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EVIDENCE OUTLINE

I. EVIDENCE LAW AND THE SYSTEM


a. Why Rules of Evidence?
i. Why Evidence Law at All?
1. Mistrust of juries ((2) Jury System)
a. Lay factfinders, Don’t want influenced badly
i. Judges are biased
ii. Rule 403 – If Evidence is Highly
Prejudicial, Can Be Excluded
1. Prior Bad Acts
2. Substantive Policies Relating to the Matter Being Litigated
a. Setting and allocating burdens of persuasion
3. Further Substantive Policies Unrelated to the Matter In
Litigation ((4) To Further a Policy External to the Trial
Practice That We Think Are Important)
a. (Usually) Privileges
i. Example:
1. Husband-Wife Privilege
b. Seek to affect behavior or quality of life outside the
courtroom
4. Ensure Accurate Factfinding (3)
a. Ensure accuracy
i. Example:
1. Authenticating Documents
b. Force Litigants and Courts to be Careful
5. To Control the Scope and Duration of Trials ((1)
Pragmatism – Parties May Want to Fight Forever (Life,
Lots of Money At Stake)
a. Example:
i. Rule of Relevance – Only Introduce
Evidence Relevant to the Point Are Trying
to Make
b. Parties may want to fight
6. Lower Tier Reasons:
a. Dispute Resolution Process
b. Acceptability of Verdicts (Article) – Society Will
Accept as Final and Move On
c. Trial’s Ritual and Theater
d. Preserve the Jury – not Protect the Jury like Before,
Jury Deliberations are Secret
b. What Happens At Trial
i. Jury Selection
1. Voir Dire
a. For Cause
b. Peremptory Challenges

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ii. Opening Statement


1. Overview of the story
2. “the evidence will show” the points made
iii. Presentation of Proof
1. Builds case
2. First: Party with the burden of persuasion
3. First: “case-in-chief”
4. Second: “case-in-rebuttal”
a. Refute what the adverse party presented during his
more recent appearance
5. Direct Examination by the calling party;
6. Cross Examination by the adverse party
7. Re-direct Examination by the calling party;
8. Re-Cross Examination by the adverse party
iv. Trial Motions
1. Court has opportunity to assess the sufficiency of the proof,
and to take the case from the jury if a reasonable person
could resolve the dispute only one way
2. Rarely granted
a. Usually if granted, to defendants in criminal cases
and defendants in civil contract suits
v. Closing Argument
1. Burden: Opens First, Closes First and Closes Last
2. Sometimes before, sometimes after Jury Instructions
vi. Instructions
1. Judge instructs the jury on the law, so that it understands
what it must decide in order to reach a verdict for either
party
2. Explain the applicable substantive principles, and allocate
and define the burdens of proof on the various issues
3. Parties draft the instructions and submit their requests to
the court before the close of the evidence
vii. Deliberations
1. Hidden
2. Reasons:
a. Protects freedom of Speech
b. Protect Jury System b/c may not survive close
scrutiny of the deliberative process
viii. The Verdict
ix. Judgment and Post-Trial Motions
1. Judgment
a. Civil
b. Criminal
2. Time Limits
x. Appellate Review

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II. RELEVANCE
a. “Relevance” – an everyday word describing factors that bear on the
decisions we make and problems we set out to solve
b. Relational – it carries meaning only in context
i. Applicable substantive law
ii. Issues that the Parties raise
c. Evidence
i. “Direct” – if accepted as genuine or believed true, necessarily
establishes the point for which it is offered
ii. “Circumstantial” – even if fully credited, may nevertheless fail to
support the point in question, simply because an alternative
explanation seems as probably or more so
d. Logical Relevance
i. Relevance and Materiality
1. Common Law
a. “Relevant”
b. “Material”
2. Federal Rules of Evidence
a. “Relevance” – evidence is relevant if it tends to
make more or less probable the existence of any
consequential fact (RULE 401)
ii. Establishing Relevance: The Evidential Hypothesis
1. “Evidential Hypothesis” – why the proof is relevant
2. Using Experiences to Predict what will happen next
a. Inductive and Deductive Logic
3. “Deductive Argument” – premises stated necessarily lead
to a particular conclusion
a. Conclusion contained in premises
b. Example:
i. All humans are mortal. Socrates is Human.
Socrates is mortal.
4. “Inductive Argument” – conclusion does not necessarily
follow from the underlying premises, but the premises
support the conclusion
a. Conclusion contains conjecture about the world that
goes beyond what is in the premises
b. Example:
i. Defendant robbed a bank.
ii. People who intend to do something likely do
it. People who state an intent likely have it.
1. Likely
iii. Notes:
iv. PROBLEM 2-A
v. Evidence is a Relational Constant
1. Need to know the underlying issues and elements of the
substantive law

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a. Legal Issues
b. Underlying Issues 
i. Liable or Not (Civil)
ii. Guilty or Not (Criminal)
c. Underlying Issues 2 UI II 
i. elements of the crime/tort/counterclaim/etc.
and defense
2. Facts
a. Passing downhill and crash occurs going uphill –
less likely Hill’s testimony
b. Speed limit sign – less likely Hill’s testimony
c. Accident happened in East bound Lane (Jay’s lane)
– R out of lane, Hill’s testimony not matter
3. Evidence to be Offered
4. Objection
5. Relevance
a. TEST: Any tendency to make a fact of
consequence either more or less probable (RULE
401)
6. Subsidiary Facts – facts that build up to that fact of
consequence
a. Cannot offer the fact of consequence (speed at time
of collision) directly
b. Must use subsidiary facts
7. Lowest possible standard to have – Any Tendency
a. Logical standard for Relevancy adopted as Legal
Standard
b. Although miniscule, Not Treated As Liberally As it
Sounds
vi. Admissibility
1. RULE 402:
2. Relevant Evidence is Admissible
a. Except: Constitution of the United States, by Act of
Congress, by these rules, or by other rules
prescribed by the Supreme Court pursuant to
statutory authority
3. Irrelevant Evidence is Inadmissible
vii. Civil Burden of Proof:
1. More Probable Than Not
viii. No Evidence
1. Directed Verdict
ix. Attorney: Drive that stretch of road!!! Look for stuff!
x. Inductive Logic = Fact – Sensitive!

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xi. Relevance As Threshold: The Standard of Probative Worth


1. RULE 401: “any tendency” to prove or disprove a
consequential fact.
2. Question: How strong does that tendency have to be?
a. One opinion : evidence has the required tendency
only if it makes the point more probably true than
not
b. Second opinion: evidence is relevant only if the
suggested inference is more probable than any other
c. Third answer: the necessary tendency requires a
standard of “legal relevancy” that is stricter than
logic and reason alone would indicate
d. Fourth answer: evidence is relevant if it makes the
point to be proved more probable that it was
without the evidence
i. Most lenient standard of all – most favoring
admissibility
3. Conclusion: Unanswerable, there is no real test
xii. Relevance In Operation: Hypothesis and Standard Applied
xiii. Notes:
xiv. Fact vs. inference
1. Direct vs. circumstantial
a. Direct – evidence, which taken as true, will prove
the outcome of a case
b. Circumstantial – whenever we have to draw an
inference, this is circumstantial evidence
2. Inferences The Other Side Will Make Of the Facts For the
Closing Arguments
3. Fight Over:
a. Facts
b. Law
c. Inferences – depends on the experiences and
common sense of the jurors
xv. PROBLEM 2-B
1. Facts: Victims of Robbery identify Carl. When the police
came to arrest Carl, Carl hid.
a. Inference: If not guilty, no reason to run
i. Or
1. Not like police,
2. Grew up in a neighborhood where
the police harass the people
b. Judge: Flight from police is generally
ADMISSIBLE since it occurs often.
c. Prove: Admission of guilt (subsidiary fact that goes
right to Underlying Issue of the case)
d. Evidence:

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i. Circumstantial 
1. Not necessarily true, have to draw an
inference =
ii. Circumstantial vs. Direct Evidence
iii. Direct Evidence:
1. witness
iv. Better? Neither, TRICK QUESTION
v. Direct: Always rests on credibility of
witness (includes confessions)
vi. Circumstantial: Inference can be really
strong (includes photographs and
surveillance)
2. Facts: Carl’s arrest was based on an outstanding default
warrant, issued two years earlier on unrelated charges.
a. Inference: Anyone would have run if had a prior
warrant
b. Judge: Equally likely for him to run for the old
warrant as for the new warrant  NOT
ADMISSIBLE
c. Sidebar: Mere argument infers that there are
facts/information there, and if it is not admissible,
have polluted the Jury (RULE 103 (c))
i. “potentially prejudice” the jury – cannot
hear it
xvi. Notes on Evidence of Attempts to Avoid Capture
1. Evidence of efforts to avoid capture
a. (1) Generally admissible in criminal trials
b. (2) Does not create a “presumption of guilt” or
suffice for conviction
i. Reasons for flight apart from guilt
1. Jury
2. Do not wish their names to appear in
connection with criminal acts
3. Arrest and Trial
4. Because they do not wish to be put to
the annoyance or expense of
defending themselves
c. (3) Open to Interpretation
i. No doubt
1. High speed chase
2. Runs when uniformed officers
approach
ii. Doubt
1. Cannot be located in his usual haunts
2. Left the environs after the crime
3. Arrested in another jurisdiction

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d. (4) Lapse of time weakens inference


e. (5) Important: jury instruction that invites the jury
to consider flight as evidence of possible guilt
i. May be reversible error if conduct cannot
support an inference of flight

xvii. Relevance Reconsidered: The Problem of Induction (pg. 67-70)


