothing had been stolen.
The prosecutor will call police officers to the stand to describe what they
saw at the scene, and will also call the coroner to testify as to the cause of
death and the nature of the wound. Finally, the prosecutor wants to
introduce two photos of the body as it was found by police fifteen minutes
after the defendant’s phone call. The defendant objects to the photos on
Rule 403 grounds and has made a motion in limine before trial to ensure
they are excluded.
b. Scenario 2
i. This is a civil case on appeal. The defendant was allegedly driving his car
while intoxicated one evening, when he crashed into a five-year-old girl
on a tricycle and killed her instantly. He was acquitted of all criminal
charges after a jury trial, but the parents of the victim sued him for
wrongful death. The plaintiffs offered a picture of the victim at her
funeral, with her baby sister looking on. The defendant objected on Rule
403 grounds, but the objection was overruled and the picture was
admitted. The jury found the defendant liable and awarded damages of
$5,000,000. The defendant is appealing both the verdict and the damages,
claiming that the picture was improperly admitted under Rule 403.
c. Scenario 3
i. This case is a criminal prosecution in which the defendant is charged with
killing an African-American man during a robbery attempt. The
prosecutors argue that the defendant approached the victim with a gun,
demanded money, and then shot the victim in the chest when the victim
refused to hand over his wallet. The defendant has a large tattoo of a
swastika on the right side of his neck. He has told his attorney that he does
not know the significance of the symbol; he got the tattoo five years ago
when he was in high school because it “looked cool.” There is no evidence
that the defendant has ever been involved with any neo-Nazi group or
other racist organization. There was an eyewitness to the crime, but the
eyewitness saw the defendant’s left side and so did not see (and could not
have seen) the tattoo. The defendant also has a large tattoo on his face,
which suggests a Frankenstein-like scar. He obtained this tattoo while in
jail awaiting trial. The defendant has requested, pursuant to Rule 403, that
the court give both permission and funding to hire a cosmetologist to
cover up the tattoos during the trial, so the jury cannot even tell that he
ever got a tattoo. The prosecutor objects.
d. Scenario 4

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 i. This dispute is a civil case charging negligence by a gun club. The
plaintiff has sued the club for his son’s death, which occurred at a gun fair
sponsored by the club last year. The plaintiff took his 8-year-old son to the
fair to look at guns and test-fire some of them. At one point the son was
firing a variety of different weapons, and the plaintiff pulled out his cell
phone and began filming his son as he was shooting. During the filming,
the gun show attendant gave the son a micro-Uzi, showed him how to use
it, and then let him fire the gun. The strong recoil of the gun caused the
child to lose control of the gun; its muzzle pointed upward and then back
at the child’s face, firing all the while. The child was killed by multiple
gunshots to the head. The plaintiff alleges that the gun club failed to
properly train and supervise the attendants at the gun fair, and that the
video will support these facts. In particular, the plaintiff claims that the
video will show that the attendant failed to educate the child properly
before handing over the gun, that the attendant failed to intervene once it
was clear the child was losing control of the gun, and that the attendant
again failed to intervene once the gunshots began striking the child in the
face. The plaintiff has offered the video as evidence, and the defendant
objects to admission. The video is approximately thirty seconds long and
shows the incident from the moment the attendant hands the weapon to the
child to offer instruction. The video includes the shooting itself, as well as
ten seconds after the shooting during which the father and others are heard
screaming and attempting to provide aid to the victim. The video clearly
shows a number of bullets hitting the child in the face and part of the
child’s face and skull being ripped away.

LXXXIX. Relevancy II: Specialized Relevancy Rules

XC. Subsequent Remedial Measures – Rule 407

a. Think about it as a rule of exclusion.
b. Have to ask what purpose its being used for

XCI. Article IV: Specialized Rules

a. Specialized applications of FRE 403
b. Each furthers social policies
c. Each excludes evidence when offered for some purposes, but not others.
i. Need to ask: “For what purpose is this being put forward”

XCII. Policy Rationale

a. Perverse incentives
i. Why would a defendant ever provide a remedy?
ii. “Equity argument”
b. Overvaluation
i. Jurors will treat the remedy as an implicit admission of liability/harm
ii. “Accuracy argument”

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 XCIII. Which of these may be a “measure”?
a. Firing an employee
b. Recalling a product
c. Changing a policy
d. All of the above

XCIV. What’s Subsequent?  bars evidence of remedial measures that occurred after the
injury occurred

XCV. Rule 407 bars evidence of remedial measures that occurred after…
a. The product was purchased
b. The injury occurred
c. The lawsuit was filed
d. The perpetuities period expired

XCVI. What FRE 407 bars

a. Evidence…Is not admissible to prove
i. Negligence,
ii. Culpable conduct,
iii. A defect in a product or its design, or
iv. A need for a warning or instruction
b. Notes:
i. Think of it as liability.
ii. Rule 407 forbids subsequent remedial measures from being used to prove
liability.
iii. What does 407 Bar?  Liability

XCVII. The Case of the Damaged Brew Tanks

XCVIII. What types of cases?

a. Negligence (protypical)
b. Strict Liability
c. Intentional Acts
d. Contracts

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XCIX. What FRE 407 Does Not Bar  Evidence of a Subsequent Remedial Measure is
Admissible for Other Purposes Such as:
a. Impeachment
b. Proving Ownership
c. Proving Control
d. Proving Feasibility
e. Notes:
i. IF disputed
ii. Rule 407 does not apply if you’re using it for these purposes.
iii. Courts look for a CLEAR contradiction

C. Oscar’s Farm
a. Notes:
i. If using evidence for a specific purpose, such as proving ownership or
control, the judge may give a limiting instruction telling the jury to only
consider the evidence for that specific purpose & not to prove liability.
ii. Limiting instruction – “you may only use this for something specific…”

CI. Telephone Example

a. There is a slight risk of an electrical shock from lightning if you use a telephone
during an electrical storm. While our equipment is designed to limit abnormal
electrical surges, it is impossible to stop all of them. If you must make a call, keep
it brief.

CII. Practice Advice

a. If your client is the repairing party
i. Limit your client to very general statements on direct examination
ii. Don’t want to say “I was as careful as I could be…”
b. If your client is the injured party
i. Attempt to force the repairing party to make specific or extreme
statements on cross-examination (want them to use superlatives)

CIII. Railroad Example

a. Guy is working on the railroad and laying down rails. The company stacked the
rails very disorderly. The guy hurts his back while trying to pick up he rails and
sues his employer for negligence saying that the company was negligent in laying
the rails. During discovery there is a memo:
b. Memo from Manager Cote
i. …Rails sometimes have been left in our yard. This presents an
unnecessary risk to workers. From now on, the uniform policy of our
railroad is to stack all rails in aligned rows…
c. He gets on the stand and says “we’ve never had disordered rails in our yard.”
d. Can you use this memo or is the memo barred by Rule 407?
i. Answer: Yes you can use it for impeachment.
e. What if he says “we stacked our rails in the best possible way?

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 f. Now does it get in?
i. Answer: Yes, its impeachment and its also feasibility.
g. What if he says “the rails were stacked in a safe way.”
i. Answer: Perhaps. Its unclear.

CIV. In Sum

a. Make sure you define it, then make sure its going to these specific things.

CV. Whose Measure?

a. Courts have interpreted the rule such that third party remedies are out of the
purview of Rule 407 and therefore they can come in. Rationale: if it’s a 3rd
party’s measure, or at their bequest, then it won’t have the same implied liability
to jurors
b. Must be YOUR measure (the defendant’s measure)
c. Sometimes will allow 3rd party measures such as a gov’t recall

CVI. Rule 407: Subsequent Remedial Measures

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 a. You have a net. But it has 2 giant holes: Third-Party Repairs and Other Purposes.

CVII. Rule 408: Compromise and Offers to Compromise

a. Aka “settlements” or settlement discussions

CVIII. In Sum
a. Rule 408 forbids the use of compromises (and offers to compromise) for the
purpose of establishing liability
b. Straightforward rule looks (needlessly) complicated because of later amendments

CIX. Competing Policies

a. Encourage settlement discussions vs. Admissions are great evidence!
b. Equity vs. Accuracy
c. Some litigants offer to settle even when they are not at fault due to the expense of
litigation; jurors may not understand this & therefore inflate the probative value of
a party’s offer to settle
d. Prevents juries from interpreting settlement offers as conclusive evidence of
liability

CX. Specifics for Exclusion

a. Contextual Requirements
i. Claim has arisen, is disputed, and negotiations
ii. Have to be on notice there is a claim (a filed complaint, or the sending of a
demand letter)
iii. Can be formal or informal negotiations
iv. Once you are in the settlement talk, then Rule 408 excludes a lot of things.
v. In order for negotiations to fall within the ambit of Rule 408, they must be
an anticipation of the claim being forfeited; it cannot be offers that could
be accepted while still pursuing the claim
b. (Broad) Behavioral Coverage
i. Offer, acceptance, statements, or conduct
c. Forbidden Purpose(s)

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 i. Prove/disprove validity or amount, impeach through inconsistency or
impeachment through contradiction  this is the difference between 407
& 408
ii. ASK: what is the party trying to prove by offering the evidence?

CXI. Example: Paulsen and Dennison

a. In a peaceful suburb two neighbors are friends with different political beliefs.
b. Paulsen’s sign in front of his yard kept being taken. He sued the Dennisons.
c. Paulsen asked Dennison about the sign the morning after he notices the sign is
missing.. Dennison says “It’s in the trash where it belong.” Paulsen wants to use
this statement. Dennison wants it excluded under Rule 408. Does it get excluded
under Rule 408 or does it get included? It gets in because there’s no claim when
the statement is made.
d. Now its two days later. Paulsen has just made a claim. Dennison says “we can
resolve this between us.” Now Paulsen wants to use this statement as evidence. Is
it included or excluded under Rule 408? It’s included because it’s not a
negotiation.
e. Now a few weeks pass. The lawyers are trying to hash out how to resolve it.
During the conference the defendant says “I know this wasn’t funny, I’m sorry.”
Is it included or excluded under Rule 408? Yes. Excluded. We have a claim, a
negotiation so this seems to be the very type of settlement conference that is
excluded under Rule 408.
f. Exclude statement under Rule 408 when offered by Dennison?
i. Yes. Excluded regardless of party.
g. Exclude statement under Rule 408 when offered to contradict testimony?
i. Answer: Yes, impeachment by contradiction allowed.

CXII. Example: Stevens and Friendly

a. During the settlement Friendly says “we were horsing around while moving the
rails.”
b. As Stevens’ attorney, can you ask Friendly about his settlement?

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 i. Answer: Yes. It goes towards his bias.
c. Rule 408 excludes impeachment by contradictory statement.

CXIII. Two Exceptions to Rule 408

a. General exception
i. Involves the purpose for which the evidence is proffered:
1. If you’re using it for bias, that’s a different purpose than what 408
contemplates so it doesn’t attach.
b. Criminal case exception
i. Carve out (2006 amendment)

CXIV. General Exception to Rule 408

a. The court “may admit [compromise offers and negotiations] for another purpose,
such as proving a witness’s bias or prejudice, negating a contention of undue
delay, or proving an effort to obstruct a criminal…

CXV. Rule 408 and Criminal Cases

a. Dennison settled civil claim brought by Paulson
b. City prosecutes Dennison
c. Can the Prosecutor introduce evidence related to the civil settlement to show
guilt?
i. Yes, but only the fact of settlement; no details
ii. Yes, if the crime is a felony
iii. Yes, but subject to 403 balance
iv. No

CXVI. Criminal Case Exception

a. Statements made during negotiations with a “public office exercising regulatory,
investigative, or enforcement authority”
i. Admissible in any subsequent criminal trial
ii. Both prosecutor and defendant can invoke
b. But most likely to benefit prosecutor
c. 408 does NOT apply if, in a civil trial, a public agency was exercising its
regulatory authority & the statement being offered is NOT an offer, acceptance, or
promise.

CXVII. Specialized Article IV Rules

a. Criminal Plea Bargains (Rule 410)
b. Payments of Medical Expenses (Rule 409)
c. Liability Insurance (Rule 411)

CXVIII. Review Questions

a. Railroad example: Guy gets injured and sues his employer for negligence. Memo
from Manager Cote appears: . . . Rails sometimes have been left in disordered
stacks in our yard. This presents an unnecessary risk to workers. From now on,
the uniform policy of our railroad is to stack all rails in aligned rows. . . .This

30
 looks like a subsequent remedial measure. Suppose during discovery Stevens
comes across this memo. This is the type of change that Rule 407 covers. If he
says “we have never had disordered rails in our yard,” this contradicts the memo
so it can be used to impeach him. If he says “we stacked our rails in the best
possible way,” now you can get him for fact of consequence (and possibly
impeachment also). If he says “the rails were stacked in a safe way,” it would be
unclear.
b. Stevens and Friendly Example
i. Stevens Friendly
ii. Pursues claim for $1 million Settles for $50,000 (“we were
horsing around while moving the rails”)
iii. Typically you can’t use settlement talks in court as evidence. Can’t even
use it for inconsistencies, but you can use it for bias.

CXIX. FRE 407 & 408 Conceptualized

SRM Settlements

Prerequisites Prerequisites
1. Subsequent, remedial, measure 1. Claim, dispute, negotiation

Coverage Coverage
1. Broad: all info re: the SRM 1. Broad: offer, acceptance, statements, conduct

Forbidden Purpose Forbidden Purposes

1. Liability only 1. Liability inconsistencies

CXX.

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 CXXI. Review of Article IV Rules
a. FRE 407 – 411 = “Categorical” 403 rulings
b. All are different instantiations of the same general concepts
c. Slightly different policy considerations create nuances among the rules

CXXII. Criminal Plea Bargains

a. Rule 410 precludes some evidence of offers to plead guilty, as well as statements
made during plea bargaining.
b. Plea bargains analogous to “settlements” with additional nuances

CXXIII. FRE 410 Policies

a. Settlements in a different context, but…
i. Unequal bargaining power
ii. In favor of excluding
1. Equity: pleas serve important social function
2. Accuracy: jurors and overzealous prosecutors
iii. In favor of admitting
1. Equity: notions of “fair play”
2. Accuracy: admissions make great evidence

CXXIV. FRE 410

a. Prerequisites
b. Coverage (prohibited usage)
c. Exceptions

CXXV. FRE 410: Coverage Example

a. The tree robber shows up and demands money and the teller gives him money and
leaves.

CXXVI. FRE 410

a. Prerequisites
b. Coverage (prohibited usage)
i. Types of pleas
ii. Types of statements
c. Exceptions

CXXVII. FRE 410 Prohibitions

a. A guilty plea that was later withdrawn
b. A nolo contendere plea
c. A statement made during a proceeding on either of those pleas under Federal Rule
of Criminal procedure 11 or a comparable state procedure; or
d. A statement made during plea discussions with an attorney for the prosecuting
authority if the discussions did not result in a guilty plea or they resulted in a
later-withdrawn guilty plea.

CXXVIII. Tree Robber Questions

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 a. Can the government introduce the withdrawn plea?
i. Yes
ii. No, withdrawn pleas cannot be used at the trial.
b. Can the government introduce the no lo contendre plea?
i. Yes
ii. No, withdrawn plea/ no lo contendre.
c. Can the government introduce the no lo contendre plea?
i. Yes
ii. No, no admission of responsibility
d. If robber’s plea becomes final, does FRE 410 allow prosecutor to use it in related
case?
i. Yes, does not preclude evidence of a finalized guilty plea. If it’s a
finalized guilty plea you have accepted responsibility. 410 doesn’t
exclude (although other rules might).
ii. No
e. Can the government introduce any statements from the withdrawn plea
bargaining?
i. Yes
ii. No, plea + statements to prosecutor. Statements almost always need to
be made directly to the prosecutor.
f. Can the government introduce any statements from the withdrawn plea colloquy?
i. Yes
ii. No, colloquy included in “statements”
g. If plea becomes final, does FRE 410 prevent teller from introducing statements
from plea session?
i. Yes
ii. No, oversight.
h. If plea becomes final, does FRE 410 prevent teller from introducing statements
from plea session?
i. Yes
ii. No, defendant can try FRE 403

CXXIX. FRE 410

a. Prerequisites
i. Bright line basics
ii. Tests/standards
iii. Civil OR criminal case where FRE applies
iv. Against the defendant
v. During plea discussions
b. Coverage (prohibited usage)
i. Withdrawn pleas or no lo contendre pleas
ii. Statements to prosecuting attorney and at colloquy
c. Exceptions
i. Completeness
ii. Perjury

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 CXXX. Prerequisite Questions
a. In civil lawsuit against robber, bank teller can introduce evidence of…
i. Robber’s withdrawn plea
ii. Statements made while negotiating the plea
iii. Both the plea and the statements
iv. None of the above, in a “civil or criminal case”
b. In robber’s sentencing, prosecutor can introduce evidence of…
i. Robber’s withdrawn plea
ii. Statements made while negotiating the plea
iii. Both the plea and the statements, FRE do not apply in sentencing.
FRE 1101.
iv. None of the above
c. Does FRE 401 prevent robber from introducing prosecutor’s statement?
i. Yes
ii. No, FRE 410 is one-sided. The defendant can use that statement with
respect to the things the prosecutor says but the prosecutor cannot do
the same thing. Prosecutor can try 403.

CXXXI. When Does Plea Bargaining Occur?

a. Note: The arrest most likely does not count as plea bargaining.
b. The FRE does NOT apply to sentencing proceedings
c. 410 is one-sided: if it’s beneficial to you as a defendant, then you can
use/introduce the prosecutor’s statement; this gives D a little more room than
we allow civil parties to have.  prosecutors can still try Rule 403 (these are
tough to win though!)

CXXXII. Two-Part Test

a. Defendant had an actual subjective expectation of negotiating a plea
b. The expectation was reasonable given the totality of the objective circumstances.

CXXXIII. Plea bargaining or confession?

a. Part I: The DEA Agent
[Rights are read to the defendant; defendant waives his rights]

Agent: OK, Stephens, now’s your chance to tell me what happened. I

don’t need to tell you that you’re in a LOT of trouble. This might be your
only chance to tell your side of the story. Do you want to tell me what really
happened?

Defendant: Why should I tell you anything?

Agent: Because everyone will go easier on you if you come clean now.
The prosecutor, the judge, they’ll all be much more likely to give you a break
if you are honest about what you did.

34
 Defendant: Look, I had the drugs, but I wasn’t going to sell them. They’re all for
me and my friends, we were going to have a party.

Agent: And you were going to give them all away for free to your
friends at this party? You’re a pretty good friend, giving away two hundred
dollars worth of drugs. I thought you were going to come clean so we could
give you a break.

Defendant: OK, sometimes they give me some money in return, but I’m not a
big time dealer. All I do is supply a couple of people, it’s just that I’m the one
who knows where to get the stuff.

b. Notes:
i. Not a plea bargain:
1. Lack of a prosecutor.
2. Lack of specificity.

c. Part II: The Prosecutor

Prosecutor: I hear you and Agent Johnson have been talking about where
you got these drugs. He says you can tell us who your supplier is.

Defendant: Yeah, but I’m not giving it away for nothing. What do I get if I tell
you everything I know?

Prosecutor: All I can say is that cooperation is always the better option for
people in your position. You know that right now with your priors and so
much drugs, you’re looking at five years minimum after you’re convicted.
Your best bet is to talk to me now and help yourself out.

Defendant: OK, I can tell you where I bought the drugs. There’s a dealer named
K.R., he’s at 525 6th street in apartment 5H. I bought 100 baggies from him, but I
know he has more stashed somewhere.

d. Notes:
i. This is a close call.
ii. Arguments for it being a plea bargain:
1. She’s asking for consideration.
2. The prosecutor is present.
iii. There are arguments for it not being a plea bargain too.

CXXXIV. Factors Suggesting Plea Negotiation

a. Involvement of a prosecutor
b. Involvement of defense attorney
c. Charges already filed
d. Specific terms discussed

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 e. Government expressed interest in defendant’s offer
f. Absence of caveat statements

CXXXV. Purpose
a. Thou shall not for ANY purpose except
b. Completeness, if fairness requires
c. Perjury prosecution under noted conditions

CXXXVI. FRE 410

a. Prerequisites
i. Civil/Criminal case where FRE apply
ii. Against the defendant
iii. During plea discussions
b. Coverage (prohibited usage)
i. Withdrawn pleas or no lo contendre pleas
ii. Statements to prosecuting attorney and at colloquy
c. Any Purpose (except)
i. Completeness
1. If a party introduces one statement from a plea bargaining
session, another party may introduce additional statements
from the same session when fairness requires consideration of
those additional statements.
2. THINK: completeness, if fairness requires  this is
discretionary!
ii. Perjury
1. The gov’t may introduce some statements otherwise protected
by the rule when necessary to prosecute a defendant for
perjury or false statement.
2. THINK: perjury prosecution under noted conditions  lies
told in front of the judge

CXXXVII. Waiver
a. Most US Attorneys require waiver of 410 before discussing plea
i. Allows government to enforce D’s promises to cooperate
ii. But strips D of protections in 410
b. Cynical view: If there’s no waiver, it’s not a plea bargaining session.

PLEA TYPE IS THE PLEA ARE STATEMENTS ARE STATEMENTS MADE DURING
ADMISSIBLE? MADE DURING PLEA-RELATED COURT PROCEEDINGS
BARGAING ADMISSIBLE?
ADMISSIBLE?

Accepted Plea of No 410(a)(1) No 410(a)(3) No 410(a)(3)

Nolo Contendere

Withdrawn Guilty No 410(a)(1) No 410(a)(3), (4) No 410(a)(3)

36
 Plea

Accepted Guilty Plea Yes Yes Yes

No Plea Not Applicable No 410(a)(4) Not Applicable

CXXXVIII. Remember RULE 403!!
- Rule 403 complements 410 in several ways:
1) although 410 only bars plea bargaining evidence that is offered against a D,
courts often invoke 403 to exclude similar evidence offered against the
prosecution
2) D’s may invoke 403 when 410 fails to exclude evidence offered against them;
counsel for both the gov’t and the defense should consider using 403 when 410
does not apply

CXXXIX. Offers to Pay Medical Expenses (409)

a. We keep this out of evidence. We want to encourage people to pay other people’s
medical expenses. So we create this rule that categorically exempts an offer to pay
medical expenses from being used as evidence to prove liability or fault.

CXL. FRE 409

a. Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or
similar expenses resulting from an injury is not admissible to prove liability for
the injury.
b. 409 applies whether or not medical care is actually furnished- it covers all offers
and promises to furnish medical care.
c. It does NOT cover any statements made before or after the offer or promise to
furnish medical care

CXLI. FRE 409

a. Prerequisites
i. Medical expense or similar
b. Coverage (prohibited usage) (Narrow coverage)
i. The offer to pay
c. Purpose
i. Liability

CXLII. Example:
a. This guy gets hurt on a loading dock. He’s in the hospital. The company shows up
to his hospital bed and says “looks like this was our fault. Don’t worry about your
medical bills—we’ve paid them. And we’ll pay you $100 per week replacement
wages while you’re recovering.”
b. Can the company exclude the representative’s statement under Rule 408 (offers to
compromise)?
i. Yes, entirely
ii. Yes, in part
iii. No, no claim and therefore no settlement discussion

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 c. Can the company exclude the representative’s statement under Rule 409 (medical
expenses)?
i. Yes, entirely
ii. Yes, in part, claim not required but narrower coverage (the medical
part is covered, but the part about replacement wages is admitted
because they are not medical expenses and therefore not excluded
under 409).
iii. No

CXLIII. Rule 409 In Sum

a. Much narrower than Rules 407 & 408
i. Covers the offer, but not other statements or conduct!
ii. Only medical/hospital bills (or the like)
iii. Many statements are already covered by 408

CXLIV. FRE 411

a. Evidence that a person was or was not insured against liability is not admissible
to prove whether the person acted negligently or otherwise wrongfully.
b. But the court may admit this evidence for another purpose, such as proving a
witness’s bias or prejudice or proving agency, ownership, or control.

CXLV. Rule 411: Liability Insurance

a. Injured plaintiffs cannot introduce evidence of the defendant’s liability insurance,
hoping that the availability of insurance will persuade the jury to award a large
recovery.
b. Nor can defendants attempt to escape liability by arguing that they are uninsured
and would go bankrupt if forced to compensate the plaintiff.
c. Rule 411 tries to remove discussion of liability insurance from the courtroom.
d. A defendant could try to use the existence of malpractice/liability insurance to
rebut a claim that she/he had no (or less of) an incentive for doing something
e. MAY be admissible when offered to prove witness bias, agency, ownership or
control.

CXLVI. What is liability insurance?

a. Compensates the policy holder for specified types of damages owed other people.
b. Examples:
i. Car insurance
ii. Medical malpractice insurance
c. Notes:
i. The following are examples of insurance that is NOT liability insurance:
1. Health insurance
2. Life insurance
3. Disability insurance
ii. Indemnity agreements – one party agrees to reimburse another party for
damages if a specified form of liability arises.

38
 1. They are usually different than insurance because they are one-
time agreements between parties, do not require the ongoing
payment of premiums and do not spread the risk of financial loss
over a large number of people.
iii. Rule 411 only precludes evidence of liability insurance if it is offered to
prove fault—that is, if offered “to prove whether the person acted
negligently or otherwise wrongfully.”
iv. Rule 411 lists examples of other, permitted purposes:
1. “proving a witness’s bias or prejudice,”
2. “proving agency, ownership, or control.”

CXLVII. Rule 411 Example: Butler Community College

a. BCC is really proud of its basketball team. They have a high school recruit they
want to bring in. The coach sends a current player to pick up the high school
recruit at the airport. They are in an accident and the recruit is hurt badly.
b. Recruit v. Coach
i. Johnson had a record of driving violations
ii. Johnson didn’t have a valid driver’s license
iii. Johnson’s car was not registered
iv. Johnson lacked automobile liability insurance

CXLVIII. Rule 411 In Sum

a. Prerequisites
i. Insurance against liability
b. Coverage
i. All information surrounding the insurance
c. Purpose
i. Liability

CXLIX. Chapter 4 Rules In Sum

a. First we have relevancy. Then we have a bunch of potential nets. You have to
characterize the evidence and see if any of these would apply. Then once you get
past the middle nets you end with prejudice as the last question. Then if you get
through prejudice—the evidence is not likely to be more prejudicial than
probative—then it reaches the fact finder, gets into court and you can use it.
Prejudice is only a rule of exclusion.

