Evidence Outline and Evidence Case Briefs


I. Relevancy

A. General principles FRE 401-403401 – Definition of “Relevant Evidence” “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.402 – Relevant Evidence Generally Admissible; Irrelevant Evidence InadmissibleAll relevant evidence is admissible, except otherwise provided by the 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. Evidence which is not relevant is inadmissible. 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of TimeAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Relevancy is not an inherent characteristic of evidence but exists as a relation between an item of evidence and a proposition sought to be proved. If an item of evidence tends to prove or to disprove any proposition, it is relevant to that proposition. If the proposition itself is one provable in the case at bar, or if it in turn forms another link in a chain of proof the final proposition of which is provable in the case at bar, then the offered item of evidence has probative value in the case. Because relevancy means tendency to prove a proposition properly provable in the case, an offered item of evidence may be excluded as “irrelevant” for either of these two quite distinct reasons: because it is not probative of the proposition at which it is directed, or because that proposition is not provable in the case. Therefore, in order to be relevant, (1) The evidence must be probative of the proposition it is offered to prove; and (2) The proposition to be proved must be one that is of consequence to the determination of the action. Relevancy is different from materiality. For example, if liability is conceded and case is being tried only on damages, evidence which is relevant only to liability would be immaterial as to damages. Relevancy involves only the connection---strong or weak---with the issue/element. Relevance involves a weak or nonexistent connection with an issue/element. Materiality involves a connection but with a non-issue/non-element.

State v. Kotsimpulos Theft of pork loins. D wanted to testify that he had been threatened by the owner of the pork plant, specifically in that the owner had warned D that he was going to see that D lost his job. D trying to demonstrate that he had been set up by the owner. Ct excluded the testimony, on the grounds that (1) it was not relevant (FRE 402), and (2) the danger of confusing the jury outweighed the probative value of the evidence (FRE 403).

State v. Nicholas Woman raped twice in her home by who she thought was the same man in both attacks. Lab tests showed the sperm of the rapist was positive for a type O secretor, which meant that the attacker was either a type-O secretor or a non-secretor, characteristics of approx. 60% of the population. D was a type A non-secretor, meaning that he was not ruled out by the secretor test. D contends that the results of the secretor type tests had no relevance to the issue of identity and established only that the sperm could have come from 60% of the population – the results merely tended to include him in a class of people who might have committed the rape. Ct said that this objection should go the weight and not the admissibility of the evidence. Evidence which tends to limit the field of possible perpetrators is relevant on the issue of identity. The results of the test tended to some degree to make it more probable that Nicholas was guilty of rape and burglary. (FRE 401.)

U.S. v. Johnson D charged with making and subscribing false and fraudulent corporate tax returns. Prior to trial, the charge of tax evasion was dropped. D contends that the dropping of the tax evasion charge prevented him from introducing evidence that he actually overpaid his taxes. Because he was only tried for making false statements on his tax returns, his overpayment was irrelevant. D says info was relevant as to whether he relied on his accountants. Ct said that the irrelevancy of the evidence was firmly established. Although the evidence might have aided in the reliance aspect of D’s defense, it could have had no appreciable impact on the case as a whole because much of the prosecution’s evidence demonstrated that D withheld info from his accountants. Also, the admission of this evidence carries many risks under 403.

“Real” evidence = physical evidence having, or alleged to have, an actual connection to the events that are the subject of the trial (the murder weapon, the product that caused the injury, etc.). “Demonstrative” or “illustrative” evidence includes all tangible items presented at trial which do not have any real connection to the events, but that are employed to aid the trier of fact to comprehend testimony or other evidence (charts, models, maps, drawings, etc.). Both real and demonstrative evidence are subject to the general relevancy requirements of rules 401, 402, and 403. In general, with respect to an item of real evidence, a foundation must be presented establishing that the item is relevant, its identity, and that its condition has not materially changed. Demonstrative evidence requires establishment of a foundation that the item depicts relevant information that is or will be proven by other, substantive evidence; that it is accurate, and that it will probably aid the trier of fact in understanding the evidence. Perfect accuracy is not required, so long as, on balance, the item is helpful.

Viewing the scene of a crime is within the discretion of the court, subject to review only for abuse. Usually frowned upon and not permitted by courts.

U.S. v. McRae D shot his wife with hunting rifle – claimed self-d. Objection to admission of photographs of deceased and the death scene – claimed that they should not have been admitted under FRE 403. Trial ct found pictures relevant to establishing elements of the offense, such as victim’s position and that of the rifle when it was fired, as bearing on D’s defense of accident. Ct of appeals says that trial ct enjoys wide discretion as to rulings of admissibility of evidence. Relevant evidence is inherently prejudicial – but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403. Application of Rule 403 must be cautious and sparing. Ct here refused to interfere with the trial ct’s exercise of discretion.

Rule 403 favors admission. In weighing the probative value of evidence against the dangers and considerations enumerated in Rule 403, the general rule is that the balance should be struck in favor of admission.

“Probative value” – while prosecutorial need alone does not mean probative value outweighs prejudice, the more essential the evidence, the greater the probative value, and the less likely that a trial ct should order the evidence excluded.

“Unfair prejudice” - Evidence is unfairly prejudicial only if it has an undue tendency to suggest decision on an improper basis, commonly, but not necessarily, an emotional one. Unfairly prejudicial if it appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case.

“Confusion of the issues” – evidence may be excluded for “confusion of the issues” if it would tend to distract the jury from the proper issues.

“Misleading the jury” – Refers to the possibility that the jury might attach undue weight to the evidence. Demonstrative evidence may be excluded as misleading if it distorts or misrepresents underlying evidence.

“Undue delay, waste of time, or needless presentation of cumulative evidence” – as a general rule, evidence may not be excluded solely to avoid delay. The court should consider the probative value of the proffered evidence and balance it against the harm of delay. Evidence may be excluded on account of “waste of time” because it has scant probative value.

“Surprise” – Although 403 does not list “Surprise” as a specific ground for excluding evidence, testimony which results in surprise may be excluded if the surprise would require a continuance causing undue delay or if surprise is coupled with the danger of prejudice and confusion of issues.

Photographic evidence requires the trial ct to carefully weigh the probative value of the photographs against their prejudicial nature. Also, ante-mortem photographs in criminal cases is generally frowned upon, but in the punishment phase a state may decide the evidence concerning the victim and the consequences of the crime are relevant.

