1) General Principles of Relevance: FRE 401, 402: Fisher 22-25, 29-34 FRE 104(b):

Fisher 36-47 FRE 403: Fisher 54-58

Relevance is the first step to admissibility, but relevant evidence is not always admissible

● Rule 1101
○ (a) The Courts and Judges. These rules apply to proceedings before:
■ U.S district Ct
■ US bankruptcy and magistrate
■ U.S. Ct Appeals
■ U.S. Ct Federal Claims
The district courts of Guam, VI, Northern Marina Island
● (b) To cases and Proceedings. These rules apply in
○ Civil, including bankruptcy, admiralty, and maritime cases
○ Criminal proceedings
○ Contemporary proceedings, except those in which the court may act
summarily.
Ex: They don’t apply to University admin hearings.

Relevance
● Rule 401: Relevance defined
o Evidence is relevant if:
● It has any tendency to make a fact more or less probable than it would be
without the evidence; (probativeness); and
● The fact is of consequence in determining the action (materiality)
● Probative + Material = Relevant
Materiality
● Hinges on the substantive law of the case
● Evidence has to go to something that is consequential to the case
Probativeness
● Does the evidence have any tendency to make the fact more or less likely?

U.S. v. James
● James charged with aiding and abetting daughter in the killing of James’ violent
boyfriend
● Her counsel argued self-defense, and that she should be judged by what she knew at the
moment of handing her daughter the gun
o State SC had ruled pre-trial that defendants could testify about bf’s prior violent
misconduct they had known about, but could not introduce extrinsic evidence
proving such conduct
o Such court records could not have affected her state of mind
● Court reversed, en banc, since extrinsic records corroborated her testimony and
showed jury she was credible
o Exclusion of documents was prejudicial and more probably than not affected the
outcome of the case
Conditional Relevance
● Rule 104(b): Relevancy Conditioned on Fact
 o When the relevance of evidence depends on whether a fact exists, proof must be
introduced sufficient to support a finding that the fact does exist. The court may
admit the proposed evidence on the condition that the proof be introduced later.
● Notes
o Conditional relevance issue usually never comes up in trial
o Requires proponent to introduce evidence that the jury could reasonably find the
conditional fact (Huddleston v. U.S.)
o Conditional relevance → relevance of item depends on existence of a
particular preliminary fact
o Standard: Does a judge believe a reasonable jury could find by a preponderance
of a conditional fact is established. If a jury cannot find the fact, the judge will
strike the evidence in a limiting instruction.
● Not in operation often

Cox v. State (S.C. Ind. 1998)

● Prosecution’s Theory: Cox retaliation for Leonards' filing molestation charges against his
friend Hammer
● Evidence of Testimony would go to motive (conditioned on the fact that he knew of the
hearing)
● Reasonable jury could find by preponderance of the evidence that the conditional fact
was established, then the jury can consider the evidence (if not then judge strikes it)
● Cox spent every day at Hammer’s mother’s house, and she testified at the
bond hearing → that meets the preponderance of the evidence
● Note → judge should admit if judge believes that connection could be shown at some
point; does not need to be when introducing evidence

Rule 403 Danger of Unfair Prejudice

● The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence
o Tie goes to person who wants to bring the evidence in

Rule 403 Balancing

● Probative value - this is about the strength of the evidence
● Danger of unfair prejudice
o Inducing a decision on a basis other than the facts
Scope of Rule 403
● Every piece of evidence (besides those used in witness impeachment) is subject to rule
403

State v. Bocharski (S.C. AZ 2001)

 ● Bocharksi given knife by Sukis - mentions that he should put neighbor suffering from
arthritis out of her misery
o Neighbor found dead from stab wounds, no knife found, Bocharski still convicted
(his prints found on door)
● Defense - photos of dead lady should be excluded under Rule 403
o Jury could lose their objectivity because they are horrified at what they see
● Availability of other means to do the same (exclude certain photos)
● Court → finds certain photos should not have been admitted
o Inflamed jury, not probative of victim’s death
● Minimally probative/highly prejudicial
o Still affirms conviction b/c admitting evidence did not alter ruling

403 objections often end in compromise

● Can let things in but have them altered (only drawings not actually pictures, taking out
certain words etc.)

Attorneys often to agree to stipulate certain facts

● May want to do so because it can sterilize certain facts (instead of having them contested
at trial, takes bite out of story)
o SC - find an alternative way to introduce evidence that can offer same probative
value (full evidentiary context)
● Old Chief stipulates it and also lowers risk of a 403 issue

Specialized Relevance Rules: Fisher 96-99
FRE 407: Fisher 111-113
FRE 408, 409,
411: Fisher 117-130 FRE 410: Fisher 138-143

Rule 407: Subsequent Remedial Measure

● When measures are taken that would have made an earlier injury or harm less likely to
occur, evidence of the subsequent measures is not admissible to prove
o Negligence
o Culpable conduct
o Defect in the product
o Need for warning
● BUT evidence may be admitted for another purpose, such as impeachment, ownership,
control, feasibility of precautions

Policy Purposes behind 407

● Don't want to deter accident avoiding conduct (people wouldn't make changes to better
product or to ensure safety if it could be used against them)
● Don't like to penalize people for doing the right thing
● Companies want to avoid extensive liability
● Individuals do not know about the law (protects them)
● Not a categorical rule (limited purposes)
Third Party Repairs
● Rule 407 does not apply to third party repairs
 ● Only with parties - no potential liability for Third Parties (no dissuasion - won't be used
against them but against someone else)
● HOWEVER, Rule 403 may keep out that evidence (not particularly probative and could
be too prejudicial)

Rule 408: Compromise Offers and Negotiations

● Can't introduce evidence of discussing compromising the claim in exchange for
something of value or of what was said during the discussions
o EXCEPT: For another purpose such as proving a witness's bias or prejudice,
negating a contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution
Aspects
● Rule 408 only applicable in Civil Cases - rule does not kick in until there is an adverse
proceeding in existence
● Claim has to be disputed as to validity or amount
● Parties can't use 408 to shield themselves - to immunize evidence by talking about it
during settlement negotiations

Policy Behind 408

● Want people to be forthright and willing to speak to come to settlement
● Allows people to avoid trial
● Jury may overvalue the evidence

Rule 409: Offers to Pay Medical Bills

● 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
Aspects
● Broader than 408 because it does not require a claim
● Narrower than 408 because it doesn't cover any other statements, just specific statements
regarding the payment (doesn't protect statements of fact surrounding incident)
● If you say "I'll pay for your towing" that can be admitted

Policy Behind 409

● Don't want to discourage people from being good Samaritans, and being humane
● Motivated by humane impulses

Rule 411: Liability Insurance

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

Policy Behind 411

● Don't want jury bias knowing that big company behind individual to pay
● People biased against insurance companies
 ● You don't want to deter people from getting insurance

Williams v. McCoy (pg. 127)

● P wants to tell story that insurance adjuster came to her house and pressured her to settle
and that is reason why she retained the attorney
● D trying to paint P as litigious b/c she hired attorney prior to seeing doctor
● Court finds P not trying to bring in evidence for probative purpose to prove negligence,
but actually trying to rebut the defendant's argument that she is litigious
o Evidence is probative for reason she wants to use it

Rule 410(a): Pleas

● Plea discussions etc. not admissible against defendant for anything except listed
exceptions
o Applies to:
● (1) Withdrawn guilty plea
● (2) Nolo contendere plea
● (3) Statements made during plea hearing
● (4) Plea discussions w/ prosecutor
● Everything barred except what is specifically allowed in (b)

Rule 410(b) Exceptions

● The court may admit a statement described in Rule 410(a)(3) or (4)
o In any proceeding in which another statement made during the same plea/plea
discussion has been introduced, if in fairness the statements ought to be
considered together; or
o In a criminal proceeding for perjury or false statement, if the defendant made the
statement under oath, on the record and with counsel present

U.S. v. Biaggi
● Mariotta argues that Court erred in failing to admit evidence of his rejection of immunity,
which showed his conscious, innocent state of mind
● Court agrees
○ Exclusion denied Mariotta of a fair trial
○ FRE 410 bars evidence against D, not prosecution

More 410
● Can't be used to impeach
● Prosecutors can request defendants to waive the right to not be impeached as a condition
of beginning plea deals (Supreme Court said it is ok)
● Covers plea discussions with prosecutor or someone designated with authority by the
prosecutor
● Plea deals offered to D by cops are excluded UNLESS it can be proven the cop was given
authority from the prosecutor to make a deal

3) Character Evidence: FRE 104(b), 404(a), 404(b): Fisher 145-62, 171-80, 201-206
Character Evidence
● Rule 404: (a)(1) 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

Propensity Inference
● Jury not permitted to conclude that because a person is of a certain character, they have a
propensity to act a certain way and therefore it’s likely that they did act this way this time
o Premise that jury will be swayed by this information

HELPFUL CHART PG. 161

Rule 404 Exceptions

● 404(a)(2)(A): D in criminal case may offer evidence of own pertinent trait. If D offers
that evidence, P can rebut.
● 404(a)(2)(B): Subject to limitations in 412, D may offer evidence of victim's pertinent
trait. If D offers that evidence, P may rebut with other evidence re: victim's character OR
with evidence of D's same trait
● 404(a)(2)(C) in homicide case, P may offer evidence of alleged victim's trait of
peacefulness to rebut evidence that victim was first aggressor
● 404(a)(3): Character of a witness - covered by Rules 608-609

Character in Civil Cases [404 exception when character at issue]

➢ Generally inadmissible to prove action in conformity therewith (propensity)
➢ Admissible when directly in issue:
❖ Character is an ultimate fact in dispute and must be proved by competent
evidence [405(a)-(b)].
❖ Defamation → plaintiff sues defendant for calling plaintiff a thief, and
defendant pleads truthful character as an affirmative defense
❖ Negligent entrustment → plaintiff sues defendant for negligently permitting
use of car by reckless driver, driver’s character for recklessness is in issue
➢ Reputation in the Community or Specific Acts to show this character
❖ Libel → plaintiff is alleged to be a thief, so evidence that plaintiff has stolen
things is admissible
➢ FRE allows any type of evidence (reputation, opinion, or specific acts)
➢ Methods of proving character
❖ Specific acts
❖ Opinion testimony of witness who knows person
❖ Testimony of person’s reputation in the community
Rule 405: Methods of Proving Character
● 405(a): By Reputation or Opinion → if admissible, evidence of a person's character or
character trait may be proved by:
o The person's reputation
o Testimony in the form of an opinion
o On cross examination of character witness ONLY, court MAY ALLOW inquiry
into specific instances of conduct
● 405(b): By Specific Instances of Conduct
o When a person’s character or character trait is an essential element of a charge,
claim, or defense, the character or trait may also be proved by relevant specific
instances of the person’s conduct.
o Applies only when existence of character trait, and not conduct in accordance, is
thing to be proved
● Examples → rebutting an entrapment defense; proving or rebutting a
defense of truth or libel in slander action; and resolving a parental
custody dispute
● Rarely arises

Example of essential element → Uber driver gets into accident that results in passenger P
getting injured. P sues Uber for negligence in hiring driver, and seeks to introduce evidence
of driver’s character that Uber should have been aware of
● Character essential element of P claim
● P may introduce specific instances of driver’s conduct to prove character, as well as
reputation and opinion

Rule 404(b) Crimes, Wrongs or Other Acts

● (1) Evidence of a crime, wrong, or other act is not admissible to prove a person's
character in order to show that on a particular occasion the person acted in accordance
with the character
● (2) This evidence may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.