CL. Witnesses I: Mechanics of Examination

CLI. Witnesses
Who can testify? How do witnesses testify? How do lawyers impeach
witnesses?

FRE 601, 602, [603, 604] 605, FRE [603, 604] 611, 612, 614, FRE 607, 608, 609, 610, 613
606 615

39
CLII. Part I: Who Can Testify?
- Basically any witness who has knowledge relevant to the case.
- No longer the CL (which prohibited felons, children, parties to the action, atheists)

CLIII. Putting a Witness on the Stand

- A witness must:
Be competent (Rules 601, 605 & 606)
Have personal knowledge (Rule 602)
Take an oath of affirmation (Rule 603)
-If an interpreter is necessary, the rules also provide for qualification of that person (Rule
604)

CLIV. Competency
- 601 says every person is competent to be a witness unless these rules provide otherwise

CLV. Capacities/Infirmities

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 CLVI. Example: Jack & Steven
a. Jack robs Steven at gun point. There are 4 potential witnesses.
b. 1 - Steven is the first potential witness but he has a stroke before trial. He
remembers but can’t say it. This is narrative ambiguity—you cannot clearly state
what’s in your head. But the capacity is you have the ability to communicate.
c. 2 – Frank. Sees Jack walking down the street approaching Steven but turns away
before Jack brandishes the gun. Frank wants to testify that Jack robbed Steven.
Frank didn’t see the event. Perception – you have to see the event.
d. 3 – Judy. She’s 3. She lacks the capacity for sincerity. She has to know the
difference between a truth and a lie. Judy lacks that.
e. 4 – Jennifer. She cannot recall anything except the last 10 minutes. She lacks the
capacity for memory.
f. 4 capacities (above): (now referred to as competency)
i. 1. Ambiguity/Narration (FRE 611)
ii. 2. Sincerity (FRE 603) aka honesty
iii. 3. Memory (FRE 602)
iv. 4. Perception (FRE 602)

CLVII. FRE 601(competency)

a. Every person is competent to be a witness unless these rules provide otherwise.
But in a civil case, state law governs the witness’s competency regarding a claim
or defense for which state law supplies the rule of decision.
b. Notes:
i. Default rule that you can testify unless Rules 602 (personal knowledge) or
603 (oath) apply.
ii. But in a civil case, state law governs the witness’s competency regarding a
claim or defense for which state law supplies the rule of decision.
CLVIII. FRE 603 (oath)
a. Before testifying, a witness must give an oath or affirmation to testify truthfully.
It must be in a form designed to impress that duty on the witness’s conscience.

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 CLIX. FRE 602 (personal knowledge)
a. A witness may testify to a matter only if evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter.
Evidence to prove personal knowledge may consist of the witness’s own
testimony.
b. Notes:
i. Have to have personal knowledge.
ii. May consist of the witness’s own testimony.
iii. Information based on seeing, hearing or otherwise sensing

CLX. FRE 602 Example: Young v. XYZ Company

a. Young brings a claim for sexual harassment against her boss. She wants to call as
a witness her coworker. Is what the coworker going to testify to—that she saw
Young crying—relevant? Yes. It has some tendency to show she was being
harassed and that’s why she was crying.
b. Can the coworker testify about Maria crying?
i. Yes, she can testify if she has personal knowledge that is relevant to a
fact in consequence.
ii. No

CLXI. Example: Elevator Scooter Woman

a. Woman can’t talk but she can blink once for yes or twice for no. The issue is
narrative ability. Is her narrative ability impacted so much that she lacks personal
knowledge.
b. Can the plaintiff testify?
i. Yes
ii. No, Rule 611 Analog to “Personal Knowledge” – Must be able to
communicate personal knowledge to the tribunal (this is a close call)

CLXII. Example: Witness for the Prosecution

a. Gov’t prosecutes 18 people in a drug conspiracy. Jack was a member. Jack flips
and testifies against them. His testimony is inconsistent and the defendants want
to exclude his testimony under 602.
b. Does Rule 602 bar Jack’s testimony?
i. Yes, he lacks personal knowledge.
ii. No, he has sufficient personal knowledge to testify. Practical concerns
affect 602 analysis

CLXIII. Competency Review

a. If you lack one of these under common law you can’t testify as a witness:
i. Narrative
ii. Sincerity
iii. Perception
iv. Memory
b. Notes:

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 i. 601 is similar to 401 in that they try to include stuff. This is different from
most other rules which try to exclude stuff.

CLXIV. Competency Example

a. Hamburglar is convicted of felony can he testify? Yes. 602 and 603 do not bar
him from testifying.
b. Does the little girl get to testify? Yes, if she passes the voir dire
c. Arian Foster is an atheist (worried about his sincerity). Does he get to testify
under 603? Yes. 603 allows for an oath or affirmation.
d. Atticus Finch is the lawyer for the defendant. Can he testify? Yes. The FRE says
nothing about the lawyer, but the code of professional responsibility strongly
discourage it.
e. Judge Alex is presiding over the current case and he wants to testify and does
testify. Can he testify? No. Under rule 605 the judge presiding over the current
case cannot testify.

CLXV. To object to the judge testifying, a party…

a. Must file a motion in limine
b. Must object as soon as possible
c. Must file a written motion
d. Answer: Need not do any of the above

CLXVI. FRE 605

a. The presiding judge may not testify as a witness at the trial. A party need not
object to preserve the issue.

CLXVII. Competence

a. Notes:

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 i. 602 and 603 basically just embody the 4 mental capacities.
ii. 604-606 just categorize people.
1. 605: Presiding judge (barred completely)
2. 604: Interpreters – must be qualified & must make an oath or
affirmation to render a true translation
3. 606: Jurors for the most part are incompetent to testify in front of
other jurors on the matter for which they are sitting for. (barred
completely)
iii. Voir dire is used to show that the child witness is not competent. You’re
not trying to establish competency. The idea is the opposing party is trying
to establish a lack of competency.

CLXVIII. Examining Witnesses

- Two types of questioning: (1) direct examination & (2) cross examination
- Governed by two separate rules

CLXIX. Part II: How do they Testify?

- Rules 611, 612, 614, 615

CLXX. Types of objections

CLXXI. Common Rule 611 Objections

a. Argumentative: The attorney is drawing inferences or making conclusions that
should be reserved for closing argument. These questions may also constitute
harassing the witness, but not necessarily.
b. Asked and Answered: The attorney has already asked the question and the
witness has already answered.
c. Assumes a Fact Not in Evidence: These questions include a factual assertion
that is imbedded into the question.
d. Beyond the Scope: Cross-examination topic is beyond the scope of direct, OR
redirect is beyond the scope of cross.

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 e. Calls for Narrative: The question is too broad; the witness will tell a story
instead of answering a specific question.
f. Calls for Speculation: The question asks the witness what other people may have
been thinking or what might have been happening beyond the realm of the
witness’s perception. This objection is based on both Rule 602 (which requires
the witness to have personal knowledge) and Rule 611 (because the form of the
question calls for speculation). These questions can sometimes be rephrased so
that it is clear that they are asking for information that the witness personally
perceived.
g. Compound Question: The question tries to elicit more than one fact at a time.
h. Harassing/Badgering the Witness: The lawyer is asking the same question
repeatedly in different ways, insulting the witness for no purpose, or arguing with
the witness about his answer.
i. Improper Characterization of Testimony/Misstates the Testimony: The
attorney is pretending to repeat testimony back to the witness as the basis for the
next question, but is altering the testimony. The attorney may use a more
powerful word or change the facts themselves. This affects the witness’s
testimony and can also make it difficult for the jury to remember the original
testimony. The misstatement may occur immediately or much later in the trial,
when it will be harder for the judge and opposing counsel to detect.
j. Leading Question: The attorney is asking a question that suggests a specific
answer.
k. Non-Responsive Answer: This usually occurs on cross-examination. The
attorney who asked the question can object to the witness’s answer as non-
responsive, ask the judge to strike that answer, and force the witness to answer the
question posed.
l. Vague: The question does not give enough detail to allow the witness to respond
properly OR a term in the question has an unclear meaning.

CLXXII. FRE 611

Control by the court (a) Scope of cross examination (b) Leading questions (c )

Determine truth; avoid delay & Credibility & matters on direct Disallowed: most direct
harassment of witness examination (mostly) Allowed: cross, hostile
witnesses, or adverse parties

a. Notes:
i. (a) Control by the Court all done by the Judge.
ii. (b) Note: Not scope of direct. Just focuses on scope of cross (narrower).
Has to be something from direct or from credibility.
iii. (c) Leading questions are in general disallowed on most direct
examinations. Allowed on most cross-examinations, but not all. Always
allowed for hostile witnesses. Always allowed for an adverse party.
iv. Why allow leading questions on cross but not on direct? There are more
tools that are needed for cross than directs.
v. Governs the form of information given to the fact finder.

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 vi. Anytime your interest is adverse you can ask leading questions. Anytime
your interest is not adverse you can not ask leading questions.

CLXXIII. Funnel
Direct  Cross  Redirect  Re-cross
a. Notes:
i. Direct exam is widest part, all relevant questions are permissible at
discretion of judge.
ii. Cross exam you are limited by what was on direct and credibility
iii. Redirect limited only to cross.
iv. Recross limited only to redirect.

CLXXIV. Stages of Direct Examination

a. Introduce the witness to the jurors
i. Kind of questions you ask at this stage:
1. Are you married?
2. What is your job?
3. Where do you live?
ii. We allow potentially irrelevant questions: 1) we want to get the witness
comfortable on the stand, 2) you want to establish a
b. Lay the foundation: Establish personal knowledge
c. Allow witness to tell her story
i. Question is how do you go about getting the witness to tell their story?
ii. NO leading questions on direct examination. If you feed answers, the
witness will appear less credible

CLXXV. Student v. Prof. Sevier

a. Stage 1: Introduce the witness
i. Are you a student at FSU?
ii. Etc.
b. Stage 2: Lay the foundation
i. Are you in the evidence class?
ii. Where are you seated in the class?
iii. How is your vision?
c. Stage 3: Allow witness to tell her story
i. Did the professor do anything strange that day?

CLXXVI. Leading Questions Ladder

a. Are these questions leading or not?:
i. What happened next?
1. Answer: No, not leading.
ii. Did Prof. Sevier threw an eraser, didn’t he?
1. Answer: Yes, leading.
iii. What did Prof. Sevier do?
1. Answer: No, not leading.
iv. Did Prof. Sevier do anything unusual?

46
 1. Answer: No, not leading.
v. Did Prof. Sevier throw anything?
1. Answer: Maybe.
vi. Did Prof. Sevier throw an eraser?
1. Answer: Yes. Doesn’t suggest the answer but its specific.
b. Notes:
i. A leading question presents new information and suggests the answer.
ii. It’s up to what the judge considers a leading question.
iii. Note: Not a specific test that requires these 2 things, just a guideline.

CLXXVII. “Leading” or “Clarifying”?

a. Witness: Professor Sevier threw an eraser at a student.
i. Atty; Did you see him throw the eraser?
ii. Atty: Did the eraser hit the student?
iii. Atty: What happened after he threw the eraser? Tell us everything you
saw.
b. Notes:
i. The first statement here is ambiguous. It doesn’t say who the student is. It
doesn’t say the eraser hit anyone. It doesn’t say that it saw him throw the
eraser.

CLXXVIII. Permissible Leading on Direct

a. Rule 611 gives judges discretion to allow leading questions when they are
“necessary to develop the witness’s testimony” and for a hostile witness or
adverse party; questions on any matter of consequence is permitted
b. Four contexts in which judges most often allow attorneys to lead witnesses on
direct examination:
i. To Establish Pedigree Information
1. Such as educational background and occupation.
ii. To Direct a Witness’s Attention to A Relevant Place and Time
1. Leading questions about place and time can help the attorney shift
a witness’s attention to a new chapter of the testimony.
iii. To Help a Witness Who is Hesitant, Confused, or has trouble Recalling
1. Because of youth, nervousness, illness, memory problems, or other
characteristics.
iv. Hostile Witnesses
1. Leading questions allowed when a party calls a witness who is
likely to resist that party’s position.
2. A “hostile witness” is any witness who is evading questions or
otherwise being uncooperative to such an extent that it is
interfering with the eliciting of testimony.

CLXXIX. On direct examination, leading questions are allowed…

a. Never
b. When necessary to develop the witness’s testimony
c. For a hostile witness or adverse party

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 d. Answer: Both 2 and 3.

CLXXX. Leading (In Practice)

a. Leading questions are allowed on direct examination whenever the opponent does
not object
b. But are usually bad strategy on direct

CLXXXI. Cross-Examination
a. Cross-examination differs from direct examination in two important ways:
i. (1) leading questions are allowed, but
ii. (2) the cross-examiner may ask questions only about issues covered during
the direct examination.
b. The primary purpose of cross-examination is to limit or discredit the story told by
the witness on direct.
c. The cross-examining attorney cannot ask questions that are “beyond the scope” of
the direct examination.
d. The “scope” of cross-examination is the subject matter of the direct examination
and the witness’s credibility.
e. The scope provision makes 3 important points:
i. Lawyers conduct cross-examination usually cannot ask a witness about
topics or incidents that were not addressed during direct examination.
ii. The rule gives the judge discretion to expand the scope of cross-
examination.
iii. Parties are allowed on cross-examination to ask questions affecting the
witness’s credibility. (This is known as “impeaching” the witness).

CLXXXII. Goals of Cross-Examination

a. Discredit the witness (Impeachment)
b. Obtain useful details
c. Tell a different story
d. Do no harm

CLXXXIII. Questions
a. Leading questions are always allowed on cross-examination
i. True
ii. Answer: False. Default rule is yes you lead on cross but there are two
exceptions:
1. Forbidden when cross-examining adversary’s hostile witness.
2. Forbidden when going beyond scope of direct (with judge’s
permission)
b. Cross-examination is limited to…
i. The subject matter of direct examination
ii. Answer: The subject of direct exam and credibility.
iii. Credibility only
iv. Any matter of consequence to the action

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 CLXXXIV. Redirect Examination
a. The lawyer who initially called the witness will explore issues that were raised
during cross-examination.
b. An attorney may use redirect examination to “rehabilitate” a witness who has
been impeached, i.e., by eliciting exonerating details or otherwise combating the
negative information.

CLXXXV. Recross-Examination
a. Most judges will allow Recross-examination if new issues arose on redirect and if
the Recross is brief. The same rules apply as during cross-examination: that is, the
lawyer may use leading questions, but must stay within the scope of the previous
examination.

CLXXXVI. Rule 614

a. Judge may call witness (rarely occurs)
b. Judge may questions witnesses (often occurs)
c. Must object as soon as jury not present
d. Each party is entitled to cross-examine a witness called by the judge.

CLXXXVII. Movie Clip: The Verdict

a. It would be an abuse of discretion.
b. Rule 614 is more supposed to be used as a rule to clarify testimony. To the extent
that the judge appears to be trying the case for one of the sides and loses his/her
impartiality, then courts will start to reverse.
c. We recognize there’s a benefit to judge’s asking questions. We’re just worried
that the judge becomes an advocate for one of the sides.

CLXXXVIII. Rule 615: Exclude Witnesses

a. Example: fact witnesses. Courts almost always do this, whether or not it was
requested
b. If a party requests exclusion, the judge HAS to exclude; Except:
i. Parties
ii. Representative of a corporate or organizational party
iii. Witness essential for preparation
iv. A person authorized by statute to be present.
v. Florida has a caveat to this rule: we allow next of kin to remain in the
gallery
c. Notes:
i. If a party asks for a witness to be excluded it has to happen, except for the
above 3 circumstances.
ii. “Witnesses essential for preparation” means an expert. We let experts stay
in.
iii. Lay witnesses are typically kicked out.
iv. Rule 615 has 3 important provisions:
1. The rule can be invoked by either party or by the judge herself.

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 2. The rule gives the judge no discretion: once the party makes a
request to exclude witnesses, the judge must exclude them from
the courtroom.
3. The rule makes exceptions for several categories of witnesses who
cannot be barred from the courtroom. Two categories are
especially important:
a. Parties to the case.
b. A witness “whose presence a party shows to be essential to
presenting the party’s claim or defense.” This refers to
expert witnesses.

CLXXXIX. Rule 612: Refreshing Recollection

a. An attorney can refresh a witness’s recollection with a document or other item.
Any document can be used, as long as the witness states that it will help her
remember the necessary information.
b. It does not have to be a “writing;” it ma be in the form of audiotapes, photos or
other types of media.
c. The theory is the witness will read something, it will refresh her recollection, then
she will give her testimony.
d. No requirement that the witness’s testimony be exactly the same as the
information contained in the writing; the purpose of using material under Rule
612 is to refresh the witness’s memory of a past event, not to “prove” that the
witness’s testimony is correct by comparing it to a written document (the purpose
is for refreshing memory not reciting material)
e. The witness must first state that (1) she does not remember the answer to the
question being asked; and (2) seeing the writing will “refresh her recollection.”
These two statements lay the foundation for the writing being used to refresh
recollection.
f. Notes:
i. Most of the times dealing with this on direct.
ii. Why might you need to refresh a witness’s recollection?
1. Answer: They might forget about the event over time.
iii. Rule 612 gives adverse parties the right to (1) inspect any writing the
witness uses to refresh recollection, (2) cross-examine the witness on the
writing, and (3) introduce the relevant portions of the writing into
evidence.
iv. The adverse party may introduce a writing used for refreshment into
evidence even if the writing would not otherwise be admissible. Rule
612, in other words, trumps other rules of evidence when an adverse party
invokes it; the rule gives the adverse party the right to introduce the
writing for the limited purpose of assessing the witness’s credibility.
v. Three procedural issues that may arise when writings are used to refresh
recollection:
1. Determining which portions of a writing to admit when only part
of the document relates to a witness’s testimony.

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 2. Remedies if a party refuses to produce a writing used to refresh
recollection.
3. It is subject to the Jencks Act, which governs discovery in federal
criminal trials.
vi. If the adverse party does choose to admit the writing into evidence, unless
the writing is admissible on other grounds, the jury may use the writing
only to assess the witness’s credibility.

CXC. FRE 612

Scope (a) Adversary's Options (b) Failure to Produce or

Deliver (c )

During direct or cross; before Produce and inspect, cross, enter into Civil = discretion
trial evidence Criminal = strike (or
mistrial)
Notes:
i. Adversary is the person not refreshing recollection.
ii. It can enter into evidence, even if it would have gotten scooped up by one
of the other “nets.”

CXCI. Refreshing Recollection in 7 Steps:

1. Witness says she can’t recall  “I don’t recall.” DON’T say “I don’t know”
-It doesn’t have to be the witness’s own writings/notes/etc. Can use
ANYTHING! Bc you are not entering into evidence (bc you can’t enter
into evidence)
2. Identify “memory jogger” and ask witness if that might refresh
3. Show memory jogger to opposing counsel
4. Show memory jogger to witness
5. Take memory jogger away
6. Ask witness: “Did that refresh your memory?”
7. Ask witness to testify from memory

CXCII. Refreshing Recollection.

a. Step 1:
i. Don’t have your client say “I don’t know.” This is bad.
ii. The phrase “I don’t know” is problematic because if she doesn’t know
then she has a personal knowledge problem and refreshing recollection
won’t help. Instead have your client say “I don’t recall.”
iii. You have to use “these magic words.”
iv. “I don’t recall” are the magic words to allow for a refreshment of
recollection.
b. Step 2:
i. Ask “Might this document refresh your recollection.”
ii. Then have your witness say “Yes.”
c. Step 3:

51
 i. You have to show it to opposing counsel first.
d. Step 4:
i. You show it to the witness,
e. Step 5:
i. Then you take it away.
ii. So there’s no doubt the witness is testifying to her “refreshed”
recollection.
f. Step 6:
i. You want to lay foundation first. So first ask, “Did that refresh your
recollection.”
ii. Magic words = “Did that refresh your recollection.”
iii. Have your witness say “Yes.”
g. Step 7:
i. Ask witness to testify from memory without paper in front of them.
h. Notes:
i. There is no rule that says it has to be from a witness’s past writing.
ii. There are 4 limitations.

CXCIII. Refreshing Recollection Questions

a. An attorney may refresh recollection:
i. Only on direct examination
ii. Whenever the recollection is relevant
iii. Answer: Whenever the judge grants permission. 612 governs what
adversary can do once the judge allows the refreshing of recollection.
iv. Only on cross-examination
b. Who may introduce a writing used to refresh recollection?
i. Any party
ii. Answer: An adverse party.
iii. The witness
iv. No one
c. The jury may used a writing introduced under Rule 612:
i. Answer: To assess credibility. Only the adversary can admit that
writing and they can only use it to assess credibility.
ii. To establish a controverted fact
iii. To establish liability
iv. For any purpose
d. The jury may use a writing introduced under Rule 612:
i. Answer: To assess credibility.
Caveat: The refreshing party may introduce the writing if it isn’t
excluded by another rule. Otherwise the writing is used for credibility
and a limiting instruction is issued.
ii. To establish a controverted fact
iii. To establish liability
iv. For any purpose
e. When refreshment occurs before testifying, the adverse party may examine the
materials:

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 i. Answer: When justice requires
ii. Always
iii. Never
iv. If the witness is hostile

CXCIV. Notes on 612

1) The adverse party may introduce a writing used for refreshment into evidence
even if the writing would not otherwise be admissible.
2) Rule 612 trumps other rules of evidence when an adverse party invokes it; the
rule gives the adverse party the right to introduce the writing for the limited
purpose of assessing the witness’s credibility  still subject to other rules, like
hearsay, which might bar admission
3) Rule 612 is NOT a right!!! The judge has to allow.
4) Rule 612(2) gives a trial judge discretion when a writing is used to refresh
recollection PRIOR to trial; it is only subject to the Rule’s disclosure
requirements IF the judge believes that it is necessary to do so in the interests of
justice.

CXCV. Refreshing Recollection Example: Asian Man

a. What would be an okay way the jury can use that newspaper article?  to assess
credibility.
b. CANNOT use for ANY substantive purpose (i.e. to establish liability or only for
the purpose of liability)

CXCVI. Refresh with Illegally Obtained Information?

-If being used as a tool to tease out independent recollection, then it’s okay & can
be admissible.
-Still only for credibility purposes!!!

CXCVII. Witnesses II: Impeachment

CXCVIII. Part III: How do we Impeach?

a. Impeachment is a fancy word for discrediting a witness on the stand.

CXCIX. My Cousin Vinny Video Clip

a. How was the witness impeached?
i. Impairing his perception.

CC. Dealing with Damaging Testimony

a. A Toolkit/Toolbox of Ten Tactics
i. A trial lawyer who confronts damaging testimony from an opponent’s
witness can drew upon ten different tactics to combat that evidence:
1. Exclude the Evidence Through a Specialized Rule.
2. Claim Unfair Prejudice, Confusion, or Delay.
3. Complete the Story

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 4. Clarifying the Ambiguous Testimony
5. Show Impairment of Perception or Recollection.
6. Demonstrate Inconsistencies.
7. Rebut the Evidence.
8. Show Bias.
9. Attacking the Witness’s Character for Truthfulness.
10. Introduce Expert Testimony About Evidence.

CCI. Tactics Used to Combat Bad Evidence.

a. We can group these ten tactics into three sets:
i. Offensive techniques:
1. Rebut the evidence (on direct)
2. Complete the Story. (on cross)
3. Clarify the Ambiguous Testimony. (on cross)
4. Introduce Expert Testimony.
ii. Defensive techniques:
1. Show Impairment of Perception or Recollection.
2. Demonstrate Inconsistencies.  regulated very heavily
3. Show Bias. (prejudice, interest)  a really good indicator of
sincerity
4. Attack the Witness’s Character for Truthfulness.  regulated
very heavily!
iii. “Referee” or judge” tactics:
1. Exclude the Evidence Under a Specific Rule.
2. Exclude the Evidence by Demonstrating Unfair Prejudice,
Confusion, or Delay.
b. Notes:
i. Offense strategy – Rebut with other evidence (Direct)
ii. Defense strategy – Keep them from “scoring” by using one of the
testimonial capacities.
iii. Referee strategy – Exclude evidence under specific rule. Exclude evidence
via prejudice.

CCII. “Bad Evidence” Strategies

Referee Offense Defense

Exclude evidence under Rebut with other evidence Impeachment!

specific rule (direct) Attack the witness's perception,
Exclude evidence via Complete and/or clarify the memory narrative, or sincerity
prejudice evidence (cross) Perception, memory, narration, or
bias
Inconsistencies
Untruthful character

CCIII. Impeachment

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 a. Attack the witness’s perception, memory, narrative, or sincerity  not regulated
too much
i. Bias (prejudice, interest) good indicator of sincerity
ii. Inconsistencies  regulated very heavily
iii. Character for truthfulness  regulated very heavily
1. Reputation Evidence
2. Prior Bad Acts
3. Convictions

CCIV. Purpose of Impeachment: This Witness Isn’t Believable

Impeachment evidence is NOT substantive proof of the information contained in the

impeachment evidence.
Impeachment evidence is used solely to evaluate how believed able we think the witness is.

CCV. FRE 607 : Who can be impeached?

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

CCVI. Rule 607

a. Any party may attack the credibility of any witness
b. When would you attack your own witness?
i. Hostile witness
ii. Witness changes story
iii. To “draw the sting”  bring it out before the other wise does; helps make
the witness look more honest

CCVII. Rule 613 : Impeach with Prior Inconsistent Statement

a. If an attorney can show that a witness’s courtroom testimony conflicts with
statements the witness made outside the courtroom, the attorney will significantly
undercut the witness’s testimony.

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 b. Unless the witness can offer a plausible explanation for the inconsistency, the
jurors are likely to conclude that the witness is confused, unreliable, or even lying.
c. Current Authority for Distinction:
-NOT FRE 613: no reference anywhere to “collateral matters” or
“extrinsic evidence” in the Rule
-Stems from FRE 611 & FRE 403: Judge has the authority to order
evidence; collateral issues have low probative value
d. 613(a) says you may ask witness about prior statement without showing it to the
witness; but must show statement to opposing counsel on request
e. 613(b) says if you use extrinsic evidence of prior statement, the witness must have
an opportunity to explain or deny & opponent must have an opportunity to
examine witness
f. Applies ONLY to inconsistent statements. 608 is to prove untruthful character.
Use 402 & 403 (impeachment by contradiction) when impeaching by an action
that contradicts testimony.

CCVIII. Vocabulary Lesson!

a. “Collateral Matter”
i. A collateral matter is relevant to the case solely because it impeaches a
witness. A matter that does not relate to a fact of consequence. (Note: If a
piece of evidence both proves a fact in consequence and impeaches a
witness, then it is non-collateral).
ii. A matter that does not [directly] relate to a fact of consequence (opposite
of consequential evidence)
iii. Need to know the facts of the law in order to determine whether a fact is
of consequence or consequential
iv. EXAMPLE: At trial, Wilma testifies that she walked to the golf course on
the day she saw Barney hit Berry with the golf club. Wilma gave a
statement to police shortly after the assault that she drove to the golf
course that day. The jury doesn’t care how Wilma got to the golf course,
this detail does not prove any fact of consequence to the assault charges
against Barney. This inconsistency is relevant only bc it shows that Wilma
changed her story and is less credible. Thus, it is a collateral matter.
b. “Extrinsic Evidence”
i. Any evidence other than testimony from the witness currently on the
stand.
ii. Evidence that does not originate with the current witness while on the
witness stand
c. Notes:
i. Judges use their discretion under Rules 403 and 611 to prohibit extrinsic
evidence of a prior inconsistent statement on a purely collateral matter.
Evidence of this nature causes delay and confusion that substantially
outweighs its probative value (Rule 403) and disrupts the orderly
presentation of evidence (Rule 611).
ii. The rules allow parties to present extrinsic evidence of prior inconsistent
statements related to non-collateral matters.

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 d. Hitchcock Rule
i. Parties may NOT use extrinsic evidence to impeach witnesses on
collateral matters (no outside witnesses, documents, etc)
e. Prior statement Matrix
Consequential Collateral

Intrinsic Allowed++ Allowed+

Rule 403 Rule 611/403

Extrinsic Allowed Prohibited

Rule 613/611/403

CCIX. Impeachment with Prior Inconsistent Statements

Non-Extrinsic Evidence Extrinsic Evidence

Non-Collateral Matter Cross-examiner asks Sharon testifies that Wilma
Wilma, “Didn’t you tell told her that Fred hit Betty.
your friend Sharon that
Fred hit Betty?”
Allowed, subject to
Allowed. procedures in Rule 613.
Collateral Matter Cross-examiner asks Police officer testifies that
Wilma: “Didn’t you tell Wilma told him she drove
the police that you drove to to the golf course.
the golf course that day?”