Simon v. Kennebunkport Woman claimed defect in sidewalk caused her fall. Jury found otherwise. P claimed ct erred in excluding evidence that 2 years prior to her accident many other people had fallen. The evidence was offered to establish the defective condition of the sidewalk. P wanted to offer a witness who would have stated that he saw approximately 100 ppl stumble or fall on that particular portion of the roadway. Ct here says that in a negligence action, evidence of similar accidents or occurrences may be relevant circumstantially to show a defective or dangerous condition, notice thereof or causation on the occasion in question. When a party seeks to introduce evidence of other accidents over objection on the ground of irrelevance, FRE 401 requires the judge to determine the relevancy of the evidence on the basis of whether there is a substantial similarity in the operative circumstances between the proffer and the case at bar and whether the evidence is probative on a material issue in the case. Here, the ruling of the judge constituted an abuse of discretion. The testimony clearly satisfies the substantial-similarity foundational requirement. Also the Town was well-aware of the evidence before trial and therefore would not have been unfairly surprised by its admission, and it would not have consumed an inordinate amount of time or tended to confuse or excite the jury.

If the other accident is relevant to show notice, the requirement of similarity is less strict.

Fusco v. General Motors P injured in car accident. Argued that a component in the steering system had broken and caused the disaster. D claimed that the ct erred in ruling that 2 videotapes were inadmissible. P claimed that the taped scene on the test track did not adequately replicate the conditions of the accident, and that the test car was driven by an experienced driver who expected the break to occur. D admitted that the conditions were not the same but were admissible to show general scientific principles and that the dissimilarities went to weight and not to admissibility. Also, under 403, the weight was on the P to show that the prejudice substantially outweighed probative value. Ct said the tendency is to treat this class of demonstrative evidence than would the lay juror. The concern lies with the deliberate recreation of an event under staged conditions. Ct said that case law has undercut D’s claim that the burden lay with the P to show undue prejudice; instead cts have created a doctrine, predating and now loosely appended to Rule 403, that requires a foundational showing of substantial similarity in circumstances. The trial ct enjoys great discretion in this area. Here, the test track demonstration was rife with the risk of misunderstanding.

B. Character 404, 405, 412-4151. Evidence concerning the accused in a criminal case i. General prohibition against character attack in the case in chief 404404(a) – Character Evidence Not Admissible to Prove Conduct; Exceptions(a) Character Evidence Generally. Evidence of a person’s character or a trial of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:(1) Character of the Accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; (2) Character of Alleged Victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;(3) Character of Witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.U.S. v. Gilliland

ii. Defensive use of character and prosecution response

U.S. v. Monteleone

iii. Other crimes, wrongs, or acts admissible for a non-character purpose 404(b)404(b) – Other Crimes, Wrongs, or Acts(b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

U.S. v. Frank Drug dealer kidnapped girlfriend and took her across state lines; set fire to car after locking her in the trunk. Pros. argued that D killed victim b/c she was cooperating with police, and that victim’s murder represented the final event in a long history of domestic violence. Pros sought to introduce evidence of D’s drug activities and victim’s knowledge of those activities in order to establish D’s motive for killing her. Also, govt sought to introduce evidence of prior abuse as probative of D’s intent to kill V. Ct says evidence that is relevant to some issue or issues at trial other than D’s character is admissible if the evidence’s probative value is not substantially outweighed by the risk of unfair prejudice. Evidence which completes the story of the crimes charged, demonstrates the background of charged conspiracy, or explains the nature of a relationship, is admissible. The evidence of D’s narcotics dealings, which is not “similar act” evidence, demonstrates that D had a reason to want V dead. Such evidence is properly admitted because it helps the jury decide - on the basis of motive rather than character – whether the D is likely to have been the one responsible for the crime. Evidence of D’s drug dealings, and V’s knowledge of them, also is admissible to complete the story of the crimes charged. Without this info the jury could be “unable to understand the govt’s theory of the case. D does not argue that the evidence is irrelevant, only that it is “grossly prejudicial.” C finds that the strong probative value of the evidence is not substantially outweighed by any prejudice its admission poses to the D. Given the other, arguably much more inflammatory evidence that will be before this jury, it cannot be reasonably said that allowing evidence of D’s drug dealings would be unfairly prejudicial. The probative value of this evidence strongly outweighs any prejudicial impact. The prior abuse of V is admissible because the evidence helps to establish an additional reason why D might have killed V. It will convey to the jury important and relevant information regarding D’s overall feelings about V, which will help it evaluate whether he had a reason or a desire to kill her. Nevertheless, given the inevitably prejudicial effect of this evidence, the Court will limit the evidence admitted, for the purposes of establishing both motive and the background of the relationship, to those events that are not too remote in time to the crimes charged in the indictment.

Rule 404(b) extends only to “extrinsic” evidence. “Bad acts” evidence is not extrinsic under 404(b) if it is (1) an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, (2) necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence regarding the charged offense. “Other act” evidence is “intrinsic” when the evidence of the “other act” and evidence of the crime charged are “inextricably intertwined” or both acts are part of a “single criminal episode” or the other acts were “necessary preliminaries” to the crime charged. Intrinsic evidence does not implicate Rule 404(b).

U.S. v. Van Metre D killed a woman. Govt gave notice that it sought to introduce evidence that D had been convicted of kidnapping and sexually assaulting another woman 11 days prior to his alleged kidnapping of V. D filed motion to exclude evidence of prior crime under Rules 403 and 404(b). Trial ct said evidence was admissible under 404(b) for the limited purpose of showing intent. Also, inmate told Govt that D was trying to arrange the murder of the earlier V. To corroborate his story, the inmate turned over a hand-drawn map detailing the location of earlier V’s home to the FBI. D claimed evidence of earlier kidnapping was admitted only to impugn his character (404(b)) and that its prejudicial value outweighed its probative value (403). Ct said Rule 404(b) is a rule of inclusion. Extrinsic or prior act evidence is admissible under 404(b) if the evidence is (1) relevant to some issue other than character, (2) necessary to prove an element of the crime charged, and (3) reliable. Once the evidence has satisfied the above criteria, it may be admitted unless its probative value is substantially outweighed by its probative effect. Dist ct concluded (1) the evidence was relevant to the issue of intent, (2) the assault of the earlier victim was necessary to prove D’s intent to abduct V because there was no direct evidence of intent, (3) D’s conviction attested to the reliability of the earlier V’s testimony, and (4) the danger of unfair prejudice did not outweigh the probative value of the prior crime. A not-guilty plea put one’s intent at issue and thereby makes relevant evidence of similar prior crimes when that evidence proves criminal intent. Once an act is assumed to be done, the prior doing of other similar acts is useful as reducing the possibility that the act in question was done with innocent intent. The past conduct need not be identical to the conduct charged, but it must be similar enough to be probative of intent. Govt in this case had to prove specific intent. This is why the govt sought to introduce the testimony of the earlier V, to prove that D took V to the wooded area with the intent to sexually assault her. The attack on the earlier V was substantially similar to render the earlier V’s testimony probative of D’s specific intent to sexually assault V. After finding the evidence to meet the requirements of 404(b), the govt still has to conduct a 403 balancing test. Here the evidence was not unfairly prejudicial. As to the evidence that he solicited the murder of the earlier V, although not listed in rule 404(b) spoliation of evidence is generally admissible to show the D’s consciousness of guilt of another crime.