1. Problem of Induction = Problem of Relevance
2. Varieties of Inductive reasoning
a. Inductive generalization –
i. Inquirer draws an inference from a sample
of observed instances to a conclusion about
further instances
ii. Conclusion cannot be said to be certain
b. Inductive analogy
i. Using resemblances between known
instances and some aspects of the instance
under study,
1. inference that an unknown aspect of
the latter follows a known aspect of
the former
ii. Common in everyday thinking
c. Inductive inference to cause
i. Observation of an event that seems to be the
“effect” of something else, and draws an
inference that a previous event or condition
was the cause
1. Fallacy:
ii. Used in litigation
d. Inductive explanation or hypothesis
i. Hypothesis
3. The dilemma of inductive logic
a. All arguments are based on experiences from the
past, presupposes that the future will be exactly
alike
b. Habit: makes experience useful to us
4. Defense of inductive logic
a. John Stuart Mill: nature is uniform
i. Logic is circular
5. The dilemma cut to size
a. Lawlike statements vs. accidental generality
b. Lawlike: statement that is capable of receiving
confirmation from an instance of it

e. Pragmatic Relevance

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i. Prejudice and Confusion


1. RULE 401: giveth
a. Logical relevancy standard: satisfied by evidence
having even the slightest probative worth
2. RULE 403: takes away
a. Lets the judge exclude relevant evidence on account
of any “danger” described there
b. Or, any of the “considerations” set out there
i. Undue delay
ii. Waste of time
iii. Needless presentation of cumulative
evidence
c. Judge has wide discretion
d. Language favors admissibility
i. “substantially outweighed” by the various
dangers and considerations
ii. Balanced: admit the evidence
3. STATE v. CHAPPLE
a. Facts: Defendant in murder case convicted on
testimony by MS and PB. M.S. and P.B. placed
“Dee” at the scene of the crime and P.B. stated that
Dee confessed to killing Varnes. Both M.S. and
P.B. identified defendant as Dee.
b. Evidence at Issue: Admitting pictures of the
charred body and skull of the victim
c. Rule:
i. Photographs must be relevant to an issue in
the case and may be admitted in evidence
ii. May be admitted although they may also
have a tendency to prejudice the jury against
the person who committed the offense
iii. Discretion of the trial court will not be
disturbed on appeal unless it has been
clearly abused (State v. Mohr)
d. Court:
i. State v. Mohr: does not mean that
ii. Relevancy is not the sole test of
admissibility for the trial court
iii. When the offered exhibit is of a nature to
incite passion or inflame the jury
1. The court must go beyond the
question of relevance and consider
whether the probative value o the
exhibit outweighs the danger of
prejudice created by admission of the
exhibit

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2. Rule: Relevancy is not the sole test


of the admissibility of evidence;
admissibility depends, rather, on a
balancing of the various effects of
the admission of such evidence,
considered in the light of recognized
rules of law governing the
administration of criminal justice
a. RULE 403
3. Rule:
a. First: the evidence must be
found relevant
b. Second: consider the
probative value of the
exhibits and determine
whether it outweighs the
danger of prejudice
i. Examine the purpose
of the offer
iv. Uses for photographs of a corpse:
1. To prove the corpus delicti
2. The identity the victim
3. To show the nature and location of
the fatal injury
4. To help determine the degree of
atrociousness of the crime
5. To corroborate state witnesses
6. To illustrate or explain testimony,
and
7. To corroborate the state’s theory of
how and why the homicide was
committed
v. If any questions contested, either expressly
or implicitly, then the trial court may find
that the photographs have more than mere
technical relevance
vi. Have “bearing” to prove a contested issue in
the case and may be admissible aside a
tendency to create prejudice
vii. However, if the photographs have no
tendency to prove or disprove any question
which is actually contested, they have little
use or purpose except to inflame and would
usually not be admissible

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e. Holding: While the arguments establish the


relevancy of the photographs, we find that the
photographs have little probative value
i. Based on the facts of the case
ii. Unnecessary use:
1. Cumulative of uncontradicted and
undisputed testimony
2. Subject of a stipulation offered
3. Only issue to decide was whether
Defendant was “Dee,” an issue of
identification
iii. Only possible use of the photographs was to
inflame the jury

4. Notes
5. Rule 104 (a): “Preliminary questions concerning the
qualification of a person to be a witness, the existence of a
privilege, or the admissibility of evidence shall be
determined by the court, subject to the provisions of
subdivision (b). In making its determination it is not bound
by the rules of evidence except those with respect to
privileges.
a. To decide relevance, need to hear the evidence
which may not be relevant or admissible.
6. PROBLEM 2-A (revisited)
a. Facts: Object to graphic pictures of the crash on
Rule 403
i. Not Relevant Rule 401 b/c have to prove
that Husband is dead
ii. Rule 403: Although relevant, evidence can
still be excluded if unduly prejudicial
1. If a little unduly prejudicial, is still
admitted: “substantially
outweighed”
iii. What’s the Prejudice? Emotional jury not
good instead of Rational evidence
1. Should be Prepared to Point to
Which Kind of Prejudice That You
Talking About and Explain Why:
Unfairly Prejudice, Confusion of the
Issues, Etc.
b. Note: Rule 103 (a): Harmless Error Rule
i. Great deference given to Judge
ii. Original:
iii. Rule 403: Tell us so little about what
happened and causes Jury to draw

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conclusions that shouldn’t be drawing:


unfair prejudice
1. Confusion of the Issues: Jury will
think that it’s relevant b/c it’s talked
about
a. Jury: Wouldn’t think that
letting in something that
marginal and must be
important
i.  Waste of Time:
tiny probative value
c. Pictures:
i. Defense: Stipulate that R died at the scene
ii. “Stipulation” – agreement between the
parties that it’s going to be taken as true
d. Does the stipulation hurt the relevance of the
photographs?
i. Doesn’t eliminate relevancy of the photos
ii. Party is entitle not just to the facts, but to the
impact of he facts: Photos, not just Words
that he died at the scene, so long as not
unduly prejudicial
iii. Photos are less probative: cumulative an
waste of time
e. Judge: Take the stipulation and 1 out of 4/5
photographs if agree to the stipulation and want the
photographs as well
7. Rule 104 (a): Judge makes all the decisions. Can consider
inadmissible evidence in deciding relevancy.
8. Rule 403: Even if relevant, if unduly prejudicial can be
excluded.
a. Inflame passion of the jury and decide on emotional
rather than rational grounds.
9. Rule 402: Relevant evidence is admissible. Irrelevant
evidence is inadmissible.
10. Rule 401: Definition of “relevant” evidence.
11. Exceptions: Sentencing Hearings; Preliminary Hearings;
Grand Jury Proceedings
a. Do apply in Depositions
12. Motion in limine: Rule in Advance That Certain Evidence
is Irrelevant and Inadmissible.
13. Notes on Prejudice, Gruesome Photographs, and Prior
Crimes
a. (2) Defendants: often offer to stipulate to the
appearance of the scene and cause of death

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i. Prosecutors: list f points on which such


photographs bear:
1. To establish cause of death
2. To show position of the body
3. To show nature and relationship of
wounds
4. To prove viciousness of attack, and
5. So forth
b. (3) Often, the cases hold that the fact that the
photographs are “gruesome” does not mean they
should be excluded
i. Sometimes admitted because they
demonstrate atrocity
ii. “Gruesome crimes result in gruesome
photographs”
iii. Color photographs are allowed as well
c. (4) Sometimes courts exclude gruesome
photographs under FRE 403 when probative worth
is minimal and inflammatory impact is great
i. Post-Autopsy photos
ii. Photos of victim before died
d. (5-7): OLD CHIEF: didn’t cover
14. PROBLEM 2-D
a. Facts: W died from knife wound that ex-H/D gave
her. H: Argument, then W attacked ex-H/D with
baseball bat, then fell on knife ex-H/D held
b. Evidence At Issue: 2 years earlier, W stayed at
shelter for 30 days and divorced D
c. Case-in-chief:
i. Relevant: Probative value without defense
given if relatively low
ii. Prejudice:
iii. Inference:
iv. Problems:
1. Old,
2. Worry:
a. Overvalue the Evidence:
“misleading the jury”;
b. don’t really know that it was
“abuse” or that that was the
entire factual situation of why
she went to the Battered
Woman’s shelter;
c. punish for what did before.
Don’t like wife beaters
d. Judge: 99% Excluded

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e. Case-in-rebuttal:
i. Relevant: more relevant –
1. not accident but pattern of abuse,
counters particular defense
15. PROBLEM 2-E
a. Facts: Passenger in car that is rear-ended dies
when the car explodes b/c of a ruptured fuel tank.
b. Evidence: Guilty plea of other driver to counteract
the fuel tank explosion and the speed of the other
car.
i. Products Liability Test: Standard –
ii. Design Defect:
a. reasonable design for reasonably
foreseeable situation
b. Causation of the Harm

c. Evidence: 68 mph
i. Relevance: Not reasonably foreseeable,
ii. Causation “any tendency” – even though
may have 70 mph zones
iii. Prejudice: NOTHING RULE 401
iv. Even though low probative value, still no
prejudice
v. Decision: ADMITTED
d. Evidence: Guilty plea of driver of rear car
i. Relevance:
1. Caused the accident which ultimately
killed the guy, but manufacturing
defects might also be the cause of the
flames that killed the guy
2. Re-enforcing the speeding
ii. Prejudice:
1. cumulative evidence;
2. confusion of the issues – driver of
the car took responsibility for the
accident and caused it.
a. Therefore, how could the
manufacturer have caused the
accident?
iii. Decision:
ii. Limited Admissibility – Confining the Impact of Proof
1. RULE 403
a. Balance the probative worth against risks of “unfair
prejudice” or “confusion” of issues or “misleading
the jury” and admit or exclude accordingly
2. RULE 105

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a. Admit the evidence, on the point for which or


against the parties as to whom it is competent, but
give “limiting instructions” to prevent misuse on
other issues or as against other parties
3. PROBLEM 2-F
a. Facts: M and L are in a car accident. Unsure cause
of the accident.
b. Evidence At Issue: L says that whoever screws up,
“her insurance will pay” and “I’m sure my
insurance will cover it”.
c. Admissibility?
i. Relevance:
d. 2 lines of relevance:
i. Proof of Insurance
ii. Admission of Guilt
e. RULE 411: Evidence of Liability Insurance is not
admissible as evidence for negligence.
i. however, not excluded when offered for
another purpose: such as proof of agency,
ownership, or control, or bias or prejudice of
a witness.
f. Deep Pocket Concern: Insurance has a lot of
money to pay for it; doesn’t really matter who
actually did it
g. Notion that early on, bought insurance b/c you were
reckless or negligent b/c had insurance and didn’t
car about actions
h. RULE 403: Prejudice
i. Exclude: RULE 411: Too prejudicial, probative
value is small (RULE 403)
j. Let in BUT, Limiting Instruction under RULE 105:
For one purpose but not another
k. RULE 105
i. LIMITED ADMISSIBILITY
ii. “upon request” –
iii. Counsel may not want to draw the Jury’s
attention to it at all – STUCK between
PROBATIVE and PREJUDICIAL
iv. Psychologists – DON’T WORK
l. Limiting Instruction– Members of the Jury
m. If get it in, Defendant can stipulate that She made a
statement that could possibly indicate liability.
n. Redaction – Eliminate objectionable parts of the
material