Allowed, subject to some Prohibited under Rules

outer limits under Rules 403 and 611.
403 and 611.

a. Notes:
i. BIAS IS NEVER COLLATERAL!!!
ii. The bar on extrinsic evidence for collateral matters only applies to a few
types of impeachment:
1. Prior inconsistent statements
2. Impeachment by contradiction (attorney uses evidence other than a
witness’s prior statement to show that the witness lied on the stand.

CCX. Using Prior Statements to Impeach Witnesses

1. Asking questions is quicker than introducing extrinsic evidence
2. If the inconsistency involves a fact of consequence, the judge will take time for
extrinsic evidence
3. If the inconsistency involves a collateral issue, the judge will probably limit
exploration to questions

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 CCXI. Rule 613
a. Lawyers now may surprise witnesses by asking them without warning about prior
inconsistent statements.
b. The rule requires only that the lawyer disclose the statement to opposing counsel
immediately before the lawyer brings up the statement on cross-examination.

CCXII. Rule 613(b)

a. If a party offers extrinsic evidence of a prior inconsistent statement, the witness
who made the prior statement must have an opportunity to explain the
inconsistency, and opposing counsel must have a chance to question the witness
about that inconsistency.

CCXIII. Impeaching a Witness II: Untruthful Character

a. Rules 608 & 609

CCXIV. “Bad Evidence” Strategies - Defense

a. Perception, memory, narration or bias are the core testimonial infirmities. They
are so important that they are the “gold standard.”
b. Inconsistencies could be indicative of them lying, or just that they forgot, etc.

CCXV. How to Prove Untruthful Character?

a. Untruthful Acts (608b)
b. Bad Reputation (608a)
c. Past Convictions (609)

CCXVI. “The Hitchcock Principle”

a. Requires:
i. Distinguishing collateral matters from consequential matters.
1. Think about a tangent vs. not a tangent. If you’re going off on a
tangent, that’s collateral. If it’s not a tangent is consequential.

CCXVII. Witness Lying Example

a. Witness as dishonest before = circumstantial evidence
b. Witness was dishonest before, so witness will be dishonest again.

CCXVIII. Impeaching a Witness: Untruthful Acts – Rule 608b

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CCXIX. Rule 608(b)
a. The court may, on cross-examination, allow [specific instances of a witness’s
conduct] to be inquired into if they are probative of the character for truthfulness
or untruthfulness . . .

. . . extrinsic evidence is not admissible to prove specific instances of a witness’s

conduct in order to attack or support the witness’s character for truthfulness

b. Notes:
i. This is the “Hitchcock” rule.
ii. Credibility is ALWAYS relevant!
iii. Must be probative of the character for truthful or untruthfulness
iv. Good faith requirement!
-Otherwise there is potential for prejudice
-Most similar to probable cause for a warrant
-Low standard & ripe for abuse
v. The trial judge has discretion to permit questions on cross about specific
instances of misconduct by a witness IF the misconduct bears upon the
witness’s character for truthfulness.

CCXX. Rule 608(b) Question

a. Under 608(b), the judge is most likely to allow cross-examination about the fact
that the witness…
i. Answer: Cheated on an exam. Probative of the character for
truthfulness or untruthfulness. Prior bad acts have to be here
specifically for truthfulness.
ii. Burned a sofa after the FSU-Miami game
iii. Drinks beer for breakfast
iv. Lost her license for speeding

CCXXI. Good Faith Requirement

CCXXII. Good Faith Question

a. A “good faith belief” under Rule 608(b) is most like…
i. The prima facie standard
ii. A preponderance of the evidence
iii. Answer: Probable cause for a warrant. Low standard (and ripe for
abuse)

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 iv. Clear and convincing evidence.
b. Notes:
i. “Certainly not. I have never cheated on an exam.”
ii. Cross examiner “may” inquire  Keyword: “May.” (Judges can cut off
intrinsic questioning of truthfulness)
iii. Cannot use extrinsic evidence for purposes of attacking a witness’s
credibility. Cross-examiner must “take” the witness’s answer.. Either
move on or use creativity to get an honest response.
iv. Though Rule 609 would permit extrinsic evidence about certain
convictions.

CCXXIII. Three Layers of Judicial Control

a. 608(b): Cross-examiner “may” inquire
b. Rule 611: “The court should exercise reasonable control…to…protect witnesses
from harassment or undue embarrassment”
c. Rule 403: Court may exclude evidence when probative value is “substantially
outweighed” by unfair prejudice

CCXXIV. Good Faith Requirement Example

a. Before asking a witness about a specific incident suggesting untruthfulness, an
attorney must have a good faith belief that the incident occurred
b. A good faith belief is one that rests on some evidence, even if that evidence would
not be admissible in court.
c. Equivalent to PC in obtaining a warrant

CCXXV. Evidence of Truthful Character

a. Do you file your tax return every year?
b. Have you ever lied on an employment application?
c. What about on an application for a bank loan?
d. Do you answer truthfully when a friend asks how a new haircut looks?
e. Wrinkle: Re-direct Examination
-Court may allow questions about truthful acts on redirect if witness’s
character for truthfulness has been attacked on cross
-Must follow the same rules on cross: inquire about acts, but cannot
introduce extrinsic evidence

CCXXVI. Evidence of Truthful Character Question

a. Yes, Rule 608(b) allows it.
b. No, Rule 608(b) prohibits it.
c. Yes, this is discretionary, and the judge will likely allow it.
d. Answer: No, this is discretionary, and the judge will likely prohibit it. 608(b)
applies to cross-examination, but says nothing about direct examination.
Nonetheless, judges frown on “bolstering.”

CCXXVII. United States v. Rodriguez: 608(b) Example

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a. Conspiracy with intent to distribute cocaine. Drug ring headed by Alex Luna.
Rodriguez drove John Adams from NY to CT with cocaine for Luna. Rodriguez
admits driving; claims no knowledge of drugs. Testimony by Rodriguez: “I never
saw Luna or Adams with cocaine.” “In fact, I didn’t see any cocaine anywhere
during those years.”
b. Nature of the contradiction:
i. Current Statement
-“In fact, I didn’t see any cocaine anywhere during those years”
ii. Former Act
-You & Linda regularly used cocaine, didn’t you?
c. Questions:
i. “You knowingly wrote a bad check for the local Target store, didn’t you?”
1. Answer: Yes, within judge’s discretion. Untruthful character
(collateral) but intrinsic. 608 doesn’t prohibit.
2. No, it violates 608(b)
3. No, it’s leading
4. No, it’s collateral
ii. “You hit your girlfriend Linda, didn’t you?”
1. Yes, 608(b) allows
2. No, because we lack good faith belief
3. Answer: No, unless we can establish relevance. Does not relate
to truthful character and is not relevant.
iii. “Did you tell Linda, ‘I saw Adams give Luna enough snow to bury
Danbury’?”
1. Yes, under Rule 608(b)
2. No, it violates 608(b)
3. Answer: Yes, if we follow 613 procedures. Prior inconsistent
statement, so Rule 613 controls
4. No, it’s irrelevant
iv. “You and Linda regularly used cocaine, didn’t you?”
1. Yes, under Rule 608(b)
2. No, it violates 608(b)
3. Yes, if we follow 613 procedures
4. Answer: Yes, under 402 and 403. Not related to truthful
character and not a prior inconsistent statement. It’s an action
that contradicts Rodriguez’s testimony.
d. “You and Linda used cocaine regularly, didn’t you?” “No, I never used cocaine—
either with Linda or anyone else”
i. Does 608(b) apply?
1. Answer: No. Current statement
e. If not Rule 608(b) or 613, then what?
-No FRE governs impeachment by contradiction
-But impeachment by contradiction = Hitchcock
f. Is this collateral or consequential?
-Better argument is that it’s consequential
-So only Rule 403 (and 611) controls

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CCXXVIII. Prior Inconsistent Statement and Actions that Show Untruthful Character Matrix

Prior Inconsistent Statement Action that Shows Untruthful

Character
May inquire on cross-examination, May inquire on cross-examination,
with good faith belief with good faith belief
No extrinsic evidence if inconsistency No extrinsic evidence to attack
is collateral character (that’s collateral)

a. Notes:
i. Rules 608 and 613 are largely the same.
b. Drug use does not go to truthfulness.
c. What is the purpose of asking if she did drugs with Linda?
i. Answer: He said something on the stand that we are trying to
contradict. He said he didn’t see cocaine, but if he did it with Linda,
then he saw it. We are just contradicting what he is saying.

CCXXIX. Two Questions to Ask

a. What’s the reason (the purpose) that I’m introducing this evidence?
b. If not to show untruthful character, what’s the nature of the contradiction?

CCXXX. Contradiction
a. Nature of the Contradiction
i. Current Statement
1. –“In fact, I didn’t see any cocaine anywhere during those years.”
ii. Former Act
1. You and Linda regularly used cocaine, didn’t you?
b. Compare with the Following
i. Current Statement
1. –“In fact, I didn’t see any cocaine anywhere during those years.”
ii. Former Statement (FRE 613)
1. You told others that you and Linda regularly used cocaine, didn’t
you?

CCXXXI. United States v. Rodriguez

a. Nature of the Contradiction

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 i. Current Statement
1. “No, I never used cocaine—either with Linda or with anyone else.”
ii. Former Act
1. [Linda will testify that] Rodriguez used cocaine with Linda
b. If not Rule 608(b), then what?
i. No FRE governs impeachment by contradiction
ii. But impeachment by contradiction = Hitchcock
c. Is this collateral or consequential?
i. Better argument is that it’s consequential
ii. So only Rule 403 (and 611) controls

CCXXXII. Devil Grandma

a. Cheated on an exam in college.

CCXXXIII. Rule 609: Impeachment of Witnesses with Prior Convictions

a. Really just “bad acts” again just with the venire of convictions.

CCXXXIV. Preliminary Matters

a. Where we are in the impeachment hierarchy
b. Variations on Rule 403 balancing
c. Untruthful Acts (608b)
d. Bad reputation (608a)
e. Past convictions (609)

CCXXXV. Convictions: Special Snowflakes

a. Convictions used to impeach a witness operate on different rules
i. CANNOT use them in nearly any way you see fit (like perception,
narrative, memory, or bias)
ii. DO NOT strictly follow the Hitchcock Principle (like prior statements,
impeachment by contradiction, or untruthful acts)
b. If you have a conviction, you are more likely to lie across the board. If you don’t
want to be branded a liar, don’t get convicted of crimes (specifically, felonies)
c. The risk of unfair prejudice is even higher when the impeached witness is a party
to the lawsuit
i. Jurors might overly-punish people who are convicted (particularly
defendants)
ii. Jurors may decide that the convicted party is “bad person” who doesn’t
deserve to prevail in court  this contradicts our justice system
iii. A party’s character, especially as reflected by a criminal conviction for
which they have already paid penalty, should not determine his success or
failure in unrelated lawsuits

CCXXXVI. Rule 609 Example

a. “Conviction? I’ll subconsciously interpret evidence in a way that harms him…”
“Conviction? He’s a bad person and is probably guilty!”

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CCXXXVII. Rule 403 Balancing
a. Three different types of 403 balancing
i. Each one comes into play when evaluating convictions to impeach
witnesses!
ii. Know how they differ and when to use them

CCXXXVIII. Rule 403 Variations

TRADITIONAL MODIFIED REVERSE

Admit evidence unless prejudice Admit evidence unless Exclude evidence unless
substantially outweighs probative prejudice outweighs probative value substantially
value probative value outweighs prejudice
Default: admit the evidence! The Doesn't have to be Default: exclude the evidence
conviction is going to come in. "substantial"
Default: admit the evidence

a. Traditional - Presumption of admissibility unless prejudice substantially

outweighs probative value.
b. Modified – Admit evidence unless prejudice outweighs probative value
c. Reverse – Exclude evidence unless probative value substantially outweighs
prejudice

CCXXXIX. “Traditional” 403 Balancing

CCXL. “Modified” 403 Balancing

CCXLI. “Reverse” 403 Balancing

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CCXLII. Rule 403 Variations

CCXLIII. Rule 609: Impeachment of Witnesses with Prior Convictions

a. Rule 609 Applies Only to Witnesses  This is huge for defendants! If they don’t
get on the stand, then you can’t impeach them with Rule 609 (prior convictions)!
b. Rule 609 Applies Only to Convictions Offered to Attack Character for
Truthfulness  if the gov’t charges a defendant with violating one of those laws,
it can prove the prior conviction without worrying about Rule 609
c. But jurors will have trouble limiting their consideration of the conviction  the
rule states that the jury may consider that conviction only to assess the witness’s
character for truthfulness, though this is hard to do (hard to distinguish
truthfulness & liability)

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 CCXLIV. Rule 609 Purpose
a. “The following rules apply to attacking a witness’s character for truthfulness by
evidence of a criminal conviction”
b. Point: Impeachment Only

CCXLV. Rule 609: Impeachment of Witnesses with Prior Convictions

a. We’re worried that about prejudice that could be caused from prior convictions.

CCXLVI. Continuator
a. From Admit to Exclude
b. Then you have the 403 analysis in the middle.
c. The least restrictive on evidence—the test that will allow the most in—is
traditional 403. It gets in unless it’s substantially more prejudicial than it is
probative. That’s hard to meet, so the result is a lot of evidence gets in.
d. Middle is Modified 403—this is more restrictive than regular 403.
e. Reverse 403—flips the default. The default now is its inadmissible. Only gets
admitted if the probative value is substantially more than the prejudicial value.
f. From All dishonest convictions to Juvenile (Crim DS), Pardons
g. Notes:
i. These tests embody the values that are associated with them.

CCXLVII. The Three Truisms of Rule 609

a. 1. Rule 609 Applies Only to Witnesses
i. Rule 609 has really important substantive implications. Depending on the
609 analysis might decide how the witness will testify. It can thus affect
the outcome of the case.
b. 2. Rule 609 Applies Only to Convictions Offered to Attack Character for
Truthfulness
i. You’re attacking truthfulness. Here it has to get to character for
truthfulness.
ii. “The following rules apply to attacking a witness’s character for
truthfulness by evidence of a criminal conviction”
iii. Not used to attack character. Only for character for truthfulness
1. (Point: Impeachment Only).
c. 3. But Jurors Will Have Trouble Limiting Their Consideration of the Conviction
i. You can’t unring the bell. If jurors hear it, they’ve already heard it.

CCXLVIII. 5 Factors

Types of Witness:
1. Criminal defendant vs. other witness

The Crime I: Type

1. Involves dishonest act/false statement vs. doesn't

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 The Crime II: Seriousness
1. Felony vs. Misdemeanor
1. Misdemeanors only if they involve an act of dishonest

Passage of Time
1. Released more than 10 years ago vs. less than 10 years ago
1. 10 year cut off

Extenuating Circumstances
- Juvenile crime? Receive a pardon?

CCXLIX. FRE 609 Subtypes

a. Three categories:
1. Conviction for a dishonest act or false statement
2. Felony conviction against criminal defendant
3. Felony conviction against other witnesses
i. (Includes civil defendant)
b. Key caveat
i. The rules for these three types of convictions are subject to two important
exceptions (time and extenuating circumstances)
ii. Consider these rules “the default” unless these two exceptions apply (and
change the tests)

CCL. Subtype I: Dishonest Act/Statement

a. FRE 609(a)(2)
i. “For any crime . . . the evidence must be admitted if [the conviction]
required proving—or the witness’s admitting—a dishonest act or false
statement”
b. Key point: Type of witness doesn’t matter and type of crime doesn’t matter.
c. This is the only circumstance in which a misdemeanor can be admitted, otherwise
it’s felonies ONLY.
d. No balancing test required
e. If it’s a crime if falsity, it is automatically admissible under Rule 609(a)(2).

CCLI. What Is a Crime of Dishonest Act or False Statement?

a. Perjury, fraud, embezzlement
b. Other crimes for which a dishonest act or false statement is an element
c. Crime for which court can readily determine that dishonest act or false statement
proved to be an element in witness’s case  this is hotly contested!
-Doesn’t have to be an element
-EX: obstruction of justice? Could go either way! Courts are split on this

CCLII. Subtype II: The Witness’s Felony

a. FRE 609(a)(1)(A)
i. “[T]he evidence must be admitted, subject to Rule 403”

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 1. Note: Can get it kicked out, but most show it is substantially more
prejudicial than probative (so probably going to get in.)
b. Key Point: ALL OTHER convictions
c. Second Point: Traditional 403 balancing test applies (admission is not automatic)
d. Burden is on the prosecution to show that probative value outweighs the
prejudicial effect  Rule 403 puts the burden

When Prejudicial Effect… Rule 403 Rule 609(a)(1)(B)

Is less than probative value Admits the evidence Admits the evidence

Equals probative value Admits the evidence Excludes the evidence

Somewhat outweighs probative value Admits the evidence Excludes the evidence

Substantially outweighs probative value Excludes the evidence Excludes the evidence
e. If conviction is MORE than 10 years old….
i. The party seeking to use the conviction must give the adverse party
reasonable written notice
ii. The judge must find specific facts and circumstances supporting the
conviction’s probative value
iii. The judge must determine that the probative value of the conviction
“substantially outweighs its prejudicial effect”
**Tough standard for admitting evidence of convictions that are more than
10 years old!**

CCLIII. Subtype III: Criminal Defendant’s Felony

a. FRE 609(a)(1)(B)
i. “The evidence must be admitted . . . if the probative value of the
evidence outweighs its prejudicial effect to that defendant.”
1. Note: Taken the word “substantial” out.
ii. Key Point: Requires a modified Rule 403 balancing test (don’t have to
show “substantial” here.)
iii. Presumption of admissibility, but can exclude if prejudice outweighs
probative value at all.
b. 5 Things Courts look at when they’re doing the 403 balancing test: (factors to
consider)
i. Impeachment value of former crime
1. If the former crime is lying, that goes to the probative side.
2. Crimes that look more like they bear on dishonesty, though they
don’t actually
ii. Timing of prior conviction
1. If closer to it goes to probative, if further away it goes to
prejudicial.
2. More likely the conviction will come in; ex: if 9 years ago, what’s
the difference?
iii. Similarity of prior crime to current case

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 1. Bears on prejudice because the more similar the prior crime is to
the current crime the more likely the jury is to think you did it.
They might also confuse the other crime with this one.
2. The more similar it is, the more we should let it in. BUT, actually,
it cuts the other way: looks more like propensity evidence
iv. Importance of D’s testimony
1. If something turns on the D’s testimony than Courts are going to
find that it’s prejudicial. Because if not than it would discourage
D’s testifying.
v. Presence/absence of “swearing match”

CCLIV. FRE 609 Default Rules

(All) Dishonest Acts Witness Felony Defendant Felony

 Always admissible  Rebuttable  Rebuttable
presumption of presumption of
 Admissible admissibility (even admissibility
automatically (no though it doesn’t
judicial discretion) involve dishonesty!)  Presumption can be
rebutted by a modified
 Traditional 403 403 balancing test
balancing test applies (exclude if prejudice
(exclude if prejudicial effect outweighs
effect substantially probative value)
outweighs probative
value)

CCLV. Two Exceptions

a. If one of these “trump cards” comes into play, pretend the other three are not
there.

CCLVI. Exception 1: Time (609b)

a. Requirements
i. Passage of (over) 10 years
1. Either from the conviction or release from confinement (whichever
is later)
ii. Reasonable written notice
b. New Test
i. Reverse 403 balancing test
1. We presume its excluding only if you can show this over 10 year
old conviction is so probative we need to let it in.

CCLVII. Exception 2: Extenuating Circumstances

a. 2 Types of Extenuating Circumstances:
i. Pardons (FRE 609c)

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 ii. Juvenile offenses (FRE 609d)

CCLVIII. Juveniles
a. Two types of witnesses (and two tests)
i. Criminal defendant: automatically excluded
ii. All other (crim) witnesses: two-part test
1. Would an adult conviction be admissible? AND
2. Is the evidence necessary to fairly determine guilt?

CCLIX. Pardons
a. 2 Types (or equivalent)
i. Actual innocence
ii. Rehabilitation (and no subsequent felonies)
b. New Test
i. NO TEST: automatically excluded
c. Under Rule 609(c ), if a pardon is based on a finding of innocence, evidence of
the conviction is no longer admissible no matter what; if it is not based upon a
finding of innocence, the conviction will still be inadmissible unless a subsequent
felony has been committed. Clean record=no admission of prior felony conviction

CCLX. FRE 609 Exception Rules

Time Juveniles Pardons

 If the criteria are  For criminal  If the criteria are
met, presumption of defendants, always met, always
inadmissibility inadmissible (and inadmissible (and
automatically automatically
 Reverse 403 exclude) excluded)
balancing test
applies (can admit  For everyone else,
only if the probative two part test: (1)
value substantially admissible if
outweighs its committed as an
prejudicial effect) adult? and (2)
necessary to fully
determine guilt?

CCLXI. Jeopardy Game in Class

a. Burglary in store. Police arrive, the backdoor is open, there are a bunch of
cardboard boxes and a bunch of open backpacks laid out like a trail, which leads
them to two D’s who are napping. The police snap photos of the D’s before they
wake up. They are drunk. Then they are charged with the burglary.
b. Guy is being tried for burglary. He has a juvenile conviction for theft.
i. Questions Admit Juvenile Conviction for Theft?
1. Only if it was a felony
2. Only if admission is necessary to fairly determine guilt

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 3. Only if it occurred less than 10 years ago
4. Answer: No. Inadmissible. [Criminal D, subject to juvenile
exception]
c. Adult conviction for second degree assault. Punishable by up to 5 years in prison.
Convicted 9 years ago. Suspended sentence. No pardon.
i. Question: Admit Assault Conviction?
1. Yes
2. Answer: Yes, if probative value outweighs prejudicial effect to
that defendant. Modified 403 balancing test. [Criminal D,
Felony, Not Dishonest, No Exceptions Apply]
3. Yes, if consistent with Rule 403
4. No
d. Admit vs. Exclude Balancing Test

e. Adult conviction for embezzlement. Convicted 2 years ago. Served 6 months in

prison. No pardon.
i. Question: Admit Embezzlement Conviction?
1. Answer: Yes. Admissible. [Dishonest (so misdemeanors ok)
and no exceptions apply]
2. Yes if it was a felony
3. Yes if consistent with Rule 403
4. No
f. Adult conviction for embezzlement. Convicted 15 years ago. Sentenced to 7
years; never paroled. Released 8 years ago. No pardon.
i. Question: Admit Embezzlement Conviction?
1. Answer: Yes. Admissible. [Subject to exception for time, but he
doesn’t qualify]
2. Only if probative value substantially outweighs prejudicial effect
3. Yes, if Rule 403 is satisfied
4. No
g. Adult conviction for embezzlement. Convicted 15 yrs ago. Sentenced to 7 years.
Released on parole 11 years ago. Remained free, but no pardon
i. Question: Admit Embezzlement Conviction?
1. Yes

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 2. Answer: Only if probative value substantially outweighs
prejudicial effect. Reverse 403 Balancing. [Subject to exception
for time]
3. Yes, if Rule 403 is satisfied
4. No
h. Misdemeanor disorderly conduct (public drunkenness). Suspended sentence four
years ago. No pardon.
i. Question: Admit Disorderly Conduct Conviction?
1. Yes
2. Yes, if probative value outweighs prejudicial effect
3. Yes, subject to Rule 403
4. Answer: No. Inadmissible. [No dishonesty and a misdemeanor]
i. Perjury conviction three years ago. $500 fine. Pardoned 6 months later, based on
innocence.
i. Question: Admit Perjury Conviction?
1. Yes
2. Yes, if it was a felony
3. Yes, subject to Rule 403
4. Answer: No. Inadmissible. [Except for pardons]
j. Felony assault. Two years ago. Served one year in prison and released. No
pardon.
i. Question: Admit Assault Conviction?
1. Yes.
2. Yes, if probative value outweighs prejudicial effect to accused
3. Answer: Yes, subject to Rule 403. Traditional 403 balancing.
[Witness and no exceptions apply]
4. No
k. Embezzlement conviction. Judge excludes: too old.
i. Question: Cross-examine about the embezzlement?
1. Answer: No.

CCLXII. Anatomy of a Murder movie Clip

a. Questions:
i. What convictions did the witness have?
1. Answer: Perjury, arson, window peeping, disorderly conduct,
Larsen, assault with a deadly weapon, indecent exposure.
ii. What would be the test for if the lawyer wanted to show the certificate of
conviction?
1. Answer: Traditional 403. He’s a witness.
iii. What test for window peeping, disorderly conduct and indecent exposure?
1. Answer: Reverse 403. They are not felonies, they are
misdemeanors and they do not bear on dishonesty.
iv. What did the witness say when he asked him about his convictions?
1. Answer: He admits to the arson but not to anything else. Then
the witness is caught in a contradiction. You have evidence that
contradicts what the witness said. You can then go directly

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 through direct impeachment through contradiction. The
witness opens the door to that. Impeachment by contradiction
follows the Hitchcock rule.

CCLXIII. Impeaching a Witness: Untruthful Reputation

a. Rule 608a
b. (Rule 608b2)

CCLXIV. Turning our witness into Pinocchio.

a. Use this pathway: Witness was dishonest before  Witness has dishonest
character  Witness is lying on the stand

CCLXV. Ways to Show Untruthful Character

a. Cross-examine about untruthful acts, 608(b)
b. Introduce evidence of prior conviction, 609
c. Offer reputation or opinion testimony about untruthful character, 608(a)

CCLXVI. FRE 608(a)

a. Applies ONLY TO [character?????] WITNESSES!!
b. A witness’s credibility may be attacked or supported by testimony about the
witness’s reputation for [truthful/untruthful character] or by . . . opinion about
that character.
c. But evidence of truthful character is admissible only after the witness’s character
for truthfulness has been attacked.
d. Evidence of bias does not constitute an attack on character or propensity;
evidence of bias presents a reason why the witness may choose to be untruthful on
this particular occasion, but it does nothing to attack a witness’s character for
truthfulness.

CCLXVII. FRE 608(b)(2)

a. The court may, on cross-examination, allow [specific acts] to be inquired into if
they are probative of character for truthfulness or untruthfulness of:
i. Another witness whose character the witness being cross-examined has
testified about.
ii. A question about a specific instance of conduct, used to “test” the
character witness’ alleged expertise about the fact witness’ character is the
type of cross-examination permitted by Rule 608(b)(2)

CCLXVIII. Key Preliminary Points

a. Reputation evidence must relate to truth
i. Same as all other impeachment (except convictions)
b. Reputation evidence must relate to another witness
i. Cannot use it against a non-testifying D
c. Can’t attack the general character of the witness

CCLXIX. [Positive] Character Witness

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 1. Attacking Party Goes First
-This has to happen before your character can be bolstered for honesty
2. Lay the Foundation
-Requisite personal knowledge to give character evidence/opinion for truthfulness
3. No Specific Acts on Direct
-The rule allows testimony to her opinion, just no specific acts (only allowed on
cross!)
4. Cross-Examiner Must Lay Foundation
5. No Extrinsic Evidence. Hitchcock rule applies.

CCLXX. Rationale(s)
a. How much do we weigh any individual acts?
b. Oath/affirmation and formal setting
c. Limits on time and juror attention

CCLXXI. Rule 608(a) – 3 important caveats

1. The rule only allows general reputation or opinion evidence of characters, not
testimony giving specific instances of conduct related to a witness’s truthfulness of deceit
2. Just as parties may cross-examine witnesses only on acts related to their character for
truthfulness or untruthfulness, not on other types of acts, character witnesses may only
offer reputation or opinion evidence about another witness’s character for truthfulness or
untruthfulness
3. A party may introduce evidence of a witness’s truthful character only after that
character has been attacked.
NO extrinsic evidence permitted! Character is always consequential not NEVER collateral!