Evidence is admissible under 404(b) only if it is relevant. In the 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the D was the actor. If the accused has been convicted of a crime, the burden is obviously met. A conviction is certainly unnecessary, however; the D’s commission of another crime is more often evidenced by testimony. Indeed, the fact that the D was previously tried for and acquitted of the other crime does not bar its use under 404(b).

Evidence of flight or escape may be admissible to prove a D’s consciousness of guilt, consistent with Rule 404(b).

U.S. v. Mills D charged with writing false info on flight manifests. Dist ct admitted evidence that on an earlier flight she had concealed from customs inspectors a purchase of jewelry subject to duty. Ct said the evidence was admissible under 404(b) because it showed D’s “propensity” to conceal facts and was thus relevant to intent. The govt’s asserted relevant inference is that D is disposed to lie to the govt, therefore, being a liar, she must have intended to lie on the manifests. This inference is precisely the one that Rule 404(b) prohibits. It makes an element of the crime (intent to lie) more probable because of the D’s character (liar). The difference btw the falsification of the customs declaration and the manifests is too great to make the customs incident relevant. The error, however, does not compel reversal b/c the ct concluded that it had no substantial influence on the jury’s guilty verdict – there was overwhelming evidence that D intentionally falsified the manifests.

Knowledge – where a D claims that his conduct has an innocent explanation, prior act evidence is generally admissible to prove that the D acted with the state of mind necessary to commit the offense charged.

Whitty v. State Man told V, a little girl, about a rabbit and then assaulted her. At trial, he denied he had ever talked to any little girl about a rabbit. The govt called another little girl as a rebuttal witness, who said that the D had talked to her about a rabbit the night before the incident with V. The trial ct admitted the evidence and admonished the jury it was not to be considered proof of D’s guilt of the offense charged but was admitted solely for the purpose of identification since his identity under the alibi defense was at issue. Ct here concluded that the evidence of the rabbit incident admitted for identity purposes created undue prejudice, confused the issues, misled the jury or unfairly surprised D as to require its rejection.

People v. Howard State charged D with robbing V, a professor. At trial, state presented another professor who had been robbed in the same area, and at whom the attacker had directed the same epithet that he had directed at V. D claimed testimony of other professor constituted evidence of other crimes which should have been excluded as irrelevant and prejudicial. Ct here said that modus operandi or method of operation evidence can be used to establish identity when such evidence is sufficiently distinctive to earmark the crime as the work of D. Probative value in a modus operandi case is dependent on a substantial meaningful link between the crimes. The link requires a “high degree of similarity,” but some dissimilarity between independent crimes will always be present. Govt says crimes are substantially similar because both victims were white male college professors, both took pace next to campus, and the offender used the same expletive in both case. Ct says govt produced no evidence that profs were targeted b/c of their profession. Location and choice of V in this case does not earmark these crimes as the handiwork of one individual. Because these similarities represent only features which are common in many robberies, they are not distinctive enough to earmark them as the work of a single individual. Moreover, the testimony of the other professor should have been excluded because its probative value was outweighed by the potential for prejudice.

Absence of mistake or accident – the doctrine of chances posits that the more often an accidental or infrequent incident occurs, the more likely it is that its subsequent reoccurrence is not accidental or fortuitous.

Sex offenses 413-415413 – Evidence of Similar Crimes in Sexual Assault Cases(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.(b) In a case in which the Govt intends to offer evidence under this rule, the attorney for the govt shall disclose the evidence to the D, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 15 days before the scheduled date of trial or at such later time as the court may allow for good cause.(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.(d) For the purposes of this rule and Rule 415, “offense of sexual assault” means a crime under Federal Law or the law of a state that involved- (1) any conduct proscribed by chapter 109A of title 18, USC (2) contact, without consent, between any part of the D’s body or an object and the genitals or anus of another person; (3) contact, without consent, between the genitals or anus of the D and any part of another person’s body; (4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in paragraphs (1) – (4).

Rule 414 – Evidence of Similar Crimes in Child Molestation Cases(a) In a criminal case in which the D is accused of an offense of child molestation, evidence of the D’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.(b) In a case in which the Govt intends to offer evidence under this rule, the attorney for the govt shall disclose the evidence to the D, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 15 days before the scheduled date of trial or at such later time as the court may allow for good cause.(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.(d) For the purposes of this rule and Rule 415, “child” means a person below the age of 14, and “offense of child molestation” means a crime under Federal Law or the law of a state that involved – (1) any conduct proscribed by chapter 109A of title 18, USC, that was committed in relation to a child; (2) any conduct proscribed by chapter 110 of title 18, USC; (3) contact between any part of the D’s body or an object and the genitals or anus of a child; (4) contact between the genitals or anus of the D and any part of the body of a child; (5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or (5) an attempt or conspiracy to engage in conduct described in paragraphs (1) – (4).