Hypo
● Bank robbery prosecution. D claims she was too drunk to have committed the crime
● P wants to introduce evidence that D robbed another bank nearby right before the robbery
during the time D claimed she was drunk.
o Permissible: Directly goes against her argument (sober enough to rob one bank
sober enough to rob another)
● Opportunity, identity
o Impermissible: She robbed a bank → she is a person who commits serious crimes
→ she committed this crime
● Will likely need limiting instruction for individual (404(b))
o Defense would not want the jury to know he was charged for attempted
 ● Propensity inference may not survive 403 balancing - Probative value is substantially
outweighed by danger of unfair prejudice.

Problem 3.1 (pg. 165)

● Prosecution wants to offer evidence of the March theft (which he plead guilty to) in his
trial for the February theft.
o Basic theory is that he had the knowledge on how to hack into a system
o Need to also look to 403 - probative, showing that he is one of few individuals
who has this knowledge
o Could stipulate that he has the knowledge of hacking and therefore the evidence
does not need to be admitted
Problem 3.3 (pg. 166)
● Trying to bring in evidence "that Harrison's drunken condition was the cause of the
accident,"
o Shows knowledge on the part of the railroad company that they were employing
someone that they knew was a drunk
o They were on notice (of the risk and did not take appropriate action)
● Will likely need limiting instruction for individual
Problem 3.4 (pg. 167)
● Peltier missed his trial for attempted murder a year before the shooting happened, he was
aware of the outstanding arrest warrant
● Peltier - motive to kill FBI agents because they are looking for him (wants to avoid
capture)
o Defense would not want the jury to know he was charged for attempted
Problem 3.6 (pg. 169)
● Stopped two vehicles with Peltier being an occupant of the motor home, they found
Agent Coler's revolver in a paper bag bearing Peltier's thumb print
o Highly probative, Identity, shows he was at the scene at a minimum
● Agents were shot with an AR-15 - an AR-15 was found in the motorhome
o Goes to identity (he has the gun)

United States v. Trenkler (pg. 171) Quincy Bomb - Standard for admitting similar acts/ previous
crimes, wrongs, other acts
● Must be high degree of similarity between other act and charged crime → Whether
characteristics relied upon are sufficiently idiosyncratic to permit an inference of
pattern for purposes of proof
● “We believe that the district court did not abuse its discretion in determining that the
numerous similarities in components, design, and technique of assembly, combine with
the similar modus operandi and the closeness of geographic proximity between the two
events, sufficiently support the inference that the same person built both bombs”

Huddleston v. United States -

● Overview: Threshold court has to meet to make other act admissible
● Timeline
o February 1985: D sells 38 black and white TVs
 o April 1985: D sells 5000 stolen Memorex videocassette tapes (charged)
o May 1985: D sells many stolen kitchen appliances to FBI Agent
● 104(b) as well → defense arguing that trial court should find that TV were actually stolen
in order for it to be admissible for 404(b) - other courts were just using preponderance of
the evidence
● Court: Jury has to reasonably find that the defendant did the prior bad act by a
preponderance of the evidence
● Policy Issue: Concern that jurors won't know if that preliminary fact happened but might
err on the side of protecting society from the defendant

The Huddleston Standard - Governing Standard (Propensity Prohibition)

● Standard of proof the prosecution must meet in order for an "other act" to be admissible
● A reasonable jury must be able to find by a preponderance of the evidence that the
"other act" occurred

4) Character Evidence Cont'd: FRE 413, 414, 415: Fisher 207-17
FRE 404(a), 405, 406:
Fisher 234-49, 252-56

6 Ways to admit Character Evidence

1. 413 - sexual assault (specific acts)
2. 414 - child molestation (specific acts)
3. 415 - civil equivalent of 413, 414 (specific acts)
4. 404(a)(2)(A) - character of defendant in criminal case (opinion or reputation, SI on cross)
5. 404(a)(2)(B) - character of victim in self-defense case (opinion or reputation, SI on cross)
6. 404(a)(3) --- refers you to witness rules, 607, 608, 609

405 Note → 405 only applies when admitting character evidence under 404(a)(2) and when
character at issue (ex. defamation case)

Exceptions

Lannan v. State (S. Ct. Indiana 1992) pg. 208

● D on trial for child molestation, as proof Prosecution offered testimony of another child
who claimed to have been molested (other similar act)
● State law - Court says that it will get rid of "depraved sexual instinct" exception but you
can still get it in through 404(b) and 403 balancing - won't be available for propensity
evidence
● Getting rid of 414 exception in favor of 404(b)

State v. Kirsch pg. 214 New Hampshire

● Similar facts as above. Leader of pre-teen group charged (Prosecution introduces
uncharged offenses)
● No 413/414 exception in this case, all they have is 404(b)
 ● Common Plan: It is not enough to show that each crime was “planned” in the same way;
rather, there must be some overall scheme of which each of the crimes is but a part

Rules 413, 414, 415

● Rule 413: Similar acts/crimes in criminal sexual assault cases may be admitted for ANY
matter to which it is relevant
● Rule 414: Similar acts/crimes in criminal child molestation cases may be admitted for
ANY matter to which it is relevant
● Rule 415: Similar acts/crimes in civil cases involving sex assault or child molestation
may be admitted for ANY matter to which they are relevant
● Note → 415 only provision allowing for use of character evidence in civil
cases as relevant to someone’s conduct out of court

412/Rape Shield
● In a criminal or civil proceeding involving sexual misconduct, evidence that the alleged
victim engaged in other sexual behavior or had a certain sexual predisposition is
generally inadmissible
● EXCEPTIONS
● 1. In criminal cases, you can use specific instances of victim sexual
behavior if you are using it to prove someone other than the defendant was
the source of an injury or semen.
● 2. Specific instances on the sexual behavior with the defendant (“we were
in a consensual sexual relationship = consensual”)
● 3. Evidence whose exclusion would violate the defendant’s constitutional
rights (CC clause)
● 4. In a civil case, the court may admit evidence offered to prove a
victim’s sexual behavior or sexual predisposition if its probative value
substantially outweighs the danger of harm to any victim and of unfair
prejudice to any party. The court may admit evidence of a victim’s
reputation only if the victim has placed it in controversy (reverse 403
→ if tie don’t let in)

404(a)(2) pg. 43
● (A) a D may offer evidence of the defendant's pertinent trait (in form of opinion or
reputation)
o If admitted, the P can offer evidence to rebut it (in any form)
● (B) D may offer evidence of an alleged victim's pertinent trait (subject to 412)
o P may offer evidence to rebut AND offer evidence of the D's same trait
● (C) in homicide case, P may offer evidence of alleged victim's trait of peacefulness to
rebut evidence that victim was first aggressor

Note → 404(a)(2) only applies to criminal cases

Rule 405: Methods of Proving Character (applies to 404(a)(2) and character in issue)
 ● 405(a): if admissible, evidence of a person's character or character trait may be proved
by:
o The person's reputation
● General community view of individual
o Testimony in the form of an opinion
● Knows person's character well enough to speak about them
o On x-exam ONLY, court MAY ALLOW inquiry into specific instances of
conduct
● 405(b): when character is an essential element the trait may also be proved by relevant
specific instances of conduct

Michelson v. United States (1948) pg. 234

● Accused of bribing federal revenue agent. Defendant brought in character witnesses to
show that he had a good reputation for honesty and truthfulness
● When D brings in character witnesses it opens the door for the prosecution to cross
examine them and challenge how well they really know the D.
● The judge is invested with discretion to limit the number of such witnesses and to control
cross-examination

Two ways to admit other acts not as character evidence

1. 404(b)(2): For another purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident
2. Rule 406: Habit; Routine Practice

Rule 406: Habit (not considered character evidence)

● Evidence of a person's habit or an org.'s routine practice may be used to prove that on a
particular occasion the person or org. acted in accordance with the habit. No need for
corroboration or for an eyewitness.
o Kind of thing that does not speak to morals or ethics of actor (must be instinctive)

Halloran v. Virginia Chemicals Inc. (pg. 252)

● "If defendant's witness was prepared to testify to seeing Halloran using an immersion coil
on only one occasion, exclusion was proper. If, on the other hand, plaintiff was seen a
sufficient number of times, and it is preferable that defendant be able to fix, at least
generally, the times wand place of such occurrences, a finding of habit or regular usage
would be warranted and the evidence admissible for the jury's consideration"
o Consideration on remand
● Factors towards allowing evidence of habit:
o # of times done
o Predictable conduct

Hypo: Two people crash at an intersection. To prove habit prosecution calls a witness and they
say she almost always drives through the stop sign. Habit? Yes - the stop sign is specific and the
response to failing to stop is habitual.
● If not the same stop sign - possibly an inadequate foundation
 ● Focus on the regularity of habit that distinguish it from other evidence

5) Impeachment and Character for Truthfulness: FRE 404(a)(3), 607, 608: Fisher 257-269
FRE 609: Fisher 276-77, 285-295, 299-303, 308-309
Impeachment
1. Bias/motive
2. Prior inconsistent statement
3. Contradicted by other evidence
a. These are NOT examples of character evidence
b. Don’t need a propensity inference about character
c. The only limits are hearsay and 403
● (4) Reputation for being dishonest (Rule 608)
● (5) Specific instances of conduct (on cross examination + limited by Rule 608(b))
● (6) Prior convictions (Rule 609)
o These are examples of character evidence
Rule 607
● Any party, including the party that called the witness, may attack the witness's credibility

Rule 608
● (a) Reputation or Opinion Evidence. A witness's credibility may be attacked or
supported by testimony about the witness's reputation for having a character for
truthfulness or untruthfulness, or by testimony in the form of an opinion about that
character. But evidence of truthful character is admissible only after the witness's
character for truthfulness has been attacked
● (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609,
extrinsic evidence is not admissible to prove specific instances of a witness's conduct in
order to attack or support the witness's character for truthfulness. But the court may, on
cross examination, allow them to be inquired into if they are probative of the character
for truthfulness or untruthfulness of:
o (1) the witness; or
o (2) another witness whose character the witness being cross examined has
testified about
● Note → Trial judge discretion whether to admit

Hypo: 608(a)
● Auto accident case. Defense of contributory negligence. P testifies that D ran the red light
o P calls minister who offers to testify that he believes P to be a truthful person
● No attack = not admissible
o D calls P's co-worker to testify that P is careless
● Need truthfulness not carelessness
o D calls witness who lives in P's apt. building to testify that in his opinion, P is liar
● Possible, but need more evidence of their relationship
Hypo: 608(b)
● D on trial for murder. Direct examination, witness 1 testifies that she saw D commit the
crime
 o (1) x-exam of witness 1: "isn't it true you lied on your tax?"
● Probative of character and truthfulness (works)
o P calls witness 2 to offer opinion that witness 1 is truthful. X-exam of witness 2:
"did you know W1 lied on a job application?"
● In (1) her character is attacked therefore under (b) on cross such specific
instances can be inquired into if they are probative of the character for
truthfulness of "another witness whose character the witness being cross-
examined has testified about"