CCLXXII. Character Witnesses on Another Witness’s Character for Truthfulness

a. Preliminary Matters
i. Must relate to truth
-Same as all other impeachment (except convictions)
ii. Must relate to another witness
-Cannot use it against a non-testifying witness
b. Timing
i. No bolstering. Have to attack first, then rehabilitate.
ii. Evidence of truthful character is ONLY admissible after the witness’s
character for truthfulness has been attacked
-Presenting a separate witness, a “character witness” who testifies
that the original witness has an untrustworthy character
-Opposing counsel can present a character witness who opines that
the original witness is a truthful person
c. Laying foundation
i. Have to establish personal knowledge. On cross you have to ask if they are
aware of certain facts.
d. No extrinsic evidence of specifics

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CCLXXIII. Limited Purpose
a. Jury should consider only to assess witness’s character for truthfulness
i. Rule 105: Limiting instruction  no judge discretion here; if the party
asks for a limited instruction, the judge MUST give it!
ii. Rule 403: Exclude if unfair prejudice substantially outweighs probative
value
b. 3 limits: the evidence must be in the form of reputation or opinion ONLY; the
evidence must relate to the witness’s character for truthfulness or untruthfulness;
and the testimony about a witness’s character for truthfulness can only be elicited
after his character has been attacked

CCLXXIV. In Practice: Worth It?

a. In general things that hurt tend to hurt more than things that help.
b. There’s a real danger for the positive character witness in a way that the negative
character witness is not a danger.

CCLXXV. Fact witness : presented to established facts related to the underlying legal dispute
Character witness : presented to offer evidence about the truthful or untruthful character
of a fact witness
-can be in the form of opinion or by reputation
-the rule does not allow parties to ask character witnesses questions on direct
examination that focus on specific examples of a fact witness’s untruthfulness
-must be limited to the fact witness’s character for truthfulness or untruthfulness/
-can be used ONLY to assess the credibility of the witness’s courtroom testimony
(not to establish guilt or innocence)

CCLXXVI. Character v. Credibility

- Aggressively crossing a witness about her testimony or pointing out
inconsistencies in that testimony does not attack her general character for
truthfulness
- Demonstrating that a witness has an interest in the outcome of a case or is biased
against a particular party are attacks on the witness’s credibility in the context of
the case

CCLXXVII. Impeachment Review

a. The Core Four
i. Perception, Memory, Narrative, and Bias
b. Inconsistencies
i. Prior Inconsistent Statements
ii. All other contradictions
c. Untruthful Character
i. Acts (including convictions)
ii. Reputation/opinion
d. Who can testify?
i. FRE 601, 602, [603, 604], 605, 606
e. How do witnesses testify?

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 i. FRE [603, 604,] 611, 612, 614, 615
f. How do lawyers impeach witness?
i. FRE 607, 608, 609, 610, 613

CCLXXVIII. Rule 106: Rule of Completeness

FRE 106
a. If a party introduces all or part of a writing or recorded statement, an adverse
party may require the introduction, at that time, of any other part—for any other
writing or recorded statement—that in fairness ought to be considered at the
same time.

CCLXXIX. United States v. Castro-Cabrera

a. Prosecution for illegal reentry after deportation
b. Defendant claims citizenship through mother’s status
c. Defendant’s Previous statement
i. Q: Of what country are you a citizen?
ii. A: Hopefully United States through my mother
iii. Q: What country are you a citizen of now?
iv. A: I guess Mexico until my mother files a petition.
v. Rule 106 supports admission only if:
1. Statement was written or recorded
2. Fairness requires contemporaneous consideration
3. D and gov’t are adverse parties
4. Answer: All of the above

CCLXXX. More on Completeness

a. Judges sometimes allow parties to “complete” oral statements under FRE 611(a)
b. Most circuits interpret FRE 106 as a rule of timing not admissibility
i. Inadmissible evidence cannot be admitted
1. For purposes of completeness you cannot take something that is
otherwise inadmissible and make it admissible because we need
completeness.

CCLXXXI. Character Evidence

CCLXXXII. “Character” Evidence

a. Four Basic Concepts
i. 1. The Act – Through act’s we make judgments about people’s character.
ii. 2. Propensity – Tendency to commit those acts.
iii. 3. Reputation – What others have observed of you based on acts and non-
acts.
iv. 4. Character – You cannot directly observe character.
b. Character evidence is NOT admissible to prove that a person acted “in
accordance” with their character.

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CCLXXXIII. Witness’s Propensity to Lie : based on acts & reputation, you are a liar. Therefore, you
have a tendency to lie. Because you have a tendency to lie, you are lying now.

a. Look at the act and the reputation to establish he’s a liar. If he has a tendency to
lie then he is lying right now on the stand.
b. This is the chain of events.

CCLXXXIV. Proof of Conduct by Propensity

a. Prior acts of violence. Reputation of violence. So he’s violent. Since he’s violent
he has a tendency to assault. Since he has a tendency to assault then he assaulted
the plaintiff.

CCLXXXV. Rule 404(a)(1)  have to be against A WITNESS!!!!

a. Evidence of a person’s character or character trait is not admissible to prove that
on a particular occasion the person acted in accordance with the character or trait.
-UNLESS the person has opened the door by offering evidence of good
character
b. Note:
i. Has to be used for the right purpose.

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 ii. EX: in a contract dispute, can’t use reputation evidence of that individual’s
character to prove that the defendant is known for breaking contracts
c. Character evidence in the form of opinion or reputation is admissible for the
purpose of witness impeachment in BOTH civil and criminal trials. While such
character evidence may be admissible in criminal trials for certain other purposes
as well, witness impeachment is the only purpose for which it may be admissible
in civil trials.
d. The prosecution is not allowed to introduce evidence about the character of
the accused except in rebuttal of character evidence offered by the accused.

CCLXXXVI. “Character” Evidence

Party’s Conduct by Propensity Character as Element

 Usually forbidden  Allowed

 Exceptions

Acts to Prove Something Other than Witness’s Propensity to Lie

Propensity

 Usually allowed  Cross-examine on acts

 Character witnesses
 Criminal convictions

CCLXXXVII. Conceptualizing Character Evidence

a. Ban character evidence to prove propensity
i. Exceptions
1. Character for truthfulness (impeachment)
2. Mercy Rule in criminal cases
ii. Exemptions
1. When character is an element
2. When character is used for another purpose

CCLXXXVIII. Four Categories of “Character Evidence”

a. Conduct by Propensity
i. Character or reputation as elements
ii. Other acts for non-propensity purposes
iii. W’s propensity to lie or tell the truth

CCLXXXIX. FRE 405: Character as Element

a. 405(a)
i. By reputation or opinion (direct and cross)
ii. By specific instances (on cross-examination)  this is like 608
b. 405(b)
i. By specific instances on direct examination
c. What differs from 608? Reputation, opinion & testimony are all permitted

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 d. Very few restrictions on cross-examination under Rule 405

CCXC. Hollywood Cheapskates and Tightwads

a. The worst celeb tippers are two of the richest folks in town—the Beckhams.
b. David Beckham has a generous character -> TMZ statement is false
c. What Types of Evidence May Beckham Introduce?
i. Reputation among other celebrities
ii. Opinion of neighbors
iii. Testimony from waitresses
iv. Answer: All of the above. FRE 405a & 405b
d. Misdemeanor conviction for kicking waiter who complained?
i. No
ii. Only if the conviction is < 10 years old
iii. Only if Beckham has committed a subsequent felony
iv. Answer: Yes, if consistent with Rule 403. 609 Disallows misdemeanors
to impeach credibility. Rules allow them to prove substantive element
of case.
e. Friend testifies that Beckham has generous character. TMZ may . . .
i. Cross-examine about cheap acts
ii. Introduce evidence of cheap acts
iii. Answer: Both. Very few restrictions on cross-examination under FRE
405.
iv. Neither

CCXCI. Recruit v. Coach Example

a. Negligent Choice of Driver
i. Reputation for bad driving
ii. Runs stop signs
iii. Drinks and drives
iv. Answer: All of these. Substantive element; 405 allows all three types
of proof
v. None of these

CCXCII. Scenarios when Character is Element: Liability  instances where character evidence is
directly related to prove character as an element [not simply to prove that they have a
tendency to act in a certain way]. Character is an element in this type of case, so the
evidence is admissible. Under Rule 405, parties may offer any kind of evidence
(reputation, opinion, or specific acts) to prove an element.
a. Defamation
b. Negligent Entrustment
c. Child Custody
d. Entrapment

CCXCIII. Scenarios when Character is Element: Damages

a. Loss of consortium
b. Lost wages

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 c. Pain and suffering

CCXCIV. Key Points

a. Is the issue solely what the character is?
i. If so, admissible (doesn’t implicate 404a1)
ii. There’s no propensity argument
b. Procedural Issues
i. Can prove nearly anyway you want
ii. Opinion, reputation, acts, extrinsic evidence
c. The rules often limit character evidence to reputation or opinion testimony, as in
Rule 608, Rule 405(b) explicitly confirms that specific instances of conduct are
admissible to prove character as an element of a crime, claim or defense

CCXCV. Conduct by Propensity

CCXCVI. Proof of Other Acts

a. You’re not going to character.
b. You’re using the act to prove something else. The question is what is that
something else?
c. Evidence that someone charged with a crime has committed similar crimes in the
past could lead a jury to think that the D is a criminally inclined type of person. If
the state offered the evidence to show that participation in those past crimes gave
the defendant skills that were specifically needed in the offense for which the D is
charged in the current trial, then admissibility would be possible. (jury would use
the info to determine that the D possessed a specific skill that made it more likely
that he/she was the perpetrator of the charged offense).
d. Testimony about the person’s reputation or about the witness’s opinion of the
person is always allowed

CCXCVII. Gina’s Garden

a. Gina v. Fred
b. Admit testimony of Target manager that Fred tried to shoplift CDs?
i. No, it’s not relevant
ii. Answer: No, it violates Rule 404(a)(1).
iii. No, it’s speculation
iv. Yes
c. Admit evidence that Fred was convicted of stealing CDs?
i. Yes
ii. Only if Fred testifies
iii. Answer: Only if Fred testifies and this was a felony conviction. Would
use traditional 403 balancing for admissibility
iv. No
d. Admit opinion that “Fred will steal anything he can get his hands on”?
i. Yes
ii. Yes, with proper foundation
iii. Yes, if Fred has opportunity to cross-examine

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 iv. Answer: No. It’s opinion evidence, which also is excluded under
404(a)(1).

CCXCVIII. Conduct by Propensity: Exceptions

CCXCIX. Procedure: Rule 405(a)

a. When evidence of a person’s character is admissible, it may be proven by
testimony about the person’s reputation or by testimony in the form of an
opinion…
b. On cross-examination of the character witness, the court may allow an inquiry
into relevant specific instances of the person’s conduct.  IDENTICAL to FRE
608!

CCC. State v. Rogers: Vandalism Example

a. Prosecutor’s Case-in-Chief: “I’ve known Rogers for 30 years. In my opinion, he
has no respect for property.”
b. Is the Neighbor’s testimony Admissible?
i. Answer: No. Classic 404a1
ii. Yes, as long as he gives no specifics.
iii. Yes, as long as Rogers was never convicted of a property crime.
iv. Yes.
c. Defense Case: “Rogers has been attending my church for 20 years. He has a
reputation for being peaceful and law-abiding.”
d. Is the “Church Lady’s” Testimony Admissible?
i. Answer: Yes.
ii. No, because this is character evidence.
iii. No, because it relates to religion.
iv. No, because she’s biased.
e. Admit evidence that Fred was convicted of stealing CDs?
i. Yes
ii. Only if Fred testifies
iii. ANSWER: Only if Fred testifies and this was a felony conviction.
Would use traditional 403 balancing for admissibility
iv. No
f. Admit opinion that “Fred will steal anything he can get his hands on”?
i. Yes
ii. Yes, with proper foundation
iii. Yes, if Fred has opportunity to cross-examine
iv. ANSWER: No. It’s opinion evidence, which also is excluded under
404(a)(1).

CCCI. Rule 404(a)

a. 404(a)(2) – the “mercy rule”
b. Evidence of a person’s character or character trait is not admissible to prove that
on a particular occasion the person acted in accordance with the character or trait.

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CCCII. The Mercy Rule: Substance
a. Applies only to criminal cases (404a2)
i. Allows D to introduce evidence about his character OR V’s character
ii. Character trait must be pertinent
iii. Prosecutor may respond, but cannot initiate

CCCIII. The Mercy Rule: Procedure

a. Follows FRE 405a (analogous to FRE 608)
i. Can prove character by opinion on direct
ii. Can prove character by reputation on direct
iii. Can prove character by acts on cross
iv. No extrinsic evidence permitted
b. Analyze substance and procedure
c. Cannot offer evidence of specific acts on direct; D is entitled to introduce
evidence that his character is inconsistent with the crime charged, however, he
can only introduce such evidence is through reputation or opinion testimony, not
specific acts of conduct.
d. In a criminal trial, a defendant may offer opinion testimony as evidence of his or
her own pertinent character or trait AT ANY TIME

CCCIV. Key Issues So Far (Mercy Rule)

a. Is it a character trait?
i. Defense Witness: “D is clumsy and scared of power equipment”
1. Admit
2. Exclude
ii. [Correct form?]
1. Defense: Danielle’s Good Behavior Award
a. Admit
b. Exclude
b. Does the valence of the trait matter?
i. Defense Witness: “D is clumsy and scared of power equipment”
1. Admit
2. Exclude
c. Is the trait pertinent?
i. Defense Witness: “Bauer has a reputation for reneging on promises”
1. Admit
2. Exclude
d. Interplay of credibility (609) and character?
i. “Did you know Danielle was convicted for assault?”
1. Answer: Admit. FRE 609 does not apply here.
2. Admit only if it was a felony
3. Exclude
e. How can the prosecution respond?
i. Can rebut, but cannot initiate
ii. Defense W: “D is sweet-natured” Rebuttal: “Danielle has a violent
nature”

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 1. Answer: Admit. Mercy rule. Prosecutor can ask but not
initiate.
2. Exclude
iii. Defense W: “D is sweet-natured” Rebuttal: “Violet is sweet-tempered
and peaceful”
1. Admit
2. Answer: Exclude. V’s character is not at issue. Respond in
kind.
iv. Defense: “Violet was a violent, vicious person”
1. Answer: Admit. Mercy rule. Can place v’s character into issue.
2. Admit if Violet died
3. Exclude
v. Defense: “Violet was violent, vicious” Rebuttal: “Violet is sweet-
tempered, peaceful”
1. Answer: Admit. Now prosecutor can respond. D has opened
the door to V’s character.
2. Exclude
vi. Defense: “Violet was violent, vicious” Rebuttal: “Danielle is violent,
vicious”
1. Answer: Admit. Once door is opened, prosecution can present
character evidence for V or D.
2. Admit if Violet died
3. Exclude
f. Credibility v. Character
i. The defendant (not allowed)
ii. The character witness (allowed)  important to understand the distinction
between what IS allowed for a character witness when that same evidence
is NOT permitted for a defendant

CCCV. The Prosecutor’s Response

a. Key Points
i. Cannot go first (can only respond)
ii. Must respond in kind
iii. Two-pronged attack if victim’s character at issue
iv. Special homicide nuance

CCCVI. Non-Propensity Purposes

CCCVII. Two Pathways

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CCCVIII. Rule 404(b) : Evidence of a crime, wrong, or act … may be admissible for another
purpose . . .

CCCIX. State v. Rogers Continued

a. Defense Witness: “Rogers is clumsy and scared of power equipment”
i. Answer: Admit. Unclear, but likely admissible. Must be a character
trait, but can be negative.
ii. Exclude
b. “He’s so scared of power equipment that he won’t even use a blender.”
i. Admit
ii. Answer: Exclude. Specific acts are forbidden on direct.
c. Cross-Exam: “Are you aware that Mr. Rogers uses a power lawn mower?”
i. Answer: Admit. Specific acts are allowed on cross
ii. Exclude
d. If the witness denies knowledge, can the prosecutor introduce evidence of mower
use?
i. Yes
ii. Answer: No. FRE 405b
e. Defense Witness: “Bauer has a reputation for reneging on promises”
i. Admit
ii. Answer: Exclude. Mercy rule, but must be pertinent.

CCCX. Chuck E. Cheese(‘s) Example

a. Danielle’s neighbor: “In my opinion, she’s a sweet tempered young woman”
i. Answer: Admit. Allowed by mercy rule.
ii. Exclude
b. Cross-Examine: “Did you know D shoplifted from the Gap?”

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 i. Admit
ii. Answer: Exclude. Mercy rule, but must be pertinent.
c. Cross-Examine: “Did you know D repeatedly beat up her sister?”
i. Answer: Admit. Allowed under 405b
ii. Exclude
d. “Did you know Danielle was convicted for assault?”
i. Answer: Admit. FRE 405b. FRE 609 does not apply here.
ii. Admit only if it was a felony
iii. Exclude
e. Defense: Danielle’s Good Behavior Award
i. Admit
ii. Exclude

CCCXI. Pindell Example

a. Keep in mind the 403 balancing. There’s a real threat of prejudice to the
defendant.

CCCXII. Rule 404(b)

a. Rule 404(b): Evidence of a crime, wrong, or act . . . may be admissible for
another purpose . . . .
b. If you want the evidence in you’re going to say it’s for propensity. If you want it
out you’re going to say it’s for something else.

CCCXIII. Types of Non-Propensity Purposes

a. Knowledge
b. Opportunity
c. Motive
d. Identity
e. Pattern or Plan
f. “Doctrine of Chances”
g. Intent

CCCXIV. While Out on Bail Example

a. The propensity here is she’s a bad person. The idea is because she did it before it
reflects on her character and she’ll do it again. However, you define her bad
character is up to you.
b. Then the other side says “no, its not propensity, it goes to knowledge.” If you’re
trying to say another purpose, if its more than one purpose its better.
c. Here, it goes to knowledge because she had no knowledge about the gas tanks.

CCCXV. Garden Gnome Example

a. She knows the garden gnome group met near her house. She knows he has a
garden gnome pin. She wants to put it in as propensity.
b. The other side would say it doesn’t go to propensity, it goes to opportunity.

CCCXVI. Idiot Bank Robber Example

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 a. Rights a note to teller that has his name on it. They go to arrest him. The clerk
goes and IDs him. Finds out his name is Toy Madden and he has a history of drug
use. If you’re a prosecutor you want it in.
b. They could say it goes to motive.
c. What separates motive from propensity?
i. Answer: Motive seems more conscious and more specific then general
propensity to commit an act.

CCCXVII. Gina’s Garden Gnome Example

a. Imagine she finds a bunch of beer cans. It’s a bizarre type of beer. She thinks they
were introduced by the thief. She wants to introduce it as evidence. She thinks it
belongs to Fred.
b. Fred’s lawyer wants to get it thrown out. He’ll argue: “Fred has a propensity to
drink this type of beer, therefore he was drinking beer on this occasion.” Gina
would say it goes to identity. Since it’s a unique beer, it identifies him.
c. Identity vs. propensity – it is not something that goes through their character it
just identifies with them.
i. If it’s very specific it could go to identity.
ii. Distinctive on its face or distinctive in light of the facts.

CCCXVIII. Rex v. Smith

a. “Brides in the Bathtub” case
b. This guy finds his wife dead in the bathtub, right after she wrote a will giving
everything to him. He said she fainted. The crown thinks he drowned her. The
crown investigates him and finds he has been married twice before under 2
different names and both times before his wife was found dead in the bathtub. The
crown wants to use evidence of the past two wives. Can they get it in?
c. Intended to Kill Wife A  Intended to Kill Wife B
i. Impermissible propensity argument: He is the type of person who would
intentionally kill his wife
ii. Can’t do that, so you have to do something else.
iii. You can use pattern or plan.
iv. What are the odds of this happening?
1. “Doctrine of Chances” – what are the odds that this would happen.
2. There’s a clear pattern that would not have happened but for the
accident.

CCCXIX. Employment Discrimination: What Was the Employer’s Intent?

a. Question is: Who’s telling the truth?
i. Plaintiff is going to put on data points. Then defendant will point on data
points. So you have data points on each side. What are the odds that this
group of people would have been fired absent a nefarious explanation?

CCCXX. State v. Spector

a. Doctrine of chances. What are the odds absent an innocent explanation that you
would see this type of pattern with his ex-girlfriends?

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CCCXXI. Bag of Cocaine Example
a. Defendant sold cocaine 3 years ago. D did it once so he is likely to be doing it
again. D has a propensity to sell cocaine. Defendant possessed cocaine with intent
to sell.
b. Notes:
i. Want to try to prove possession with intent to distribute. Have to show
intent. Have to use character evidence to get to intent. What better ways
are there to prove intent? Were there any scales or weighing equipment?
Any statements made to others wouldn’t violate the hearsay rule. Did he
have any cash? But instead we’re going to try to prove it through character
evidence. In the past he sold cocaine 3 years ago. We’re trying to say the
defendant possessed cocaine with intent to sell. What’s the intent
argument here? He did it once so he is likely to be doing it again. (Sounds
a lot like “he has a propensity to sell cocaine.”) There becomes an ethical
question as to whether prosecutors should use it. Technically it’s allowed
in the rules. Use the Rule 403 balancing.

CCCXXII. Ways to Skirt Propensity

a. Knowledge
i. A girl knew how to break a safe code in the past and thus has the
knowledge to do it now
b. Opportunity
c. Motive
i. You’re not using the drug evidence to say he’s a bad person, but instead
you are using it as his motive for robbing the bank to finance his out of
control drug habit
d. Identity
i. The garden gnome stealer drinks a unique kind of beer
e. Pattern or Plan
i. Sometimes called the “doctrine of chances”
ii. The bathtub cases
iii. The three wives all signed a will and then found dead in a bathtub
iv. You are using it not to show propensity but something more subtle; you
are saying what are the odds that he would have 3 different wives that
would all die the same way and this is circumstantial evidence of a pattern
for a plot. The more times the better and the more they are all alike, the
better.
f. Intent
i. Police arrest someone with a large bag of cocaine; you can get him for
possession but you think he might be a dealer so maybe you want to go
after him for not only possession but distribution. But you must prove
intent for distribution.
ii. Paraphernalia that shows intent to sell (scale)
iii. Can prior convictions for selling cocaine or arrests get in for substantive
proof that the D is distributing?

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 -If it’s being used for substantive proof then Rule 404 would be
implicated
-What would be the impermissible propensity argument?
-Whether it gets in or not depends on prosecutor or not to argue the
intent
g. Can also argue Rule 403 against this
i. It’s more likely to work here bc the judge’s are always wary that
propensity might be lurking in disguise of intent, motive, etc
h. Husband is on trial for assaulting his wife; he claims it was an accident.
Prosecutor calls witness to testify that he overheard husband threaten to hit wife
one week before assault.  the testimony is admissible under Rule 404(b) bc it
tends to prove husband’s intent to assult his wife. The evidence is also relevant to
prove husband’s propensity for violence (or at least making violent threats) but
this purpose is barred under Rule 404(a). There is a danger of unfair prejudice,
since the jury will naturally make improper assumptions about husband’s
propensity for violence  defense could argue that the evidence is inadmissible
under Rule 403 (balancing test). However, bc the statement came 1 week before
the assault, & the husband disputes his intent, & the threat was to carry out the
very crime the husband committed, it has a high probative value. Most judges
would find the evidence passes 403 test & could also give a limiting instruction to
the jury not to consider the evidence as proof of propenstiy.

CCCXXIII. Conceptualizing Character Evidence : REVIEW

Ban character evidence to prove propensity
a. Exceptions
i. Character for truthfulness (impeachment
ii. Mercy Rule in Criminal Cases
iii. Can't use extrinsic evidence with these.
b. Exemptions
i. When character is an element
ii. When character is used for another purpose
iii. Allowed to use extrinsic evidence with these

CCCXXIV. Special Case: Habit

Propensity depends upon internal character, while habit does NOT.
Habits are on two continuums:
-Consciousness (on the left side of the line in “mindless”
-Morality (indifferent; right in the middle makes a habit)

CCCXXV. FRE 406

a. Evidence of a person’s habit or an organization’s routine practice may be
admitted to prove that on a particular occasion the person or organization acted
in accordance with the habit or routine practice. The court may admit this
evidence regardless of whether it is corroborated or whether there was an
eyewitness.
b. Notes:
i. You can act in accordance with your habit.

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 ii. How do we differentiate habit from impermissible propensity.
iii. We don’t like propensity because the question is “What did the parties
do?” NOT “What is the parties’ character?”

CCCXXVI. Lab Tech Example

a. She wears gloves. A character explanation is she’s hygienic. It assumes
something about your character influences your behavior.
b. Can she testify that she typically wears gloves?
c. What’s different here is maybe when she gets home she’s a slob, but at work she
follows protocol.
d. Propensity depends upon internal character
e. Habit is a regular actions regardless of your character.

CCCXXVII. Consciousness Continuum

a. Everything is on a continuum.
b. Habit is on the left (green arrow), propensity is in the middle (yellow arrow),
motive is on the right (blue arrow).
c. We tend to think of habit as neutral. We think of propensity as moral or immoral.

CCCXXVIII. Habit Is…

a. Specific conduct
b. In distinctive situation
c. On regular basis
d. With lack of moral overtones
e. Proper habit evidence: a specific, repeated response to a particular sort of
stimulus. Testimony will be admissible even if a particular incident is not
specifically remembered.

CCCXXIX. Habit Questions

a. Sevier brings Coke Zero to class every day: Admissible as habit?
i. Answer: Yes.
ii. No
b. Sevier brings tea or coffee to class every day: Admit?
i. Answer: Yes. Not as specific, but still can go to habit.
ii. No

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 c. Sevier has tripped and spilled a beverage 6 times in 2 months
i. Habit
ii. Answer: Not habit. No specific conduct, not on a regular basis.
d. “I have coffee at the diner every Sunday from 10-11 a.m.”
i. Answer: Admit as habit. It’s self authenticating (Rule 406).
ii. Exclude
e. Defendant attends 10 a.m. service at church every Sunday
i. Admit
ii. Exclude
iii. Moral overtones make it look more like propensity; counter this with
specificity, which suggests habit
f. Accident at 6pm. P drinks beer starting at 5pm every day.
i. Admit
ii. Exclude
iii. Need to be more specific in order to be habit likely

CCCXXX. Two Defendants

a. First Defendant:
i. Attends 10am church service each Sunday
b. Second Defendant:
i. Attends Tallahassee Baptist Church
ii. 9:55 each Sunday
iii. 2nd-to-last pew
iv. Behind woman with giant hat
v. Leaves immediately after communion
c. You can take the same act and frame it to make it look more like character
evidence or like habit.

CCCXXXI. Leonard v. Nationwide Mutual Insurance Company

a. Agent advised customers not to purchase flood insurance…
b. Routine practice
c. Not routine practice

CCCXXXII. Character Evidence Review

a. Non-exhaustive list of “other purposes”
i. Motive
ii. Intent
iii. Opportunity
iv. Knowledge
v. Identity
vi. Plan
vii. Special Case: Habit

CCCXXXIII. Rule 412: Rape Shield Law

CCCXXXIV. Pauline Example

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 a. Zach and Pauline meet at a bar, go back to her place. They both agree sex
occurred. She said it was rape, he said it was consensual.
b. Can Zack Introduce Evidence that Pauline is Promiscuous?
c. (Think of Rule 404 as cheese—it has holes).
i. 404(a)(2)(B): Character of alleged victim.
ii. 404(b): Specific Acts

CCCXXXV. Rule 412

a. (a) Prohibited uses
i. Victim’s other sexual behavior
ii. Victim’s sexual predisposition
b. (b) Exceptions
i. Criminal Cases
ii. Civil Cases
c. (c) Procedure
i. File motion that describes and gives purpose
ii. Serve 14 days prior on parties and victim

CCCXXXVI. Rule 412 Exceptions

a. (b)(1) Criminal Case Exceptions
b. (b)(2) Civil Case Exceptions
c. Rule 412 generally bars evidence of prior sexual conduct by the victim, 412(b)(1)
(B) creates an exception for prior sexual conduct between the alleged victim &
the defendant, if offered to prove consent.
d. Past actions on the part of the defendant offered to prove propensity to commit the
crime would generally be barred by Rule 404, Rule 413 allows the prosecutor to
admit this evidence for any purpose  it is possible the judge will bar this
evidence on 403 grounds…

CCCXXXVII. Criminal Cases Involving Sexual Misconduct

a. The green squares are the “three buckets.”