Rule 415 – Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation(a) In civil cases in which a claim for damages or other relief is predicated on a party’s alleged commission of conduct constitution an offense of sexual assault of child molestation, evidence of that party’s commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.(b) A party who intends to offer evidence under this rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 15 days before the scheduled date of trial or at such later time as the court may allow for good cause.(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

U.S. v. Lecompte D charged with sexual assault of his wife’s 11 year-old niece. D moved to exclude evidence of prior uncharged offenses against another niece by marriage. Govt argued that the evidence is admissible under FRE 414. Dist ct said other niece’s testimony was potentially admissible under 414, but excluded the evidence under FRE 403. Ct here reverses, in order to give effect to the decision of Congress, expressed in Rule 414, to loosen the substantial degree of restrictions of prior law in the admissibility of such evidence. Rules 413-415 are general rules of admissibility in sexual assault and child molestation cases for evidence that the D has committed offenses of the same type on other occasions. The new rules will supersede in sex offense cases the restrictive aspects of the FRE 404(b). Evidence offered under 414 is still subject to the requirements of 403. However, Rule 403 must be applied to allow rule 414 its intended effect. The sexual offenses committed against the first niece were substantially similar to those allegedly committed against the niece in the present case.

U.S. v. Mound D allegedly abused his daughter. At trial, the govt sought to introduce evidence of similar acts committed by D 8-10 years earlier, the sexual abuse of 2 young girls. D pleaded guilty to the first offense. Dist ct admitted the conviction under Rule 413, but excluded the evidence of the uncharged offense. In considering the evidence offered under Rules 413-415, a trial ct must still apply Rule 403. Rule 413, subject to the limitations of Rule 403, does not violate the due process clause. Rule 413 also does not violate his equal-protection rights because sex-offense D’s are not a suspect class. Legislative history of 413 indicates good reasons why congress believed that the rule was justified by the distinctive character of the offenses it will affect. There is no inherent error in admitting under Rule 413 evidence that would be inadmissible under Rule 404(b); that is the rule’s intended effect.

State v. Burns D charged with sodomy. Prior uncharged misconduct was admitted. The earlier incidents were not reported to the police. Evidence of prior misconduct of the D, although not admissible o show propensity, is admissible if the evidence is logically relevant, in that it has some legitimate tendency to establish directly the accused’s guilt of the charges for which he is on trial, and if the evidence is legally relevant, in that its probative value outweighs its prejudicial effect. State statute saying that evidence of other crimes “shall be admissible for the purposes of showing the propensity f the D to commit the crime or crimes with which he is charged” provides for the mandatory admission of propensity evidence and therefore violates the state constitution.

2. Evidence concerning the victim in a criminal case i. Homicide and assault 404(a)(2), 404(b), 405(a)404(a) – Character Evidence Not Admissible to Prove Conduct; Exceptions (a) Character Evidence Generally. Evidence of a person’s character or a trial of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except (2) Character of Alleged Victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.

404(b) – Other Crimes, Wrongs, or Acts(b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Rule 405- Methods of Proving Character(a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

Government of Virgin Islands v. Carino D shot his girlfriend, claiming that she hit him first. V claimed that she did not attack D first. D said that V threatened him by saying that “he would be the second man that he killed.” Ct instructed D not to refer to the prior crime or V’s conviction for voluntary manslaughter. Ct said that D may have believed that he could use proof of the prior conviction to show V’s character, because the FRE treat character of the victim as an exception to the general rule rejecting the circumstantial use of character evidence. However, the nature of evidence permitted for proof of character is limited by Rule 405(a) to opinion and reputation testimony. Therefore the ct rightly excluded the evidence of the conviction. However, the rules provide an additional basis for the introduction of specific evidence of other crimes (Rule 404(b)). Commentators on the rules have said, “If it can be established that the accused knew at the time of the alleged crime of prior violent acts by the V, such evidence is relevant as tending to show a reasonable apprehension on the part of the accused.” While such use of a V’s prior acts may not fall precisely into any of the enumerated purposes of 404(b), it is close to some of them, such as “intent” and “knowledge.” Therefore the evidence of D’s knowledge of V’s conviction was admissible under 404(b) to show fear or state of mind.

Evidence of the V’s aggressive character may be admissible to establish that the V was he aggressor. However, Rule 405 limits the type of character evidence to reputation or opinion evidence unless the character or trait of character is an essential element of the charge, claim or defense. Therefore D could introduce evidence of V’s reputation for aggressiveness, but he could not introduce specific instances of aggressive conduct.

ii. Rape and Sexual Assault 412 – Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition(a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior; and (2) Evidence offered to prove any alleged victim’s sexual predisposition.(b) Exceptions – (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence; (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent by the prosecution; and (C) evidence the exclusion of which would violate the constitutional rights of the defendant. (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been paced in controversy by the alleged victim.(c) Procedure to Determine Admissibility – (1) A party intending to offer evidence under subdivision (b) must – (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good case requires a different time for filing or permits filing during trial; and (B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian or representative. (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

Summitt v. State D found guilty of sexually assaulting a 6-year-old girl. D sought to introduce evidence of a prior sexual experience of V. D offered the testimony to show the V had had prior independent knowledge of similar acts which constituted the basis for the present charges. Dist ct judge denied D’s request based upon the rape victim shield law, which was enacted to protect rape victims from degrading and embarrassing disclosure of intimate details about their private lives. D seeks to introduce evidence for the sole and limited purpose of challenging the witness’ credibility by dispelling an inference which the jury may well draw otherwise from the circumstances, that a 6 year old child would be unable to describe the occurrences in her testimony unless the D assaulted her. The evidence was offered the show knowledge of such acts other than chastity.

In the interest of John Doe D charged with having sex with a mentally defective girl. D contends that his rights of confrontation and due process were violated when the trial court prohibited his defense counsel from cross-examining V’s Dr. about past sexual behavior and about her use of BCP’s. In this case, D’s purpose for attempting to introduce evidence of V’s sexual history was not to attack V’s character but to explore whether V had a basic understanding of the physiological elements and medical consequences of sexual activity, as well as an understanding of the moral and social implications of pregnancy and sexual intercourse outside of marriage. Since the factfinder needed this info to determine whether V was mentally defective and whether D knew that V was mentally defective. D was entitled, under the due process and confrontation clauses, to elicit such evidence.

Note difference between rape shield laws and Rules 404, 407, 408, 409 and 411, which do not bar certain evidence per se; they only prohibit categories of evidence if offered for a particular unacceptable purpose. For other purposes, the evidence is admissible, if it meets the general relevancy requirements of rules 401 and 403. The typical rape-shield provision, by contrast, bars evidence of sexual character, reputation, or conduct without regard to purpose or relevancy. Commonly, like Rule 412, the provisions state a couple of specific exceptions and a “constitutionally required to be admitted” exception.