4. Notes on Limited Admissibility

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a. (1) Problems in PROBLEM 2-F


i. M could not testify to part of what L said
ii. Should L’s statement be excluded altogether
under RULE 403 or admitted for a limited
purpose under RULE 105
b. (2) Must proceed that the jury will follow the
instructions
c. (3) Limited admissibility in a recurrent situation –
the criminal trial of several defendants, where the
prosecutor offers a statement by one that mentions
others
i. Often such a statement is admissible against
the person who made it, but not against
others
ii. Court: even clear limiting instruction were
not good enough, noting that the prosecutor
could sever and proceed separately against
the various defendants (BRUTON v.
UNITED STATES) discussed later
iii. Completeness – Providing Context
1. RULE 403: balance, and admit or exclude the whole
accordingly
2. RULE 106: “a writing or recorded statement”
a. Require introduction of “any other part” of the
statement that “ought in fairness to be considered
contemporaneously” with the part already offered
3. RULES 401 – 403, 611: enough authority to apply the
same principle to such other proof
4. PROBLEM 2-G
a. Facts: Lt. Cmd. Erin Ramney died in a training
aircraft that crashed while climbing. Surviving
husband, also a flight instructor, personally
investigated the plan and the scene and the records.
He wrote a detailed letter to Cmd. concluding that
the “power rollback caused the crash.”
b. Husband sues Rockwood Aircraft. Husband’s
evidence includes mainly expert testimony.
c. Rockwood claims pilot error caused the crash b/c of
the student improperly trimming the plane.
d. Evidence:
i. Husband to testify to Letter:
1. “unnecessary pressure”
2. tired and emotionally drained
ii. Husband tried to testify to Letter:
1. Conclusion:
iii. Other Counsel and Judge:

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1. Hearsay
e. Notes:
i. Misleading under RULE 106.
ii. RULE 106 – introduction of whole or
another part of the letter ought in fairness to
be admitted when only a part is introduced.
iii. Hearsay
iv. Judge: Let in
5. Notes:
a. RULE 106 – only written but under RULE 403 can
do oral and RULE 611 (a) where Judge is allowed
to control the Order of Witnesses, etc. and the spirit
of RULE 106 to get the same result.
b. Notion of Completeness:
(1) Allows to Counter Inference of Inconsistency or
Incompleteness
a. Rebuttal Function
(2) Notion of Completeness has a Trumping
Mechanism
a. Trumping Function
b. RULE 106 Trumps Hearsay Rule for the
Notion of Completeness.
(3) _________________________________
a. E.g.: Statement to Police about a Murder
– had a migraine and stayed in the House except for
Lunch when went outside and say murder.
Defendant: “only stayed in bed”.
b. Object: RULE 106 as the thing comes
to pass. MISLEADING. And, Interrupt Function:
Interrupt Party to read the rest of the statement.
Forces Opponent to Draw Out Evidence That Is
Harmful to Them.

6. Notes on the Completeness Doctrine


a. Letter:
i. Could be used against him as his admission
ii. Husband could not normally put the letter in
evidence himself, since the admissions
doctrine does not authorize one to introduce
his own statements
iii. Trumping hearsay when necessary to
provide context
iv. “The Shortness of Life”
1. Judge: can exclude evidence
a. under RULE 403 – undue delay, waste of time, or
needless presentation of cumulative evidence

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i. Limit number of witnesses called


ii. Duplicative evidence
iii. Deny requests for time to locate new
witnesses or evidence
v. The Functions of Judge and Jury
1. Judge:
a. “Admissibility”:
i. Determines questions of admissibility
1. Alone
2. RULE 104 (a)
b. “Relevancy”
i. Not the sole decisionmaker
1. Shares responsibility with the Jury
ii. Simple Relevance
1. Judge: Alone
a. Whether a particular point,
which a proffered item of
evidence concededly tends to
establish or refute, is
“consequential” within the
meaning of RULE 401.
b. Whether proffered evidence
really ahs a tendency in
reason to prove that point for
which it is offered
2. Jury:
a. “weighs” the evidence
b. RULE 104 (e)
c. Cases that go to the jury
because reasonable minds
could assess the evidence
differently and cases that
require a directed verdict
because only one outcome is
reasonable
c. Conditional relevance
i. RULE 104 (b)
1. When relevance turns on a condition
a. Judge: screening function
b. Jury:
i. When different
answer are reasonable
2. PROBLEM 2-H
a. Facts: Girl riding older brother’s bicycle when
crashed due to brake failure. Parents sued three
years later. Manufacturer’s brakes had a plastic cap

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that was supposed to be oiled. Expert wants to say


that the bike’s brakes fail today, three years after the
accident. Defendant: not in same state and
therefore not allow. Plaintiff: Other Expert: Did
experiments with it, no problem. Then in shed.
b. Object:
i. RULE 104 (a): Not relevant since not in
same condition
ii. RULE 104 (b): Conditional Relevancy –
Prove Condition b/f allow evidence
c. Any difference in the test that would occur from
two years ago and today. Mundel couldn’t say that
there was no difference, therefore case went away.
d. Judge: conditional relevancy RULE 104 (b),
choices:
(1) Overrule – not a valid conditional relevancy
objection
(2) Valid Conditional Relevancy, ask other side for
Offer of Proof to satisfy the condition
a. Satisfy, overrule objection, let testify subject
to the condition being met later on. Make
sure that evidence comes in.
(3) Valid Objection, Sustain, and Still call Other
Evidence before calling Mundel.

3. Notes (Conditional Relevancy):


4. Conditional Relevancy – if cannot satisfy the Condition,
the evidence isn’t relevant anymore
5. RULE 104 (a)  Judge is gatekeeper
a. Relevance: Personal decision
6. RULE 104 (b)  Conditional Relevancy
a. Judge is (usually) gate-opener
b. Standard – reasonable juror
7. State of the bike is the same as before 2 years ago.
a. Not relevant  RULE 104(a)
b. Condition may be important: authenticity of
documents
i. Condition of Authenticity has been met or
has not been met and will either be allowed
or not allowed into Evidence
8. Whether the Condition has been sufficiently met
a.  RULE 104 (b)
9. Reasonable people could disagree about the Authenticity,
it’s not the Judge’s Personal Decision about it:

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10. Question: Could a Reasonable Juror disagree with me


(lower standard, deferential standard, to the Jury)? If so,
then let the Contract in.
11. ***“sufficient to support a finding”***
a. Example: Mfr can ask the Judge to give an
Instruction about Conditional Relevancy
i. “Testimony is only relevant if”
b. May object to the Order: Not to let the Expert
testify until Meet the Condition
(1) Testify and Then Introduce Witness to Meet
the Condition
(2) Put the Witness to Meet the Condition
before Testify  FORCE ORDER
12. WORST: Promising a Judge to Do Something on an Offer
of Proof and Then Following Through
13. Critical: Reasonable Juror Standard (Language Not in
Rules) = sufficient to support a finder (Evidence)
14. UNITED STATES OF AMERICA v. SCARFO (Seigel’s
Supplement)
a. Facts: McNair (Witness)  traded  Jerome
Palumbo  brother  John Palumbo 
“associate” (worked for but not a member of the
Mob itself)  Nicky Scarfo
i. Gun: S & W .38c is the murder weapon
15. Allegation: NS and Nicholas Virgilio kill Helfant (Judge)
16. Gov’t: McNair’s testimony helpful? Chain of Events to
the murder weapon. (NS to MW)
17. Evidential Hypothesis: People who are connected to a
Murder Weapon are more likely to be the Murderers than
people who are totally unconnected.
a. Doesn’t Prove Guilt, but is a building block.
18. Defense: Point out long string of Inferences that tells us
Nothing. Doesn’t connect N. Scarfo to the Gun, but
another guy, Jerome Palumbo, and not relevant under
RULE 401.
a. RULE 104(a).
b. RULE 104 (b) – Conditional Relevance
c. Condition on Prove that Gov’t Meet one of the
Conditions. Is that Good? If cannot prove the
evidence later on, then GREAT!
d. RULE 403 “prejudicial”: give too much weight to
the evidence than it deserves. Connection to the
MW and Scarfo is going to have greater focus.
e. Overvalue it out of confusion – esp. during a long
trial

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f. Lying – Jerome to protect someone, especially a


brother, to John
g. John, scared of Mafia boss
h. Inferences are a little helpful
i. Footnote Question: Why footnote 1 if not ask the
Judge to change previous ruling?
i. Primary Reason – from the Offer of Proof
previous to McNair testifying
ii. Prosecutor could not keep the Promise –
Never Intentionally Mislead the Judge
iii. Lesson: Credibility

f. THE RELEVANCE OF PROBILISTIC ANAYLSIS


i. Admissibility of Statistical and Probabilistic Evidence
ii. Civil: necessary facts are more probably true than not
iii. Criminal: beyond a reasonable doubt
iv. PEOPLE v. COLLINS
1. Facts: Statistical probability that the people who robbed a
woman are the right ones. Caucasian, blonde woman and
an African-American man with a moustache and beard in a
yellow car.
2. Prosecutor: Statistical evidence about how many men
with beards and moustaches married to a girl with a
ponytail and blonde hair as an interracial couple in a car to
say that the evidence proved that the Defendants had a 1 in
12 million chance that another couple was like the
Defendants.
3. Prosecutor: “mathematical proof of guilt” that displaces
the reasonable doubt
v. Notes on COLLINS
1. Distribution: even if a particular outcome is likely to occur
half the time, it does not mean that the frequency will occur
in the same series of events or particular sample
2. DNA
a. Probability that the same characteristics are seen in
the population
vi. Notes:
1. Background: Larry Tribe may have written the Opinion.
IMPORTANT CASE.
2. “like one in a billion”  unethical
3. Not Saying that cannot use Statistical or Probabilistic
Evidence in a Trial
(1) DNA
(2) Blood Tests
(3) Fingerprints
4. Problems:

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(1) *No evidence of Foundation for the Statistical Numbers


a. Relevant Body for the Baseline? San Francisco,
California, United States, etc.
(2) Product Rule only works for Independent Variable, not
dependent variables like Beard and Mustache, when
Most men with Beards have a Mustache.
a. Failed Rule – lack of independence
(3) Misuse of what Statistic Means – “1/12M vs. 1/10”
(4) 1/12M  Probability of couple matching Testimony,
not of a Couple of That Kind of Period
a. Could be Lying which is uncaptured by the
Statistic
(5) Larry Tribe: Statistical Evidence Has the Risk of
Dwarfing Soft Variables
a. Possibility that May be Lying (Soft Variable):
Cannot put Number on That
b. Dwarfs importance of soft variables
(6) RULE 403: prejudice and confusion
(7) Distribution as well: if there’s one, then there’s more
of a chance to find another there than in another part of
the world: Scandinavia vs. L.A.
III. HEARSAY
a. What is Hearsay
i. Underlying Theory: Risks and Safeguards
1. A simple definition
2. Reasons to exclude hearsay
3. The Hearsay risks:
a. Misperception
i. Misperception of the Declarant that is then
repeated as Hearsay
ii. Cross-Examination: Courtroom Safeguards
iii. Just what Declarant said, not what heard,
saw, or external evidence to testify about
and be cross-examined
b. Faulty Memory
i. Time lapse between Witnessing the Incident
and the Issuing the Statement
c. Ambiguity (Misstatement, Faulty Narration)
i. Thinking one thing, BUT Say Another
ii. Between what was Said and what was Heard
(by L from Declarant)
iii. Inference: People Say What They Mean,
Believe What They Say
iv. Not Always True: Sarcasm, Joking

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v. Have to Take the Inference that He Said


What He Meant, and That Might Be a
Wrong Inference
d. Distortion/Deception
i. Liar: Not like Higgins, Not sure but Say It
Anyway
ii. Out of Court Statement Offered for Its Truth
1. Elements of Hearsay:
a. OOC: by the Declarant
b. Offered to prove (by party)
c. The Truth of the Matter Asserted (by Declarant)
2. PROBLEM 3-A
a. Facts: H charged with bank robbery. L is called to
the witness stand about conversations he had after
the bank robbery.
b. P said to L: “H is the one who did it”
i. HEARSAY: out-of-court statement
ii. Tending to prove or disprove the ultimate
issue in the case – whether H is the one who
robbed the bank or not
iii. In-court Testimony: P said to me that H did
it.
iv. Inference: People usually say things that
they believe. P believes that H did it. He
said that. In the absence of all other
information, if P believes that, then it is a
little more likely that H did it.
iii. Notes:
1. Hearsay is
a. an out of court statement (by the Declarant)
b. offered to prove
c. the truth of the matter asserted
2. Some hearsay is admissible, either by Exception or labeling
it “not hearsay”
3. Rule 801
(a) –(c)
(d) Exemptions
4. Rule 802: Hearsay is not admissible. Hearsay that falls
under the exemptions is admissible.
5. Rule 401: Rule of Relevancy
a. Declarant – P, person who makes a statement (Rule
801 (b))
6. Courtroom Safeguards:
1. Cross-examination
2. Demeanor Evidence – assess the demeanor in the
courtroom

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3. Oath – swear to tell the Truth


7. What about an affidavit? Under Oath and Subject to Cross-
Examination – BUT no Demeanor Evidence

b. A Closer Look at the Doctrine


i. What is a Statement?
1. Assertive Conduct
a. Examples:
i. Nodding
ii. Shaking the head
iii. Shrugging the shoulders in answer to a
question
iv. Coded signal
2. Non-assertive Conduct
a. WRIGHT v. DOE d. TAHAM***
i. Seminal case
ii. Not followed today
iii. Rule: Unintended implied assertions are
hearsay, no matter verbiage or conduct
iv. Now: depends
1. Trustworthy: not Hearsay
2. Non Trustworthy: Hearsay
b. CAIN v. GEORGE
i. Facts: Parents bring suit against motel
alleging that son died of carbon monoxide
poisoning. The motel wants to introduce the
number of guests who had made no
complaints.
ii. Declarants – guests of the hotel that stayed
in the room prior to the accident
iii. Potential Statement: No complaints
1. (Conduct that is non-assertive)
iv. Not trying to communicate anything
1. Allowed
v. HYPOTHETICAL: Assume some people
talk on way out of motel.
vi. STATEMENT: Voluntary Utterance
vii. Unintended Implied Assertion: Not
intended to communicate belief that Heater
was Working Fine
viii. Trustworthy: Not relying on one person
who walked away, but multiple people

3. Indirect Hearsay
a. Routine hearsay questions: birth date, place of
birth, parents names and addresses are hearsay

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i. Regularly accepted
ii. Technically: lack of “personal knowledge”
challenge
1. Still accepted
b. UNITED STATES v. CHECK
i. Facts: Testified to what said out of court to
a CI when CI didn’t testify. Half of a
conversation, basically so that able to get
what the other guy said without really
saying, “This is what he said”
ii. Rule: Indirect and Direct Hearsay
iii. HYPOTHETICAL: Same FBI case. BUT,
Proceeded to Location and set up
surveillance. Saw D buying white powder
substance from guy. Then we arrested.
iv. Technically, a little bit of indirect hearsay –
know to go to Location.
v. However, probative value is miniscule of
where she went.
4. Machines and Animals Speak
a. Clocks okay
b. Screen read: Hearsay
c. Usually allow animal
ii. When is a statement not hearsay?
1. Something other than truth of matter asserted  NOT
HEARSAY
2. PROBLEM 3-C
a. Impeachment
i. Cross:
1. Offered to prove impeachment  NOT
HEARSAY
a. Bystander was confused, liar:
Credibility  NOT HEARSAY
2. To Prove Truth that light green for blue
sedan  HEARSAY
b. Judge: Not Hearsay since offered for purposes of
Impeachment, Credibility
i. Relevance doesn’t depend on its truth
c. not to prove the truth of the statements, but that the
statements CHANGED
3. Notes on Impeachment by Prior Statements
a. Prior inconsistent statements
b. RULE 403: prejudicial to the jury BUT not likely
to be thrown out b/c probative value to
CREDIBILITY = Judge

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i. LIMITING INSTRUCTION: Do not


evaluate the statements as to its truthfulness,
just to the fact that the Witness changed
statements.
4. HYPOTHETICAL:
a. Verbal Act
b. Facts: A walks into bank and hands Teller note that
says: Want all Your Money, or Else. Gets Caught.
c. Note: Hearsay?
d. Not going to the Truth of the Matter Asserted 
VERBAL ACT
e. Verbal Act: Words (written or stated) that at the
moment they are uttered, they have (potential) legal
significance.
f. Words themselves are relevant. Includes Conduct
such as Nodding your Head, Shaking your head,
etc.
i. Example: Fraud words, Selling drugs,
Buying drugs, etc.
g. TEST: Eliminate the words and substitute the
illegal action. If it’s relevant, then a VERBAL
ACT
h. Speaker: Verbal Act
i. Listener: Effect on Listener
5. PROBLEM 3-D
a. Verbal Act
b. Hearsay? No – Verbal Act: Crime of Soliciting
Prostitution
6. Notes on Verbal Acts
7. PROBLEM 3-F
a. Hearsay? Agency: Yes; Reasonably:
b. Effect on Listener.
i. Mere fact that the words were uttered
sometimes changes LEGAL POSITION, but
mostly gives a LEGAL ARGUMENT
8. Notes on Effect on Listener
a. HYPOTHETICAL: Drive even though warning
label says not to on medicine bottle.
i. Hearsay? No –
ii. Effect on Listener b/c just to prove warned
the person
9. HYPOTHETICAL: Wills depend on who dies first.
Bystander testifies that heard a woman’s voice.
a. Hearsay?
b. No, b/c the point is that she had a voice and was
alive.

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10. PROBLEM 3-D


a. Hearsay? Offered for Context/Move the Story
Along. Cannot testify to half a conversation.
11. PROBLEM 3-G
a. Matchbook w/logo
i. Pure Verbal Object
ii. Don’t need to read what it says
iii. Logo
iv. Recognize it
v. If have to know what it says  potential
hearsay
1. Purpose: to advertise
a. Probably: unintended
implied assertion
b. Trustworthy: NO
HEARSAY
b. Mug from W.S.’s college w/his name on it
i. Impure Verbal Object
ii. Not hearsay, but need to read it
c. Cannot point out now; pointed in past
i. To prove connection between her and
Isom’s testimony
ii. Verbal Marker
1. verbal equivalent to a verbal object
2. just her words are the marker
iii. Need: testimony of 2 witnesses w/statement
connecting testimony of the two of them
12. Notes on Verbal Objects
13. PROBLEM 3-H
a. Facts: Wife died.
i. (1) loss of companionship
ii. (2) loss of income
iii. vs. will: hate and $1.00
b. Hearsay?
i. Circumstantial Evidence of State of Mind
1. Works ONLY when state of mind of
declarant is a fact of consequence
2. Circumstantial category- not directly
said
a. Criminal cases: Mens rea –
criminal’s state of mind
ii. Examples:
1. Divorce papers: Verbal Act
2. Disinheritance: Verbal Act

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iii. Needs to know what the Declarant’s


thinking, not external to the mind (i.e.
whether or not it is truthful or not, etc.)
14. PROBLEM 3-I
a. Facts: Girl’s description of room; never seen that
room before, or after, no one has described that
room to her before, or after. Is it hearsay?
b. Prove: More to prove that she was there, not what it
looked like. Not the truth, but the circumstantial
evidence that she recalls what the room looks like.
c. Relevance to case:
i. Not a hearsay use of the description – for the
asserted content
15. Notes on Circumstantial Evidence of State of Mind and
of Memory
a. HYPOTHETICAL
i. Bank vault code that Bank Manager says
only gave to Defendant. Defendant claims
that someone else knew it. Offers a witness
that attests that another Employee gave him
(the witness) a slip of paper with the code
written on it.
ii. Hearsay?
iii. Relevant b/c disproves theory of only two
people knowing the code. Used to prove
that someone else knew. Not the truth of the
matter asserted, but used to prove … He
remembered something that was relevant to
the lawsuit.
iv. Not to prove what the code was (separate
evidence) – people already know that, just to
prove that other people knew it.
b. Circumstantial Evidence of the State of Mind 

i. Needs to know what the Declarant’s


thinking, not external to the mind (i.e.
whether or not it is truthful or not, etc.) i.e.
“free of consequence”
c. Ought to be unusual, unique characteristic.
d. RULE 803 (3): State of Mind Exception
i. Still get it in under the State of Mind
Exception
iii. Notes:
1. Statement: Must be a statement to be Hearsay
a. If not a Statement, then not Hearsay
2. Verbiage – disagreement among the scholars