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 b. Think of the “to satisfy the constitution” exception as a “fairness carve out.”
-Vague, but comes up in a couple of predictable circumstances
-Due process type argument
c. Defense can only use it for the purpose of consent. Whereas the prosecution can
use it for any purpose.

CCCXXXVIII. Criminal Cases: Two Questions

- Dealing with victim’s proclivity for sexual behavior (activated)
- After activated, will it fit any exceptions though?

CCCXXXIX. Criminal Case Example

a. Mark charged with raping Cindy
b. Mark denies any sex with Cindy
c. Semen found on Cindy’s underwear, but DNA testing inconclusive
d. Can Mark introduce evidence that Cindy had sex with her boyfriend, Jules, the
day of the alleged rape?
e. Evidence: Cindy had sex with her boyfriend on the day of the alleged rape
i. Answer: Admit. It could dispute the physical evidence. Maybe it’s her
BF’s semen if inconclusive.
ii. Exclude

CCCXL. Aaron and Betsy Example

a. Aaron and Betsy had sex. Aaron is claiming that Betsy consented. The prosecutor
wants to introduce testimony that Betsy was a virgin before their encounter.
b. Is 412 implicated here?
i. Yes. Next question is, does it fall into any of the buckets?
c. Evidence: Complainant’s Virginity
i. Admit
ii. Answer: Exclude. Not having sex can constitute sexual behavior and
rule 412 is implicated. It’s a propensity argument as well.
d. “Aaron is so hot. I’ve been dreaming about sex with him.”
i. Answer: Admit. It has to do with sexual behavior towards D to prove
consent and sexual thoughts and fantasies are. Even though there is
no act here, this statement counts as an act.
ii. Exclude
e. “Aaron is so hot. I just wish I could get some time alone with him.”
i. Answer: Admit
ii. Exclude
f. Can Defendant offer evidence that Sally has birth control pills?
i. Admit
ii. Answer: Exclude. Courts tend to say the rule is activated for birth
control since it’s generally involved with sexual behavior. Women
have many reasons they have BC so the exceptions of “sexual
behavior with defendant” wouldn’t fly here for the defense.
g. Can D offer evidence that a neighbor raped Peter 2 months later?
i. Answer: Admit

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 ii. Exclude
h. Can D offer evidence that Heather falsely accused another man last year?
i. Answer: Admit. Rule 412 wouldn’t be activated here bc he is trying to
claim her lying, not sexual predisposition.
ii. Exclude

CCCXLI. Peter Example

a. Two months after the alleged rape of the defendant, a neighbor rapes Peter.
b. Is Rule 412 activated?
i. Answer: Yes. Do any exceptions kick in?
c. Evidence: Neighbor raped Peter
i. Answer: Admit
ii. Exclude

CCCXLII. Ralph and Heather Example

a. Wants to introduce Heather accused another teacher of rape 1 year before and
ultimately recanted and said she wanted her mother’s attention.
b. Can D offer evidence that Heather falsely accused another man last year?
c. Evidence: Complainant previously made false rape claim
i. Answer: Admit
ii. Exclude

CCCXLIII. Wendy v. McDougal’s

a. Supervisor made crude sexual jokes. Supervisor asked Wendy about her sex life.
Supervisor invited Wendy to have “quickies” in the supply room. Wendy trades
crude sexual jokes with friends after work. Wendy has reputation for enjoying
one-night stands
b. Evidence: After work jokes and one-night stands
i. Admit
ii. Answer: Exclude
c. Evidence: Wendy’s clothing. Does Rule 412 attach?
i. Admit.
ii. Exclude
iii. Answer: It depends. This counts in terms of sexual disposition. We get
the reverse 403 balancing test. Wendy’s clothing, if rule 412 attaches
almost certainly doesn’t get in. But if 412 doesn’t attach, what’s left is
a regular 403 analysis and the default is admissibility unless the
prejudicial effect substantially outweighs the probative value.
(Substantially prejudicial is up to the discretion of the judge).

CCCXLIV. Rape Shield: Civil Cases

a. Evidence of victim’s other sexual behavior or sexual predisposition excluded
UNLESS
b. The probative value of that evidence substantially outweighs the danger of harm
to any victim and of unfair prejudice to any party
c. Notes:

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 i. Banned unless a reverse 403 test is satisfied.

CCCXLV. Hearsay and its Exceptions

CCCXLVI. Telephone Game

a. “Twelve Tumbling Purple People Pulled Turnips”
b. This phrase ended up differently on both sides of the room.
c. What you get is “information degradation.”

CCCXLVII. Three Infamous Clauses (801)

a. Out of court statement
b. Used in court
c. To prove the truth of the matter asserted (to prove the substance of the
communication as true)
d. Subject to:
i. Exceptions
ii. Constitutional Concerns (criminal cases only)

CCCXLVIII. Rationale
Firsthand reports are more reliable than secondhand ones.

CCCXLIX. Concerns:
a. Perception
b. Memory
c. Clarity
d. Sincerity

CCCL. Cratchit & Associates Example

a. Interview with Cratchit & Associates. They say “the partners here limit their
compensation so associates get paid. No one has been laid off.” Then at Scrooge
& Marley no one is answering your questions about lay offs or the firms future.
Classmate says “I know someone who went there. He says it’s fine.”
b. When your friend says “its fine” there are two people at play here.
c. Notes:
i. Declarant – “the person who made the statement.”
ii. Testifying witness – person making themselves available to testify.
iii. The rule technically says that any out of court statement can be hearsay.

CCCLI. Testimonial Capacities/Infirmities

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 a. You have two testimonial triangles with a third party. One for the declarant and
one for the testifying witness.
b. The problem is you can’t talk to the person who has the substantive information
you care about.
c. The senior associate is more reliable because you have first hand information.
With her you reduce the chance of error within the triangle.

CCCLII. Who Is More Reliable?  firsthand testimony!

a. Reduce chance of error
b. Assess credibility
c. Test through questions
d. What if she took an oath?

CCCLIII. Why We Prefer In-Court Statements

a. Reduce risks of error
b. Assess credibility
c. Cross-examine
d. Oath and formality
e. Notes:
i. Reliability seems to be the biggest factor.

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 ii. Hearsay seems to be less reliable than other types of evidence.
f. Prior Inconsistent Statement
NOT hearsay when used to impeach! Bc not used to prove the truth of the matter
asserted.

CCCLIV. United States v. Roy: Example

a. July 1: Walter Roy, laid off from Tower Realty (Columbus OH)
b. July 15: Bomb package explodes in Jim Stewart’s mailbox
c. No physical evidence to identify culprit
d. Roy frequently cursed Stewart and vowed to “get” him

CCCLV. Sir Walter Raleigh

a. He’s the reason we have the hearsay rule.

CCCLVI. “Truth of the Matter Asserted”

a. Is a party using an out-of-court statement as part of the witness’s personal
knowledge? (Not hearsay)
b. Or is the party using the statement to show something that the out-of-court
declarant knew? (Hearsay)
c. Notes:
i. If a litigant offers the statement to prove the truth of the matter asserted,
it is inadmissible hearsay.

CCCLVII. Joshua Hickson: Assault Example

a. Cafeteria Monitor Janine Owyen: “I did not see the incident, but I talked to both
Mark and the student sitting next to him in the cafeteria. Both confirmed that
Joshua Hickson smeared peanut butter on Mark’s forehead.”
b. If offered to show that Joshua smeared peanut butter on Mark
i. Answer: Hearsay
ii. Not hearsay
c. Jessica’s Statement to Police: “I was at the table next to Mark and Joshua but I
didn’t see what happened.
d. Jessica Testifies for the Defense: “I was at the table right next to Mark and
Joshua. I saw Betsy take her peanut butter sandwich and, like, smear it right
on Mark’s face.”
e. Does Jessica’s testimony contain hearsay?
i. Yes, because she refers to Betsy
ii. Yes, because she’s lying (there’s no “truth” to the matter)
iii. Answer: No
f. Jessica’s prior statement to impeach
i. Hearsay
ii. Answer: Not hearsay
g. Student: Eric: “I was sitting at the table with Mark, Joshua, and Betsy. Betsy took
out a PBJ sandwich and Mark covered his nose and mouth. I asked him, ‘why are
you doing that? You look like a dork.’ Mark said he was allergic to peanuts.

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 Then Joshua grabbed Betsy’s sandwich, dug his fingers into it, and smeared
peanut butter on Mark’s forehead.”
h. Eric’s testimony, offered to show that Joshua knew about allergy
i. Hearsay
ii. Answer: Not hearsay

CCCLVIII. Non-“Truth of the Matter Asserted”

a. Similar to 404b, but no hints this time!
i. Notice to the listener – if a Dr. explains the risk of surgery to a patient & a
nurse observes the Dr’s warnings, she may testify that she did hear him
warn & therefore the patient was fully aware of the dangers (not hearsay)
ii. Effect on the listener – crime of menacing; the elements of this crime
require only that the D make the statement and the words give the victim a
reasonable fear of bodily harm
iii. Knowledge of the speaker – the statement is hearsay if offered to show
that the condition existed, but it is NOT hearsay if offered simply to show
the D’s knowledge
iv. Act of publication – in a defamation case: to recover for defamation, the P
must prove both that the D made a defamatory statement and that at least
one other person heard or read the statement. The statement need not be
true; indeed the P claims that is was false
v. Legally binding statements (as acts) – in a contract case, the fact that the D
said “I accept” is relevant to prove that he agreed to a K. The truth of the
statement doesn’t matter; even if the speaker was lying, the words
establish consent.
vi. [Whatever else your heart desires…] – as long as the statement is
admissible to prove any fact that does not depend on the truth of the matter
asserted

CCCLIX. Shirley MacLaine: Example

a. Shirley MacLaine: “Dennis Kucinich said that he saw a UFO over my home.”
b. Statement offered to prove that a UFO was over MacLaine’s house.
i. Answer: Hearsay – offered to prove the truth of the matter asserted
ii. Not hearsay
c. Statement offered to show that Kucinich talks about UFOs.
i. Hearsay
ii. Answer: Not hearsay – offered the statement for a purpose OTHER
than to prove the truth of the matter asserted

CCCLX. Prior Inconsistent Statement

a. Not hearsay when used to impeach witness
b. The statement isn’t offered for the “truth of the matter asserted”
c. It’s offered to show that the witness has said different things at different times

CCCLXI. Checklist: The Hearsay “Four”

a. Is the witness referring to a statement that occurred outside the courtroom?

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 b. Are you sure it’s a “statement”?
c. Is a party offering the statement to prove the truth of the matter asserted?
d. Does an exception apply?

CCCLXII. FRE 801(a)

a. “Statement” means
i. A person’s oral assertion
ii. Written assertion
iii. Nonverbal conduct
b. If the person intended it as an assertion.

CCCLXIII. “Statement”
a. Declarant + Assertion
b. Human + Intentional Communication

CCCLXIV. Non-Human “Statements”?

a. K-9 dog’s bark
i. Hearsay
ii. Answer: Not statement
iii. Not offered for truth of matter
b. Notes:
i. No declarant. Therefore no assertion. Therefore no statement. Therefore
no hearsay.
ii. Dogs bark not hearsay.
iii. Since dogs are not humans they can’t be declarants for the hearsay rule.
iv. No statement, therefore no hearsay.
v. Note: If the cop’s partner said “I found drugs” then the cop testified to
what his partner said, that would be hearsay.
vi. The key is whether the declarant intended to communicate a fact through
her conduct; ASK: do we need to assess the actor’s sincerity in order to
rely upon the conduct?

CCCLXV. These media almost always contain statements:

a. E-mails
b. Audiotapes/other sound tracks
c. Web pages with words
d. Faxes
e. Note: But they may not be offered to prove the truth of the matter asserted

CCCLXVI. These media are more likely to include material that is not a “statement”
a. Photos
b. Videos
c. Websites without words

CCCLXVII. Receipt Example

a. Is the receipt a statement?

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 i. No declarant.
b. What If Gary wants to show that he was serving at the time?
i. Answer: Because a human being had to put something in the machine to
show that these were Gary’s tables, there is a declarant.
c. Notes:
i. There is an assertion, so the question is do you have a declarant. Declarant
has to be a human being. To the extent date and time stamps are auto
generated, this does not count as a declarant because it is considered auto
generated by a machine and not a human being.
ii. No declarant, so no statement, so no hearsay problem.
iii. Distinction: If something is auto generated with no human touch at all, it
does not have a declarant, so no statement. If something has human touch
involved then it does have a declarant.

CCCLXVIII. Motion Detector Alarm: Example

a. What is the assertion?
i. Answer: That the alarm was set off.
b. Do we have a declarant?
i. Answer: Not a human that caused the alarm to go off. So in this situation
no declarant, so no statement. (Similar to date and time stamp on the
receipt).

CCCLXIX. Panic Button Alarm: Example

a. Is there a declarant?
i. Answer: Yes because there is human interaction to set off the panic
button. There is also an assertion here: something bad is happening.

CCCLXX. Machine Generated Communications

a. Fully automatic processes: Not a statement
b. Information or signal originates from human: Statement

CCCLXXI. Humans: Non-Speaking “Statements”?

CCCLXXII. Assertive Conduct

a. Umbrella Example from book.

CCCLXXIII. “X” on the Back of Hand: Example

a. “X” on the back of his hand
i. Answer: Statement
ii. Not statement
b. A witness testifies about the “X” to show that Daniel is under 21. Admit?
i. Yes
ii. Answer: No, it’s hearsay
iii. No, it’s irrelevant
iv. No, it’s speculative
c. “The gunman had an “X” on his hand.” Admit?

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 i. Answer: Yes. Not hearsay because we’re not using it for the truth of
the assertion.
ii. No, it’s hearsay
iii. No, lack of personal knowledge

CCCLXXIV. Silences

CCCLXXV. Patient at Doctor’s Office: Example

a. Patient leaves one question about lung problems blank on a doctor’s form.
b. Medical Form: “List any lung problems.” Patient leaves blank.
i. Answer: Statement
ii. Not statement
c. Doctor: “I spoke with Dr. Kim and she never mentioned a lung problem.”
i. Statement
ii. Answer: Not statement
d. Doctor: “I spoke with Dr. Kim and she said the patient’s lungs were clear.”
Hearsay?
i. Yes
ii. Answer: No. Doctor is reporting only the personal knowledge he has
of what Dr. Kim spoke to him. (personal knowledge)

CCCLXXVI. It is Hearsay?
a. (1) An out of court statement?
i. Did it originate outside witness stand?
ii. Has a human declarant? (beware machines)
iii. Contains an assertion (i.e., intended comm)?
b. (2) Proffered in court as evidence? (easy!)
c. (3) For the truth of the matter asserted?
i. Whose personal knowledge is it?
ii. Does purpose involve proving the substance?

CCCLXXVII. Hearsay Exceptions

CCCLXXVIII. Step 1: Is it Hearsay?

a. Out-of-court statement?
b. Proffered in court?
c. For the truth of the matter asserted in the statement?

CCCLXXIX. Step 2: If so, Exception?

a. 1. Rule 801(d): “Not” Hearsay
b. 2. Rule 804: Declarant Not Available
c. 3. Rule 803: Availability Immaterial
d. 4. Rule 807: Residual Exception

CCCLXXX. Exception Rationales

a. Heightened reliability

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 i. We worry about out of court statements because they are unreliable. If we
are no longer worried about the reliability then why not let it in?
b. Heightened need
i. Sometimes whole cases will rest on certain types of evidence. The policy
makers decided they wanted to create 5 special types of scenarios where
even though it is hearsay, we need it.

CCCLXXXI. “Exemption” 1: Prior Statements

CCCLXXXII. Rule 801(d)(1)

a. To admit any statement as “not hearsay” under this subsection: The declarant
must testify at the trial and the declarant must be subject to cross-
examination on the statement.  asserting a privilege such as the 5th
amendment is not subject to cross examination for this exemption
b. If these conditions are met, the rule recognizes three types of prior witness
statements that are admissible: (& can be used to prove the truth of the matter
asserted)
i. (A) Statements that are inconsistent with the witnesses’ testimony
ii. (B) Statements that are consistent with that testimony
iii. (C) Pretrial identifications of a person.
c. 801(d)(1)(A) A witness’s prior statement is exempt from the hearsay rule if the
statement: (1) is inconsistent with the witness’s current testimony; (2) it was made
under penalty of perjury; and (3) it occurred at a deposition or during a trial,
hearing, or other proceeding.
d. 801(d)(1)(B) To introduce a statement under this subsection, a party must show
(1) that the witness’s credibility has been attacked, and (2) that the prior
consistent statement has probative value in rehabilitating credibility.
e. 801(d)(1)(C) Allows introduction of any identification of a person, as long as the
person who made the identification testifies at trial and is subject to cross-
examination on the identification.

CCCLXXXIII. Paul Pierce: Example

a. Krystal Bostick: In Class: “I saw the fight t hat injured Paul Pierce. I know one of
the men who knifed him.” “A man nicknamed ‘Roscoe’ was at the club. He had a
serrated knife, and he stabbed Pierce in the chest with it.” Signed statement under
oath.
b. Krystal Bostick: Photo Array - Picked Ragland’s photo, identified him as
“Roscoe,” and confirmed that he was the man who stabbed Pierce.
c. Krystal Bostick: To Grand Jury: Testified in detail about how Ragland stabbed
Pierce
d. Bostick’s Pre-Trial Statements
i. Statement to class: I know the man
ii. Signed, sworn statement for police: “Roscoe” stabbed Pierce
iii. Photo ID: Ragland is “Roscoe,” and he stabbed Pierce
iv. Grand Jury Testimony: Ragland stabbed Pierce

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 e. Bostick in Court – Cites 5th amendment and refuses to testify. Judge threatens to
hold her in contempt and she faints in the courtroom. The judge gives her a
second chance.
f. Bostick’s Second Chance
i. “I didn’t really focus on Ragland”
ii. “I didn’t see him with a knife”
iii. “I didn’t see who stabbed Pierce”
g. Can the Prosecutor Impeach His Own Witness?
i. Answer: Yes. Rule 607 – any party, including the party that called the
witness, may attack the witness’s credibility
ii. Only if her testimony was a surprise
iii. Only if probative value substantially outweighs unfair prejudice
iv. No
h. How Can the Prosecutor Impeach Bostick?
i. Questions about her previous statements
ii. Questions about prior untruthful acts
iii. Character witness
iv. Answer: All of the above
i. Can the prosecutor Introduce Bostick’s Grand Jury Testimony to Impeach?
i. No, because it is extrinsic evidence
ii. No, because it’s hearsay
iii. Only if Bostick first denies her words
iv. Answer: Yes
j. Can the prosecutor also impeach with any of these?
i. Testimony from classmate
ii. Sworn police statement
iii. Photo ID
iv. Answer: All of the above
k. The Prosecution Rests
i. Testimony that Ragland did nothing wrong
ii. Move for Judgment of Acquittal

CCCLXXXIV. Why Admit Witness’s Prior Statement?

a. Need: Witnesses feel embarrassed, want to protect friends, feel intimidated
b. Reliability:
i. Witness is in the courtroom, subject to cross-examination
ii. Something about prior statement enhances reliability

CCCLXXXV. 801(d)(1): Prior Statements by Witnesses

a. 801(d)(1)(A): Prior Inconsistent Statement
b. 801(d)(1)(B): Prior Consistent Statement
c. 801(d)(1)(C): Prior Identification

CCCLXXXVI. 801(d)(1)(A): Prior Inconsistent Statement by Witness

a. Declarant testifies at trial
-Promotes reliability

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 b. Declarant/witness is subject to cross
c. Prior statement is inconsistent with current courtroom testimony
-useful when making a determination as to which statements are
believable
d. Prior statement given under penalty of perjury
e. Prior statement given during proceeding (deposition/trial/hearing)
-audience can see the way in which the statement is elicited
-protects against aggressive interrogation
-we have a record of what was actually said

CCCLXXXVII. Bostick Questions Continued

a. Bostick testifies that Ragland did nothing wrong. 801(d)(1)(A) admits
i. Classmate’s testimony
ii. Police report
iii. Answer: Grand jury statement
iv. Both B and C
v. None
b. Bostick testifies that she was at the club but remembers nothing.
i. Subject to x-exam only if memory loss is real
ii. Subject to x-exam only if memory loss is feigned
iii. Answer: Subject to x-exam
iv. Not subject to x-exam
c. Bostick testifies that she was at the club but remembers nothing.
i. Inconsistent only if memory loss is real
ii. Inconsistent only if memory loss is feigned
iii. Answer: Inconsistent
iv. No inconsistency

CCCLXXXVIII. Prior Consistent Statements

CCCLXXXIX. 801(d)(1)(B): Prior Consistent Statement

a. 1. Declarant testifies at trial (same as w/ inconsistent statement)
b. 2. Declarant/witness is subject to cross (same as w/ inconsistent statement)
c. 3. Prior statement is consistent with courtroom testimony
d. 4. Witness’s credibility has been attacked
e. 5. Statement probative for rehabilitation
f. Notes:
i. The first two requirements are the same as for Prior inconsistent
statements. Numbers 3-5 are new.

CCCXC. Bostick 2.0

a. Bostick testifies for the prosecution that Ragland knifed Pierce
b. On cross-examination, Bostick admits she was arrested for shoplifting on her way
home from police interrogation; prosecutor agreed to drop charges if she testified
against Ragland
c. Prosecutor may introduce?

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 i. Statement to class
ii. Statement to police
iii. Grand jury testimony
iv. Answer: I and II only
v. II and III only
vi. All of these
d. Bostick at trial: “I remember nothing.” Station house ID is…
i. Answer: Admissible
ii. Admissible if ID was under oath
iii. Admissible if she fails to recognize Ragland in court
iv. Inadmissible

CCCXCI. Recent Amendment

a. to rebut an express or implied charge that the declarant recently fabricated it or
acted from a recent improper influence or motive in so testifying; or
b. to rehabilitate the declarant’s credibility as a witness when attacked on another
ground . . . .

CCCXCII. 801(d)(1)(C): Prior Identification – allows introduction of ANY identification of a

person, as long as the person who made the ID testifies at trial & is subject to cross-
examination
a. Declarant testifies at trial
b. Declarant/witness is subject to cross
c. Prior statement was identification of person
d. Bostick at trial: “I remember nothing.” Station house ID is….
i. Admissible
ii. Admissible if ID was under oath
iii. Admissible if she fails to recognize Ragland in court
iv. Inadmissible

CCCXCIII. Quick Summary: Prior statements by witnesses

Admitting Prior Statements Under Rule 801(d)(1)

Prior statement must have been made by a witness at the current proceeding

Witness must be subject to cross-examination

 Witnesses with real or feigned memory loss are “subject to cross”
 Witnesses who assert a blanket privilege are not “subject to cross”
 Witnesses who claim privilege selectively may be “subject to cross”
Prior Inconsistent Prior Consistent Identification: 801(d)
Statement: 801(d)(1) Statement: 801(d)(1)(B) (1)(C)
(A)
 Memory failure  Witness’s  Must be an
constitutes credibility must be identification of
inconsistency attacked a person
 Statement must  Statement must be

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 have been given probative for
under penalty of rehabilitation
perjury at a  If offered under
hearing, 801(d)(1)(B)(i),
deposition, or prior statement
other proceeding must have been
 Grand jury made before the
hearings count motive to fabricate
as proceedings; or improper
police influence began
interrogations
do not
Statements are admitted for the truth of the matter asserted, not merely to
impeach a witness

CCCXCIV. Hearsay So Far

a. Is it conceptually hearsay?
i. Out-of-court statement used in court for its truth
b. Does an exception apply?
i. 801(d): Prior Statements
1. Inconsistent, Consistent, Identifications
ii. 803: Availability Immaterial
1. Present Sense Impression, Excited Utterance, State of Mind

CCCXCV. FRE 803 Exceptions : Present Sense Impressions & Excited Utterances
803: a litigant make invoke these exceptions even if the declarant is available to testify
804: contains exemptions that apply only if the declarant is no longer available to testify
**The power of a hearsay exception is that it allows use of a prior inconsistent
statement to show the substance of what the speaker said**

CCCXCVI. Present Sense Impression: 803(1)

a. Description/explanation of event or condition.
b. Made while perceiving event or immediately thereafter.
c. Notes:
i. Like play calling in sports up until “touchdown!”
ii. The question is “why do we allow these types of statements/descriptions
of events immediately after viewing them?”
1. Answer: We worry about the testimonial capacities. As something
is happening, you are more likely to be telling the truth.
iii. Present sense impression can be monotone. Doesn’t have to be excited.
iv. BOTH exceptions assume that the declarant is less likely to lie under
certain conditions

CCCXCVII. 803(1) - Present Sense Impression: Rationales

a. Accuracy: Declarant wasn’t relying on memory
b. Sincerity: It’s hard to lie

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 c. Utility: Declarant may be unavailable OR the contemporaneous statement may
have particular meaning.
d. Made while perceiving an event or immediately thereafter;
-we don’t want to allow time to develop an analysis (like a judgment call)
-has to be contemporaneous speech
-EX: sportscaster

CCCXCVIII. Excited Utterance: 803(2)

a. Statement related to a startling event
b. Made while under the stress that it caused
c. Comes from excited people responding to a startling event
-doesn’t have to be startling to a reasonable person, but just to the
declarant specifically
-little opportunity to concoct falsehoods
-EX: “touchdown!” “ouch!”

CCCXCIX. Excited Utterance: Rationales

a. Accuracy: Declarant wasn’t relying on memory
b. Sincerity: It’s hard to lie when excited
c. Utility: Declarant may be unavailable OR the excited utterance may have
particular meaning
d. No bright line rule here
e. Must relate to the startling event; may move beyond a description by analyzing
or interpreting the event, but must still relate to the provoking event.  this is
more generous than Rule 803(1)’s requirement of description or explanation
f. Unrelated comments are not admissible under this exception, even if made while
still excited

CD. Present Sense Impression vs. Excited Utterance

Present Sense Impression Excited Utterance

As impression occurs or immediately While excited by the event
thereafter
Description; cannot include analysis Relates to the event; may include analysis
Both are statements that have a special indicia of reliability; as a class, each type of
statement is more reliable that the usual out of court statement.
Both also ONLY deal with external events!
Statements can fall into both categories: a present sense impression AND an excited
utterance
The key to winning admission of an excited utterance or present sense impression is to
lay the proper foundation; the content alone may be sufficient to establish one of the
foundational facts

CDI. Why do we care?

a. Present sense impressions and excited utterances are becoming more and more
important with the digital age.