United States v. Whitmore (D.C. Cir. 2004)

● Crowd dispersed at bus station (except Whitmore) - ran holding hand to chest. Officer
claimed he saw a gun but caught him with no gun. D tried to impeach cop. Wants to
attack the credibility.
● Abuse of discretion standard → district court did not abuse its discretion in excluding the
reputation evidence of these witnesses under 608(a)
● In order to offer reputation evidence under this rule, party must establish
that the character witness is qualified by having an acquaintance with the witness,
his community, and the circles in which he has moved, as to speak with authority
of the terms in which generally the witness is regarded
● Witnesses offered did not know cop (Soto) well
● Whitmore should have been able to cross examine Soto about his lying, his failure to pay
child support, his suspended license and not telling his boss about it, under FRE 608(b)
● “Questioner must be in possession of some facts which support a genuine belief
that the witness committed the offense or the degrading act to which the question
relates"

Problem 4.2 (pg. 275)

● Former chief counsel of tyco is charged with stealing money from company, prosecutors
want to introduce evidence that he lied repeatedly in order to show what kind of person
he is. Specifically they have evidence that he lied to get out of jury duty, lied to get a new
driver's license, and lied about the work his bosses daughter did to help her get into
business school.
● Trial court rules that if he testifies they can ask him about those lies
● 608(b)
o If just looking under 608(b) it is ok because he is testifying and they are specific
instances of conduct that go to his truthfulness
● 403 balancing
o Might be more prejudicial than probative

Rule 609: Impeachment by Evidence of a Criminal Conviction

● (a) In General. The following rules apply to attacking a witness's character for
truthfulness by evidence of a criminal conviction
o (1) for a crime that, in the convicting jurisdiction, was punishable by death or by
imprisonment for more than one year, the evidence
● (A) must be admitted, subject to Rule 403, in a civil case or in a criminal
 case in which the witness is not a defendant; and
● (B) must be admitted in a criminal case in which the witness is a
defendant, if the probative value of the evidence outweighs its prejudicial
effect to that defendant; and
o (2) for any crime regardless of the punishment, the evidence must be admitted if
the court can readily determine that establishing the elements of the crime
required proving - or the witness's admitting - a dishonest act or false statement
● (b) Limit on Using the Evidence After 10 Years
o Evidence of the conviction is admissible only if:
● (1) its probative value, supported by specific facts and circumstances,
substantially outweighs its prejudicial effect; and
● (2) the proponent gives an adverse party reasonable written notice of the
intent to use it so that the party has a fair opportunity to contest its use.
o Note → 10 years from conviction or release, whichever is later (usually, release
is later)
● (c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation
o Evidence of conviction not admissible
● (d) Juvenile Adjudications only if
o (1) it is offered in a criminal case;
o (2) the adjudication was of a witness other than the defendant;
o (3) an adult’s conviction for that offense would be admissible to attack the adult’s
credibility; and
o (4) admitting the evidence is necessary to fairly determine guilt or innocence

Hypo: Trial on charges for grand theft auto

Prosecution offered several modes of impeachment -
1. Did you shoot a man in the arm in a bar brawl in 2006?
a. 609 - No - doesn't involve truthfulness or a prior conviction
b. 608 - No - not probative of truthfulness
2. Called witness to testify that they saw D shoot a man in the arm in a bar brawl.
a. 609 - No - doesn’t involve truthfulness or a prior conviction.
b. 608 - No - not probative of truthfulness
3. Offered evidence D was convicted of assault and battery by means of a dangerous
weapon (sentenced 5 years) for incident above in 2006
a. 608 - No - wouldn't even consider this.
b. 609 - Yes - Because witness is the defendant (609(a)(1)(b)).
i. 403 - Does probative value outweighs prejudicial effect
4. Asked D on x-exam if he was convicted of turnstile jumping sentenced for 3 months in
2006
a. 608 -
b. 609 - No - Not punishable for more than a year. Could not prove turnstile jumping
required proving a false statement,
i. Some misdemeanors the court will say involves dishonesty (shoplifting)
others say no. Need to understand forum.
5. Offered evidence D was convicted of lying to a fed. investigator and sentenced to 2 years
1998
 a. 609 - Maybe -
i. 609(b) - over 10 years however, could go to truthfulness

Rule 609 Breakdown

● 1. If using prior conviction greater than 1 year in prison/death if noncriminal defendant
witness (609(a)(1)(A))
o Regular 403 balancing → inadmissible if prejudicial effect substantially
outweighs probative value (if tie evidence comes in)
● 2. If using prior conviction greater than 1 year in prison/death of criminal defendant
witness (609(a)(1)(B))
o Reverse 403 balancing → admitted if probative value outweighs prejudicial
effect (if tie evidence left out)
● 3. If using any conviction involving dishonesty or false statement on its face (609(a)(2))
o Automatic admission
● 4. If using conviction more than ten years old (609(b))
o Reverse 403 balancing → not admissible unless probative value substantially
outweighs prejudicial effect (if tie evidence left out)
● 5. If using juvenile conviction (609(d))
o Not admissible unless fair criminal trial would be infringed by keeping it out

Hypo
● Murder prosecution with alibi witness (5 year old conviction)
o Evidence that witness has conviction felony
● 403 Balancing - a(1)(A) admitted unless prejudicial effect substantially
outweighs probative value
o Defendant testifying - impeach her with evidence conviction
● (a)(1)(B) admitted if probative value outweighs prejudicial effect

United States v. Brewer (E.D. Tenn. 1978)

● Ruling on a pretrial motion in a district court
● The court points to five factors to be examined in 609(a) determination, namely
● (1) the nature of the crime;
● (2) the time of conviction and the witness’ subsequent history;
● (3) similarity between the past crime and the charged crime;
● (4) importance of defendant’s testimony; and
● (5) the centrality of the credibility issue.
● Court rules that three state crimes are admissible, but the felony kidnapping conviction is
too prejudicial (because he is on trial for kidnapping)
Note Problem 4.4 (pg. 297)
● Difference in how courts view Rule 404(b) and 609 in admitting prior convictions
● Rule 404(b) → balancing whether prejudice of prior conviction substantially
outweighs probative value
○ Speaking to motive, intent, knowledge, etc. (going around propensity inference)
○ Easier to get admitted
 ● Rule 609 → balancing whether prejudice merely outweighs probative value (or vice
versa)
○ Speaking to character truthfulness (going through propensity inference)
○ Harder to get admitted

Ohler/Luce pg. 299/300

● The Supreme Court has ruled that a defendant may not appeal from the trial judge's
ruling regarding rule 609 admissions unless two conditions are met:
o First, the defendant must have testified at trial (Luce)
● Here, D chose not to testify after judge pretrial ruling that convictions
would be admissible to impeach
● Because defendant did not testify, it was impossible for a reviewing court
to measure how badly the challenged evidence would have harmed the
defendant's case. It is impossible to know even whether the challenged
evidence would have been admitted
o Second, the prosecutor must have introduced evidence of the contested conviction
(Ohler)
● Here, D introduced evidence after pretrial argument to exclude failed
● Generally, a party introducing evidence cannot complain on appeal that
the evidence was erroneously admitted (waive right to complain)
● Trial Judge had indicated he would allow the prior conviction, but
Government still had to consider whether its use might be deemed
reversible error on appeal

6) The Rule Against Hearsay & Exclusions – Opposing Parties’ Statements: FRE 801(a)-
(c), 802: Fisher 374-83, 388-91, 392-400
FRE 801(d)(2)(A) & (B): Fisher 406-409, Fisher
Supplement 507-517 FRE 801(d)(2)(E) & 104(a): Fisher 420-429

Rule 802
● Hearsay is not admissible unless any of the following provides otherwise
o A federal statute;
o These rules (fed rules of evidence); or
o Other rules prescribed by the Supreme Court
Rule 801
● (c) Hearsay is a statement that
o (1) the declarant does not make while testifying at the current trial or hearing; and
o (2) a party offers in evidence to prove the truth of the matter asserted in the
statement by the declarant
Hearsay
● An out of court statement that a party offers in evidence to prove the truth of the matter
asserted (in the statement)
● Not relevant unless it's true = hearsay
● Probative value regardless of declarant’s credibility = not hearsay

Testimonial Capacities
 ● Perception
● Memory
o Forms person's belief
● Narration
o Struggling to explain
● Sincerity
o Witness credibility

Exceptions to hearsay definition

● Can use statement to prove that it was said (ex. introducing evidence that declarant said
“look out for sharp object” would not be hearsay if P’s standard of care relevant in case)
● Legally operative language (contracts, b/t principal and agent) not hearsay
● A statement is not hearsay when offered to show its effect upon the hearer, and not for its
truth
● Example of independent relevance regardless of statement’s truth

Identifying Hearsay
1. Is it a statement made out of court?
2. Is the party offering the statement to prove the truth of what the statement says?
3. Would the jury be misled if the statement wasn't true? (Do we care whether the statement
if true or not.)

Problem 7.1 pg. 384-387

● Hearsay Affidavit is still an out of court statement
o Any statement not made in the particular proceeding is an out of court statement
Problem 7.2 pg
● Money gesture
o Out of court statement - still an assertion - Offering to prove he is short of funds
Problem 7.6
● Getz saying thought she was authorized to sell horses, whether or not that was true
o Truth of statement would be that horses actually belonged to Patton
● Matters here that Patton said he purchased horses, and that Getz believed it
● Showing Getz’s mens rea here, not truth of Patton statement
o Jury cares about her state of mind, not truth of Patton’s statement
● Not hearsay here (she is testifying about her own belief)
Problem 7.9 pg. 391
● Captain inspects ship and then sails away on it
● Trying to bring conduct in to show that captain believed ship was seaworthy
o Not an assertion (captain not trying to assert ship seaworthy, just doing what he
would have done anyway)
Problem 7.10 pg. 392
● Assertion that the nuclear test was safe - he intended to show people that it was safe by
bringing his family
o Intent to convey particular message
Hypo
● Personal injury action from car accident. To prove P was injured, P offers witness who
 says P was on the curb sobbing after the accident. - maybe want more evidence (not an
assertion, just inference)
● Same case, but P offers evidence that when a bystander asked if he was hurt, he grabbed
his leg and started rubbing it (in response to someone else, they are making an assertion
of an injury)
Hypo
● Prosecution of D for assault and battery. D claims that victim attacked her first (self-
defense). D offers evidence that the day before the fight, victim said, "I want to kill D"
(hearsay - matters if it is true)
● Same case, but D admits being first aggressor but says she was in fear of victim. Offers
victim's statement, "I want to kill D" as evidence that she was in fear. (NOT hearsay,
used to show fear not that the attack actually occurred)
Hypo
● Personal injury action and W testifies light was green for P. D offers evidence that at the
scene, W said "P's light was red" (Hearsay)
● Same case, but D offers W's prior statement to impeach W's credibility by demonstrating
she is inconsistent (OK, doesn’t matter if true just showing inconsistency)

Hearsay Steps
1. Out of court statement (verbal or nonverbal)?
2. Implied statements in addition to the literal words?
3. Was it intended as an assertion?
4. Is it being used to prove what the person asserted (looking strictly at the content of the
assertion) or is the statement being used to prove something else
a. Put another way, given what the assertion is being used for in court, do we care
whether the content of the assertion is true or not?