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3. Think: Oral –
a. Anything that comes out of your mouth that is a
voluntary utterance is a STATEMENT
i. Example: Questions, Commands
b. Involuntary Verbiage – NOT A STATEMENT, but
as soon as it becomes voluntary, it’s a statement
4. Conduct:
a. Assertive Conduct
i. STATEMENT with the Risks
b. Non-assertive Conduct
i. NOT A STATEMENT
ii. Not asserting anything, therefore no risks
iii. Not trying to communicate anything

CHART ON PAGE 42 OF THE SUPPLEMENT

5. Conduct
a. Non-Assertive Conduct: No Statement, No Hearsay
b. Assertive Conduct: Same Reasoning of Offered to
Prove (by party) the Truth of Matter Asserted (by
declarant)
6. Verbiage:
a. Involuntary Utterance: No Statement, No Hearsay
b. Voluntary Utterance: Reasoning of Offered to
Prove (by party) the Truth of Matter Asserted (by
declarant)
i. Directly (Problem 3-A (1) and (2))
ii. Indirectly
1. Intended Implied Assertion:
(usually) Hearsay
2. Unintended Implied Assertion:
a. WRIGHT v. DOE d.
TATHAM: Unintended
implied assertions are
Hearsay, no matter whether
verbiage or conduct
i. Now: Sometimes
Hearsay or
Sometimes Not
Hearsay
ii. Trustworthy: Not
Hearsay
iii. Not Trustworthy:
Hearsay
iv. Factors of
Trustworthiness:

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1. Acted on belief
that M was
competent
7. NOT for the truth of the matter asserted
a. Context
b. Impeachment
c. Verbal Acts
d. Effect on Listener
e. Circumstantial Evidence of State of Mind
f. Circumstantial Evidence of Memory
g. Verbal Object
8. Indirect Hearsay:
a. Routine Machine (clock, etc.)
b. Drug Dog (think don’t lie)
c. Hearsay and Nonhearsay – Borderland of the Doctrine
i. Statements with Performative Aspects
1. UNITED STATES v. SINGER
a. Facts: Envelope with the address, sent by a
landlord to tell them that they were being Evicted.
Prosecution offered to prove that the men were
associated.
b. Declarant: Landlord
c. (1) OOC: Envelope
i. Court: Analyzed as conduct. Not an
assertion, though, and therefore, not hearsay.
ii. Problem: Is it just conduct? There is
verbiage there, and therefore SHOULDN’T
be pure conduct.
iii. Undercover agent handed letter to Landlord
to mail. Is that allowed?
iv. Doesn’t know that watching Landlord, and
therefore not assertive and non-hearsay.
v. Assertion: Landlord’s belief that they lived
together at this address
vi. Intended or Unintended?
1. Intended Implied Assertion:
Hearsay, maybe, but
TRUSTWORTHY, to the postal
carrier to deliver the envelope.
2. Unintended Implied Assertion:
Delivery, not asserting to anybody.
vii. Cannot treat it simply as conduct, just at the
end in support of Trustworthiness. CHART
(under intended implied assertion)
d. (2) Eviction: Trying to accomplish an act 
LEGAL ACT

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i. Argue: Envelope with Letter is a legal act


of EVICTION, and therefore VERBAL
ACT and not hearsay.
ii. Verbal act is part and parcel of the Act.
2. Notes on Statements with Performative Acts
a. Follow Landlord to guy.
b. Telephone calls for drugs or bookmaking
3. Notes on Statements that are Not Declarative Sentences
a. Commands
b. Questions
4. PROBLEM 3-J
a. Facts: Wife lies about Husband’s whereabouts.
b. Statement: “My Husband is in Denver…”
i. It’s a lie, therefore not offering for its truth
or the truth of the matter asserted (that
Husband is in Denver)
ii. Offering for Unintended Implied Assertion
(of Husband’s guilt)
5. Notes on Lying and Hearsay
a. LIES: sometimes hearsay, sometimes not
i. Unintended Implied Assertion:
trustworthiness may decide the factor
b. Prosecutor: Elaborate lie – not off the cuff but well-
thought out and prepared.
c. Made to a cop – carries some risk if found out and
carries some risk, therefore must really want to lie
for it.
d. If made to a cop, may always be admitted against
him
e. HYPOTHETICAL
i. Facts: Don’t worry, I didn’t tell them
anything about you.
ii. Offered to Prove: Must have been
something to tell about your guilt.
iii. Declarant: A
iv. Intended or unintended? Unintended
v. Shared assumption assertion – Why would
A have to in a coded fashion, say to B, I
think that You’re guilty. In a conspiracy,
both know that the other is guilty and should
have to communicate their belief in the
other’s guilty.
vi. Trying to: assure that “took care of”
vii. Next Step: TRUSTWORTHINESS
viii. Note: Post-arrest statements of A’s belief in
B’s guilt, are not admissible.

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6. PROBLEM 3-K
a. Facts: Man charged with letting stolen airplane to
land on his airstrip that was used to pick up and
deliver drugs illegally. Bruno offers that the plane
made an emergency landing on his airstrip and
communicated that a plane was there to people.
b. Inference: If communicated that had a plane on the
airstrip, it wasn’t a big deal, i.e. illegal.
i. Offers own statements made to people.
c. Declarant: He
d. OOC Statement: I’ve got a plane on my hangar.
e. (1) Offered: To prove that not hiding anything and
therefore not guilty for anything.
f. State of Mind: Innocent.
g. Circumstantial? Yes, otherwise: I’m innocent.
h. Not being offered for direct assertion (that a plane
was there) but an implied assertion that there’s
nothing wrong going on.
i. Intended or Unintended? Unintended if truly
innocent. Intended if he’s not.
j. Since it’s a Criminal Case, may be unconstitutional
to not allow this defense by letting the judge decide
it and not the jury.
k. (2) Also, State of Mind.
7. Notes on the Significance of Disclosure
a. Relevant because of what it does, not to prove its
truth.
ii. Using Statements to Prove Matters Assumed
1. United States v. Pacelli
2. Facts: Gov’t charged P with conspiracy to interfere with
the constitutional rights of other (i.e. killed a Federal
witness, now a Federal Crime)
3. Evidence: Statements of family and friend that presume his
guilt. Lipsky is to testify to:
a. Meeting
i. No hearsay problem, but not relevant
ii. Context/moving the story along
b. Talked about the manner in which the murder was
committed; bungling of the murder and the
disposition of the body.
i. Relevant – why aren’t they talking about
how innocent P is, instead of the bungling of
the murder – ASSUME murdered, upset
about how done; belief that P was involved
in the crime

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ii. Implied assertion: He’s guilty, they’re


going to catch him b/c it was done in a
stupid way
iii. Unintended: Shared assumption: Knew that
he did it, don’t need to communicate that to
you
v. DOE d. TATAM: easily hearsay
iv. Next Step: Trustworthiness
v. Arguments: family know better than anyone
else (usually); strength in numbers
1. Untrustworthy? Don’t know where
information came from
2. EITHER WAY
c. Tell Lipsky to go away and hide out, give him
money.
i. Is this relevant?
ii. If they think that it might hurt P to keep L
away, shows that believe that P is guilty.
Reason why to send L away.
iii. Giving L money to leave is Obstruction of
Justice  VERBAL ACT
iv. Prosecutor: Tie them together
1. Just talking: issues of
trustworthiness
2. Acted on belief: putting $ where
beliefs lay
4. Not Circumstantial Evidence of St of Mind
a. St of Mind of the family and friends is not an issue
of the case. Can only use for an external factor. ???
d. Hearsay – Test your understanding
i. BETTS v. BETTS
ii. Facts: T.L.’s reaction to being returned to mother’s custody.
iii. Hearsay for custody case to decide placement?
1. For criminal case – HEARSAY b/c proof of Truth of the
Matter Asserted
2. Custody case: not to prove Truth of the Matter Asserted,
but Circumstantial Evidence of State of Mind
a. Relevant
b. Doesn’t have to be necessarily true
3. Also: Not Hearsay b/c of potential Effect on Listener (can
be logical, not just legal effect on listener)
iv. HEARSAY QUIZ
v. EXAM:
1. D caught, went to police and confessed
a. Wrong  Verbal Act
i. Changes Legal Position

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b. Right  confession just applies evidence against it


i. Arrest changed legal position
1. Not confession

IV. HEARSAY EXCEPTIONS


a. Much that is hearsay is admissible
i. A series of standard exceptions paves the way for statements
offered to prove what they assert
1. Simple relevancy and “unfair prejudice” still need to be
proven
ii. The Rules set out the exceptions in four main groups:
1. Certain prior statements by testifying witnesses
2. (1) Prior statement by witness. The declarant testifies at the trial
or hearing and is subject to cross-examination concerning
the statement, and the statement is
a. (A) inconsistent with the declarant's testimony, and
was given under oath subject to the penalty of
perjury at a trial, hearing, or other proceeding, or in
a deposition, or
b. (B) consistent with the declarant's testimony and is
offered to rebut an express or implied charge
against the declarant of recent fabrication or
improper influence or motive, or
c. (C) one of identification of a person made after
perceiving the person; or
3. Five variations on the “admissions doctrine”
4. (2)Admission by party-opponent. The statement is offered
against a party and is
a. (A) the party's own statement, in either an
individual or a representative capacity or
b. (B) a statement of which the party has manifested
an adoption or belief in its truth, or
c. (C) a statement by a person authorized by the party
to make a statement concerning the subject, or
d. (D) a statement by the party's agent or servant
concerning a matter within the scope of the agency
or employment, made during the existence of the
relationship, or
e. (E) a statement by a coconspirator of a party during
the course and in furtherance of the conspiracy.
f. The contents of the statement shall be considered
but are not alone sufficient to establish the
declarant's authority under subdivision (C), the
agency or employment relationship and scope
thereof under subdivision (D), or the existence of
the conspiracy and the participation therein of the