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 CDII. Example
a. Sam enters the store with a gun. Adam is on the phone so he doesn’t see it. He
then hears a loud bang. Violet dies. The police talk to Adam and after they talk to
him they arrest Sam for killing Violet. At trial, the prosecutor wants to call Adam
to testify.
b. Adam: Violet said, “got to go, Sam just walked in.” Is this admissible in any way?
i. Admissible as an identification.
1. 801(d) Person has to be available to be in court and Violet’s dead
so she’s not available so can’t get it in as ID.
ii. Admissible as an excited utterance
iii. Answer: Admissible as a present sense impression
iv. Not admissible
c. Adam: “Right after that, I heard a loud noise like a gunshot.” Admissible?
i. Admissible as excited utterance
ii. Admissible as present sense impression
iii. Answer: Admissible because not hearsay
iv. Inadmissible

CDIII. Example
a. “It was too dangerous to take that boat out today!”
b. Nurse: Miriam said, “It was too dangerous to take that boat out today!”
Admissible?
i. Admissible as excited utterance
ii. Admissible as present sense impression.
1. There’s analysis so this is out.
iii. Admissible because not hearsay
iv. Inadmissible

CDIV. State of Mind

CDV. FRE 803(3)

a. A statement of the declarant’s then existing
i. State of mind (such as motive, intent, or plan) or
ii. Emotional, sensory, or physical condition (such as mental feeling, pain,
or bodily health)
b. But not including a statement of memory or belief to prove the fact remembered
or believed….

CDVI. States of Mind

a. “I’m hungry”
b. “I’m angry”
c. “I’m bored”
d. “I’m planning to cut class”

CDVII. Still have to consider the 4 flaws: perception, memory, clarity & sincerity

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 a. Memory: expressions of a declarant’s current state of mind cannot suffer from
faulty memory; declarant need not recall anything bc he is voicing his immediate
feelings (low risk of misperception; no one can perceive those feelings more
accurately)
b. Sincerity: as with PSI, declarant’s usually offer comments about their current
mental state without much reflection; comments about a current state of mind give
little opportunity to concoct a lie
c. Perception: Risk of deception is greater when a declarant notes an internal state
than when he describes an external one; people can control when they express
states of mind, so they can formulate a deliberate lie before speaking.
d. Clarity also poses a risk when juries hear secondhand expressions about state of
mind; without the opportunity for cross-examination, it may be difficult to pin
down exactly what the declarant was feeling.
e. TWO good reasons to keep this hearsay exception (memory & perception) and
TWO bad reasons to keep it (sincerity & clarity)

CDVIII. State of Mind/Not Covered

State of Mind Not Covered

I’m hungry Because I had only salad for lunch

I’m angry Because Tim stole $20 from me

I’m bored Because hearsay is useless information

a. Notes:
i. The explanations are not covered. Just the state of mind is covered. So get
your witness to stop after the state of mind.
ii. Only covers statements about the declarant’s “then-existing” state of mind.
EXAMPLES: “my leg was hurting an hour ago” “I was really miserable
last night” are NOT admissible under this exception.

CDIX. Traditional Application

CDX. Fires: Example

a. I’m scared. The fires have been raging for weeks.
b. First sentence: “I’m scared.”
i. Excited utterance
ii. Present sense impression
iii. Answer: State of mind (admissible)
iv. None of these
c. Second sentence: “The fires have been raging for weeks.”
i. Excited utterance
ii. Present sense impression

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 iii. State of mind
iv. Answer: None of these

CDXI. As Circumstantial Evidence

CDXII. Lottery Example

a. Statement made two months after winning the lottery. “I won the lottery!”
b. Is the statement “I won the lottery” admissible?
i. Not an excited utterance or present sense impression because 2 months is
too long to be excited. No state of mind exception because he was just
staying that he won the lottery, not what his state of mind is.
ii. Note: The wife may want to use this statement to show his state of mind
and to say that he wouldn’t want to have died. So this isn’t being used for
the truth of the matter asserted.

CDXIII. State of Mind: Two Forms

Not Truth of the Matter Asserted As a Hearsay Exception

“I won the lottery” is used not to show “I won the lottery” is used to show his
that he won the lottery; rather, that he then-existing mental state—that he
believed this to be true. believed this to be true at the time.

[FRE 801] [FRE 803(3)]

CDXIV. Statements of Belief

CDXV. Fire Example

a. I believe the danger to our house is past
b. Jane said “I believe the danger to our house is now past.”
i. Admissible to show that Jane believed the danger was past.
ii. NOT admissible to show that the danger was, in fact, past.
c. Dirk said “I remember that the fire reached our property on Tuesday”
i. Admissible to show what Dirk believed at the time he spoke
ii. NOT admissible to show when the fire reached the property.

CDXVI. Practice point

a. Don’t be fooled by buzzwords:
i. “I believe…”
ii. “I remember…”
iii. “I think…”
b. These are often out-of-court assertions masquerading as mental states.
c. But if the belief/memory/thought itself is relevant…)

CDXVII. One “Exception” for ways:

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 a. Statements of current (internal) mental states used as direct evidence that the
mental state occurred (803(3)) = “my head hurts”
b. Direct statements of current mental states as circumstantial evidence of past states
(803(3))  “my head hurts”
c. Direct statements of current mental states as circumstantial evidence of future
thoughts/acts (if at issue) (803(3))  “I’m going to meet Tom.” Think
Hillman: is it circumstantial evidence to prove that someone else is going to
meet you?
d. External (non-“state of mind”) statements used as circumstantial evidence of
“state of mind” (if at issue) (801c)

CDXVIII. Backward-Looking Statements

CDXIX. Ginger Example

a. Did Ginger’s head hurt on Monday? On Tuesday, Ginger says: “My head started
hurting yesterday”
i. Answer: not a “then existing” statement because it happened yesterday.
b. Did Ginger’s head hurt on Monday. On Tuesday, Ginger says: “My head hurts!”
i. Admit Ginger’s Tuesday statement to show her head hurt Monday?
1. Yes, state of mind
2. Yes, excited utterance
3. Yes, not hearsay
4. Answer: No, hearsay
ii. Admit Ginger’s Tuesday statement to help prove her head hurt Monday?
1. Answer: Yes, state of mind; if her head hurts today, it may
have hurt yesterday. The length of time that has elapsed
between the declarant’s expression & the relevant time period
is an important factor in the balance. (probative value v.
potential prejudice)
2. Yes, not hearsay
3. No, it’s hearsay
4. No, it’s irrelevant

CDXX. Forward-Looking Statements

a. “I plan to pay off my loans by selling this cocaine.”
b. Offers circumstantial evidence about what the declarant did or thought at a later
time

CDXXI. Marcy Example

a. Mary is Arrested with Cocaine in Her Pockets
i. State-of-mind exception admits her earlier statement
ii. Use statement to show Marcy’s intent
1. Possession with intent to sell
iii. Use statement to prove Marcy’s conduct
1. The cocaine belonged to Marcy

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 CDXXII. MBE Sample Question
a. Polly sues Don for an assault that occurred May 8 in Arizona. Don claims he was
in Utah on May 8. Don offers a letter he wrote to his sister on Feb 12: “See you in
Utah on May 8.”
b. Admit Don’s letter to support claim that he was in Utah?
i. Answer: Admissible, state of mind. People tend to act in accordance
with their plans. And the letter was stating his plans.
ii. Admissible, excited utterance
iii. Irrelevant
iv. Inadmissible speculation

CDXXIII. Plans that Include Others

a. James says to his sister: “I’m going to meet Billy Herd.”
b. Two hours later, police find James dead.
c. Can James’s sister testify that James intended to meet Billy?
d. If so, is this circumstantial evidence that James did meet Billy?

CDXXIV. Hillmon
a. http://thehillmoncase.com/
b. Dear sister and all,
. . . . I expect to leave Wichita on or about March the fifth, with a certain Mr.
Hillmon, a sheeptrader, for Colorado or parts unknown to me. . . .
I am truly your brother,
Fred Adolph Walters

CDXXV. Hillmon Today

a. Rule 803(3) may overrule
b. But many courts allow parties to introduce state of mind referring to future
actions of another
c. Irresistible appeal of victim’s parting words

CDXXVI. State of Mind: A Review

a. One “exception” four ways:
i. (803(3)) 1. Statements of current (internal) mental states used as direct
evidence that the mental state occurred
ii. (803(3)) 2. Direct statements of current mental states as circumstantial
evidence of past states
iii. (803(3)) 3. Direct statements of current mental states as circumstantial
evidence of future thoughts/acts
iv. (801(c)) 4. External (non-“state of mind”) statements used as
circumstantial evidence of “state of mind” (if at issue)

CDXXVII. Statements for Medical Diagnosis or Treatment

a. Rule 803(4): is made for- and is reasonably pertinent to- medical diagnosis or
treatment; and

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 i. describes medical history; past or present symptoms or sensations; their
inception; or their general cause.
ii. did the declarant subjectively think the statements would be used to obtain
medical treatment?  can apply to friends, strangers, etc.
iii. subjective expectation that statements will be used to obtain medical tx
b. A party may introduce these statements for the truth of the matter asserted (an
individual has a strong self-interest in reporting honestly)
c. Doesn’t go both ways: doesn’t apply to statements made from the doctors to the
patient
d. Eliminates the need to call nurses, doctors, etc to the stand
e. Has to be:
i. Accounts of medical history
ii. Descriptions of past or present symptoms or sensations
iii. Reports about the “inception” of the condition or its “general cause”
f. The rule allows parties to admit statements made to doctors who they consulted
purely to prepare for litigation
i. A patient may even obtain this type of diagnosis after the condition has
been treated and cured by other doctors
ii. Usually precludes evidence of identity, although in cases of occupational
injury the employer’s identity is often obvious

CDXXVIII. Name That Exception!

a. “My elbow started hurting last week.”
i. Exceptions:
1. Medical
ii. Think back to the Ginger example
b. “My ankle is throbbing.”
i. Exceptions:
1. State of mind, bc internal state
2. Statement for medical treatment, if made to a doctor
c. “I have a sharp pain in my side.” to a friend.
i. Exceptions:
1. State of mind.
2. Not medical treatment exception bc nothing explicitly says trying
to seek/obtain medical treatment
d. “Call an ambulance—I’m having chest pains!”
i. Exceptions:
1. Medical (the rules are broad on who you can talk to when seeking
medical treatment)
2. Excited utterance
3. State of mind; internal pains
e. “Hey, that guy just fell into a manhole.”
i. Exceptions:
1. Present sense impression
2. Could [possibly] be an excited utterance (need to know more)

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CDXXIX. Limits to 803(4)
a. Very few: it’s a broad exception
i. Time & scope
b. Rationale
i. Arguably reliable statements (on the whole…)
ii. More importantly, increased need for them
c. Limitations
i. No blaming (unless necessary, in some courts)!
ii. Purpose
-Psychological vs. Physical

CDXXX. Mancision v. Graeber

a. Paramedic: Mancision said “A guy flung me and I fell hard on the floor”
i. Answer: Admissible. Classic 803(4): Statement for
treatment/diagnosis purposes.
ii. Not admissible: paramedics aren’t doctors
iii. Not admissible: blame
iv. Not admissible: refers to past
b. ER doctor: Boyfriend said, “ I want you to know that she’s had a lot to drink”
i. Admit
ii. Exclude
iii. Answer: Boyfriend’s statement could (maybe count). It’s unclear.
Courts tend to say other people can’t speak on your behalf for your
medical treatment. Question is who? Family. Boyfriend/girlfriend is
unclear.
c. Psychologist: “Christine told me that the stranger grabbed her, twisted her around,
and flung her several feet in the air.”
i. Admissible: present-sense impression
ii. Admissible: excited utterance
iii. Answer: Admissible: medical treatment. Not just physical health;
mental health counts too.
iv. Not admissible: hearsay
d. Plaintiff: “My surgeon told me I should stay home from work for at least six
months.”
i. Admissible: State of mind
ii. Admissible: Present sense
iii. Admissible: Medical treatment
iv. Answer: Not admissible: Hearsay. Wrong direction. Statements cover
patient-to-doctor.

CDXXXI. Abuse Prosecutions

a. Patient describes abuse to doctor. Patient refuses to testify in court.
b. Are the statements to the doctor admissible to prove the abuse occurred?
i. Answer: Yes
c. To prove identity of the abuser?

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 i. Answer: Most courts have said no, but there’s been a shift. Generally,
the identity of the abuser is not pertinent to the medical treatment
and doesn’t go to the cause.

CDXXXII. (Past) Recorded Recollection: FRE 803(5)

CDXXXIII. Six Foundation Elements

a. Record – the declarant must have memorialized the recollection in some way
b. Witness made or adopted that record – this ensures that the opposing party can
conduct an effective cross about the record’s accuracy (example: a police report
made upon the witness’s testimony)
c. Witness once had personal knowledge
d. Witness made or adopted the record when that knowledge was fresh – heightens
reliability of that recorded information (the longer the time btwn recording & the
incident/action, the less likely it was fresh)
e. Witness testifies that info was accurate – when the information was adopted, the
witness knew that is accurately reflected the knowledge he/she had
f. Witness has forgotten – demonstrates that the hearsay is necessary; direct
testimony is not available
**WITNESS MUST HAVE FORGOTTEN!**

CDXXXIV. Bonnie Example

a. Bonnie is dead; Garland can’t remember. Use Bonnie’s diary to refresh
recollection?
i. Answer: Yes. Can use nearly anything to refresh recollection. Not
automatically admitted into evidence.
ii. No
b. Bonnie is dead; Garland can’t remember. Admit Bonnie’s diary as recorded
recollection?
i. Yes
ii. Answer: No. He didn’t adopt the diary, has no personal knowledge of
its contents, and can’t testify to its accuracy.
c. Is there any chance Garland’s memo will be admissible as recorded recollection?
i. No, not contemporaneous
ii. No, no personal knowledge
iii. No, not accurate
iv. Answer: Yes, he has a shot at it. Potentially admissible as long as his
memory was still fresh when he wrote the memo.  Refresh memory
under Rule 612.

CDXXXV. AIG Example – St. Regis elaborate party ???

CDXXXVI. Multiple Hearsay - FRE 805

a. If testimony contains nested out-of-court statements used for their truth, each
statement must satisfy the hearsay rule
b. Issues

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 i. Identifying multiple levels (e.g., documents)
ii. Laying foundation
c. Notes:
i. If two or more statements are hearsay, both have to fit within a hearsay
exception or the whole thing doesn’t get in.
ii. Documents almost always create 1 level of hearsay.

CDXXXVII. Strategy for Multiple Hearsay

a. Are there multiple out-of-court statements?
b. Ask if each statement is being proffered for the truth of the matter asserted.
c. For each statement to which you answered “yes” for Item 2, locate a hearsay
exception, otherwise the entirety is excluded.

CDXXXVIII. Nurse Double Hearsay Example

a. Wife: “It was too dangerous to take that boat out today!”
b. Nurse testifies that Wife said that she previously said, “Don’t take the boat out
today; it’s dangerous.”

CDXXXIX. United States v. Carpitcher

a. 11-year-old girl (JK) had unusual abrasions in genital area. Mother took JK to
pediatrician. Mother said to pediatrician: JK told me that my live-in boyfriend
(Carpitcher) hurt her there. JK gave sworn police statement: Carpitcher molested
me
b. At trial, JK recants. Can the prosecutor introduce JK’s sworn police statement?
i. Answer: Only to impeach
ii. To impeach and as witness’s prior inconsistent statement
iii. To impeach and as recorded recollection
iv. No
c. Pediatrician as Witness: “JK’s mother said: JK said that Carpticher hurt her.

CDXL. Business Records (Rule 803(6))

CDXLI. Business Records: Four Easy Steps

a. First, you need a “business” and some records
i. “Business, organization, occupation, or calling” (EXAMPLE: blackjack,
illegal business (drugs))
ii. Note: My checkbook entries—not admissible! But their bills always are!
(emails)
b. Second, you need a qualified witness or certification to lay foundation
c. Third, you lay this foundation:
i. Made by a person with knowledge
ii. At or near the time the event happened
iii. In the course of a regularly conducted business activity
iv. It was the business’s regular practice to make record
v. NOT prepared in anticipation of litigation!!!

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 d. Fourth, and finally, you rebut any showing that circumstances indicate lack of
trustworthiness.
i. Ted Wells & the NFL ???

CDXLII. Rationales
a. “Businesses” have a strong self interest in keeping accurate records
i. Especially for regularly conducted activities
ii. If business has regular practice of keeping records, fabrication is less
likely
b. Live testimony difficult to arrange
i. Would otherwise have to drag each person involved into court, one by one
c. Incentive to self-police to stay in business
d. This exception covers both levels of hearsay: business records + hearsay within
hearsay (if meets other requirements) EX: nurse takes notes during patient visits
with Dr.; write what pt reports & what Dr. said about the reports.What the pt
reports is admissible under 804(4) for medical diagnosis. (Q3 on Ch. 45)

CDXLIII. Prairie Fun League Livestock Exhibit

a. Prairie Fun League. Michelle the cow weighs 600 pounds.
b. Likely to admit as business record?
i. Answer: Yes. Non-profit = “business.” Regularly-conducted activity.
Regular practice to record. Qualified employee.
ii. No
c. “This cow seems unsteady on her feet.”
i. No, exception doesn’t cover opinions
ii. No, hearsay within hearsay
iii. Answer: Yes. The rule’s language allows for records depicting “act,
event, condition, opinion, or diagnosis”  the exception allows for
more than just facts (very broad); it’s opinion but that’s okay: not
hearsay within hearsay bc coming from an agent in the organization
d. “Dear Ms. Albertson, I saw one of your cows lurching about the pasture when I
drove by today. She seems very unsteady, as if she might fall off a cliff. Sincerely
yours, Elwood Pratt President”
e. Is Pratt’s letter admissible as a business record?
i. Yes
ii. Yes, if probative value substantially outweighs unfair prejudice
iii. Yes, as long as it’s trustworthy
iv. Answer: No. Not regularly conducted activity; appears to be “ad hoc”
f. Albertson farms: “To: Ms. Albertson, From: Fred. I’ve looked into the falling cow
accident and our cow was blameless. She was the healthiest cow in the herd. It
appears that a hurricane-level wind blew out of nowhere and pushed the poor cow
right off the cliff. The poor cow!!!!”
g. Fred’s memo is…
i. Answer: Inadmissible hearsay. It’s a business record but it lacks
trustworthiness. Who must raise this issue? Written in preparation of
litigation, so the incentives are wrong.

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 ii. Admissible as a business record
iii. Admissible as an excited utterance
iv. Admissible as a present sense impression
h. Reporter’s Notes: Talked to Mike Carter (hiking near cliff ½ hour before
accident). He saw cow grazing peacefully. Says no sign unsteady. Then he saw
teens approach. Says they were rowdy, carrying firecrackers.
i. Notes admissible to prove presence of teens and firecrackers?
i. Answer: Inadmissible hearsay. Double hearsay, would need another
exception for it to be admissible. The eyewitnesses are not part of her
organization. Need a hearsay exception for them. Contains statements
from 3rd parties, who are NOT part of the organization. We would
want the person who got the statements from the reporter to come in
and testify himself.
ii. Admissible as a business record
iii. Admissible as an excited utterance
iv. Admissible as a present sense impression

CDXLIV. Public Records Exception - FRE 803(8)

CDXLV. What it covers

a. Creates a hearsay exception for
i. Activities of a public office: (A)(i)
ii. Observations pursuant to a duty: (A)(ii)
iii. Results of public investigations: (A)(iii)
b. Subject to several caveats

CDXLVI. Rationale
a. Increased reliability
b. Increased need  big bureaucracy, which is the result of 1000’s of public
employees, that could potentially be called to testify
c. In theory, they don’t rely on the distinction of self-interest. The records are
PUBLIC, bc they are meant to serve the public (that is their audience)  no cross
examination bc the public is observing

CDXLVII. Public Records: Top Ten Points

a. 1. Make sure you have a public record.
i. EX: political organizations: not considered gov’t organizations (National
Democratic)
2. If you do have a public record, it must satisfy 803(8), not just 803(6).
3. Records of the office’s activities generally are admissible.
ii. Without much restriction.
iii. EX: the Senate roll call vote/legislative voting (reflects activities of the
organization); opinions of the USSC; housekeeping records (budget
personnel)
4. Observations pursuant to duty are generally admissible.

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 5. Except matters observed by law enforcement personnel are not admissible
against criminal D.
iv. Specifically applies to LAW ENFORCEMENT records; some other
documents may be admissible
v. This is bc they have an incentive to convict; it’s an adversarial system.
The police are largely aligned with the prosecutor.
vi. Blanket rule for criminal proceedings (constitutional issues, 6th am)
vii. Defendants are permitted to use these kinds of reports; it doesn’t say this
explicitly in the rule, but the courts have interpreted it that way
viii. Prosecutors may use records when obtained during the course of normal
duty
6. Unless the observation was ministerial.
7. Results of an investigation by any public office are not admissible against a
criminal defendant.
8. “Factual findings” resulting from an investigation include opinions and
conclusions.
9. Records are not admissible if they lack trustworthiness.
10. Statements by third parties require a separate hearsay exception. I.e., watch
out for hearsay within hearsay (*DON’T FORGET THIS ONE*)

CDXLVIII. Public Records

Police and Law Other Public Offices

Enforcement
Ministerial Observation Admissible against all Admissible against all
Other Observation Not admissible against D Admissible against all
Investigation Not admissible against D Not admissible against D

CDXLIX. Criminal Proceeding (Reports)

a. Examples:
i. EPA Report: investigation reveals he dumped toxic chemicals  not
allowed in; more than just ministerial duty bc it’s a conclusion (different
than just reporting license plates)
ii. Police Dept report: investigation reveals he dumped toxic chemicals 
not allowed in.
iii. WOULD be admissible if this was a civil proceeding

CDL. Other FRE 803 Exceptions

CDLI. Hearsay: Back to Basics

a. We prefer to draw evidence from live courtroom testimony—not second-hand
accounts

CDLII. “Witness in the Courtroom” Exceptions

a. Prior inconsistent statement
b. Prior consistent statement

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 c. Identification
d. Recorded recollection

CDLIII. “Immediacy” Exceptions

a. Present sense impression
b. Excited utterance
c. State of mind

CDLIV. “Self Interest” Exceptions

a. Statements for medical diagnosis or treatment
b. Business records
c. Public records

CDLV. Absence of Records

Silence usually isn’t an assertion, unless it’s “pointed”

CDLVI. Civil Action: Home Buyer v. Broker for Fraud

a. Broker testifies he is licensed. Rebuttal testimony from employee of State Board
of Realtors: No record of license
b. Is the rebuttal testimony admissible?
i. No, it’s hearsay
ii. No, it’s character evidence
iii. Yes, but only to impeach realtor
iv. Answer: Yes

CDLVII. Ancient Documents

a. Document has existed for 20 years or more
b. Authenticity established
c. Watch for hearsay within hearsay

CDLVIII. Market Reports and Similar Commercial Publications

a. Data compilation
b. Generally relied on

CDLIX. Learned Treatises

a. 1. May come from any field
b. 2. Offer substantive evidence
c. 3. As long as accepted as reliable authority
d. 4. Two peculiarities:
i. Must accompany expert witness
ii. Read excerpts into record

CDLX. FRE 804 - Unavailable Declarant

CDLXI. Unavailability
a. Privilege

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 b. Refusal to testify
c. Lack of memory (real or feigned)
d. Death or illness
e. Absence

CDLXII. Is unavailability the proponent’s fault?

a. Can’t use wrongdoing to procure unavailability
b. Make efforts to procure, especially in civil case
c. May have to take deposition

CDLXIII. Privilege/Lack of Memory/Refusal to Testify

a. “I’m asserting the spousal privilege!”
b. “I all of a sudden don’t remember!”
c. “I assert a non-existent privilege!”

CDLXIV. Death or Illness

CDLXV. Absence

CDLXVI. Former Testimony – not used too much, bc requirements are so demanding
a. Declarant is unavailable
b. Prior statement was given at a trial, hearing, or deposition
c. Opponent [predecessor] had opportunity to develop testimony
-what does develop testimony mean?  direct, re-direct, cross: an
opportunity to “test” the testimony (basically means “challenging” the
testimony)
d. Opponent had similar motive to develop testimony
e. Party with the opportunity to question the declarant in the prior hearing must have
been the same party as the opposing party in the current case
**DON’T CONFUSE THIS WITH PRIOR STATEMENTS**

CDLXVII. Two Criminal Trials (RICO)

a. RICO setting: 3 people all aprt of the racketeering scam, 2 get charged & 1
doesn’t (he gets immunity and testifies against the other 2). Now have 2 separate
trials.
b. TRIAL 1: witness testifies against Defendant 1, but dies before testifying against
Defendant 2.
c. TRIAL 2: can the former testimony, given at trial & under oath, be used at this
trial, against Defendant 2?
-NO! The theory the prosecution gives is that it’s basically the same case;
BUT, it’s not the same defendant so NOT admissible.
d. Special concerns in criminal cases: unfair for force Defendant 2 to live with the
cross examination of Defendant 1. Notions of fairness, interests may not be totally
in line, therefore we require it to be the same opponent.
-CAN’T do it if you’re the prosecutor.
CDLXVIII. Two Civil Trials (RICO)

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 a. Don’t have the strict requirement in civil trials (same opponent in both trials); can
be your “predecessor in interest”
b. Predecessor in interest test: virtually the same as the standard for identifying a
“similar motive” when the parties are identical. Courts look to the similarity of
issues between the prior case and the current one, and the purpose for which the
prior testimony was given.

CDLXIX. Similar Motives

a. Type of proceeding
b. Trial strategy
c. Potential penalties/financial stakes
d. Number of issues/parties

CDLXX. Former testimony vs. Prior Statements

Prior Inconsistent Former Testimony 804(b)

Statements by Witness (1)
801(d)(1)(A)
Declarant:  Must testify at  Must be
current hearing or unavailable
trial
 Must be subject to
cross-examination
concerning the
statement
Content of Statement:  Inconsistent with  Any content
current testimony
Context of Prior • Must have been • Must have been
Statement: given under penalty given as a witness,
of perjury which implies that it
• Made at any prior was under penalty
trial, hearing, other of perjury
proceeding, or • Made during a trial,
deposition hearing, or
deposition at which
the current opponent
(or, in a civil case, a
predecessor in
interest) had an
opportunity and
similar motive to
develop the
testimony

801(d)(1)(A) Declarant on stand, subject Prior inconsistent

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 to cross-exam statement, made under
penalty of perjury, in a
proceeding
804(b)(1) Declarant unavailable Prior testimony, made in a
proceeding (oath), with
opportunity & motive to
develop

CDLXXI. United States v. Joseph

a. Government charges Joseph with insider trading. Joseph’s wife testifies before
grand jury. At trial, she claims spousal privilege and refuses to testify
b. Admit Wife’s Grand Jury Testimony under 804(b)(1)?
i. Yes
ii. No, she’s still available
iii. No, it wasn’t a hearing
iv. Answer: No, Joseph had no chance to cross-examine
c. Admit under 801(d)(1)(A)?
i. Refusal to testify is inconsistent with prior statement
ii. Prior statement was made under oath at a proceeding
iii. BUT the wife is not subject to cross-examination in the current trial
iv. So statement is NOT admissible  cant be used for impeachment, but
only if she takes the stand!
d. Girlfriend, not wife, and girlfriend “forgets.” Grand jury testimony is
i. Admissible under 804(b)(1)  no, bc no opportunity to develop her
testimony
ii. Answer: Admissible under 801(d)(1)(A)
iii. Admissible under both
iv. Admissible under neither
e. Girlfriend’s Grand Jury Statement Is NOT Admissible as Former Testimony
i. She is unavailable (memory loss)
ii. Previous statement was at a hearing
iii. But opponent (Joseph) was not present and had no opportunity to develop
testimony
f. But the Grand Jury Statement IS Admissible as a Prior Inconsistent Statement
i. Memory loss is inconsistent with prior detailed statement
ii. Prior statement was made under oath at a proceeding
iii. Girlfriend IS subject to cross-examination in current proceeding (real or
feigned memory loss is still subject to cross!)