3. Civil Cases 404, 405404(a) – Character Evidence Not Admissible to Prove Conduct; Exceptions(a) Character Evidence Generally. Evidence of a person’s character or a trial of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:(1) Character of the Accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; (2) Character of Alleged Victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;(3) Character of Witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

Rule 404(b) – Other Crimes, Wrongs, or Acts(b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Rule 405- Methods of Proving Character(a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.(b) Specific Instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.

SEC v. Towers Financial Corp. D wanted o call character witnesses at trial in a civil action. Ct says the plain meaning of Rule 404(a)(1)’s language limits the exception to criminal cases, making it unavailable in this civil case.

Evidence of a person’s character is viewed with some suspicion under the law and generally is disfavored by the FRE. In an action for defamation or libel, however, the issue of the P’s reputation and character scarcely can be avoided because the P typically seeks to recover compensation for damages to his or her reputation.

In all cases in which character evidence is admissible a party may offer reputation or opinion testimony on the issue of a person’s character. (FRE 405(a)). Only in cases in which a person’s character is an essential element of a charge, claim or defense,” however, may a party offer evidence of specific instances of conduct. (FRE 405(b)).

C. Habit and Routine Practice 406 Evidence of the habit of a person of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Weil v. Seltzer Allergy Dr. accused of poisoning patient with steroids. Discovery led to information as to excessive steroid prescriptions to numerous patients. Also, many non-steroidal pill containers were found to actually contain steroids. At trial, testimony of 5 of D’s former patients, indicating that D had prescribed steroids, representing them to be decongestants. Dist ct admitted the evidence under FRE 406 – evidence of habit. D claimed admission of evidence violated FRE 404(b). Ct here reviews for abuse of discretion. Rule 406 allows certain evidence which would otherwise be inadmissible if it rises to the level of habit. In this context, habit refers to the type of nonvolitional activity that occurs with invariable regularity. It is this nonvolitional character of habit evidence that makes it probative. Before the former patient evidence could be properly admitted as habit evidence the witnesses must have some knowledge of the practice and must demonstrate this knowledge prior to giving testimony concerning the routine practice. Each witness who testified against D only knew the way in which D treated his own allergies. It has been held that it is necessary to critically examine the ratio of reactions to the situations and to show regularity of conduct by comparison of the number of instances in which any such conduct occurs with the number in which no such conduct takes place. The burden of establishing the habitual nature of the evidence rests on the proponent of the evidence. Evidence concerning D’s treatment of 5 former patients is not of the nonvolitional, habitual type that ensures its probative value. Rather, the testimony of the former patients is the type of character evidence contemplated under 404(b). Ct notes that under 404(b) the former patient evidence may have been admissible for other purposes (show plan, knowledge, identity or absence of mistake or accident.)

D. Subsequent Remedial Measures 407 When, after a injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in the product’s design, or a need for warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Even if admitted for another purpose, still must withstand 403 analysis. Availability of another means of proof is an important factor in this balancing process.

Anderson v. Malloy Woman raped in her hotel room – sued hotel. Dist ct refused to admit evidence that, after the rape, D installed safety chains and peep holes to entrance doors of hotel rooms, based upon rule 407. Jury returned verdict for D. Remember that any evidence that could be admissible under 407 must first be relevant (402) and probative value must outweigh dangers of prejudice (403). P claims that at trial D’s controverted the feasibility of the use of peep holes and chains, therefore the evidence comes within the exception of rule 407. Whether something is feasible relates not only to actual possibility of operation, and its cost and convenience, but also to its ultimate utility and success in its intended performance. At closing, D’s atty said, “They did everything anybody recommended that they do. What more can they do? Is there any evidence from any reliable source that they could or should have done anything more?” After the rape D’s installed the same devices that they testified could not be used successfully. Under rule 407, the evidence could not be used by P to prove the D’s negligence, and a limiting instruction would warn the jury of this restriction in its admission. But the ct finds it to be an abuse of discretion for the trial ct to refuse to admit the only evidence that would effectively rebut the inferences created by D.

“Subsequent” – Evidence of a design change effected after manufacture but before the accident is not barred by rule 407.

“Measures undertaken by nondefendants” – Rule 407 has been construed not to bar evidence of a subsequent remedial measure by a party who is not a D, on the theory that such a party will not be deterred by admission of the evidence.

“Product liability cases” – Majority of courts hold that the rule excluding subsequent remedial measures does not apply to product cases based upon strict liability.

E. Compromise and Offers to Compromise 408-410 Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.This rule exists for 2 reasons: relevancy and policy considerations. Settling a large claim for a lesser amount may just be an offer to reach a peaceful resolution, which makes it irrelevant to the claim. And this rule promotes claim settlement. To invoke exclusionary rule, an actual dispute must exist, preferably some negotiations, and at least an apparent difference of view between the parties as to the validity or amount of the claim. Rule is designed to exclude the offer of compromise only when it is tendered as an admission of the weakness of the offering party’s claim or defense, not when offered for another purpose (such as to explain a delay in taking action or failure to seek employment or to mitigate damages.) This admission still subject to 403 analysis and is likely deserving of a limiting instruction.Rule 409 – Payment of Medical and Similar ExpensesEvidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.But if the offer to pay is relevant to an issue other than liability for the injury, exclusion is not required.Rule 410 – Inadmissibility of Pleas, Plea Discussions and Related Statements Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the D who made the plea or was a participant in the plea discussions:(1) a plea of guilty which was later withdrawn;(2) a plea of nolo contendere;(3) any statement made in the course of any proceedings under Rule 11 of the FRCRP or comparable state procedure regarding either of the foregoing pleas; or(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, in the record and in the presence of counsel.The rule permits use of statements made as part of plea negotiations for certain limited purposes, impeachment of the D’s subsequent testimony is not one of them. Rochester Machine Corp. v. Mulach Steel Corp.Lessor wrote to lessee asking payment for damages to premises. Lessee wrote back, accepting responsibility for some items and denying responsibility for others. General rule is that an offer to compromise is not admissible in evidence at trial as an admission that what is offered is rightfully due or that liability exists. The letter by lessor stating items of damages caused by lessee and demanding the estimated amount for their repair cannot be construed as a settlement offer, and the lessee’s response cannot be construed as a settlement offer. Rather, it is an admission of liability with respect to some items of damages and a disclaimer of liability with respect to others. Even if lessee’s offer is viewed as an offer of compromise, those portions of the letter constituting distinct admissions are, in fact, admissible under the CL. But under the FRE such admissions, made in the course of settlement negotiations, are inadmissible – based on belief that expeditious and extrajudicial settlements are to be encouraged and that privacy of communication is necessary in order to encourage them. Ct in this case retains the CL rule permitting introduction into evidence of distinct admissions, even if made in connection with an offer to compromise.