Exceptions to the Hearsay Rule

● 801(d)(1) - prior statements by a witness on the stand/similar procedure
● 801(d)(2) - statements by opponent in a suit
● 803 - doesn't matter if the declarant is available as a witness
● 804 - only if the declarant unavailable
● 807 - residual

801(d)(2)
● A statement offered against an opposing party is not hearsay if it is:
o (A) the opposing party's own words, whether harmful or not
o (B) words the opposing party adopted (based on that party's response)
● See four-part Jenkins v. Anderson Test below
o (C)(D)(E) Types of agents - your mouthpiece comes back to bite you
● (C) made by person that opposing party authorized to make
● (D) made by agent or EE of opposing party on matter within scope of that
relationship

801(d)(2)(B)
● An opposing party's own statement is not hearsay if
 o It is a statement which the party manifested that it adopted or believed to be true
● (1) did the party hear the statement?
● (2) was the party at liberty to respond?
● (3) did the circumstances naturally call for a response?
● i.e. was opposing party expected to rebut?
● (4) did the party fail to respond or respond but not rebut the statement?

Miranda and Silence

Defendant Defendant in Defendant in
Not in Custody / Pre - Custody /
Custody Miranda Post Miranda

May Silence be an YES: ?? - Circuit NO

"adoption" under Salina v. Split
FRE 801(d)(2)(B)? Texas (Supp. (YES: U.S. v.
Pg. 511) Frazier)

(NO: U.S. v.
Flecha)

May silence be YES: YES: NO:

used to impeach? Jenkins v. Fletcher v.
Anderson Weir (CB pg. Doyle v. Ohio
444)

Salinas v. Texas
● Trying to use it to show truth - by not responding he indicated that it would match and
that is what we are trying to prove
● Plurality about whether invocation of 5th Amendment matters
o Voluntarily talking to the police (no Miranda)

801(d)(2)(E)
● An opposing party's own statement is not hearsay if
o It was made by the party's coconspirator during and in furtherance of the
conspiracy
● (1) conspiracy existed at the time
● (2) included D and speaker
● (3) statement was made in furtherance
o Notes
● The contents of the statement shall be considered but are not alone
sufficient to establish . . . the existence of the conspiracy and the
participation therein of the declarant and the party against whom the
 statement is offered
● Fact that statement self-serving not enough to exclude from hearsay

Rule 104(a) Preliminary Questions in General

● The court must decide any preliminary question about whether a witness is qualified, a
privilege exists, or evidence is admissible. In so deciding, the court is not bound by
evidence rules, except those on privilege

Bourjaily v. United States (1987)

● 801(d)(2)(E) - this case decided before rule
● Drug conspiracy - mentioned his "friend" would be there to pick up the drugs with him -
actions in accordance with the phone call
● Prosecutor wanted to use hearsay statements that referred to "friend" in participation with
the transaction
● What standard of proof does the court need to use when attempting to resolve the
question of admissibility?
o Preponderance of the evidence (statements corroborated with drug deal)
● 104(a) → in determining preliminary questions concerning admissibility, court not
bound by rules of evidence (except as to privilege)
o Hearsay, including statements sought to be considered here, can be considered
(need not rely solely on independent evidence)
o HOWEVER, must exclude statement if only evidence the statement satisfies FRE
801(d)(2) comes from statement’s contents (from 801(d)(2), not case)
● Crime of conspiracy does not have to be charged (just need joint venture)

7) The Rule Against Hearsay: Exclusions – Past Statements of Witnesses: Fisher 430-
35
FRE 613: Fisher 435-438, 439-444 FRE 801(d)(1)(B): Fisher 454-65 FRE 801(d)(1)(C):
Fisher 469-73
Rule 801(d)(1)
● Prior statements by someone who is on the stand/was in similar proceeding
o (A) Prior inconsistent statement under oath
o (B) Prior consistent statement
o (C) Statements of identification

Rule 613
● (a) Showing or Disclosing the Statement During Examination. When examining a
witness about the witness’s prior statement, a party need not show it or disclose its
contents to the witness. But the party must, on request, show it or disclose its contents to
an adverse party’s attorney.
● (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a
witness’s prior inconsistent statement is admissible only if the witness is given an
opportunity to explain or deny the statement and an adverse party is given an opportunity
to examine the witness about it, or if justice so requires. This subdivision (b) does not
apply to an opposing party’s statement under Rule 801(d)(2).

801(d)(1)(A)
 ● Prior inconsistent statements
o A statement is not hearsay if the declarant testifies AND is subject to cross-
examination about a prior statement AND the statement
● (A) is inconsistent AND was made under penalty of perjury at a
trial/hearing/deposition
● Note → generally, can use prior inconsistent statements to impeach witness (no
implication on hearsay)
o When prior inconsistent statement made under oath, as in 801(d)(1)(A), then may
be introduced as proof of what it asserts

United States v. Barrett (1st. Cir. 1976) pg. 435

● Barrett (“Bucky”) appeals from his conviction after a jury trial for crimes arising from the
theft and sale of a collection of postage stamps (7 others were arrested and he was the
only one who went to trial)
● A waitress was prepared to testify that she overheard Adams (who was testifying against
Barrett) that it was a shame Barrett had got arrested because he "knew that Bucky didn't
have anything to do with it"
● "To be received as a prior inconsistent statement, the contradiction need not be 'in
plain terms.' It is enough if the proffered testimony, taken as a whole, either by what it
says or by what it omits to say, affords some indication that the fact was different from
the testimony of the witness whom it is sought to contradict"
● "It is clear, however, that Rule 613(b) has relaxed any absolute requirement that this
practice be observed, only requiring instead that the witness be afforded at some time an
opportunity to explain or deny, and for further interrogation"
● It should have come in, vacated and remanded

Hypo
● To prove witness made the prior statement, D calls police officer to relate the exchange
where witness said robbery was by a man
o Extrinsic evidence under 613(b) - need to make sure witness had chance to
explain/deny the statement
Problem 7.19 pg. 453
● Should grand jury testimony that her boyfriend hit her in the eye with an open hand - then
at trial she testified he accidentally opened a door to hit her in the eye
o 801(d)(1)(A) - it can come in because a grand jury statement was made under
penalty of perjury and can show inconsistency

United States v. Ince (4th Cir. 1994)

● As part of the investigation, Officer Stevens interviewed and took a signed, unsworn
statement from Neumann. She recounted that Ince had admitted to firing the shots, but
said he no longer had the gun
● At the first trial, she testified that she could no longer recall the details of her
conversation with Ince. They then called Stevens to testify as to what Neumann told him
● At the second trial they again called Neumann, she still could not recall. They then called
Stevens supposedly to impeach Neumann as to her memory loss
● "A trial judge should rarely, if ever, permit the Government to "impeach its own witness
 by presenting what would otherwise be inadmissible hearsay if that hearsay contains an
alleged confession to the crime for which the defendant is being tried"
● "A trial court must apply Rule 403 and weigh the testimony's impeachment value against
its tendency to prejudice the defendant unfairly or to confuse the jury"
● You can't call a witness solely to impeach them in order to bring in their prior
inconsistent statement

Problem 7.20
● Same facts as 7.19 - when on stand she said she no longer remembered how she hurt her
eye because the injury damaged her memory
o If the prosecutor, over the defendant's hearsay objection, offered a transcript of
her grand jury testimony, how should the court have ruled?
● Answer: Courts are split - can be considered an inconsistent statement if you don't
remember (MAJORITY) - if you say you don't remember, it is not inconsistent
(MINORITY)

Rule 801(d)(1)(B)
● Prior Consistent Statements
o A statement is not hearsay if the declarant testifies AND is subject to cross-
examination about a prior statement AND the statement
● (B) is consistent with the declarant's testimony and offered
▪ (i) 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
▪ (ii) to rehabilitate the declarant's credibility as a witness when
attacked on another ground
Rule 801(d)(1)(B)
1. The declarant testifies at trial
2. The declarant is subject to cross-examination concerning the statement
3. The statement is consistent with her testimony; and the statement is either
4. Offered to rebut an express or implied charge of recent fabrication or improper influence
or motive; or
5. Offered to rehabilitate the declarant's credibility as a witness when attacked on another
ground

Tome v. United States (1995)

● Father has custody of daughter, he was charged with sexually abusing the child (he had
full custody of her)
● Child said she had been abused - told her over a summer staying with mother - defendant
alleges that the crime was a fabrication in order to move in with her mother and get out of
his custody
● Prosecution wants to bring in seven statements that happened in the late August of 1990
near the end of the time she was with her mom (after custody established)
● The trial court admitted all the statements accepting the gov't's argument that they
rebutted the implicit charge that AT's testimony was motivated by a desire to live with
her mother
 o Statements here made after mother failed to secure custody
o D’s theory is that since mother wants custody, she is fabricating
● ISSUE: Whether out-of-court consistent statements made after the alleged fabrication, or
after the alleged improper influence or motive arose, are admissible under the Rule
o Consistent statements must have been made before alleged influence or
motive to fabricate arose

Rule 801(d)(1)(C)
● Identifies a person
○ A statement is not hearsay if the declarant testifies AND is subject to cross-
examination about a prior statement AND the statement
■ (C) identifies a person as someone the declarant perceived earlier (or fails
to identify)
Rule 801(d)(1)(C)
1. The witness/declarant testifies at the trial or hearing;
2. She is subject to cross-examination concerning the statement; and
3. The statement identified a person after the witness/declarant perceived that person (not
under oath);

Two kinds of statements that constitute ID:

● (1) Descriptions (if only partial) of the person the declarant observed on a particular
occasion, or set of occasions, such as a description to a police officer; or
● (2) Statements that a particular person is the one that the declaran observed on a
particular occasion, such as ID at the lineup

United States v. Owen (1988)

● Correctional counselor attacked by an inmate and smashed in head - in hospital when
talking to FBI investigator he was able to identify the attacker - but he could not recall
any other visit to the hospital or any other encounter
● ISSUE: "Whether Rule 802 bars testimony concerning a prior, out-of-court identification
when the identifying witness is unable, because of memory loss, to explain the basis for
the identification"
● "The Confrontation Clause is generally satisfied when the defense is given full and fair
opportunity to probe and expose these infirmities through cross, thereby calling to the
attention of the factfinder the reasons for giving scant weight to the witness' testimony"
● Memory for faces will fade - people do not look the same for 5 years in a row - important
to get these initial observations in
o What matters here is that D is allowed to cross examine
o Even if witness may not remember, fact that D gets opportunity to ask questions
and person responds is enough
● Brennan DISSENT: Victim's memory precluded any inquiries about his bad memories
You can bring in someone else to state what identification someone else made (if they are there
testifying)

Problem 7.21 pg. 473

● Only let in "kids dad" possibly. She knows him, so a lot of the rationales for this rule
 don't necessarily apply (identifying someone you don't know)
● Doesn't have to be a formal observation of declarant seeing person and identifying them,
statement identification OK as well

8) The Rule Against Hearsay: Exceptions – Declarant Unavailable: FRE 804(a), 804(b)(1):
Fisher 475-488 FRE 804(b)(3): Fisher 489-495
FRE 804(b)(2): Fisher 499-503
FRE
804(b)(6): Fisher 505-510