CDLXXII. United States v. Zapata

a. Alleged conspiracy to distribute drugs. Londono was conspiracy leader. Londono
pled guilty; refused to testify at Zapata’s trial. Zapata offers statement from
Londono’s plea allocution: “I never told Zapata the purpose of our enterprise”
b. Is statement from plea allocution admissible under 804(b)(1)?
i. Yes

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 ii. Answer: No. No motive from the prosecutor to question the
defendant. The judge is eliciting the answers.

CDLXXIII. United States v. Brooks

a. Brooks charged with selling cocaine. Police Officer Christie Hoyle testified she
bought cocaine from Brooks. Hung jury. Hoyle killed by boyfriend. New trial of
Brooks
b. Admit Hoyle’s testimony from first trial under 804(b)(1)?
i. Answer: Yes
ii. Only if Brooks actually cross-examined her
iii. Only if probative value outweighs prejudice
iv. No

CDLXXIV. Widget Co. Protects Its Patent

a. Widget sues Copy Company for patent infringement. Widget VP gives deposition
under oath. Widget and Copy Company settle. VP dies. Widget sues Knock
Company for infringement.
b. Widget offers VP’s deposition testimony under 804(b)(1). Knock Off’s best
objection is
i. Other VPs are available
ii. Depositions aren’t “hearings”
iii. Copy Co asked no questions at the deposition
iv. Answer: Copy Co had different motives

CDLXXV. United States v. Ricketson

a. Ricketson charged with robbing jewelry from elderly widow’s home. Widow too
ill to attend court. Government deposed widow in her home, with notice to
Ricketson that she would not attend trial.
b. Widow’s deposition admissible against Ricketson under 804(b)(1)?
i. Answer: Yes
ii. No, depositions not admissible in criminal cases
iii. No, because she is still alive
iv. No, because motives at deposition differ

CDLXXVI. FRE 804 : Unavailability Exceptions (exemptions)

- 804b2 : Dying Declarations
- 804b3 : Statements against Interest
- 804b4 : Forfeiture
-Former Testimony
FRE 801d2 : Opposing Party Statements
- Single-party Statements
- Multiple Parties

CDLXXVII. FRE 804(b)(2) - Dying Declarations

1. Declarant is unavailable.
2. Applies only to homicide prosecutions and civil proceedings

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 3. Declarant subjectively believed death was imminent
4. Statement concerns cause or circumstances of death

CDLXXVIII. MBE Question

a. A man beats Mamie brutally. As she collapses, Mamie says: “I’m dying—don’t
let Roscoe get away with this!” Mamie survives, but has amnesia. Government
prosecutes Roscoe for assault.
b. Can the neighbor testify about Mamie’s statement?
i. No, it’s hearsay
ii. No, because Mamie is available
iii. Yes, it’s a dying declaration
iv. Answer: Yes, it’s an excited utterance

CDLXXIX. FRE 804(b)(3)

CDLXXX. Statements Against Interest

a. Declarant unavailable
b. Statement was against interest
c. At the time it was made
d. Corroboration for statements against penal interest when offered in criminal case

CDLXXXI. “Against Interest”

a. No reasonable person would have made the statement unless it were true
because
i. Harms pecuniary or proprietary interest
ii. Creates civil or criminal liability
iii. Renders a claim invalid
b. Has to be against your interest when it was made

CDLXXXII. “Against Interest”

a. What a reasonable person would do:
i. Seek immunity and then talk
ii. Minimize guilt by mentioning others
1. (Not the same as simply mentioning others)
b. Because a reasonable person would do these things, they do not fit into the
exception

CDLXXXIII. Classic Case: Informer

a. Hardin arrested for stealing. Hardin cut a deal. Hardin taped talks with Stone.
Stone described crimes committed with Johnson
b. Hardin’s Tapes
i. Stone is the declarant: He made out-of-court statements about himself and
Johnson
ii. Stone is unavailable (privilege)
iii. Statement was against interest when made (inculpated him)

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 CDLXXXIV. Classic 2: Disappearing Girlfriend
a. Sherry tells police: “My boyfriend is a gangster. He’ll kill me if he finds out I
talked to you.” Gives detailed report about boyfriend’s crimes. Sherry disappears
b. Is Sherry’s report admissible against boyfriend at trial?
i. Yes, statement against interest
ii. Yes, excited utterance
iii. Yes, state of mind
iv. Yes, dying declaration
v. Answer: No

CDLXXXV. Exculpatory Statements in Criminal Trials

a. “The defendant didn’t steal the money. I did.”
b. “You’ve got the wrong guy. Marie confessed to stealing the money.”

CDLXXXVI. Determining Corroboration

a. Judge decides whether corroboration
b. Wide range of factors
c. Reluctant to admit these statements

CDLXXXVII. Sad Case of Sarah

a. Sarah and her brother work for family business. Millions stolen from business.
Brother charged with crime
b. Letter: “I can no longer live with what I have done. I have stolen millions from
the family business, and my brother has been falsely accused. Now the entire
family faces financial ruin because of me. The only way out is to kill myself.
Sarah”
c. Can Sarah’s brother admit the note as a dying declaration?
i. Yes
ii. Answer: No, bc not a homicide case. Also, the letter did not
demonstrate immanency. So some courts are reluctant to let the letter
in (unsettled question)
d. Would you admit the note as a statement against interest?
i. Yes
ii. No

CDLXXXVIII. FRE 804(b)(6) – Forfeiture  equitable principle

a. Declarant unavailable
b. Other party engaged or acquiesced in wrongdoing
c. Intended to cause unavailability
d. Wrongdoing caused unavailability

CDLXXXIX. Tricky Spots

a. Persuasion and begging aren’t “wrongdoing”
b. Opposing party must specifically intend to make declarant unavailable
c. Courts construe acquiescence broadly
d. Carryover Doctrine Potential Witnesses

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 CDXC. United States v. Zlatogur
a. Zlatogurs charged with violating immigration laws. Yuri Yezhek, their employee,
gave incriminating grand jury testimony. Yezhek left USA
b. Is Yezhek’s grand jury testimony admissible as
i. A prior inconsistent statement—801(d)(1)(A)
ii. Former testimony—804(b)(1)
iii. For impeachment only—613
iv. Answer: None of these; no opportunity to cross examine (ex parte)
c. Why did Yezhek leave?
d. Government must prove wrongdoing, etc.
i. By clear and convincing evidence
ii. Answer: By a preponderance of the evidence
iii. With enough evidence to meet the prima facie standard
iv. Beyond a reasonable doubt

CDXCI. FRE 801(d)(2) - Statements by Opposing Parties

a. Only limiting factor is Rule 403.

CDXCII. A Game!
a. The prosecutor offers the defendant’s…
i. Answer: Yes
b. A civil defendant offers deposition testimony of the plaintiff.
i. Answer: Yes
c. The prosecutor offers a diary entry written by the defendant.
i. Answer: Yes
d. The prosecutor calls the defendant’s girlfriend to testify about what the defendant
told her about the crime.
i. Answer: Yes
e. A civil plaintiff offers e-mails sent by the CEO of the defendant corporation.
i. Answer: Yes
f. A civil defendant plays a video of the plaintiff making statements to a news
reporter after the incident.
i. Answer: Yes
g. The prosecutor offers letters written by the defendant to his family members while
he was in jail.
i. Answer: Yes

CDXCIII. Opposing Party Exemption is Very Broad

a. Applies to any statement by a party
b. Statement does not have to be an admission
c. Party’s availability is immaterial

CDXCIV. Opposing Party: Two Limits

a. Declarant must be a party
i. NOT victim in criminal prosecution

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 b. Statement must be offered against the party/declarant
i. Would otherwise allow parties to admit their own statements (circumvent
the hearsay rules / self-serving statements)
c. 801(d)(2) exemption includes any “statement” offered against a party
i. includes: inculpatory, exculpatory, or neutral
ii. ANY statement by a party is exempt from the hearsay rule when offered
against that party

CDXCV. Burglary Report

a. Can police operator testify that defendant said “he stole my weed”?
i. Only if D was excited
ii. Only if D spoke as theft occurred
iii. Only if D refuses to testify
iv. Answer: Yes

CDXCVI. Jennifer Hyatte Example ???

a. Shoots prison guard to help husband escape.
b. Takes a taxi to Columbus, OH. Cops arrest the couple at the motel in Colubus,
OH & they find her diary, which she has written a detailed account of the escape
& the shooting.
c. Diary is admissible against Jennifer at trial.
CDXCVII. Bank robber takes money but the tell sets off the silent alarm
a. D is arrested, but before he is apprehended he yells at the teller “you ruined my
life! I told you not to tell the police!”
b. The prosecution wants to admit this statement
c. What can the defense do? Advise his client not to take the stand.

CDXCVIII. Strategy: The Talkative Defendant  these are ALL allowed in!
a. Even exculpatory, favorable statements to you opposing party are admissible
under this rule!
b. “I didn’t hit him!”
c. “I only threatened him. And it wasn’t a broom, it was a flashlight.”
d. “I was angry with him because he ruined my close-up!”
e. “He hit me first, and I picked up the flashlight to defend myself.”

CDXCIX. Expanding the Exemption

a. Adopted statements
b. Silence as adoption
i. In criminal cases, examine circumstances carefully
c. Statements of agents or employees
d. Statements by authorized speakers

D. Plumber’s Statement: Example

a. “I’ll come by tomorrow and redo the installation for free”
b. Is the plumber’s statement admissible?
i. No, it’s an offer in compromise

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 ii. No, it’s hearsay
iii. Yes, it’s a subsequent remedial measure
iv. Answer: Yes, as evidence of the plumber’s fault

DI. Advice to Client:

a. Don’t discuss the case with anyone, unless the conversation is privileged.

DII. Multiple Parties

DIII. Parties on the same side

a. 801(d)(2) allows admission of statement against a party
b. Party may not introduce her own statement
c. But may one party introduce a statement against another party on the same side of
the litigation?

DIV. Summers v. Tice

a. Summers, Tice, and Simonson went quail hunting. Tice and Simonson fired
simultaneously fired. Summers was hit in the eye. Tice goes drinking, says “My
shot got Summers right in the eye.”
b. Summers v. Tice at Trial
i. Plaintiff Summers can call Joe to testify about Defendant Tice’s statement
ii. Can Defendant Simonson also call Joe to testify about
Defendant Tice’s statement?

DV. 801(d)(2): Old & New

Pre-2011 Restyling Post-2011 Restyling

The statement is offered against a party The statement is offered against an
and… opposing party and…

DVI. Halloween Party Example (co-defendants)

a. Todd Confesses: “I was with Louise when she took the necklace from Patsy’s
room. And I guess I helped her conceal it. But it was all Louise’s idea.”
b. Admit Todd’s statement under 801(d)(2)?
i. Against Todd, Yes.
ii. Against Louise, No.  constitutional issues/concerns. Redaction doesn’t
work (Gray v. Maryland, too obvious) Bruton Doctrine
c. How to get around this? They are co-conspirators! “They spoke with one voice”
Doesn’t always work..

DVII. Civil Case Solutions

a. Redact the statement
b. Show adoption, agency, or authorization
c. Identify another hearsay exception
d. Instruct the jury to consider statement only with respect to Todd’s liability

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DVIII. United States v. Todd & Louise
a. Sixth Amendment: Defendant has right to confront witnesses
b. Confrontation = cross-examination
c. If declarant is a “witness,” defendant must have opportunity to cross-examine
d. Introducing Todd’s statement against him raises no Sixth Amendment concern
e. But using the statement in a joint trial (including Louise) does raise Sixth
Amendment concerns
i. United States v. Todd & Louise
1. Redact the statement  to the extent that the redaction doesn’t
clearly implicate someone
2. Show adoption, agent, or authorization
3. Identify another hearsay exception
4. Give limiting instruction, but ONLY IF Todd is subject to cross-
examination
5. Forget statements or sever trials

DIX. FRE 801(d)(2)(E) - Statements of an Opposing Party: Co-conspirators

DX. Out-of-Court Statement Is Admissible Against a Party If It Was

a. Made by a coconspirator (think D1 vs. D2)
b. During the course of the conspiracy
c. And in furtherance of the conspiracy
-doesn’t have to be to further a conspiracy, just be in furtherance of it (ex:
confessions & boasts)
d. Knocks out the hearsay rule!

DXI. Hollywood Bling Ring Example

a. Alexis Neiers Public Statement: “I did nothing--Nick did all of these burglaries.
He did every single burglary, he told me this after the police let him go. Nick is
blaming people, trying to get the blame off himself.”
b. At Nick’s trial, Alexis refuses to testify. Is her public statement admissible?
i. Yes, statement of co-conspirator (not in furtherance of a conspiracy)
ii. Yes, public record (the press isn’t a gov’t agent)
iii. Yes, statement against interest (not against interest)
iv. Answer: No.
c. Alexis Neiers In Court: “I did nothing--Nick did all of these burglaries. He did
every single burglary, he told me this after the police let him go. Nick is blaming
people, trying to get the blame off himself.”
d. Can prosecutor offer Alexis’s testimony against Nick?
i. No, it’s hearsay
ii. Only if Nick is unavailable
iii. Only with a limiting instruction
iv. Answer: Yes, bc it’s a statement by an opposing party. No conspiracy
analysis need, bc it was Nick’s statement to Alexis

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 e. Courtney Ames. Courtney to the Police: “Rachel Lee planned everything. I just
drove her and Nick sometimes.”
f. Courtney refuses to testify at Rachel’s trial. Her statement to the police is
admissible as:
i. A public record  not admissible (double hearsay & also
statement/observation by law enforcement)
ii. A statement of a co-conspirator  (statement came AFTER the crime was
committed)
iii. A prior inconsistent statement
iv. Answer: None of these
g. Is Courtney’s statement admissible against Rachel as a statement against interest?
i. Answer: Yes, but only the part about Courtney’s role (other half of
courts will say it is against her interest so admissible; judge could
redact “her and Nick sometimes” but it would not be helpful)
ii. Yes, the judge will admit the entire statement
iii. No  (other half of courts would say this bc minimizes her interest)
h. Can the prosecutor admit Courtney’s statement against Nick as a coconspirator
statement?
i. Yes
ii. Yes, but only with a limiting instruction
iii. Answer: No. The problem is it doesn’t fit the coconspirator elements
(not in furtherance)
i. Nick’s Boss: “Courtney begged me to give Nick a night off from work on Sept.
23. She said they had an important project that night.”
j. To prove that the conspiracy existed, the prosecutor
i. May rely solely on Courtney’s statement
ii. May not rely at all on Courtney’s statement
iii. Answer: May rely on the statement with other evidence  have to
rely on corroboration
k. If the judge finds a conspiracy, is Courtney’s statement admissible against Nick?
i. Answer: Yes
ii. Only if Courtney takes the stand
iii. Only if Nick takes the stand
iv. No

DXII. Hearsay Exceptions So Far

a. The 801 “Exemptions”
i. Prior Statements, Opposing Parties, Co-conspirators
b. The 803 “Reliability” Exceptions
i. Present Sense Impressions, Excited Utterances, State of Mind, Medical,
Business/Public Records, Absence, Recorded Recollection, Ancient
Documents, Market Reports, Treatises
c. The 804 “Necessity” Exceptions
i. Former Testimony, Dying Declarations, Statements Against Interest,
Forfeiture

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DXIII. Residual Exception
a. Not covered and circumstantial guarantees of trustworthiness?
b. Relate to a material fact? (402)
c. More probative than other evidence (using reasonable efforts)?
d. Consistent with interests of justice?
e. Provide notice

DXIV. 1977 Homicide

a. 2005:
i. Jean Ann Chinn was dying. Chinn told her brother that she witnessed
Fossyl’s murder. Chinn named two men as murderers. Two months later,
Chinn died of cancer
b. 2007:
i. Wrongful death case went to trial
ii. Can Chinn’s brother testify about her statement?
1. Is it a dying declaration?  No bc not material to her death & took
her 2mos to die
2. Is it admissible as a statement against interest?  no pecuniary or
penal interest at stake. Good argument both ways though.
3. Is it admissible as the statement of a coconspirator?  death
already happened, well after the fact, no current conspiracy, so
NO.
c. Outcome of the Fossyl Case
i. Trial judge admitted Chinn statement, relying upon both statement against
interest and residual exceptions
ii. Jury awarded Fossyls over $1 million in damages and attorneys’ fees
iii. Sixth Circuit affirmed, agreeing on both exceptions

DXV. Hearsay Policies vs. Residual Exception

Hearsay Policies Residual Exception

Out-of-court statement is more reliable Out-of-court statement has guarantees of
than most trustworthiness
Out-of-court statement is more necessary Out-of-court statement satisfies important
than most need

DXVI. The “Near Miss” Doctrine

Majority View Minority View

A “near miss” IS NOT covered by the A “near miss” IS covered by the existing
existing hearsay exceptions, and is a hearsay exceptions. The residual
candidate for the residual exception. The exception is for situations not already
residual exception can “rescue” the near contemplated by the FRE.
miss.

DXVII. FRE 806 : Attacking a Declarant’s Credibility

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DXVIII. Rule 806
a. Must be hearsay (and certain “non-hearsay”)
b. Declarant’s credibility may be attacked
i. And then may be supported
c. By any evidence used to impeach a testifying witness
d. Notes:
i. Subject to significant caveats
ii. Allows parties to attack a declarant’s credibility, whether or not the
declarant appears as a witness

DXIX. Rule 806 (1) The “Hearsay” Requirement

a. Must be hearsay
i. If statement isn’t used for truth of the matter asserted, it doesn’t count
b. Except when it isn’t (non-hearsay)
i. Party’s agent, spokesperson, co-conspirator

DXX. What’s Missing?

a. Prior Statements: 801(d)(1)
i. Declarant must be present to use it!
b. Opponent Party Statements: 801(d)(2)(A & B)
i. Declarant unlikely to attack her own credibility
1. Why are agents, spokespeople, and co-conspirators treated
differently under 806?
c. Note: 803/804 are hearsay, so they count! All that’s left is 801

DXXI. (2) Attack/Rehab Credibility

a. Review: How do we impeach “regular” witnesses?
i. Four Infirmities (602 & 603), including bias
ii. By Contradiction (611)
iii. Inconsistent Statements (613)
iv. Character for truthfulness (608)
v. Criminal convictions (609)

DXXII. (3) By Any Evidence

a. We impeach declarants the same way
i. By infirmities, contradiction, character, etc.
ii. Can impeach our own declarant
iii. Can ask leading questions if we call them
b. Logistical caveats
i. Prior inconsistent statements
ii. Truthful/untruthful character

DXXIII. Chinn Pain Relievers Example

a. Admit evidence that Chinn was using narcotic pain relievers?
i. Answer: Yes, it affects Chinn’s credibility

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 ii. No, because Chinn is not a witness
iii. No, because it’s unfairly prejudicial
iv. No, because it’s extrinsic evidence
b. Can the defendants prove that Chinn had been convicted of assault?
i. No, she’s not a witness
ii. No, that’s character evidence
iii. No, it’s not a crime of dishonesty
iv. Answer: Yes, if it was a felony conviction satisfying Rule 609
c. Best method for suggesting that Chinn lied to insurance company:
i. Introduce testimony of insurance agent
ii. Answer: Ask Chinn’s brother if he knows
iii. Call a character witness
iv. No way: can’t do it

DXXIV. The Confrontation Clause - The Sixth Amendment and Hearsay

DXXV. The Sixth Amendment

a. In all criminal prosecutions, the accused shall enjoy the right…to be confronted
with the witnesses against him…

DXXVI. Interpreting the Confrontation Clause

a. “Criminal” = applies only to criminal cases
b. “Accused” = protects accused, not prosecutor
c. “Confronted” = ability to cross-examine
d. “Witnesses” = people who give “testimonial” evidence
e. Notes:
i. In all criminal prosecutions, the accused shall enjoy the right…to cross-
examine people who make testimonial statements against him…

DXXVII. Ohio v. Roberts (1980)

a. The “Old” Approach
i. The Confrontation Clause poses virtually no issues for most hearsay
exceptions in criminal cases
ii. If the out-of-court statement has “indicia of reliability” or falls within a
“firmly rooted hearsay exception,” confrontation isn’t necessary bc has
reliability. No need for cross-examination bc fits within hearsay exception

DXXVIII. Crawford v. Washington (2004)

a. The “New” Approach
i. “Confrontation” means cross-examination, and “indicia of reliability” do
not adequately substitute
ii. Out-of-court statements that are “testimonial” in nature require cross-
examination or must be excluded

DXXIX. Key Points

1. Be in the correct context (CRIMINAL!!!)

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 2. Do the hearsay analysis first
-Truth of the matter asserted in the statement?
-Does an exception apply?
3. Do the CC analysis
-Testimonial in nature?
~Similar to Rule 804, the 5 different ways to be unavailable
-If so, unavailable and opportunity to cross-examine
~Motive the same as the former testimony exception?

DXXX. Sixth Amendment: Five Principles

1. All evidence must satisfy the FRE
2. Sixth Amendment applies only to evidence offered against the accused
3. If a statement is non-testimonial, it satisfies the Sixth Amendment
4. If a statement is testimonial, the accused must have a chance to cross-examine
the declarant.
5. If the accused can’t examine at trial, then the prosecutor must establish (a)
unavailability & (b) prior opportunity to examine.

DXXXI. Sixth Amendment: Three Key Issues

1. What statements are “testimonial”?
2. When is a declarant “unavailable”?  look to rule 804
3. What constitutes a “prior opportunity” to cross-examine?  look to prior
opportunity under former testimony

DXXXII. Spoken Statements

DXXXIII. United States v. Daryl

a. Murder prosecution: Daryl stabbed Vince. Daryl claims self defense: He
believed Vince wanted to shoot him. Wendy will testify for the prosecutor:
“Vince said, I won’t hurt you. I just want to talk.”
b. May Wendy testify about Vince’s statement?
i. No, it’s hearsay that doesn’t fit any exception
ii. No, it violates the Sixth Amendment
iii. Answer: Yes. Not hearsay and no confrontation clause violation. Not
offered to prove the truth of the matter asserted; it’s being used to
give the impression that Vince was not going to harm Daryl, not that
he actually did not attempt to hurt Daryl (thus invalidating the self
defense claim)

DXXXIV. Remember the Boston Massacre

a. Government prosecuted British soldiers for homicide. Defense claimed the
soldiers were provoked, fearing for their own safety. Doctor testified for the
defense: Shortly before dying, the victim said “the crowd provoked the soldiers.”
b. Would the doctor’s testimony be admissible today?
i. No, it doesn’t fall within any exception
ii. No, it violates the Sixth Amendment

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 iii. It depends on the 6th Am status of dying declarations
iv. Answer: Yes. Not against the defendant, so only the hearsay analysis
is applicable.

DXXXV. Hallucinogenic Toad

a. US v. David Theiss: Distribution of Controlled Substance. Government claims
David rented toad to friend Jerry. Jerry claims Fifth Amendment privilege. Jerry’s
doctor testifies: Jerry said he was “coming down from a bad high,” and that he
had “taken some toad.”
b. Admissible as Statement for Medical Diagnosis?
i. Answer: Yes. Fits within the medical exception.
ii. No, not pertinent to treatment
iii. No, it’s a statement of blame
iv. No, it’s not trustworthy
c. Does the statement satisfy the Sixth Amendment?
i. Answer: Yes: Not testimonial. Not for the primary purpose of
testifying.
ii. Yes: David can cross-examine doc
iii. No: David can’t cross-examine Jerry
iv. No: Drug users are too unreliable

DXXXVI. What is testimonial?  The primary purpose of testimonial statements is to establish or

prove past events potentially relevant to later criminal prosecution
a. Formal proceeding/solemnity
b. Government involvement
c. Statement made to prove a fact related to a crime
d. Statement that declarant reasonably would expect to be used prosecutorially

DXXXVII. Hollywood “Bling Ring”

a. Nick Prugo, Rachel Lee, and four others have been charged with burglary.
Suppose Lee testified at preliminary hearing, incriminating others. But at trial, she
takes the 5th am and refuses to testify
b. Can the prosecutor introduce Lee’s testimony against others in the “ring”?
i. Yes, she’s a co-conspirator
ii. Answer: Yes, this is former testimony. Former testimony exception
overlaps confrontation clause in criminal cases.
iii. No, this violates the Sixth Amendment

DXXXVIII. Murder at the Mall

a. Helga’s body found at the mall, stabbed to death. Helga told her mother, “Larry
and I have a date at the mall.” Larry is Helga’s jealous boyfriend. Larry claims he
was at home.
b. Can Helga’s mother testify about Helga’s statement?
i. No, it violates the Sixth Amendment
ii. No, it doesn’t fit any hearsay exception
iii. Yes, it’s state of mind

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 iv. Yes, it’s a party opponent statement
v. Answer: Might or might not be inadmissible hearsay, but there’s no
confrontation clause violation.

DXXXIX. One Last Wrinkle – Dying Declarations

a. “I’m on my death bed and will kick it at any moment. Please tell the police that
my husband poisoned me!”
b. These statements are usually testimonial
c. Confrontation Clause issues?  USSC has not addressed this. Footnote in their
opinion imply these statements might be violating the 6th Am.
d. There is an originalist argument: the founders though the dying declaration was an
exception to the general CC (even though conceptually looks like the type of
testimony that is excepted)

DXL. Key Points

1. Be in the correct context
2. Do the Hearsay analysis first
- Truth of the matter asserted in statement?
- Does exception apply?
3. Do the Confrontation Clause analysis
- Testimonial statement?
- If so, unavailable and opportunity to cross-examine?

DXLI. Written Statements

1. If from a public agency, like a certification from a drug testing
analysis, then have to use the public record exception
2. Can’t just put it in an affidavit; have to bring the lab tech into court
& testify
-Bullcoming: can’t put in a different person; have to put
the person who created the report to testify (need to have
meaningful confrontation)
-Melendez-Diaz:
-Williams: a report is testimonial IF it…
1) Plurality: has the primary pyrpose of accusing a
targeted individual engaging in criminal
conduct
2) Thomas: is “formalized”
3) Dissent: “establishes some fact in a criminal
proceeding” and “an objective witness”
would reasonably believe it would be available for
use at a later trial  this is the definition
we’ve seen

DXLII. Drug Prosecution Example

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 a. Gov’t wants to analyze cocaine to verify that it is cocaine. The lab tech analyzes it
and says it is cocaine. The lab tech is very busy and to have him testify would
interrupt his work and it would be hard for him to remember this specific report
anyways because they do so many. Instead, he prepares a written report.
b. Is the certificate admissible to prove the substance was cocaine?
i. Yes, it’s not hearsay
ii. Yes, it’s a public record and satisfies the 6th amendment
iii. Yes, it’s a business record and satisfies the 6th amendment
iv. Answer: No. Melendez-Diaz and Bullcoming: The affidavits are
hearsay and are testimonial “statements.”
c. Does Williams Change the Result?
i. A report is testimonial if it…
1. Plurality: has “the primary purpose of accusing a targeted
individual of engaging in criminal conduct.”
2. Thomas: is “formalized.”
3. Dissent: “establishes ‘some fact’ in a criminal proceeding” and “an
objective witness” would reasonably believe it “would be available
for use at a later trial.”