“Requirement of a dispute” – Neither an offer to compromise nor compromise negotiations may take place in the absence of a dispute. A statement about facts that might give rise to a claim would not be barred by FRE 408.

“Bias or prejudice of a witness” – In some jurisdictions, it is permissible to show by cross-examination that an adversary witness, injured in the same accident, has compromised and settled his claim with the D for the purpose of reflecting his credibility and the weight to be given his evidence, as an inference of interest or bias may be drawn from such fact.

Rule 409 bars evidence of payment or an offer to pay medical, hospital or similar expenses as evidence of liability for an injury. Unlike rules 408 and 410, however, 409 does not protect statements made in connection with the payment or offer.

U.S. v. Greene D charged with drug offenses sought to suppress statements that he made to a DEA agent, arguing that those statements were made in the course of plea negotiations and were therefore excludable under FRE 410(4). Trail ct denied motion and allowed statements into evidence. FRE limits protection to statements made to an atty of the govt, but this ct has extended coverage to statements made to a law enforcement agent who has express authority to act for the prosecuting govt authority. Agent stated that when he went to D’s house he intended to “personally try to determine if D would cooperate or not” and that the prosecuting govt atty knew of this intention. Trial ct found that there was no actual authority given by the pros. govt atty to the DEA agent to negotiate a plea agreement. Nor does ct here believe that the agent had any apparent authority to negotiate a plea agreement.

FRE do not apply during sentencing; therefore incriminating statements made by D during plea negotiations may be admissible in the sentencing phase of trial.

F. Liability Insurance 411 Evidence that a person was or was not insured against liability is not admissible upon the issue of whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Charter v. Chleborad P’s legs amputated by D, surgeon. P offered expert testimony of another Dr. who said that D had been negligent. D’s rebuttal expert said that P’s expert had a bad reputation. On cross D’s expert stated that some of his own clients were insurance companies. P’s counsel asked him to name some of the companies and D objected to the relevancy of the matter. After conference at the bench the dist ct refused to allow further questioning on the subject of insurance. P stated in his motion for a new trial that the D’s expert was employed in part by the same liability carrier who represents the D in this action. The existence of a liability insurance policy is not admissible to show one’s negligence or other wrongful conduct. Evidence of the existence of insurance may be offered for other purposes, however. In this case, the fact that D’s insurer employed D’s expert was clearly admissible to show possible bias of that witness. D claimed evidence should also be excluded under rule 403. But 403 was not designed to allow the blanket exclusion of evidence of insurance absent some indicia of prejudice. Such a result would defeat the obvious purpose of Rule 411.



1. Definition 801(a)-(c)

801 – DefinitionsThe following definitions apply under this article: (a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) Declarant. A “declarant” is a person who makes a statement. (c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Therefore, out-of-court conduct is not hearsay if it is not an assertion or, even if it is assertive, it is not offered to prove the truth of the matter asserted.

A. Commonwealth v. Farris Issue of identification of burglar. Detective tried to testify that a statement was made to him, and that as a result of this statement he arrested the D. Pros claimed that since the statement was never actually read to the jury, that this action did not constitute hearsay. Ct said that since if Detective had flat out said what he was told then this would be hearsay, therefore they should not be permitted to evade this principle by having the detective testify obliquely rather than flat-out. Hearsay objection cannot be obviated by eliciting the purport of the statements in an indirect form. B. Verbal ActsVerbal acts – when suit is brought for breach of a written K, no one would object and say that the writings evidencing the K were hearsay. So, in an oral K, the oral utterances by the parties in a K suit constituting the offer and acceptance which brought the K into being are not evidence of assertions offered testimonially but rather verbal conduct to which the law attaches duties and liabilities. Same is true of words constituting slander and deceit for which damages are sought.Verbal parts of acts – limited to words that constitute operative legal conduct. Explanatory words that accompany and give character to the transaction (such as handing over money) are not hearsay when under the substantive law the pertinent inquiry is directed only to the objective manifestations rather than to the actual intent or other state of mind of the actor.

Hanson v. Johnson Question of who owned corn. Plaintiff wanted to testify that when he was on his farm, the tenant on the farm pointed to certain corn and said that it belonged to the plaintiff. Court said that the language of the tenant was the very fact necessary to be proved. The verbal part of the transaction between the plaintiff and the tenant was necessary to prove the fact. There could be no division without words or gestures identifying the respective shares. This was a fact to be shown in the chain of proof of title. Competent evidence, not hearsay.

C. Effect on State of Mind of Listener or Reader Statement that D made a statement to X is not subject to attack as hearsay when its purpose is to establish the state of mind thereby induced in X, such as receiving notice or having knowledge or motive, or to show the information which X had as bearing on the reasonableness, good faith, or voluntariness of subsequent conduct, or on the anxiety produced. The same rationale applies in self-D cases to proof by the D of communicated threats by the person killed/assaulted. If offered to show the D’s reasonable apprehension of danger , the statement is not offered for a hearsay purpose b/c its value does not depend upon its truth. Admitting this testimony usually require limiting instruction.

McClure v. State D wanted to show that he had knowledge of his wife’s infidelity. To do so, he needed to testify that an outside party had told him so. Ct said that when an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, no assertive or testimonial use is to be made of it, then the utterance is not hearsay.

This rule as to the “effect on state of mind of listener or reader” can be used to prove notice, good or bad faith, or motive.

D. Implied Assertions Nonverbal conduct as hearsay - Sometimes nonverbal conduct can be just as assertive as conduct. (Someone asks “Who did it?” and D raises his hand.) This would be a clear instance of non-verbal conduct of a person intended by the person as an assertion – under the hearsay definition receives the same treatment as oral or written assertions – only difference is that with non-verbal conduct the intent to assert must be found by a judge as a precondition to classification as hearsay.Sometimes conduct is non-assertive (uncontrolled reactions, etc.) Non-assertive nonverbal conduct – captain inspects ship and then puts his family on board. Is this an implied assertion that the captain thought the ship was seaworthy, and therefore the conclusion might be drawn that the ship was, in fact, seaworthy? FRE 801(a) treats nonverbal conduct as nonhearsay unless an intent to assert is shown.