Rule 804
(a) Unavailability
1. Exempted from testifying due to privilege
2. Refuses to testify despite a court order
3. Testifies to not remembering
4. Can't be present because of death or then-existing infirmity, physical illness or mental
illness
5. Absent from the trial or hearing and the statement's proponent has not been able, by
process or other reasonable means to procure attendance
○ (A) the declarant’s attendance, in the case of a hearsay exception under Rule
804(b)(1) or (6); or
○ (B) the declarant’s attendance or testimony, in the case of a hearsay exception
under Rule 804(b)(2), (3), or (4).
Subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the
declarant's unavailability in order to prevent him/her from testifying

EXCEPTIONS (b)(1) Former Testimony

● If (A) a witness testifies at a prior trial/hearing/deposition and is now unavailable
● Then (B) her/his testimony is admissible AGAINST a party if that party, or, in a civil
action, a predecessor in interest, had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination
● i.e. testimony must be equally important, and stakes must be the same/similar for
similar motive to exist

Problem 7.22 pg. 474

● Wanted to get a transcript of her grand jury testimony because she refuses to testify -
unavailable under 804(a(2))
● (b)(1) won't be able to come in because no opportunity to cross-examine at the grand jury
hearing (defense counsel not even present)
Problem 7.23 pg. 475
● Accident with head injury, civil suit cross examination, unavailable due to the head injury
at trial
● Most likely unavailable due to infirmity
● (b)(1) - different stakes at criminal trial

United States v. Duenas (9th Cir. 2012) pg. 477

● Officer Smith was killed by a drunk driver before the trial. The district court concluded
that Smith's testimony was "former testimony" under 804(b)(1) and allowed an Agent to
 read portions of Smith's suppression hearing testimony to the jury
● ISSUE: Whether Ray had the "opportunity and similar motive" to develop Officer
Smith's testimony by direct, cross, or redirect examination at the suppression hearing as
he would have had at trial
● The "similar motive" analysis is "inherently a factual inquiry" based on "the
similarity of the underlying issues and on the context of the questioning
● Ray motives at hearing different from those at trial, so hearsay inadmissible
● Motive at suppression hearing: demonstrate that his statements were involuntary
and obtained in violation of Miranda and thus inadmissible
● Motive at trial: challenge the substance of the statements as opposed to the
circumstances

Lloyd v. American Export Lines, Inc. (3d. Cir. 1978) pg. 483
● There was a Coast Guard hearing to determine whether Lloyd's license would be revoked
on the basis of charges of misconduct against him for the fight with Alvarez - both sides
were represented by counsel and testified under oath
● Lloyd unable to attend subsequent trial with Alvarez due to the nature of his job as a
merchant
● ISSUE: Did Alvarez or a "predecessor in interest" have the "opportunity and similar
motive to develop the testimony by direct, cross, or redirect examination as required by
804(b)(1)
● There was sufficient community of interest share by the Coast Guard in its hearing
and Alvarez in the subsequent civil trial to satisfy the rule (the basic interest advanced
by both was that of determining culpability and exacting a penalty for the same
condemned behavior → common nucleus of operative facts)
● The previous party having like motive to develop the testimony about the same material
facts is, in the final analysis, a predecessor in interest to the present party

Note → at least as to criminal cases, Rule 804(b)(1) neither states nor implies that it is sufficient
that another party with similar interests cross-examined the witness at the prior trial
● still may introduce such evidence in criminal case under Rule 807
804(b)(3) Statement Against Interest
● (A) A statement is admissible if a reasonable person in the declarant's position would
have made it only if the person believed it to be true because when made it was so
contrary to declarant's proprietary or pecuniary interest, or had so great a tendency to
invalidate the declarant's claim against someone else, or expose the declarant to liability;
and
● (B) statement against interest must be supported by corroborating circumstances that
clearly indicate its trustworthiness, if offered in criminal case as one that tends to expose
declarant to criminal liability
o Applies only in criminal case where declarant is exposed to liability

Williamson v. United States (1994) pg. 489

● Harris caught with cocaine is his trunk - Harris initially lied about his drug transaction
but then admitted that he lied and freely implicated himself and that he lied because he
was afraid of Williamson.
 o He did not sign a written version of the statement and subsequently refused to
testify
● "We see no reason why collateral statements, even ones that are neutral as to interest,
should be treated any differently from other hearsay statements that are generally
excluded"
o Only things that are self-inculpatory have that additional reliability
● 804(b)(3) does not allow admission of non-self-inculpatory statements, even if they
are made within a broader narrative that is generally self-inculpatory. This is
especially true when the statements implicate someone else
o self-serving statements = viewed unfavorably for admission
● Have to look at statement piece by piece and context in which it was made
● Note → NOT co-conspirator statement here, since such statements must be made in
furtherance of conspiracy (which was already over here)

Problem 7.24 pg. 489

● Brinks truck robbed by a man and woman. Mom said did you rob that truck, son said
"Ask Magnolia. It was her idea." At joint trial prosecutor seeks to offer evidence of this
conversation against both defendants
o Trying to shift blame to someone else
o Being tried together
● Might have to sever the trials
▪ Statement is too prejudicial (inculpates son but too prejudicial
against Magnolia

804(b)(2) Dying Declarations

● A statement is admissible in a prosecution for homicide or civil proceeding
o If it was made by a declarant
o While believing his/her death was imminent
o And if it concerned the cause of what the declarant believed to be his/her
impending death

Shepard v. United States (1933)

● Shepard was convicted of killing his wife (putting mercury in her liquor bottle)
● When she was in bed sick, she said to a nurse that "Dr. Shepard has poisoned me"
o When she made the statement it seemed she was getting better, didn't die for
another period of time
● There was a failure to make out the imminence of death and the abandonment of hope
"the consciousness of a swift and certain doom"
● Another issue not ruled on - she didn't have any evidence that he poisoned her - there
needs to be personal knowledge on her behalf

Unavailability rules
● (b)(1) Former testimony: given at a proceeding and party against whom its offered or a
predecessor in interest had the same opportunity and motive to cross and develop the
testimony
● Difference from 801(d)(1) is that declarant is unavailable
 ● (b)(3) Statement against interest: would expose to criminal liability or is so against
financial interest that wouldn't have said it unless true
● Difference from 801(d)(2) is that declarant need not be an opposing party
● (b)(2) Dying Declaration: must be about the cause and circumstances of death and while
declarant believes he/she is in the hush of impending death.
● Only in civil and homicide

804(b)(6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s
Unavailability
● A statement is admissible if offered against a party that wrongfully caused - or
acquiesced in wrongfully causing - the declarant's unavailability as a witness
o And did so intending that result

United States v. Gray (4th Cir. 2005)

● She is trying to kill her husband - husband says that wife’s lover waved a gun at him and
that she tried to stab him - he takes legal action against her and he was discovered dead
one week before the trial. She argues that she did not render him unavailable for this trial
(it wasn't happening at that trial) just wanted him out of other trial
● 804(b)(6) applies whenever the defendant's wrongdoing was intended to, and did,
render the declarant unavailable as a witness against the defendant, without regard
to the nature of the charges at the trial in which the declarant's statements are
offered (no particular trial)
● Defendant will not be permitted to avoid the evidentiary impact of statements made by
her victim, whether or not she suspected that the victim would be a witness at the trial in
which the evidence is offered against her

9) Hearsay – Declarant’s Availability Immaterial: FRE 803(1)&(2): Fisher 510-511
FRE

803(3): Fisher 515-519, 520-522, 522-531 (optional) FRE 803(4), 612: Fisher 532-536
FRE
803(5), 613: Fisher 543-548
FRE 803(6)(7): Fisher 548-555
FRE 803(8): Fisher 562-569

Rule 804(b)
● (1) former testimony
● (2) Dying declarations (need to die and stay dead)
● (3) Statement against interest (against interest at the time they were made)
● (6) Forfeiture by wrongdoing (doesn't have to be at any specific trial)

Rule 803
● Hearsay statements admitted regardless of whether the declarant is unavailable as a
witness
o 803(1): Present sense impressions
o 803(2): Excited utterances
o 803(3): Then existing state of mind
o 803(4): Made for medical diagnosis/treatment
 o 803(5): Recorded recollection
o 803(6): Records of a regularly conducted activity
o 803(7): Absence of entry in regular record

Rule 803(1) Present Sense Impression

● A statement describing or explaining an event or condition, made while or immediately
after perceiving the event

Rule 803(2) Excited Utterance

● A statement relating to a startling event or condition, made while the declarant was under
the stress of excitement that it caused (requirements underlined)
● Note → “on occasion the only evidence may be the content of the statement itself, and
rulings that it may be sufficient are described as "increasing," and the prevailing practice

Differences
● Excited Utterance - statements that relate to event, but need not describe (must be
prompted by startling event)
● Less of a temporal requirement → if unconscious from injury, wake up hours
later and immediately say something, could be excited utterance
● Present Sense impression: doesn't require stress, limited to describing or explaining (but
doesn't necessarily have to relate like the utterance does)
● Stronger temporal requirement here (contemporaneous)

Rule 803(3) Then-existing mental, emotional, or physical condition

● A statement of the declarant's then-existing
o State of mind (such as motive, intent, or plan) or
o Emotional sensory, or physical condition (such as mental feeling, pain, or bodily
health),
● But not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the validity or terms of the
declarant's will
● Note →
o Statements of belief outside this exception if their relevance depends on their use
to prove the fact believed is true
o Statements covered by exception if a speaker’s possessing that belief is relevant
independent of whether the belief is true

Mutual Life Insurance Co. v. Hillmon

● Letters are an impression of Walters then state of mind
● Yes. The letters were the natural proof of Mr. Waters’ intention to travel from Wichita to
Crooked Creek with Mr. Hillmon on a certain day. The letters were admissible as
evidence of the fact that he had the intention of going from Wichita and of going with
Mr. Hillmon.
● Discussion. The statements are admissible to show the then state of mind of Mr. Waters,
and to show his intent to do certain acts. These things are not provable by any other
 testimony, as Mr. Waters himself is unavailable to testify at trial.
● Can't be in the past (has to be "then-existing")

Shepard v. United States

● This opinion limits the Hillmon doctrine to state of mind evidence that looks
forward. A statement that looks backward is a statement of opinion based in memory
and does not contain the required indicia of reliability that would be required of an
exception to the hearsay doctrine.
● Statement on Future act OK

803(4) Statements for the purpose of medical diagnosis or treatment

● A statement that:
o Is made for - and is reasonably pertinent to - medical diagnosis or treatment AND
o Describes medical history; past or present symptoms or sensations; their
inception; or their general cause
● Note
o Under FRE, applies even in instances where declarant doctor testimony used
when no treatment is expected (i.e. testimony from doctor used to prove
malpractice)
o Need not be statements by doctor, but anyone involved in providing healthcare
o Typically, specific identification of source of injury not allowed except in certain
situations (see hypo below)

United States v. Iron Shell (1981)

● First, is the declarant's motive consistent with the purpose of the rule; and second, is it
reasonable for the physician to rely on the information in diagnosis or treatment
● It is important to note that the statements concern what happened rather than who
assaulted her
● All of her statements were within the scope of the rule because they were related to
her physical condition and were consistent with a motive to promote treatment

Problem 7.34
● (1) The lawyer's testimony that Browning said he had fallen and hit his head (NOT
coming in under 803(4))
● (2) The doctor's testimony that Browning said he had fallen and hit his head (YES)
● (3) The doctor's testimony that Browning said Maples had pushed him (NO Build up)
Problem 7.35
● Boy with broken arm - doctor asked what happened and boy says he was playing with
father's records and got it dirty, then father twisted his arm
o Only father twisting his arm should come in (not motive)
o When have cases with vulnerable people, part of treatment is removing person
from abusing party, so identification of father here allowed
● Dad said he slapped his kid (admission against his own interest → 801(d)(2) if available
or 804(3) if not)

Rule 803(5)
 ● Recorded Recollection
o A record that
● Is on the matter the witness once knew about but now cannot recall well
enough to testify fully and accurately
● Was made or adopted by the witness when the matter was fresh
● Accurately reflects the witness's knowledge
o If admitted, the record may be read into evidence but may be received as an
exhibit only if offered by an adverse party.