DXLIII. Important Cases

a. Crawford v. Washington (2004)
b. Davis v. Washington (2006)
c. Massachusetts v. Melendez-Diaz (2009)
d. Bullcoming v. New Mexico (2011)
e. Williams v. Illinois (2012)

DXLIV. Straightfoward Cases

1. Formal statements during litigation  occur before grand juries, at pretrial hearings,
and at post-trial proceedings are all testimonial (includes affidavits, depos, confessions,

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 etc)
2. Statements responding to conventional police interrogation (NOT affidavits, depos, or
confessions. Victims will provide details about a crime & suspects offer alibis & denials)
These have prosecutorial purposes, therefore are testimonial
3. Business Records (NOT testimonial)  usually created for the administration of an
entity’s affairs & not for the purpose of establishing/proving some fact at trial
4. Statements in furtherance of a conspiracy (NOT testimonial)  the very purpose of
these statements is to advance a criminal endeavor. Confessions are NOT admissible
5. Defendant’s own statements (NOT testimonial)  no 6th AM right to confront self
6. Statements admitted to prove a point other than the truth of the matter asserted (NOT
testimonial)  doesn’t testify to anything and the D has no right to cross
DXLV. Hard Cases
-Look to the primary purpose of the speaker’s interaction with LEO: if it’s to
establish or prove past events potentially relevant to the later prosecution, then the
statement is testimonial.
-If there is another primary purpose, such as to enable police assistance to meet an
on-going emergency, then the statement is non-testimonial.
-the test is OBJECTIVE: what would a reasonable person have believed under
those circumstances?

DXLVI. Expert Testimony

DXLVII. Article VII : Opinion and Expert Testimony

a. Article VII: Six Rules

DXLVIII. Rule 701: Opinions of Non Experts

a. Lay witness opinion must be:
i. Based on perception  rationally based on the witness’s perception (this
requirement resembles the personal knowledge condition of Rule 602; the
opinion is one that a reasonable person could reach)
ii. Helpful  helpful to clearly understanding the witness’s testimony or to
determining a fact in issue (opinions help a lay witness convey his factual
impression)
iii. NOT based on scientific, technical, or other specialized knowledge  this
prevents litigants from “proffering an expert in lay witness clothing”

DXLIX. Drunk Defendant Example

a. “I saw the defendant and he was drunk.”
b. Pure Facts: He staggered. I smelled alcohol on his breath. His speech was slurred.
He passed out on the couch.
c. Based on perception: Witness was there.
d. Helpful: Totality, plus more. Requires no expertise.

DL. Mehus v. Emporia State

a. Head coach for women’s volleyball sued university
b. Can the players criticize the coach?

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 i. *Answer: Yes, lay opinion. (Note: This is up to argumentation. This is
just a guide.)
ii. No, not helpful. Stick to specifics.
iii. No, too technical for student players

DLI. Thermodyne v. McDonald’s

a. CEO: Our technology is not generally known in the field.
i. *Answer: Yes, lay opinion
ii. No, not helpful. Stick to specifics.
iii. No, too technical
iv. No, too self-serving

DLII. United States v. Wilson

a. Wilson charged with bribing public official. Sean Clayton testified that he
reviewed Wilson’s email records. Concluded that Wilson deleted messages from
“sent mail”
b. Can Clayton offer lay opinion that Wilson deleted emails?
i. No, jury can figure that out from facts
ii. No, email is too complicated for lay witnesses
iii. No, this is “testimonial”
iv. *Answer: Yes

DLIII. Code Words

a. They are too technical. You cannot testify as to code words as a lay witness.
Instead you must be qualified as an expert.

DLIV. FRE 702 - Expert Testimony

a. Judges are Gatekeepers

DLV. Rule 702: Expert Opinions

a. Reliable principles and methods (Daubert)
b. Technique reliably applied
c. Evidence fits the facts (helpful to fact finder)
d. Qualified (analyzed separately)  experience, education, etc
e. Rule 403 (balancing test, has to be substantially more probative than prejudicial)

DLVI. Reliable principles & methods

a. Frye v. United States (1921) (DC Circuit) – In order to determine whether your
method is reliable, we look to whether it is generally accepted in the relevant
scientific community.
b. If a testifying expert, must only testify to methods generally accepted in your
related field. The judges were leaving it up to the field to determine; general
acceptance is based only on good science. So, if everyone in the field believes it is
good science, then it can come in. This was problematic for new or contested
areas.
c. Daubert v. Merrell Dow (1993)

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DLVII. Reliable Principles and Methods: Daubert
a. Before Daubert: General acceptance test (Frye standard)
b. Problematic for new or contested areas
c. Daubert broadened test to include acceptance as one of numerous factors
d. Court proposed a non-exclusive list

DLVIII. Daubert Factors

a. Can the theory be tested?
b. Has it been subjected to peer review and publication?
c. Is there a known error rate?
d. Are there standards controlling technique’s operation?
e. Has the theory been generally accepted? (this is from Frye)

DLIX. Knee Implant Example

a. Testimony of James Pugh
i. Gamma irradiation caused failure
ii. Conducted no tests of implant in knees or laboratory
iii. Nor any studies of gamma irradiation and polyethylene generally
iv. No reference to such studies
v. Referred only to “basic polymer science”

DLX. Konikov v. Orange County

a. Was the rabbi conducting a synagogue in a residential zone?
b. Other rabbis testified about Jewish prayer practices
c. Peer review, publication, and general acceptance sufficed

DLXI. Reliable Application  prings 1 & 2 of Rule 702

a. Not just methods; need to perform test correctly.
b. Followed rules of method/test
c. Applied in proper context
d. Ruled out other explanations, if appropriate

DLXII. American Simmental Ass’n

a. Evidence proffered to show milk from certain cows was casuing adverse effects,
but this wasn’t reliable bc the sample size was too small and thus they hadn’t
ruled out other explanations

DLXIII. Testimony of Agricultural Economist

a. Before D’s actions, both American and Canadian prices were dropping
b. After D’s actions, Canadian market dropped another 26%
c. American market dropped 53%
d. Conclusion: Additional 27% drop was due to D’s actions

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 DLXIV. Helpfulness
EX: phases of the moon not relevant to defense of insanity; in order for evidence to be
helpful and be considered to fit the facts:
a. Does the testimony fit the dispute?
b. Does it add a perspective that the jurors couldn’t provide on their own?
c. Does the testimony make sense?
**NOTE here: sometimes where the case is taking place might dictate whether or
not certain evidence fits the facts

DLXV. Helpful Example

a. “Only the boss can order an execution”
b. Meaning of “consigliere”

DLXVI. Not Helpful

DLXVII. Rowe Entertainment v. William Morris Agency

a. Four concert promotion agencies sued top booking agencies and concert
promoters
b. Claimed defendants (all white) conspired to keep business from black promoters

DLXVIII. Testimony of Joe Feagin

a. Distinguished sociologist, former president of American Sociological Ass’n
b. Testimony about institutionalized racism in various business sectors

DLXIX. Qualifications

DLXX. Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training,

or education may testify in the form of an opinion or otherwise if…

DLXXI. Determining Qualifications

a. Fairly easy to get in under Daubert
b. Qualifying the witness is done in front of the jury
c. Voir Dire : questioning of witness  done in front of the jury as well (can be
used to advocate’s advantage)
d. EX: someone without a high school diploma but has 15 years experience in
wiring can testify as electrician expert.
e. NOTE: even if you can get evidence admitted under 702, Rule 403 still might
exclude the evidence! Reverse 403 analysis.

DLXXII. Qualified
a. Knowledge
b. Skill
c. Experience
d. Training

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 e. Education

DLXXIII. Electrician: What caused the fire?

a. No high school diploma. 15 years residential wiring experience. Taught classes.
Worked with fire marshall in assessing causes
b. Is the electrician qualified to testify as an expert?
i. *Answer: Yes. Could go either way. Up to argumentation. Education
wouldn’t get him in, instead experience would get him in.
ii. No

DLXXIV. Business School Professor: Excessive trading in commodities futures?

a. PhD in Finance. Wharton School. One course on commodities futures. Not
familiar with practices. Never evaluated pure commodities portfolio
b. Is the business professor qualified to testify as an expert?
i. Yes
ii. *Answer: No. We’re talking about the commodities trading and what
the court said is his education isn’t enough. They are more concerned
with the experience.

DLXXV. How to Qualify an Expert

a. First, the attorney who called the expert lays a foundation for the witness’s
expertise by asking questions about the witness’s credentials and qualifications.
i. After laying the foundation, the attorney will move that the judge certify
the witness as an expert.
b. Second, most judges allow opposing counsel to “voir dire” the witness.
i. The opposing counsel has a chance to ask the witness questions in order to
test his credentials.
c. Third, the judge rules on the motion to certify the witness
i. Usually the judge grants the motion to certify the witness as an expert.

DLXXVI. FRE 703 & 705

a. What the expert can rely on in giving their opinion and when, if ever, they have to
disclose what they are relying on to give their opinion.

DLXXVII. Expert Witnesses

a. Can remain in courtroom
b. Can certify documents as learned treatises
c. Can give more complex opinions
d. Not bound solely by personal observations  can rely on a wide range of data,
including information like hearsay that is not admissible in court

DLXXVIII. Factual Bases of Expert Opinions

a. Personal knowledge
b. Facts or data admitted into evidence
c. Inadmissible facts or data if they are the type reasonably relied upon by experts in
the particular field

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DLXXIX. Expert Historian
a. A man came to the US and gained US citizenship. The authorities later find out
that he was a Nazi. Expert Historian testified that the Bachan SS was bad for the
US. What was the basis for his opinion? Public records from Germany, interviews
with witnesses and he looked at the works of other scholars who had written about
the Bachan SS movement. What do these all have in common? They are
inadmissible hearsay.
b. Can the historian offer an opinion based on these sources?
i. Only if they satisfy the hearsay rule
ii. Yes, if experts in the field rely on them
iii. Answer: Yes, if experts in the field reasonably rely on them. A
historians expert opinion can be based on inadmissible hearsay if
experts in the field reasonably rely on the sources.
iv. No

DLXXX. Porsche v. Crocs

a. Porsche and Crocs both make something called a “Cayman.” Porsche sued Crocs
for trademark infringement.
b. Can expert testify about % of customers who think Porsche makes sandals?
i. Yes, the expert cross-examined them
ii. Yes, survey responses are not offered for TOMA
iii. Answer: Yes, experts reasonably rely on these responses
iv. No

DLXXXI. Another Cocaine Prosecution

a. Moon charged with distributing cocaine. DEA chemist Olson analyzed substance
b. DeFrancesco testified
c. DeFrancesco qualified as an expert
d. DeFrancesco offered opinion: “The substance was cocaine”
e. DeFrancesco’s Lab Notebook concludes “The substance was cocaine”
f. Sworn Report:
i. No. 615741
ii. I hereby certify that the powder
iii. Contained in 19 plastic bags MARKED: 615741
iv. Submitted by P.O. FRANK MCDONOUGH of the BOSTON POLICE
DEPT.
v. Has been examined with the following results:
vi. The powder was found to contain:
vii. Cocaine, a derivative of Coca leaves, as defined in Chapter 94
viii. C, Controlled Substance Act, Section 31, Class B.
ix. NET WEIGHT: 22.16 grams
g. Can the government introduce the machine readouts?
i. No, hearsay
ii. No, although the expert may read them to the jury
iii. Yes, but only to evaluate the expert’s opinion

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 iv. Answer: Yes
h. Does the report fit within any hearsay exception?
i. Yes, recorded recollection. No because the person is not in court to testify.
ii. Yes, public record. No because we worry about bias.
iii. Yes, present sense impression. No, it’s a report written well after the fact.
iv. Answer: No
i. Can DeFrancesca disclose Olson’s report under Rule 703?
i. Yes, he’s an expert
ii. Answer: Yes, if probative value substantially outweighs prejudicial
effect. This is a reverse 403 test. We’re worried about abuse.
iii. No
j. Can defendant cross-examine DeFrancesco about the underlying materials?
i. No, the rules don’t allow this
ii. No, the Sixth Amendment forbids this
iii. Answer: Yes

DLXXXII. Evidence Supporting Expert Opinion

Independently Admissible (Ex: Machine May use to show truth of the matter
readouts) asserted AND to evaluate the expert’s
opinion
Admitted under Rule 703 (Ex: Affidavits) Admissible only to evaluate the expert’s
opinion

DLXXXIII. Olson’s Report and the Sixth Amendment

a. The report is testimonial (just like the one in Melendez)
b. Admitting the report alone would violate the Sixth Amendment
c. Does the “expert filter” satisfy the Sixth Amendment?

DLXXXIV. Williams v. Illinois (2012)

DLXXXV. Limits on Expert Opinion

DLXXXVI. Columbus City Code § 2329.11(C)

a. No person shall make or allow to be made any unreasonably loud and or raucous
noise in such a manner or at such volume as to annoy or disturb the quiet,
comfort, or repose of a person of ordinary sensibilities . . . .
b. Roger Boyell, Electrical Engineer: “In my opinion, the noise was unreasonably
loud, raucous, and annoying to a person of ordinary sensibilities”
c. On what ground should the Ugly Tuna object?
i. Rule 702 (doesn’t assist jury)
ii. Rule 704 (ultimate issue)
iii. Rule 403
iv. I and II
v. Answer: I and III
vi. I, II, and III

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 d. Notes:
i. What was happening in this case? The expert was “squawking” the legal
standard back. Courts don’t like that. They don’t like when you just repeat
the legal standard.

DLXXXVII. FRE 704(a)

a. An opinion is not objectionable just because it embraces an ultimate issue. Can
use 403 and say it’s not admissible OR that it’s unhelpful.

DLXXXVIII. Better Testimony?

DLXXXIX. Sample Rulings

Admissible Inadmissible
 “Device was dangerous beyond  “Lack of warnings made product
expectation of average customer.” unreasonably dangerous”
------------------------------------------ ------------------------------------------
- -
 “Defendant’s proposal was a  “They were material participants
scam.” in a fraudulent scheme.”
------------------------------------------ ------------------------------------------
- -
 “Losses claimed by Defendant  “I owed no taxes for that year.”
were not deductible.”

DXC. 704(b)
a. Experts in criminal cases must not state an opinion about a defendant’s mental
state or condition that is an element of the crime (or defense).

DXCI. John Hinkley Example  legislature enacted Rule 704(b). Courts go out of their way to
ignore this rule.

DXCII. O’Byrne’s Tax Problems

a. Failure to file for 5 years. Asserted “late filing syndrome”. IRS tries to show
voluntary and intentional failure to file. O’Byrne calls an expert
b. Dr. Notax for the defense: “In my expert opinion, O’Byrne’s behavior was
consistent with an intent to file his taxes. His syndrome created excessive
procrastination, leading to delay...”
c. Can an expert testify about late filing syndrome?
i. No, the syndrome is not generally accepted
ii. Yes, parties choose their witnesses
iii. Answer: Maybe, if O’Byrne satisfies Daubert and Rule 403. Don’t
opine, just say it’s consistent with.
d. Dr. Notax for the defense “In my expert opinion, O’Byrne intended to file his
taxes. His syndrome created excessive procrastination, leading to delay, but he
always intended to file.”

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 e. Is there a problem?
i. Answer: Yes, this is a 704(b) problem.

DXCIII. Limitations in Action - Games

a. Linda
i. Is 31 years old, single, outspoken, very bright, majored in philosophy in
college. Very concerned with issues of discrimination and social justice
and participated in many demonstrations including nuclear
demonstrations.
ii. Which statement most likely describes Linda?
1. Answer: Linda is a bank teller. Requires one less assumption.
2. Linda is a bank teller who is active in the feminist movement
b. The Birthday Paradox
i. How many people to produce > 50% chance that two share a birthday?
1. 367
2. 184
3. 122
4. 86
5. 75
6. Answer: 23. Compounding probabilities.
c. The Dreaded Disease
i. 1% of people have X disease. Doctors screen all patients for X, and the
test is accurate 90% of the time. You test positive. What are the chances
you have X?
1. 100%
2. 90%
3. 80%
4. 50%
5. 23%
6. Answer: 8%.

DXCIV. Four Problems with Probability

a. Factual foundation
b. Technical flaws
c. Distract jury from conflicts in testimony
d. Confuse rarity of event with probability of guilt

DXCV. Expert Example

a. Expert 1: “In my expert opinion, the briefcase contained heroin”
b. Expert 2: “In my expert opinion, Walker is untrustworthy”
c. Note:
i. We don’t allow experts to question the credibility of other witnesses.

DXCVI. Privileges

DXCVII. Privileges: What Purpose?

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 a. Accuracy concerns:
i. Protect the jury from misleading information
ii. Ensure evidence is sufficiently reliable
b. Equity concerns:
i. Protect a social interest – Privileges want to protect these.
ii. Eliminate unnecessary delay and promote efficiency.

DXCVIII. Federal Rules of Evidence

a. Rule 501:
i. Privileges governed by common law
ii. When state law governs civil claim or defense, state law determines
privilege
b. Rule 502: Waiver of attorney-client privilege
c. Note:
i. Rule 503 was not actually enacted. There is no rule that creates an
attorney-client privilege.

DXCIX. Attorney-Client Privilege

a. Communication
b. Between a client
c. And a lawyer (or reasonably thought)
d. That is confidential (no 3rd party overhearing)
e. And concerns legal advice

DC. John Tashiro Example

a. Can Tashiro’s lawyer assert attorney-client privilege before the grand jury?
i. No, it belongs to the client
ii. No, it applies only at trial
iii. No, Tashiro broke the law
iv. Answer: Yes

DCI. Michael Chatman

a. He returns a printer. They look inside the box to check the condition of the priner
and found a bunch of copies of $20 bills in the box. He gets charged with
counterfeiting. Chatman discusses his case with an attorney. The attorney says
he’s only licensed in Florida so Chatman needs a Georgia attorney.
b. Is Chatman’s discussion with the Florida lawyer privileged?
i. Answer: Yes
ii. Only if Chatman reasonably thought the lawyer was a Georgia attorney
iii. Only if Chatman paid the lawyer
iv. No

DCII. Family Tragedy

a. 5-year-old Diana Jones was sexually molested and killed in her bedroom. No
forced entry to home. Diana’s father Sam met with an attorney for several hours.

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 Sam disappeared. You are that attorney. Sam hired you to represent him. Sam
confessed his guilt. He told you nothing about plans to flee
b. Can you disclose Sam’s confession to the grand jury?
i. Yes, Sam is no longer a client
ii. Yes, there is a compelling need
iii. Yes, Sam might commit more crimes
iv. Answer: No
c. Would revealing Sam’s confession at Garfield’s trial violate the privilege?
i. Answer: Yes
ii. No

DCIII. Corporation Privilege

DCIV. IBM v. Compuware

a. IMB sues Compuware for copyright infringement based on a circuit board.
Gloria, team leader in Compuware’s circuit board division, writes to company’s
attorney. Discussion information about circuit board development.
b. Is Gloria’ letter privileged?
i. No, she’s not the CEO or a board member
ii. Only if her boss told her to write
iii. Answer: Probably yes under Upjohn
c. Gloria’s Letter to Counsel: Attaches technician memo from file that states: “This
idea will work—we’re copying IBM’s patent.” Describes conversation with
technician about ease of copying IBM patent
d. During discovery, Gloria will have to disclose
i. Tech’s memo
ii. Discussion with tech
iii. Answer: Both of these
iv. Neither of these
e. Gloria’s original letter remains privileged. But Compuware’s CEO decides to
waive the privilege and disclose letter
f. Can the CEO waive the privilege?
i. Answer: Yes. Gloria can be the client in terms of the privilege itself,
but the CEO can waive the privilege.
ii. No
iii. Only with Gloria’s consent
iv. Only with the lawyer’s consent
g. Gloria writes a memo to the CEO: “Here is a summary of the work my team did
to develop…
h. Does Compuware have to disclose Gloria’s memo to the CEO?
i. No, it’s protected by att’y-client privilege
ii. Answer: No, it’s protected work product
iii. No, both of the above
iv. Yes

DCV. Upjohn Factors

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 a. Info directly to company counsel for legal purpose?
b. Knew this was the purpose in supplying the info?
c. Provided info in response to superior’s request?
d. Communications related to scope of duties?
e. Other employees couldn’t provide the info to counsel?
f. All parties treated communications as highly confidential?

DCVI. Attorney-Client Privilege and Work Product

Attorney-Client Privilege Work Product

Any receipt of legal services Only in anticipation of litigation
Communications between client & lawyer Any documents prepared
Absolute privilege Qualified for facts about the dispute

DCVII. Rule of Evidence 502 - Waiver

a. Governs waiver of both attorney-client privilege and work product
b. Two categories:
i. Intentional waivers
ii. Inadvertent disclosures
c. When the waiver is intentional
i. The party must disclose other communications or information
1. Concerning the same subject
2. That ought in fairness be considered
d. When the disclosure is inadvertent
i. The privilege-holder may take back the information if
1. The privilege holder took reasonable steps to prevent disclosure
2. The privilege holder promptly took reasonable steps to rectify

DCVIII. Spousal Testimony and Marital Communications Privilege

Spousal Testimony Marital Communications

Grand Jury of Criminal (If Accused) Anywhere
Everything (Communications/Acts) Confidential Communications
Before/During the Marriage During (but can be invoked after divorce)
Witness Spouse Waives Both Spouses Must Waive
Intra-Family Crime Intra-Family Crime

DCIX. Spousal Privilege Example

a. They’re still married.
b. Does the wife have to describe her husband’s actions at trial?
i. Yes, no privilege applies
ii. Answer: No, the testimonial privilege applies
iii. No, the confidences privilege applies
iv. No, it’s character evidence
c. Can the wife answer if she wants to do so?

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 i. Answer: Yes
ii. No, the husband controls the privilege
iii. No, both must consent to testimony
d. What if instead, the marriage ends before trial: Can the wife refuse to testify?
i. Yes
ii. Answer: No
e. He said: “I abandoned the car because I had marijuana hidden under the backseat.
Oh, no!” She said: “I’m divorcing you.”
f. Does the wife have to recount what her former husband said?
i. Yes
ii. Answer: No, communications privilege
iii. No, testimonial privilege
iv. No, hearsay
g. Can the ex-husband prevent the wife from testifying about his statement?
i. Yes, this is hearsay
ii. Answer: Yes, either spouse may prevent waiver
iii. No, because they are divorced
iv. No, because the wife is willing to waive the privilege

DCX. Psychotherapist-Patient Privilege

a. Have to be a patient going to the psychotherapist.
b. Note: Mental health is covered. Physical health is not.

DCXI. Attorney-Client Privilege vs. Psychotherapist-Patient Privilege

Attorney-Client Privilege Psychotherapist-Patient Privilege

Client Patient
Attorney Psychotherapist
Communication Communication
Confidential Confidential
To obtain legal services To obtain psychotherapy

DCXII. Family Tragedy Example

a. 5-year-old Diana Jones was murdered. Her father, Sam, sought both legal advice
and psychological counseling. Sam confessed to both his lawyer and his
psychiatrist that he killed Diana. The state charged Garfield, a homeless wanderer,
with the crime
b. State v. Garfield
c. Garfield argues that Sam killed his daughter. Garfield subpoenas Sam’s lawyer
and psychiatrist to testify. Both lawyer and psychiatrist assert privileges.
d. How do you rule on the privilege claims?
i. *Excuse attorney from testifying. The attorney is excused from testifying.
This is classic attorney-client privilege.
ii. Excuse psychiatrist from testifying
iii. *Excuse both
iv. Excuse neither

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 v. *In some jurisdictions both are covered. In other jurisdictions some courts
will allow the privilege to break if there’s a need.
e. Tragedy Averted
i. Trixie tells both her lawyer and her psychiatrist that she plans to kill her
ex-husband Ed
ii. The lawyer and psychiatrist both alert Ed
iii. Government charges Trixie with threatening to harm a federal official
f. How do you rule on the privilege claims?
i. Excuse attorney from testifying
ii. *Excuse psychiatrist from testifying
iii. Excuse both
iv. *Excuse neither
v. *There’s no social value to having the attorney clam up when the client
has gone to them.

DCXIII. Privilege Against Self-Incrimination

a. Available to any witness in any proceeding (civil or criminal)
b. Protects people, not organizations
c. Applies only to criminal liability
d. Applies to testimony

DCXIV. In Missoula, Montana Example

a. Can the prosecutor introduce the sales tags?
i. Answer: Yes
ii. No, they’re hearsay
iii. No, they violate the self-incrimination privilege
iv. No, they aren’t relevant
b. If Allard confesses:
i. He has waived the self-incrimination privilege and must testify at trial.
ii. Answer: He may still claim the privilege at trial.
c. If Allard refuses to testify, can the prosecutor introduce his confession?
i. No, it’s hearsay
ii. No, that violates the confrontation clause
iii. No, that violates the SI privilege
iv. Answer: Yes

DCXV. The Jury (and Wrap-Up)

DCXVI. FRE 606(b)

DCXVII. Role of the Jury

a. We treat the jury like a “black box.”

DCXVIII. Why Maintain a Black Box?

a. Legitimacy
b. Finality

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 c. Efficiency
d. Protect jurors

DCXIX. Ways to Peek Into the Box

a. 606(b) only bars juror statements raised after the verdict
b. 606(b) bars only juror testimony (makes jurors incompetent to testify)
c. 606(b) allows testimony about outside influences or extraneous prejudicial info 
courts find a way to make most influences internal (ex: a bible)
d. 606(b) allows testimony about clerical errors

DCXX. United States v. Stevens

a. “We, the jury, request that juror number nine be removed from the jury. She is
being rude, disrespectful and unreasonable. She has had violent outbursts with
other jurors, and jurors are getting off course. She is not following the laws and
rules as stipulated in the instructions.”
b. Can the judge act on the jury’s note?
i. No, Rule 606(b)
ii. No, character evidence
iii. No, hearsay
iv. Answer: Yes. During deliberations it’s fair game.

DCXXI. State v. Dunn

a. Roberto Dunn convicted of murder
b. After trial, juror wrote to Dunn’s lawyer: “Two other jurors had sex while
sequestered in the hotel. They formed a team and talked back to the foreperson.
The acts of sex and insubordination were scandalous and unspeakable. I couldn’t
focus on the evidence.”
c. Is testimony from this juror admissible at hearing for new trial?
i. Yes, it’s scandalous
ii. Only the part about sex: that occurred outside the jury room
iii. Answer: No

DCXXII. United States v. Jackson

a. Jackson convicted of killing another inmate. Judge instructed jury: LWP means
Jackson never gets out. Jury voted for death. Testimony from jurors: “We thought
Jackson could be released. That influenced our decision.”
b. Is jurors’ testimony admissible?
i. Yes, court can always inquire whether jurors understood instructions.
ii. Yes, exacting scrutiny is needed in death cases.
iii. Answer: No. Internal to the deliberation process.

DCXXIII. United States. v. Benally

a. Would the fact that D is Native American affect your evaluation of the case?
b. Have you ever had a negative experience with individuals of Native American
descent?
c. Post-Verdict Info from Jurors

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 i. Foreman told other jurors: “When Indians get alcohol, they all get drunk.
And when they get drunk, they get violent.”
ii. When juror disagreed, foreman argued back.
iii. Other jurors talked about the “need to send a message back to the
reservation.”

DCXXIV. Bias on the Jury

Benally (10th Cir.) Villar (1st Cir.)

1. No “bias” exception to Rule 3. Fifth and Sixth Amendments
606(b) (rejected ‘lying on may require inquiry into
voir dire” route). racial bias.
2. S.Ct. denies cert.

DCXXV. The Exam

DCXXVI. Administrative Matters

a. Exam totals 160 points (80% of final grade)
i. Multiple choice: 20 points
ii. Transcript: 90 points
iii. Short Answer: 50 points
b. Budget your time accordingly
i. All sections are not weighted equally
ii. But all questions in each section are
c. Caveats
i. M/C: Record answer in blue book/computer
ii. Transcript: Abbreviations/what to expect
iii. Short Answer: 5 of 7 (but restricted choices)
d. Coverage: Broad, but follows course

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