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declarant and the party against whom the statement


is offered under subdivision (E).
5. Twenty-four “unrestricted” exceptions
6. Declarant “unavailable as a witness” exceptions
7. 37 total exceptions
b. Exceptions – Declarant Testifying
i. Prior Inconsistent Statements
ii. Conditions:
1. Witness must now by cross-examinable ‘concerning the
prior statement”
2. Statement must be “inconsistent” with this present
testimony
3. Under oath in a prior proceeding or deposition
iii. STATE v. SMITH
1. Facts: Victim wrote out a statement on a form supplied by
a detective of the Police Department, which contained
Miranda warnings, in which she named Smith (defendant)
as her assailant. She signed under oath with penalty of
perjury before a notary. At trial, named another man as
attacker. TC: allowed her prior inconsistent statement to
be used. Judge: not a “proceeding.”
2. Proceeding –
a. “other proceeding” includes grand jury proceedings
b. Taperecorded statement made under oath in an
immigration investigation (United States v. Castro-
Ayon)
c. Open-ended and not restricted to grand jury
proceedings
d. Enough similarities between the two to admit the
statements
e. “We do not hold ... that every sworn statement
given during a police-station interrogation would be
admissible”
f. Facts of each case must be analyzed
g. Minimal guarantees of truthfulness were met:
i. Notary
ii. Under Oath
iii. Subject to penalty for perjury
3. Reliability is the key
iv. Notes on Prior Proceedings
1. Most federal cases exclude stationhouse declarations, as
Smith itself recognizes
2. Statements made at a Border Patrol Station after read
Miranda and placed under oath.
a. Similarities to a grand jury proceedings

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i. Investigatory, ex parte, inquisitive, sworn,


basically prosecutorial
ii. Right to remain silent, to counsel, and to
have the interrogator inform the witnesses of
those rights
3. “turncoat” witnesses
v. Notes:
vi. RULE 801
1. Characteristics
a. previous
b. cross-examined now
2. Inconsistent, oath, subject to perjury; hearing or other
proceeding, etc.
a. Other proceeding includes grand jury
nd
3. 2 use: turncoat witnesses
4. Some indicia of reliability
a. Worried about: collusion
vii. STATE v. SMITH
1. reliable  very much like a proceeding
2. probable cause for indictment

viii. Notes on Substantive use of Inconsistent Statements: Memory


Loss and Cross-Examinability
1. Inconsistency may be "found in evasive answer, silence, or
changes in positions.”
2. In addition, a purported change in memory can produce
“inconsistent answer.”
3. Manifest reluctance to testify, “if a witness has testified to
[certain] facts before a grand jury and forgets them at trial,”
his grand jury testimony falls squarely within FRE 801 (d)
(1) (A).
a. United States v. Williams
4. California: Code permits the use of all such statements,
whether or not given in a proceeding under oath
5. Federal cases agree that feigned lack of memory is
inconsistent, but have not held that lack of memory must be
feigned.
6. United States v. Owens:
a. Facts: Witness could not remember the assault due
to injuries. Witness remembered talking in the
hospital with FBI Agent and identifying Owens as
his assailant.
b. Supreme Court: one may be “subject to cross-
examination” under FRE 801 (d) (1) (C) even if
lack of memory about events makes him

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“unavailable” as a witness under RULE 804 for


purposes of hearsay exceptions
7. One court: cross-examination mean that witness must be
able to give some kind of response to questions
8. Crawford v. Washington
a. Confrontation Clause
b. Supreme Court: prosecutors cannot offer
“testimonial” statements against the accused
i. Probably includes:
1. “prior testimony that the defendant
was unable to cross-examine”
a. Examples:
i. Grand Jury
proceedings
ii. Statements to police
ix. Notes:
x. Questions:
1. Is lack of memory inconsistent?
a. Feigned
2. If don’t remember incident; is cross-examinable as req’d by
rule
3. If don’t remember making statement, is it still cross-
examinable?

xi. Prior Consistent Statements


1. Prior consistent statements by a testifying witness are
defined as “not hearsay” under some circumstances
2. RULE 801 (d) (1) (B)
3. Three conditions:
a. The witness must be cross-examinable at trial
“concerning the prior statement”
b. The statement must be “consistent” with his present
testimony
c. It must be offered to rebut a charge of “recent
fabrication or improper influence or motive”
4. Hard to get excited about this provision:
a. A statement consistent with present testimony
i. Brings no new information
ii. Cannot be the only evidence on any point
5. RULE 801 (d) (1) (B) contains limits that discourage resort
to out-of-court statements as proof at trial
a. Fear: the deferred cross-examination is simply not
as effective as contemporaneous cross-examination
b. Most acute with prior consistent statements, for it is
here – where the witness sticks to his original story

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– which the danger seems real that any falsehood


may harden. State v. Saporen.
6. RULE 801 (d) (2) (B) embraces any prior consistency,
since there is no requirement that it be uttered under oath in
a proceeding
a. Two points of difficulty:
i. First, what kind of attack on a witness raises
a charge of “recent fabrication or improper
influence or motive”?
ii. Second, what prior consistencies tend to
“rebut” such an attack?
7. What kind of attack?
a. Sometimes that cross-examiner suggests in so many
words that he witness “just made it up” or “changed
his story” because
i. Cajoled
ii. Paid, or
iii. Frightened
b. FRE 801 (d) (1) (B) reaches these easy cases where
the charge of fabrication is express
c. Also reaches further
i. Charges of influence or motive are merely
“implied”
ii. Examples:
1. Mother of defendant would say
anything to help your son
2. Talk with plaintiff’s counsel shortly
before testifying here today
3. When did you decide to change your
testimony for today
8. What consistent statements rebut the charge?
a. All statements?
b. A prior consistency tends to rebut such an attack
only if uttered before the supposed “influence or
motive” came into play
9. Effect of FRE 801 (d) (1) (B):
a. Tome v. United States (1995)
i. Supreme Court: accepts Common Law
tradition
ii. LATER!!!
10. Does FRE 801 (d) (1) (B) have any further effect?
a. Where it applies, it permits substantive use of a
prior consistent statement by a testifying witness, so
the statement may be taken as proof of what it
asserts

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b. Prior Consistent Statement can be takes as


additional proof (along with her testimony_ that
David was driving within the speed limit.
i. This consistent statement was made before
David and Marian spoke before the trial, so
it tends to refute any suggestion that his
influence accounts for her testimony (she
expressed the same view before she meth
with him, so his influence cannot account
for her testimony).
c. Something other than recent fabrication?
i. Maybe for lack of memory
xii. Notes:
xiii. RULE 801 (d)(1)(B)
xiv. Prior Consistent Statements
xv. Rehabilitate Witnesses (under certain circs)

xvi. Prior Statements of Identification


1. Trial: point to the person that you saw on the night in
question
a. Point: Defendant
b. Jury: setting renders it so suspect
2. Pretrial identifications may be far more trustworthy
a. Close to the time of the offense
3. FRE 801 (d) (1) (C): hearsay exception for previous
statements of identification
a. Conditions:
i. Made by a witness
ii. “after perceiving” the subject
iii. Provided that the witness is subject at trial
to cross-examination “concerning the
statement”
4. Criminal Trials:
a. Eyewitness identification of the defendant brings
serious risks of error or manipulation by police that
transcend hears issues
b. United State v. Wade:
i. Post indictment lineup is a “critical state”
where defendant is entitled to counsel
ii. Later in-court identifications may be
contaminated not merely by the inevitable
suggestivity of physical arrangements in the
courtroom, but by the influence of improper
pretrial procedures
c. The Wade-Gilbert doctrine, summation:

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i. Establishes a per se rule that blocks use of


some pretrial statements of identification
that might fit FRE 801 (d) (1) (c) – those
obtained in post indictment lineups where
the defendant is denied counsel
5. Should an out-of-court statement of identification be
admitted as proof of what it asserts?
a. Do such statements satisfy FRE 801 (d) (1) (C)
b. Does this provision adequately regulate the use of
such statements?
6. STATE v. MOTTA
a. Facts: Witness and sketch artist identified
defendant. Sketch was entered into evidence.
b. Hearsay?
c. Court: the prior identification exception allows the
admission of pretrial identifications, not merely as
corroborative evidence, but also as substantive
proof of identity
d. RULE 801 (d)(1)(C): operates independently of
the impeachment process
7. Notes on Application of RULE 801 (d)(1)(C)
a. RULE 801 (d)(1)(C) contemplates statements by an
eyewitness made “after perceiving” the subject
i. Where, declarant saw the crime itself, then
later saw him again (typically in a lineup_
and identifies him.
ii. Also, where declarant sees the crime,
recognizes the culprit, then remarks or
reports the identity to the police
iii. Voice-recognition
8. Cross-examinable at trial?
a. Witness who cannot remember?
b. Witness who can remember making the
identification?
9. What is the Witness testified that Defendant was not the
one who robbed the coffee shop?
a. Can her prior statement picking him still be
admitted as positive proof that he did it
b. Yes, United States v. O’Malley
10. Verbal Marker – Witness watches culprit leave, watches
police arrest him and testify to that at trial without
identifying the man at trial
a. The man arrested is the Defendant
xvii. Notes:
xviii. RULE 801 –
1. Prior Inconsistent Statements

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a. Conditional on relevancy
i. Impeach and substantive
2. Prior Consistent Statements
a. Rehabilitation
i. Substantive
3. Out-of-Court Statements of Identification
a. In-court not as reliable
b. Includes: descriptions

c. Admissions by Party Opponent


i. FRE 801 (d) (2): Admissions
1. (2)Admission by party-opponent. The statement is offered
against a party and is
a. (A) the party's own statement, in either an
individual or a representative capacity or
b. (B) a statement of which the party has manifested
an adoption or belief in its truth, or
c. (C) a statement by a person authorized by the party
to make a statement concerning the subject, or
d. (D) a statement by the party's agent or servant
concerning a matter within the scope of the agency
or employment, made during the existence of the
relationship, or
e. (E) a statement by a coconspirator of a party during
the course and in furtherance of the conspiracy.
ii. Statement is not “binding”
1. Can explain away or reject
iii. Individual Admissions
1. There are almost no limits
2. PROBLEM 4-B
a. Facts: Fire at Repair consumes car. Martin v.
Carter (boss). Carter to Adjuster: Dugan caused
the fire.
b. D: Carter  Ajduster
c. Statement: "Dugan put torch on the ground
d. H/S?: Yes
e. Why/Why not?: OOC
f. Exception: Party’s own statement in either an
individual/representative capacity  Doesn’t
Matter You Weren’t There: still admitted
g. Theory: You’re there and can explain
h. Said to collect insurance policy
i. In his interest to gain insurance money
i. EXAM: Not Required: Statement Against Interest
i. Admissions do not have to be against
interest when made