Rule 612
● Adverse party may use writing to refresh witness's memory

Johnson v. State (1998)

● The predicate for past recollection recorded requires that four elements be met:
o (1) the witness must have had firsthand knowledge of the event;
o (2) the written statement must be a memorandum made at or near the time of the
event while the witness had a clear and accurate memory of it;
o (3) the witness must lack a present recollection of the event, and;
o (4) the witness must vouch for the accuracy of the written memorandum

Rule 803(6) Records of a regularly conducted activity (business records)

● A record of an act, event, condition, opinion, or diagnosis if:
o The record was made at or near the time by someone with knowledge (does not
require involvement as participant on makers part)
o The record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling
● Record contents must be important to conduct of business
o Making the record was a regular practice of that activity
o All the conditions are shown by testimony of a qualified witness AND
o The opponent does not show that the source of info or the method of preparation
indicate a lack of trustworthiness (source need not be specifically identified by
proponent)
Rule 803(7) Absence of a Record of a Regularly Conducted Activity
● Evidence that a matter is not included in a record described in paragraph (6) if:
○ (A) the evidence is admitted to prove that the matter did not occur or exist;
○ (B) a record was regularly kept for a matter of that kind; and
○ (C) the opponent does not show that the possible source of the information or
other circumstances indicate a lack of trustworthiness.
● i.e. if no entry in records, can use that fact to prove that thing trying to assert did not
happen, if meet (B) and (C)

Video
● Nurse says, "I asked her when she last ate and the patient answered, one hour ago" -
pertinent to medical treatment/diagnosis (being used to prove matter asserted)
● Nurse is nowhere to be found. Patient has died. Want to introduce record to prove when
the patient last ate.
 o 803(6) - record that is taken normally in business

Palmer v. Hoffman (1943)

● Newly weds killed by train (claim they didn't hear a whistle)
o Engineer on train claims that the light was on and that they blew the whistle
● The engineer died before the trial and the train company tried to get his documentation in
under 803(6) as documentation taken in the normal course of business
● The reports were not made for the purpose of railroading - it was made for its use in
court and for litigation generally
● Furthermore, an employee of a company potentially facing liability does not indicate
trustworthiness

Rule 803(8)
● Public Records
o A record or statement of a public office if:
● (A) It sets out
▪ (i) The office's activities
▪ (ii) A matter observed while under a legal duty to report BUT NOT
in a matter observed by law enforcement in a criminal case
▪ (iii) In a civil case or a criminal case against the gov't, factual
findings from a legally authorized investigation
● (B) Neither the source/circumstances suggest lack of trustworthiness

Beech Aircraft Corp. v. Rainey

● Under 803(8)(A)(iii), portions of investigatory reports are not inadmissible merely
because they state a conclusion or opinion
o Advisory committee did not mention dichotomy b/t statements of fact and
opinions/conclusions
o Rule states “factual findings from reports,” not just “factual findings, so could
encompass opinions/conclusions
● Thus a trial judge has the discretion, and indeed the obligation, to exclude an entire report
or portions thereof, whether narrow "factual" statements or broader "conclusions" that
she determines are untrustworthy
● Factors of advisory committee relevant to determining whether such reports are
admissible (pg. 568 FN 11)
o 1. Timeliness of the investigation;
o 2. The investigator’s skill or experience;
o 3. Whether a hearing was held; and
o 4. Possible bias when reports are prepared with a view to possible litigation
● Rather than requiring that we draw some inevitably arbitrary line between the various
shades of fact/opinion that invariably will be present in investigatory reports, we believe
the rule instructs us - as its plain language states - to admit reports setting forth
factual findings (includes facts, opinions, and conclusions as long as they are
trustworthy)
o Distinction from 803(6) exception
FRE 807 Residual Exception (not used a lot, but essentially a catch all)
● (a) In General. Under the following circumstances, a hearsay statement is not excluded
by the rule against hearsay even if the statement is not specifically covered by hearsay
exception in Rule 803 or 804:
○ (1) the statement has equivalent circumstantial guarantees of trustworthiness
○ (2) it is offered as evidence of a material fact
○ (3) it is more probative on the point for which it is offered than any other evidence
that the proponent can obtain through reasonable efforts; and
○ (4) admitting it will best serve the purposes of these rules and the interest of
justice
● (b) Notice
○ The statement is admissible only if, before the trial or hearing, the proponent
gives an adverse party reasonable notice of the intent to offer the statement and its
particulars, including the declarant’s name and address, so that the party has a fair
opportunity to meet it
● Note →
○ Can use whether or not declarant available
○ To comply with requirements, proponent must compare reliability of offered
evidence with typical reliability of evidence covered by specific exceptions
○ Other evidence reflecting "equivalent [to the other traditional Hearsay exceptions]
circumstantial guarantees of trustworthiness” may be needed if the statement itself
does not reflect

10) The Confrontation Clause: Fisher 586-608, 617-625, 627-643

The Confrontation Clause

● "to be confronted with the witnesses against him" - Sixth Amendment
● Only applies to criminal cases (NO CIVIL)
● Only bars TESTIMONIAL out-of-court statements, unless x-exam available or
previously available
● Dying declarations trump CC issues (dicta)

Ohio v. Roberts (1980) - OLD RULE

● Declarant has to be unavailable - "the prosecution must either produce, or demonstrate
the unavailability of the declarant whose statement it wishes to use against the defendant
● Reliability - hearsay statement "is admissible only if it bears adequate 'indicia of
reliability."

Crawford v. Washington (2004)- RULE

● At his trial, the State played for the jury Sylvia's (Wife of Crawford) recorded statement
to the police describing the stabbing, even though he had no opportunity for cross-
examination
● There was a controversy over whether Lee (stabbed by Crawford) in self-defense because
while he claimed to see him reach for something the wife testified that she saw nothing in
 his hand at the time of the stabbing
o Not testifying due to marital privilege (804(a)(1))
o Out of court statement against criminal defendant (Crawford)
● Where testimonial evidence is at issue, the Sixth Amendment demands unavailability
and prior opportunity for cross-examination
o If hearsay "testimonial" it is only admissible under the confrontation clause if (1)
declarant takes the stand at trial or (2) if declarant is unavailable and the
Defendant had a chance to cross at an earlier time
● "Testimonial" - Statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for use at a
later trial

After Crawford
● Confrontation Clause does not bar admission of an out-of-court statement against a
criminal defendant if:
o Not offered for its truth
o Declarant appears for cross-examination
o Declarant unavailable AND was chance for Defendant to cross-examine
previously
o Defendant forfeited right by wrongdoing
o Maybe dying declaration?
● Nontestimonial Statements Include:
o Casual remarks
o Offhand, overheard remarks
o Statements in furtherance of conspiracy
o Some business records
● Testimonial Statements Include
o Solemn declarations made to establish a fact
o Prior testimony at a preliminary hearing, before a grand jury, or at a trial
o Statements produced with the involvement of gov't officer with an eye toward
trial
● Crawford court made clear that CC offers no protection against unreliable no-testimonial
hearsay
o DPC of 5th and 14th amendments may bar unreliable hearsay separate from CC
● Rule of forfeiture by wrongdoing bars CC protection
o i.e. killing victim forfeits right to cross-examine him/her
o Wrongful agency in keeping victim from testifying enough to trigger forfeiture
● Need not show purpose in killing, etc.
o Rationale → no one should profit from his own wrongs (equitable)

Giles v. California
● Constitutional doctrine of forfeiture by wrongdoing requires a showing that the defendant
acted with the purpose of preventing the declarant from testifying (acting with specific
intention)
● Takes away CC protection, while 804(b)(6) takes away possible hearsay
objections
Analyzing Davis Call
● When did it start being testimonial?
o Maybe when she said he is starting to run
o Maybe when she says answer my questions
o Need to see when questions become more structured

Michigan v. Bryant (2011)

● Whether the Confrontation Clause barred admission of Covington's statements made to
police while he was bleeding in a parking lot
● Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency.
● They are testimonial when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal prosecution
● The test used by the court is the “primary purpose test.” Under this test, the court
must consider the circumstances of the encounter, the questions and statements of the
participants, and their actions and ultimately determine the primary purpose of the
interrogation, as viewed by reasonable participants at the time (objective totality of the
circumstances)
● Scalia dissents about "reliability" and thinks it was clearly testimonial
● Ginsberg Dissent: Agrees with Scalia but says that dying declaration could come in (but
it wasn't argued so she doesn't go into it)

Primary Purpose Factors (Bryant, Davis, Crawford)

● Statement is testimonial when
o Describes past events instead of events while happening
o No ongoing emergency (consider nature of assault, weapon type, assailant at
large)
o Statement needed to determine what happened not resolve emergency
o Procured for primary purpose of creating substitute for trial testimony
o Indicia of formality (consider calm circumstances, declarant away from suspect,
stationhouse, custody following Miranda) → Thomas puts big emphasis on this
o Recorded by interrogator
o Structured series of questions

How CC interacts with what we know about hearsay

● No statement → no CC and no hearsay problem
● If not offered to prove truth of matter asserted → no CC and no hearsay problem
● Civil case → no CC problem
● Admission of a party opponent or representative → no CC problem (already party)
● Criminal case
○ 804(b)(1): former testimony → no CC problem: declarant is unavailable but D
got to x-examine at prior proceeding
■ Satisfies both hearsay exception and CC
 ○ 804(b)(2): dying declarations → almost certainly not covered by CC
■ Not said by court, but dicta
○ 804(b)(6): forfeiture by wrongdoing → D forfeits rights under CC and hearsay
■ Giles
○ 803 Exceptions → no CC problem as long as declarant testifying
○ 804(b)(3): Statements against interest → possible CC problem
○ 803 Exceptions when declarant unavailable → possible CC problem

11) The Confrontation Clause Cont’d: Fisher 646-658, 660-677 FRE 703, 705: Fisher 783-
791
Bullcoming v. New Mexico
● Principal evidence against Bullcoming was a forensic laboratory report certifying that his
BAC was well above the threshold for DWI
● The prosecution did not call the analyst who signed the certification but instead called
another analyst who knew the testing procedures but did not take part in the specific
testing
● ISSUE: Whether the Confrontation Clause permits the prosecution to introduce a forensic
laboratory report containing a testimonial certification - made for the purpose of proving
a particular fact - through in court testimony of a scientist who did not sign the
certification or perform or observe the test reported in the certification
● HOLDING: The accused's right is to be confronted with the analyst who made the
certification, unless that analyst is unavailable at trial, and the accused had an
opportunity, pretrial, to cross that particular scientists
● Reasoning/Analysis
o When the State elected to introduce Caylor's certification, Caylor became a
witness Bullcoming had the right to confront
o "To determine if a statement is testimonial, we must decide whether it has a
primary purpose of creating an out-of-court substitute for trial testimony"
● These are state labs that work for the police that are prepared for trial
● Kennedy Dissent
o This should be enough, requiring the State to call the technician who filled out a
form and recorded the results of a test is a hollow formality (too burdensome on
criminal justice system to require)