U.S. v. Zenni Government agents investigating D for illegal bookmaking. While searching the premises, the agents answered the phone many times and the callers made requests for bets to be placed. Government sought to introduce this information, D claimed statements were hearsay. Ct said that the utterances were not offered for the truth of the words. They were offered to show the declarants’ belief in the fact sought to be proved. No oral or written assertion was to be considered as hearsay, unless it is an “assertion” concerning the matter sought to b proved and no nonverbal conduct should be considered as hearsay, unless it was intended to be an assertion. Nothing is an assertion unless intended to be one. Therefore 801(a)(2) removes implied assertions from the definition of “statement” and consequently from the operation of the hearsay rule. Utterances of telephone betters were nonassertive verbal conduct, offered as relevant for an implied assertion to be inferred from them. Language is not an assertion on its face, and is therefore excluded from operation of the hearsay rule.

Silence is usually not hearsay b/c it is not intended as an assertion. (This is not the same as silence as admission by a party-opponent.)An “assertion” for hearsay purposes simply means to say something is so, e.g., that an event happened or that a condition existed. The important question is whether an assertion is intended.

Circumstantial Evidence of Declarant’s State of Mind

Bridges v. State Sexually abused child who was able to describe room in which she was abused to her mother. Ct said that testimony as to child’s statements was hearsay and therefore inadmissible if the purpose for which it was received was to establish the truth of what she was stating (that a room looked a certain way). But this was not the purpose of why the evidence of the statements was admitted – the statements were admissible in so far as the fact that she had made the statements can be deemed to tend to show that at the time the statements were made she had knowledge as to articles and descriptive features which were in fact about the room and the house. The condition of a speaker’s mind, as to knowledge, belief, rationality, emotion, or the like may be evidenced by his utterances. Her statement was competent as evidence to prove that she had knowledge of such objects in the room, and is therefore not inadmissible hearsay but is a circumstantial fact indicating her knowledge at a particular time. Just to show that she has good memory or capacity to remember. (This argument would have likely been more successful under the 801(d)(1)(B) – fabrication and lack thereof exception.)

2. Prior Statement by Witness 801(d)(1)

801(d) – Statements Which Are Not Hearsay. A statement is not hearsay if(1) Prior statement by witness. The declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at trial, hearing, or other proceeding, or (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) one of identification of a person made after perceiving the person.This rule applies to prior statements of witnesses as substantive evidence – not applicable to statements used for impeachment purposes. – FRE exempted from hearsay classification certain prior statements thought by circumstances to be generally free of the danger of abuse. A. Inconsistent Statements 801(d)(1)(A)801(d)(1)(A) Statement not hearsay if the declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at trial, hearing, or other proceeding.

U.S. v. Castro-Ayon D charged with smuggling aliens. Aliens taken to station and given Miranda rights by Agent. Testimony given at station differed from testimony later given at trial. Agent allowed to testify as to content of earlier statements. At trial, court instructed jury to weigh the statements of the witnesses, not only to test the credibility of the witnesses, but also in considering D’s guilt (offered as substantive evidence, rather than just for impeachment purposes). Question is if earlier interrogation by Agent constituted an “other proceeding” per 801(d)(1)(A). Ct, in deciding, found that GJ testimony was permitted under the rule, and that there is not a requirement that the earlier statement be subject to cross-examination. Earlier investigation has similarities to GJ proceeding, therefore earlier investigation = other proceeding, so lower court was correct in its decision.

A prior inconsistent statement that does not qualify as substantive evidence under Rule 801(d)(1)(A) is hearsay, and it may be admissible for impeachment (subject to Rule 613) but a limiting instruction must be given upon request (to tell the jury that the evidence should reflect only on the witness’ credibility and should not be used to establish facts.)

B. Consistent Statements 801(d)(1)(B)801(d)(1)(B)Statement is not hearsay if the declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is 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.

Tome v. U.S. D charged with sexually abusing his daughter. D said that the child concocted the statements in order to continue living with her mother. After child testified, Gov’t produced witnesses who testified about statements made by child regarding the abuse. Statements offered by Gov’t under 801(d)(1)(B), arguing that they were being offered to rebut the implicit charge that child’s testimony was motivated by a desire to live with her mother. D argued that the statements were inadmissible since all were made after girl’s alleged motive to fabricate arose. CL rule was that a prior consistent statement introduced to rebut a charge of recent fabrication or improper influence or motive was admissible if the statement had been made before the alleged fabrication influence, or motive came into being, but inadmissible if made afterwards. Question – does 801(d)(1)(B) embody this temporal requirement? Admissibility under 801(d)(1)(B) confined to statements offered to rebut a charge of “recent fabrication or improper influence or motive.” A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive. Ct says its clear that the drafters of 801(d)(1)(B) were relying upon the CL temporal requirement. Although the Federal Rules take a somewhat liberal approach to relevancy, relevance is not the sole criterion of admissibility. Although the statements here might have been probative on the question of whether the alleged conduct had occurred, they shed but minimal light on whether the child had the alleged motive to fabricate.

Advisory committee treats consistent statements under 801(d)(1)(B) as non-hearsay and admissible as substantive evidence, not just to rebut credibility of witness. Applying the pre-motive requirement may present a disputed factual determination to be decided by the court. 801(d)(1)(B) requires that the witness-declarant be subject to cross-examination concerning the prior statement. This requirement is satisfied if the witness is available to be recalled for recross-examination. But if the witness has been excused and thus were no longer subject to cross-examination concerning the statements then the supported statements can be excluded.

C. Identification of a Person 801(d)(1)(C)801(d)(1)(C)Statement is not hearsay if the declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person.

U.S. v. Lewis Witness unable to identify D in the courtroom and mistakenly picked out a U.S. Marshal instead. Agent testified that witness had picked D out of an earlier photo array. D claimed that language of 801(d)(1)(C), “identification of a person made after perceiving him” is not meant to apply to photo identification. D also claimed that witness’ testimony about her prior identification amounted to testimony about a prior inconsistent statement not made under oath, rendering it improper under subsection (A), which overrides subsection (C). Ct says that Congress has recognized that identification in the courtroom is a formality that offers little in the way of reliability. Trial judge gives much greater credence to the out-of-court identification. Purpose of the rule was to permit the introduction of identifications made by a witness when memory was fresher and there had been less opportunity for influence to be exerted upon him. Testimony concerning extra-judicial identifications is admissible regardless of whether there has been an accurate in-court identification. Subsection (C) represents a legislative decision to admit statements of identification provided the declarant “testifies at trial and is subject to cross-examination concerning the statement.” These conditions were met in this case.