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j. Didn’t Anticipate Liability – No


k. Conclusory, not usually factual
i. Witnesses not allowed to conclude
3. Notes on Individual Admissions
a. No requirement for personal knowledge when he
spoke
i. Dog bites
iv. PROBLEM 4-C
1. Facts: Parker and Whalen get into a fight. Whalen pleads
guilty in the criminal case. Parker wants to enter the guilty
pleas as evidence in civil trial.
2. Verbal Act
a. Guilty plea changes legal positions
i. Guilty plea vs. confession
ii. Not: “I hit him with a bottle”
3. Soliloquy: When plead guilty, plead guilty
4. Want guilty plea and words as well
a. Admission
5. Summary Judgment?
a. Issue of Material Effect
6. Collateral estoppel effect on the question whether he struck
Parker without justification?
a. Must be litigated to come into play
b. Pleading guilty: Not Litigated
v. Notes on Prior Guilty Pleas
1. Traffic infraction
a. Statutes in some states: pleas of guilty to traffic
infractions are not admission of guilt or fault
b. Waiving appearance by sending a check for the fine
to the county clerk are not admissible
vi. Notes:
vii. “No contest” : NOT an admission
1. Not admitting guilt: say State could
viii. Traffic citation?
1. Majority not allowed
a. Civil
b. Collateral
c. Evidentiary
ix. BRUTON v. UNITED STATES
1. Facts: Bruton and Evans were arrested and tried jointly.
Evans made a confession. Trial: confession allowed to be
heard, but Limiting Instruction that should not be used
against Bruton. Both convicted. Evans’ conviction was
reversed on the grounds that the confession shouldn’t have
been allowed to be heard. Bruton’s was affirmed, arguing
that the Limiting Instruction saved him.

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2. Court:
a. Limiting Instruction does not save the case against
the Confrontation Clause, even though it saves
against HEARSAY
3. “Bruton and I did it”
a. HEARSAY with respect to (wrt) Bruton
b. Admission (RULE 801 (d)(2)(A)) with respect to
Evans
x. PROBLEM 4-D
1. Facts: Napton works for Ace and runs over O’Brien
during while making deliveries for Ace. Six months later,
Napton tells O’Brien: (1) The brakes failed; (2) I was
speeding. O sues both N and A.
2. (2) Admission
a. Hearsay  Ace (party admission)
b. Excluded  Probative = Hearsay
3. (2) Probative Admission
a. Relevant but Hearsay (Not in employ)
b. (RS)
c. Probative value makes it prejudicial
4. BRUTON SITUATION
5. No Confrontation Clause issue – CIVIL
a. Bruton – CRIMINAL
6. End: Admit it with a RULE 105 Limiting Instruction
towards Ace
-???-
xi. Notes:
1. QUESTION: How do you fix a Bruton Problem?
a. (1) Redact the name in the Confession,
i. But, it may be obvious and not sufficient
ii. If Jury pieces together certain facts
mentioned in the Confession  Not a
problem
b. (2) Sever the Trial
i. Confession doesn’t appear at the Bruton
Trial
c. (3) Same case with Dual Juries
i. Hear/tailor evidence and send out other Jury
when person’s evidence comes in
ii. Undermines Jury if one comes back guilty
and one innocent  no rationale
2. CIVIL Trial
a. Limiting Instruction does not survive Summary
Judgment or Directed Verdict
b. Solution: Call N as a hostile witness to the stand
i. CIVIL

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c. Since on Stand, Ace gets to cross-examine


d. NEVER SEVER CIVIL TRIAL!
3. Redaction –
4. GRAY v. MARYLAND
a. Redaction that simply replace a name with an
obvious indication of alteration, leave statements
that so closely resemble Bruton’s unredacted
statements that, in our view, the law must require
the same result
xii. Adoptive Admissions
1. FRE 801 (d)(2)(B): Manifests other’s admission as
adoption or belief in its truth, then the statement becomes
his own.
2. UNITED STATES v. HOOSIER
a. Facts: Witness: Hoosier told that was going to rob
a bank. Three weeks later, had money. Girlfriend
said that had “sacks of money” in the hotel room.
b. Hearsay?
c. Court: If what girlfriend said was not true,
Defendant should have denied it.
3. Notes on Tacit Admissions
a.
xiii. Notes:
xiv. HYPOTHETICAL
1. Facts: W and H in a tax fraud case, give all information to
accountant. At a dinner party, tell friends that are going to
give bad information to accountant an blame him if things
go bad
a. HYPO 1: Use H’s statement against W (Hoosier
Statement): “Okay, then we can go to Europe again
this year”
i. RULE 801 (d) (2) (B)
ii. Take other’s admission as own “adopted
admission”
b. HYPO 2: Use H’s statement against W (circa
Hoosier)
i. Did the person by not saying anything,
adopt the statement
1. Expect protest if it’s not true!
xv. Admissions by Speaking Agents
1. Someone authorizes someone else (agent) to speak for him
a. Verbal Act
2. RULE 801 (d) (2) (C): Admissions by Speaking Agents
a. Admissible against the person represented by the
speaking agent
xvi. Notes:

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1. Hired to speak on behalf = Speaking Agents


2. Lawyer on CNN

xvii. PROBLEM 4 - F
1. Facts: Child killed by bus. Parents sue bus driver and bus
company. Names wrong bus company and action is
dismissed against them. Bus driver lawyer admits into
evidence statement against bus company. Bus driver wins
and parent appeal use of testimony about bus company
claim.
a. “statement” – pleading, anything written
b. IRONIC EXCEPTION: Admissions requested to
admit – Admission are not “admissions”
i. Purpose: to narrow scope
1. Because under Rules of Civil
Procedure, have to put in ALL
theories of liabilities
a. Therefore, not truly an
admission
2. Admit: BUT probative value is outweighed by prejudice
a. Confusion of jury by the conflicting theories
xviii. Notes on Admissions in Judicial Proceedings
1. “Admissions” filed in response to requests to admit
a. Federal Rules of Civil Procedure: a matter admitted
in this way is “conclusively establish” in the
pending suit but that such an admission is “for the
purpose of the pending action only and is not an
admission … for any other purpose and may not “be
used against him in any other proceedings”
xix. Admissions by Employees and Agents
1. FRE 801 (d) (2) (D)
2. Multiple or Layered Hearsay
a. Hearsay within Hearsay
b. Depends on what others have said
c. RULE 805
i. Each Hearsay statement must pass the Rule
or an Exception to the Rule to be admissible
d. There is no personal knowledge requirement
3. Government Admissions
a. Traditionally, statement by public employees have
not been admissible against the government
i. Cannot bind the government
ii. No personal stake
4. MAHLANDT v. WILD CANID SURIVIVAL &
RESEARCH CENTER

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a. Facts: Employee of nature center kept a young


wolf chained in backyard. Neighbor boy was seen
in the yard, hurt and the wolf was howling. Defense
says that boy had gone under the fence. There are
three pieces of evidence in dispute:
i. Note on President’s door: Sophie bit a child
ii. Told President: “Sophie bit a child”
iii. Meeting of the Directors of the Center:
Legal aspects of Sophie biting the child
b. Trial Judge: exclude based on
i. No personal knowledge (unreliability)
ii. Hearsay
c. FRE 801:
i. Own statement
ii. Own adoption or belief of truth
d. Defense:
i. No personal knowledge
1. Don’t care – nature of Admissions
Doctrine
ii. “in house” statements
1. Not an admission
2. No “in house” exception to
admission
e. Rule 801 (d) (2) (D) – authorized to speak
i. Agent or servant of the Research Center and
they concerned a matter within the scope of
his agency or employment, i.e., his custody
of Sophie and were made during the
existence of that relationship
f. Rule 805?
i. “in house” – his opinions and conclusions
were accepted as a basis for action by his
principal
g. Admissible under FRE 801 (d)(2)(C) and FRE
801 (d)(2)(D):
i. Admissible against both the Research Center
and Employee
ii. Admissible against both the Research Center
and the Employee
iii. Admissible to Research Center but not to
Employee
h. Admissible under FRE 403:
i. Admissible
ii. Admissible

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iii. Limited admissibility, coupled with the


repetitive nature and low probative value
justifies not admitting
xx. PROBLEM 4-G
1. Facts: Driver of truck in accident claims fault 30 mins
after accident
2. Question: What proof is necessary to prove Rogers is an
agent of employer?
a. Statement itself
i. Can be used BUT not sufficient to prove
Agency
b. Riding on the truck
i. Impure verbal object
ii. NOT HEARSAY
xxi. Notes on Statements by Agents or Servants
1. FRE 801 (d)(2)(D) reaches two classes of persons:
a. People whose conduct produces liability for their
employers or principals
b. People who are passive observers or bystanders
rather than actors but who make statements on
matters within the scope of their duties
i. Since not always authorized spokespeople,
less compelling
2. “Independent Contractors:
a. Principal exercises less control over what they do
i. May not be agents or servants
b. Sometimes the principal “adopt” their statements
3. While Employee is an agent of the Company, the Company
is not an agent of the Employee
xxii. Coconspirator Statements
1. FRE 801 (d) (2) (E): Admissible if
a. (1) Declarant and Defendant conspired and the
statement was made
b. (2) during the course of the venture and
c. (3) in furtherance thereof
2. Civil and Criminal
3. Whether or not involve charges of conspiracy
4. Difficult:
a. Proof of conspiracy is invariably circumstantial and
diffuse
b. Problem of coincidence b/c conspiracy is both a
predicate fact in the exception and an element of
guilt or innocence
i. Question of conspiracy raises an ultimate
issue for the jury to resolve