Williams v. Illinois
● ISSUE: Whether prosecutor could call the expert who matched the DNA report to
Williams' profile and relied on the DNA report without calling the analyst who did the
initial DNA report
● Although the prosecutor never entered Cellmark's DNA report in evidence or showed or
read it to the judge, Williams claimed on appeal that Lambatos's expert testimony about
Cellmark's tests violated his confrontation right
● Plurality Alito: The CC does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted - here, experts just relied on
report in making their opinion, not on its truth
o Expert here relying on report to draw own conclusions
 o Commonly accepted practice for experts to rely on another’s data
o Other evidence establishes truth of facts here, DNA itself is sound evidence, and
chain of custody in data strong
● Dissent Kagan: Because scientific testing is only as reliable as the people who perform it,
the accused may wish to ask the analyst a variety of questions
o Same as Bullcoming: the testimony of the surrogate analyst and the surrogate's
availability for cross cannot satisfy the defendant's right to confront the analyst
who performed the tests and wrote the reports
● Justice Thomas: Things that are sworn are formal - most narrow view of the
confrontation clause

Confrontation Clause RECAP

● Statements not implicating the confrontation clause
o Statements not offered for their truth
o Statements offered in civil cases or against the prosecution
o Etc.
● Testimonial Statements
o Solemn declarations made for the purpose of proving some fact
o Formalized testimonial materials
● Affidavits, depositions, prior testimony or confessions
o Statements involving government officials in the production of testimony with an
eye toward trial(?)
o Statements that do "precisely what a witness does on direct examination" (?)
● Nontestimonial
o Casual and offhand remarks
o Ongoing emergency
o Co-conspirators' statements in furtherance and during conspiracy
o Some business records
o Statements by children to teachers or others where no reason for child to have
testimonial purpose (Ohio v. Clark)
SCOTUS view of Confrontation Clause
● Crawford established approach when CC applies
o Whether a statement is testimonial or not
● Justice Thomas
o Testimonial nature depends on formality or solemnity (outlier)
● Justice Scalia, Ginsburg, Sotomayor, Kagan
o You need to look at the primary purpose of the statement - Was it made to
establish with an eye toward establishing past events? In preparation for a
criminal proceeding?
o Look at perspective of speaker and 911 operator (except Scalia who says only
speaker matters)
● Justice Alito, Kennedy, Roberts, Breyer
o Explanation for why something is testimonial seems to go back to a reliability
standard (Ohio v. Roberts)
o “Indicia of reliability” → fall under firmly rooted hearsay exception?
Ohio v. Clarke (2015)
 ● While gf was gone, D dropped off her son at school. Teacher noticed blood in the boy’s
eye and then got the boy to ID D as the person who hit him
○ School reported pursuant to Ohio mandatory reporting law
○ Social worker took boy and girl to hospital the next day where two were
questioned by social workers, detectives, and relatives
● Pre-trial competency hearing boy was found incompetent to testify
● Trial court rejected D motion in limine to exclude boy’s out-of-court statements, and jury
convicted D
○ Ohio had hearsay exception for statements by children under 12 alleging abuse
● SCOTUS found admission of statements did not violate CC, with all 9 agreeing on
outcome, but not reasoning
● Alito (Majority)
○ Neither child not teachers had primary purpose of assisting in D’s prosecution
■ Spoken in context of ongoing emergency (danger if child returns home)
■ Informal and spontaneous conversation
■ Teachers not characterized as part of state law enforcement system, and
would have reported regardless of mandatory reporting law
○ CC does not bar every statement that satisfies primary purpose test
■ Refers to forfeiture doctrine and admission of dying declarations
■ Primary purpose test necessary, but not always sufficient, condition
for the exclusion of out-of-court statements under CC
○ Statements made to someone who is not principally charged with uncovering and
prosecuting criminal behavior are significantly less likely to be testimonial than
statements given to law enforcement officers
■ Statements by young children rarely, if ever, implicate CC b/c
extremely unlikely that child would intend statement to be substitute
for trial testimony

Note → Clark does not resolve whose intent (declarant or interrogator) more important in
primary-purpose determination, nor how to definitively analyze test

Note on Dying Declarations

● FRE hearsay exceptions says “in a homicide prosecution”
● Do not know if exception applies to attempted homicide prosecution
○ Unless attorney in case that you want it to apply
● Some states do not impose homicide requirement on dying declarations, but FRE does
● CB thinks dying declarations still safe under CC
○ Especially so if start heading back towards reliability CC standard

Bruton Doctrine
● What happens when there is an out-of-court statements that is not admissible against one
D but admissible against another D, and they are being tried jointly
● The risk that the jury cannot follow the instruction is so great and consequences to
defendant are so strong that the Court decided case as below
● RULE: In a joint trial, a non-testifying co-defendant’s admission which also implicates
the defendant is inadmissible
 ● Essentially a 403 argument → prejudice so great to D that jury ruling after
admitting such evidence would not afford him fair trial

12) Expert Testimony: FRE 702: Fisher 748-56
FRE 702, 704: Fisher 761-764, 766-771
Fisher 793-806, 847-56
EXPERT TESTIMONY
● Qualifications – Rule 702
● Proper topics – Rule 702(a) and 704
● Sufficient factual basis – Rule 702(b) and 703
● Relevant and reliable methods – Rule 702(c), Daubert, Kumho Tire

Who Qualifies as an Expert?

● Rule 702: a witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
− A) Expert’s scientific, technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue
− B) Testimony based on sufficient facts or data
− C) Testimony is the product of reliable principles and methods
− D) Expert has reliably applied the principles and methods to the facts of the case
● Problem 9.5: Horticulturist: Man’s ability to identify weed from Colombia v. the
United States
− Apply his qualifications under 702 – has a lot of experience with marijuana
− Need to see his ability to identify the source of the marijuana
− Ideal function for the jury to make credibility assessment of the expert and weigh
the evidence on the issue – conflict between two experts is what jury tasked with
resolving
− De Pianelli didn’t go to school to identify marijuana, however, he was
qualified to identify the different kinds of weed
● Standard in qualifications: Abuse of discretion for trial judges on expert judges – very
rarely will an appellate court find that there was an abuse of discretion since there is an
intentional deference
● U.S. v. Johnson
o Experts testify admissible if expert has credible experience; need not have
specific qualifications (here smoked and sold a lot of weed, so knew)
o Intro of expert testimony does not foreclose issue from consideration by jury
▪ Jury can choose to not believe expert
▪ Opposing party can introduce adverse expert to counter other experts
testimony
▪ Up to jury to decide who is more credible
● Jinro American v. Secure Investments: Expert’s credentials and whether he was
qualified
− Expert was making anecdotal statements to personal experience – seems that the
majority does not like the testimony that the expert gave and that it was reciting
stereotypes
o Generalized rather than first-hand knowledge of Korean business practices
 − Need for link between experience and credentials (702) and the testimony that
the expert gives
− Rule 403 balancing played a role here – nexus wasn’t there because the court
did not like the tone of the testimony and thought it was unfairly prejudicial
o Testimony that is based on propensity and court does not like that –
the court can blame it on Rule 403
● General notes on experts:
− Courts are aware that juries tend to give deference to experts in that it carries a lot
of weigh so courts will consider that when doing a 403 balancing analysis
− Experts have special powers to testify on hearsay information and offer opinions
● Problem 9.6: Drug Argot: Whether court was right to in allowing the expert to testify?
− First consider, do we even need an expert here or was the testimony simply so
obvious that an expert was not needed?  Layperson would NOT know what this
means in this context
− Then look to expert’s qualifications?  YES he seems qualified
− Nexus between expert and testimony?  Direct link between what kind of work
he was in, through the wiretaps, and the experience to show he was qualified to
translate wiretap

What’s a Proper Topic?

● Not looking for experts on common knowledge – want to assist trier of fact, not
improperly influence decision
● Problem 9.7: Confusion: Whether the trademarks create a likelihood of confusion?
− Ridiculous claim that these words sound alike and laypersons are qualified to
make that determination on their own – easily evaluated by common knowledge
− Allowing the expert would influence the finder of fact in a way that is
inappropriate
− Good case to show when expert will not assist trier of fact and therefore
inadmissible
● Problem 9.8: Housing Ads: Expert to testify about how advertising sends message to
target market
− Does average layperson understand how marketing sends messages?
o Expert probably has specialized knowledge in sociological issues, but the
trier of fact does not really need assistance in this effect of racial
o If expert says that the ad is part of a rigorous process trying to be off
putting, the lay jury could possibly not get there without the expert
− Closer than match v. macho scenario

Rule 704
● Rule 704: Opinion on an ultimate issue
− A) In general – not automatically objectionable just because it embraces an
ultimate issue (conclusion)
o Ultimate issues are facts that the fact finder must determine (opinions
that would merely tell jury what result to reach are forbidden)
− B) Exception – in a criminal case, an expert witness must NOT state an opinion
about whether the defense did or did not have a mental state or condition that
 constitutes an element of the crime charged or of a defense. That is for trier of fact
alone.
● An expert’s opinion, if not governed by Rule 704(b), may bear on an ultimate issue
unless it tells the jury what result to reach
o Triers must draw requisite inference on their own made from expert testimony
● Ex to 704(a): saying a product has a defect in a product liability case is an opinion
● Ex to 704(b): expert can say victim died from gunshot wound to head, but COULD NOT
say that the victim died from murder in the 2nd degree
● Problem 9.10: Defendant’s Intent: Was trial judge right to admit chemist’s opinion?
− Appropriate topic for chemist expert to explain – not lay knowledge
− Then ask whether it crosses the line from 704 – “possessed with intent to
manufacture” is over the line because the expert is offering opinion on legal term
of art “intent”
o Also, inadmissible because expert judging credibility of D’s testimony
o improper for this → invading province of jury
● Hygh v. Jacobs: Whether the testimony of Professor Cox, who offered evidence that use
of flash increased risk of injury and Def acted in a way using force with potential to kill,
invaded the province of the jury?
− Court held that Cox’s testimony was wrong in that it crossed the line of 704 in
that his definition of legal term “deadly force”
o Invaded province of judge by offering definition
o Invaded province of jury by telling them what result to reach (i.e. whether
this was deadly force)
− Court held that it shouldn’t have been allowed but there was not an abuse of
discretion because there was already evidence of excessive force
− Even if jury not misled into adopting outright legal conclusion proffered by
expert witness, testimony would remain objectionable by communicating
legal standard, explicit or implicit, to jury
● State v. Batangan: Expert in clinical psychology testifies that he believed the child
regarding the abuse.
● Court held that the testimony was not permissible
○ Supposedly expert, but he could not provide any data about area of
expertise
○ Expert in this case was testifying on child’s credibility and that job is
up to the jury/fact finders to do
State v. Guilbert
● D charged with shooting and killing of 3 people
● D contends that trial court improperly precluded him from presenting expert
testimony on fallibility of eyewitness identification testimony
● Holding → expert testimony on eyewitness ID is admissible upon a
determination by trial court that expert is qualified and proffered testimony
is relevant and will aid jury
○ Can only testify a to what factors are generally appropriate in ID, and if
factors are relevant to case at hand
● Reasons why eyewitness ID not reliable (pg. 775)
○ Memory manipulation
 ○ Perception issues
○ Cross-racial ID issues
○ Transference → confusing person seen in one context with person seen
in another
○ ID procedure issues (i.e. photo array v. lineup)
● Other ways to combat issues with IDs other than expert testimony are inadequate
(cross-exam, closing arguments to jury, jury instructions)
● Court also finds D should be allowed to present expert testimony even when
there is strong corroborating evidence of D’s guilt

What Can Expert Base Opinion On?

● Rule 703: bases of an expert’s opinion testimony
● May base opinion on facts or data
○ Personally observed
○ Made aware of
● If experts in particular field would reasonably rely on facts/data on in forming
opinion, they need not to be admissible for opinion to be admitted
● IF facts or data would otherwise be inadmissible (experts would not rely),
○ Proponent of the opinion may disclose them to jury ONLY if probative
value in helping jury evaluate the opinion SUBSTANTIALLY outweighs
prejudicial effect (high bar, reverse 403)
● Problem 9.14: Doctor’s Note: Expert testified that he has never seen a similar note and
formed opinion based on the doctor’s statement and the chart. Should the expert be
allowed?
− Could the note be introduced itself in evidence?  Note was trying to prove it for
its truth so it is hearsay so would need to find exception which could be
801(d)(2)(D) under ee/er relationship
− Could expert rely on this?  YES as long as it was made aware/if experts would
reasonably rely
● In re Melton
○ Question whether Melton likely to cause injury to himself and others
○ State trying to commit Milton, and brought in expert who said he is likely to harm
himself and others
■ Expert relied on evidence of mother’s accusation that Milton punched her
■ Mother unavailable at trial
○ Comes down to reverse 403 balancing in 703
■ Trial court admitted via limiting instruction
■ Statement admitted only to demonstrate info relied upon by the doctors in
forming their conclusion
● Rule 705: Disclosing the Facts or Data Underlying an Expert
○ Unless the court orders otherwise, an expert may state an opinion — and give the
reasons for it — without first testifying to the underlying facts or data. But the
expert may be required to disclose those facts or data on cross-examination

Reliability of Expert Testimony

● Frye test: “generally accepted as reliable” in the relevant scientific community
 ● Daubert v. Merrell Dow: to determine the standard for admitting expert scientific
testimony
− Old Rule 702: if scientific, technical, or other specialized knowledge will assist
trier of fact to understand the evidence, witness qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an
opinion
− Subject of expert testimony must be scientific knowledge → an inference or
assertion must be derived from scientific method
o Support by appropriate validation (reliable)
o Must “fit” case at hand (relevant)
− Daubert factors:
o 1) Whether technique can be tested
o 2) Whether it has been subject to peer review and publication
o 3) Known or potential rate of error
o 4) Existence and maintenance of standards controlling the technique’s
operation
o 5) General acceptance in relevant scientific community from Frye
− Preliminary assessment of reliability/relevance on judge’s part (gatekeeping role)
− Here only ask if expert is above the minimum threshold (not if someone more
qualified available)
● Rule 706: Court-Appointed Expert Witnesses
o the court may appoint any expert that the parties agree on and any of its own
choosing.
● Kumho Tire Company v. Carmichael: Pltfs arguing tire failed due to manufacturing
defect and bring expert, which Def challenged, because unreliable. 11th Circuit held
testimony fell outside Daubert. How Daubert applies to expert testimony that might be
characterized as based upon scientific knowledge but rather upon technical or other
specialized knowledge?
− Court reversed appellate holding that Daubert did not apply
o Language of Rule 702 doesn’t differentiate between scientific and
technical evidence so court still needs to do gatekeeping even if expert
coming from experience
− Court held that Daubert factors are NOT conclusive and sometimes one may not
apply (ex: pot smoking expert)
− Court ruled that tire expert was not based on any tests or tools – he was doing it
based on his visual check – court using Daubert to say that this is fraudulent
expertise and not a technical field with written reports
− Rule: If have someone coming in with technical knowledge, look to Daubert
even though all factors may not apply, but Daubert is the framework
o Rule 702 now incorporates Daubert into its language

13) Privileges: Proposed FRE 504: Fisher 934-42
Proposed FRE 503: Fisher 974-76
FRE
502: Fisher 985-992
Proposed FRE 505: Fisher 1044-1050, 1052-1058, 1060-1065

Professional Privileges
 ● Psychiatrist-patient
● (Clergy)
● Attorney-Client

Rule 501
● Privilege in general:
o Common law governs privilege unless the constitution, a statute, or rules provide
otherwise
● Civil case
o State law governs privilege regarding a claim or defense for which state law
supplies the rule of decision

Jaffee v. Redmond
● Police officer received counseling from a social worker after shooting and killing a man
when responding to a call - she is sued for excessive force
● Petitioner sought access to the social worker's notes concerning the session for use in
cross-examining Redmond
● SCOTUS recognizes psychotherapist-patient privilege here
o FRE 501 directs courts to continue development of privileges in common law
o Like other privileges, psychotherapist-patient privilege is rooted in need for
confidence and trust
o All 50 states have some type of psychotherapist privilege
o Want to encourage people to get therapy for their health, and allowing privileges
allows such conversations to happen
● Court rejects balancing approach in determining privilege in favor of absolute application
of privilege
o Need certainty for when privilege applies, or individuals would not know whether
convos are privileges and thus those convos may not happen
o Caveat FN 19 → may be situations in which privilege must give way, such as
if there is a serious threat of harm to patient or others that can be averted
● Note → No FCL physician client privilege - only needs objective info
o Some states have it with major exceptions
● Scalia: doesn't want to lose this information

Problem 11.1 (Officer threatening people through psychiatrist - psychiatrist told him his threats
would be relayed)
● Not confidential technically - he had notice that threats would be make public (also FN
19 caveat)
● No public good/ ends in protecting this kind of conversation
● Most likely not privileged
Attorney-Client Privilege
Attorney-Client Privilege
1. Belongs to client
a. Client? Anyone who consults the attorney to procure legal advice
2. Communications made to further the services offered
a. Business agent conversations with lawyer not covered (only legal advice)
 2. Confidential
a. Client waives its protection if she voluntarily discloses or consents to disclosure
of any significant part of the communication to a person outside a privileged
relationship
2. Communications
a. The communication, not the facts communicated, is privileged.

Problem 12.2
● Secretary discarded memo drafted by lawyer in trash, which was put into bag and
dumped in private dumpster on private land
● Dumpster diver trespassed for defendant and found document
● Not if you took the utmost precautions, just that you did something reasonable

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

● (a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a
Waiver. When the disclosure is made in a federal proceeding or to a federal office or
agency and waives the attorney-client privilege or work-product protection, the waiver
extends to an undisclosed communication or information in a federal or state proceeding
only if:
○ (1) the waiver is intentional;
○ (2) the disclosed and undisclosed communications or information concern the
same subject matter; and
○ (3) they ought in fairness to be considered together.
● (b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or
agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
○ (1) the disclosure is inadvertent;
○ (2) the holder of the privilege or protection took reasonable steps to prevent
disclosure; and
○ (3) the holder promptly took reasonable steps to rectify the error, including (if
applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).
● (c) Disclosure Made in a State Proceeding. When the disclosure is made in a state
proceeding and is not the subject of a state-court order concerning waiver, the disclosure
does not operate as a waiver in a federal proceeding if the disclosure:
○ (1) would not be a waiver under this rule if it had been made in a federal
proceeding; or
○ (2) is not a waiver under the law of the state where the disclosure occurred.

Williams v. District of Columbia

● DC accidentally disclosed emails about proposed termination of P in discovery packet,
and P wants to introduce emails as exhibit in trial for retaliatory termination
● Court goes through 502(b)
o 1. Inadvertent disclosure;
o 2. Reasonable steps to prevent disclosure; and
o 3. Reasonable steps to rectify error
● Court states burden on party seeking privilege to prove 502(b) inadvertent disclosure
requirements
 ● Reasonable steps not taken by DC here to prevent disclosure
o DC failed to indicate when or how review occurred, nature of reviewer’s
experience, extent of supervision of reviewer by attorney, and how DC segregated
privileged from non-privileged info (to prevent disc
● DC also did not take reasonable steps to rectify disclosure
o Only sent out one letter asking for emails back months after disclosure, and then
did nothing else
o Two years passed until brought up issue again
o "Under these unique circumstances, the District's mere compliance with Rule
26(b)(5)(B) without more, did no constitute 'reasonable steps to rectify the error.'"

Marital Privileges

Spousal Testimonial Privilege

Trammel v. United States (1980)
● His wife got caught transporting heroin, she agreed to cooperate with agents and testify
against her husband
● The district court ruled that Mrs. Trammel could testify in support of the Gov't's case
to any act she observed during the marriage and to any communication "made in
the presence of a third person; however, confidential communications between
petitioner and his wife were held to be privileged and inadmissible
● "The existing rule should be modified so that the witness spouse alone has a privilege to
refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed
from testifying
o Vesting the privilege in the witness-spouse furthers the important public interest
in marital harmony without unduly burdening legitimate law enforcement needs
● It applies in federal court

Spousal Communications Privilege

Spousal Marital
Testimonial Communications
Privilege Privilege

Apply in civil, Fed + most states: Both

crim, or both? only criminal

Who may Fed Ct: only Both (some states:

assert? witness spouse only communicating
State Ct: Varies spouse)

Survive No Yes
Marriage?
 Rationale? Marital Harmony Safe space for people
(stakes higher in to communicate
criminal cases) (protect marital
privacy)

Problem 13.2 pg. 1060

● Letter to husband wanting him to stop defrauding customers, letter retrieved after search
warrant (Wife ended up joining conspiracy after)
o Government has burden to show it wasn't confidential because they want to bring
it in
o Would say privileged, letter addressed to husband and left on counter - found in
bedroom (other private place)
● Both of them are in control of the privilege because she wrote letter to him

United States v. Rakes

● Husband and wife were in business venture, Whitey Bulger extorted them and made them
sell it - Rakes testified that he sold the store to make a profit and that no one threatened
him
● Rakes was indicted on perjury based on the testimony and he moved to suppress evidence
of conversations between him and his ex wife Julie Rakes concerning the alleged threats
and the sale of Stippos
● The privilege for marital communications would be lost to Stephen Rakes if he made the
communications in question to Julie for the purpose of carrying out a crime
o Here though, they are victims of a crime - therefore, to invoke that exception
would be to punish victims of a crime that there only participation was their
victimization
● Conversations were intended to be confidential - even though he told one person it was to
avoid debt collection, not to broadcast the information to the public which might
endanger his life

Reasons for Privilege

● Predictability
● Clear rules promote efficiency
Notes → Marital communications are presumptively confidential, BUT presumption can be
rebutted by evidence that communications were “obviously not intended to be confidential”
● i.e. communications in front of young children may be deemed confidential