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5. Often coconspirator statements assert or imply that


declarant and defendant conspired, which introduces the
problem of bootstrapping or circularity, for the statement
asserts the very fact on which its admissibility depends
6. Non-hearsay:
a. Verbal Act - conspiracy
7. Hearsay:
a. Implied assertions for the ToMA
xxiii. Supplement
1. UNITED STATES OF AMERICA v. FRANCESCO
GAMBINO
a. Facts: FG arrested for conspiracy to distribute
heroin and cocaine. Alleges that the hearsay
testimony provisionally admitted under the
coconspirator declaration exception under FRE 801
(d) (2) (E) was inadmissible since the government
had failed to prove by a preponderance of the
evidence that Gambino was a member of the
conspiracy outlined in the indictment.
i. If the hearsay declarations were
inadmissible, the government lacked
sufficient evidence to sustain a conviction
b. FRE 801 (d) (2) (E): Used to
i. Require proof independent of the hearsay
statements sufficient to establish that both
the declarant and the defendant were
members of the alleged conspiracy and that
the statement was made in is course and in
furtherance of its goals (Glasser)
c. BOURJAILY v. UNITED STATES:
i. Court to determine by a preponderance of
the evidence whether the defendant and the
declarant were members of the alleged
conspiracy and whether the hearsay
statement was made during its course and in
furtherance of its goals
1. FRE 104 (a): Judge decides
admissibility
2. FRE 1101 (d) (1): The Rules do not
apply to Preliminary Questions of
fact
ii. Notes: The statement itself, to prove
admissibility, can be considered, BUT must
be some other independent evidence
1. Standing alone – not enough
d. Question of Extent

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i. to which hearsay statements may provide the


Sole Inculpation of a defendant in a
conspiracy for purposes of admissibility
under FRE 801 (d) (2) (E).
ii. Supreme Court: coconspirator hearsay
statements be corroborated by some
independent evidence before they can be
admitted under FRE 801 (d) (2) (E)
1. satisfy the preponderance standard
e. Amend FRE
i. Last sentence
ii. Preponderance of Evidence Std to EVERY
FRE 104 (a) determination
f. List:
i. Unintended Implied Assertion
1. Not trying to imply that these are my
coconspirators, just let me know
xxiv. PROBLEM 4-H
1. Facts: Buy drugs in Colombia to sell through A to people
in the USA. Conversations between buyers B and C and
friend-driver. Also, conversation between A and the DEA.
Conversation between C and DEA.
2. Statement 1: Presence of 3rd persons = idle chatter, not
“furtherance of conspiracy”, under RULE 801 (d)(2)(E)
3. Statement 2: __________________________________
4. Statement 3:
a. Conspiracy is over
b. Not in furtherance – own neck instead
i. HEARSAY
xxv. Notes on the Coconspirator Exception
1. Point: coconspirator exception may be invoked even if no
conspiracy is actually charged
2. Do not have to have the Conspiracy charged to ADMIT
3. Exception: Does not reach statements made either before
or after a conspiracy
a. Supreme Court: “concealment phase” statements
are not within the exception
d. Unrestricted Exceptions
i. Notes:
1. RULE 803 Exception; Availability of Declarant Immaterial
a. For some reason, they are so reliable that Declarant
is not even necessary
ii. Present Sense Impressions and Excited Utterances
iii. NUTTALL v. READING CO. (1956)
1. Facts: Husband did not feel well; telephone conversation:
“forced” to go to work. Had a heart attack and died.

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2. Evidence Not Controversial:


a. Appearance
i. Involuntary
ii. Non-assertive
3. Evidence sought to be introduced: telephone call made by
husband on the day that died and statements put in writing
by employees of the defendant.
a. Prove: Management forced a sick employee, of
whose illness they knew or should have known, into
work for which he was unfit b/c of his condition,
has a case under the Federal Employers’ Liability
Act.
4. Statements as Evidence?
a. Business Records exception
i. Palmer v. Hoffman
ii. Created for purposes of litigation
iii. Not admitted
b. “Adopted” by the Defendant
i. Not adopted
c. Vicarious admission against the Defendant
i. Agency admissions – “in house”
ii. Made to fellow agents and therefore,
internal
iii. HEARSAY
d. Declaration Against Interest
i. None worked
5. Telephone Conversation as Evidence?
a. State of Mind exception
i. Declarations of State of Mind to establish
that State of Mind, and
ii. Other things as proof of a State of Mind
tends to Establish
iii. Based on whether or not he felt “forced”
b. Hearsay Exception
i. RULE 803 (3)
ii. Intention
6. Present Sense Impressions
a. Admissible
b. Perception as it’s happening
c. Contemporaneous:
i. No memory impairment
ii. No time to make up a lie
iv. Notes
v. Notes on Present Sense Impressions
1. Some calls to 911 fail be sufficient for Present Sense
Impression, but maybe not for Crawford.

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2. Often exception for identifying attackers


a. Observations of vehicles prior to accidents
b. React to unfolding crimes or notice critical facts,
making comments to others
vi. UNITED STATES v. IRON SHELL
1. Facts: Iron Shell, drunk, assaulted and tried to rape a nine-
year-old girl. Evidence: Lucy, after being attacked, cried
out that “that guy tried to take my pants off.” Scared and
still crying when made complaint. Interview later, not
crying, asked, “What happened?” and told.
2. Excited Utterance,
a. not Present Sense Impression: 45 minutes later
b. Related to a startling event
c. Still under stress
d. Theory:
i. Since still excited, not able to lie
3. Defense: hearsay statements to police during Interview
a. Forty-five minutes to one hour, fifteen minutes after
the assault
i. No longer during Excited Utterance time
b. Question interrupted and prompted answer
i. Reason: don’t have time to think out a lie –
time to think of lie and influenced by
question
4. Court:
a. Factors which the trial court must weigh in
determining whether the offered testimony is within
exception
b. RULE 803 (2): statement must be spontaneous,
excited or impulsive rather than the product of
reflection and deliberation
5. Court: Upholds Excited Utterance
a. Reason:
i. 7-year old traumatized longer than older
person
ii. Only question asked: What happened?
xvi. Notes:
a. Interesting: state of excitement does exist
i. Clouds ability to lie
b. But, usually only last 2-3 mins for most people
i. Acceptable: 10-15 mins afterward
c. Increases likelihood of mistake
i. Less likely to perceive correctly
d. Excited Utterance: used to be a pretty broad category
i. Confrontation Clause – reinterpreted by Crawford v.
Washington

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xvii. Notes on Excited Utterances


a. RULE 803 (2): Excited Utterances
xviii. State of Mind
a. Prove:
i. Declarant’s then-existing physical condition
ii. Declarant’s then-existing mentor or emotional
condition
iii. Declarant’s later conduct
iv. Fact about Declarant’s will
b. What Declarant said is likely the best source of information
i. Otherwise, own backward-looking testimonial account
ii. Virtue of immediacy (a through c)
iii. Risk of misperception is small
iv. Risk of faulty memory is nonexistent
xix. Then-Existing Physical Condition
a. Statements describing aches and pains
i. Does not matter whether declarant speaks close in time
to the injury or onset of ailment, so long as his words
describe how he feels as he talks
ii. Statements to doctor, spouse, or friend
xx. Then-Existing Mental or Emotional Condition
a. When mental state of a party is in issue
b. Only statements of present mental state, not previous mental
condition
c. Sometimes reasonable to assume the mental state persists over
time, so that what said about mental state before and after the
statement
d. Fact-Laden Statements: people purposefully disclose state of
mind by speaking in factual terms,
i. Choosing to communicate inclinations in that oblique
way
xxi. Notes:
a. RULE 803 (3):
b. THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL
CONDITION
c. Overlaps with Non-Hearsay category
i. Easily pointed to
ii. BROADER: includes beyond simple state of mind
d. Present
e. Not have to be circumstantial
i. Theory: difficult to get inside someone’s head
f. PROBLEM: Fact-laden statements
i. State of Mind vs. Facts inherent in the Statement
g. CLASSIC RULE 803 SITUATION:
i. Which is more important?
ii. Used to get around hearsay rule?

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xxii. PROBLEM 4-J:


a. Facts:
xxiii. Notes on Proving State of Mind by Fact-Laden Utterances
a. Murder vs. Extortion
b. State of Mind must itself be an issue
c. Motive
xix. Subsequent Conduct
a. Use of her words to prove intent, so that what a person said is
often admitted as proof of what she did thereafter
b. Two Problems:
i. Intent is complicated
ii. People often describe intent in statements that make
factual assertions
xx. MUTUAL LIFE INSURANCE CO. v. HILLMON (1892)
a. Facts: Susie Hillmon tried to collect on life insurance policies
on Husband. Life Insurance companies: Husband not dead,
but another guy who was lured to CC and killed by Husband.
i. Walters (Lured Guy) wrote Letter to Family and
Fiancee: “I’m going to CC with Hilmon”
b. Intention as State of Mind vs.
c. Intention as Future Act
i. Intention to Prove conduct Consistent Therewith
1. = NO!!! Just for proving state of mind is okay,
NOT for actions
d. Court: Will allow statement
i. Wherever the bodily or mental feelings of an individual
are material t be proved, the usual expressions of such
feelings are original and competent evidence
1. Expressions are natural reflexes of what it might
be impossible to show by other testimony
ii. Other:
1. Physical
2. Not have to be Circumstantial
3. Conduct of Declarant Consistent with Intention
a. D: “with Hillmon”
b. Infer: knew each other and believe that
Hillmon will go to CC with Walters
c. Prove: They went together
d. Based: Facts
e. Relevant proof of his intention to go
together
f. Many: not accept to prove others
conduct though
iii. Narrow: D’s future conduct
iv. Broad: Anything D intertwined
xxi. Notes:

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a. State of Mind Exception


b. Narrow vs. broad interpretation of Hillmon
i. Narrow: state of intention can be used to prove future
conduct
ii. Broad: proves future conduct of 3rd parties
iii. Hillmon – no contention that Hillmon was at CC, since
both sides say that he was there
1. Is the Supreme Court’s decision dicta
concerning 3rd party acts?
a. CONTROVERSIAL
c. “Abuse” of Exception
xxii. UNITED STATES v. PHEASTER (1976)
a. Facts: Larry disappears in a parking lot after telling friends he
was going to meet Angelo there. Gov’t wants to use the
statements at trial.
b. House Judiciary Committee
i. Wants to “narrow” the Rule
c. Court: Allow! State of Mind (Broad)
i. But, use
1. Reliability – other evidence that corroborates
a. Compromise Position: vs. Broad or
Narrow
2. Alcalde case
3. before the Federal Rules of Evidence
xxvii. Notes on State of Mind as Proof of Conduct
a. Intent statements are regularly accepted into court
i. To kill, not in homicide (Admissions in that case)
ii. To break off a relationship, when in homicide
b.

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