U.S. v. Owens After prison guard was beaten, he suffered from memory loss and was unable to identify his attacker until a later date when his memory was clearer. At trial, guard said that he clearly remembered identifying D during the later interview, but on cross admitted that he could not remember seeing his attacker and did not know if anyone had visited him in the hospital and had suggested that D was the attacker. Question is whether the Conf. Clause of the 6th A or FRCP 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. Regarding the 6th A claim, a D seeking to discredit a forgetful expert witness is not without ammunition, since the jury may be persuaded that his opinion is an unreliable as his memory. The Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever ay, and to whatever extent, the defense might wish. That opportunity is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief. The weapons available to impugn the witness’s statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee. As to 801(d)(1)(C), the Court of Appeals found that the guard’s identification statement did not come under this exclusion because his memory loss prevented his being “subject to cross-examination concerning the statement. Ct finds that 801(d)(1)(C) was in part directed to the very problem in this case: a memory loss that makes it impossible for the witness to provide an in-court identification or testify about details of the events underlying an earlier identification.

3. Admissions by Party-Opponent 801(d)(2)801(d) – Statements Which are Not HearsayA statement is not hearsay if(2) Admission by party opponent. The statement is offered against a party and is (A) the party’s own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (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) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. 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 declarant and the party against whom the statement is offered under subdivision (E).Admissions of a party are received as substantive evidence of the facts admitted and not merely to contradict the party. As a result, no foundation by first examining the party, as required for impeaching a witness with a prior inconsistent statement, is mandated for admission.Admissions are words or actions inconsistent with the party’s position at trial, relevant to the substantive issues in the case, and offered against the party. Admissions are subject to rule 403.Admissions are different from declarations against interest, which must have been against declarant’s interest when made. Although most admissions are against interest when made, it is not required that they be. Unavailability of a witness is not req’d of admissions, but statements against interest require that the declarant be unavailable as a witness.

Individual 801(d)(2)(A) A statement is not hearsay if the statement is offered against a party and is the party’s own statement in either an individual or a representative capacity.

Jewell v. CSX Transportation Husband killed when his car was hit by a train. Wife and daughter were injured. Trial court admitted statements made by daughter that husband and wife were arguing before the accident and that she was told to be quiet when she told them about the approaching train. Estate argued that daughter had suffered brain damage and that her statements could not be trusted. Ct held that trustworthiness is not a separate requirement for admission under 801(d)(2)(A). The advisory committee notes to this section note that admissions by a party-opponent are excluded from the category of hearsay “on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule.” Estate’s complaints go to the weight to be given to the daughter’s statements rather than to their admissibility. Estate was afforded ample opportunity to impeach the credibility of the daughter’s statements regarding the argument.

B. Adoptive 801(d)(2)(B) A statement is not hearsay if the statement is offered against a party and is a statement of which the party has manifested an adoption or belief in its truth.The fact that the party declares that he has heard that another person has made given statement is not alone sufficient to justify finding that the party has adopted the third person’s statement. The circumstances surrounding the party’s declaration must be examined to determine whether they indicated an approval of the statement.EX: party in lawsuit offers into evidence a deposition or affidavit to prove the matters stated therein. The party knows or should know the contents of the writing and presumably desires that all of the contents be considered on its behalf since only the portion desired could be offered. It is reasonable to conclude that the writing so introduced may be used against the party as an adoptive admission in another suit. Proving adoption of oral statements is more difficult.

U.S. v. Morgan Informant told agent that “Timmy” was selling drugs out of a house. Agents used this information to retrieve a search warrant, upon execution of which D, not Timmy, was arrested. D sought to introduce statements of informant at trial. Under Rule 801(d)(2)(B) an out-of-court statement offered to show the truth of the matter asserted shall not be regarded as hearsay if a party-opponent “has manifested his adoption or belief in its truth.” This rule applies to the informant’s statements to the agent. The government manifested its belief in the truth of the informant’s statements about Timmy by characterizing them as “reliable” in a sworn affidavit to a US Magistrate. Govt argues that this rule should not be applicable against the prosecution in criminal cases, but the ct says that there is nothing in the history of the Rules generally or in Rule 801(d)(2)(B) particularly to suggest that it does not apply to the prosecution in criminal cases. Ct doesn’t say that just any statement the informant might have made is admissible against the government, just that where, as here, the government has indicated in a sworn affidavit to a judicial officer that it believes particular statements are trustworthy, it may not sustain an objection to the subsequent introduction of those statements on grounds that they are hearsay. Rules for admitting silence as an admission:1) statement must have been heard by the party claimed to have acquiesced; 2) it must have been understood by the party; 3) the subject matter must have been within the party’s knowledge; 4) physical or emotional impediments to responding must not be present; 5) the personal makeup of the speaker (youth, person’s relationship to party, etc.) may be such as to make it unreasonable to expect a denial; and 6) the statement itself must be such as would, if untrue, call for a denial under the circumstances. Essential inquiry in each case is whether a reasonable person under the circs would have denied the statement

People v. Green D accused of killing boyfriend of D’s wife. D’s sister-in-law testified that, in her presence, wife told D “I am not scared of you just because you had [victim] killed.” Sister-in-law says that D said nothing in response to this statement. D and wife were in a heated argument at the time. Ct says that an incriminating statement made by a 3rd party in the presence of a defendant is deemed not to be hearsay, and therefore admissible against the defendant, when the evidence establishes that the defendant demonstrated his or her adoption of the statement or belief in its truth. This is due to the general assumption that it would be reasonable to expect any person who hears a statement accusing him or her of misconduct to deny such statement. However, due to 5th A considerations, some jurisdictions say that silence when confronted with accusations may never be deemed an adoptive admission. The trial court must determine that the party offering the statement can produce evidence to support the factual conclusions that the D heard and understood the statement, had knowledge of the contents thereof, and was free from any emotional or physical impediment which would inhibit an immediate response. Here, the only circumstance suggesting that D adopted the statement was his silence. This fact must be weighed against the others, such as that he was in an argument with his wife. As D was not free from emotional impediments to an immediate response, the statements should not have been admitted.

C. Authorized 801(d)(2)(C) A statement is not hearsay if the statement is offered against a party and is a statement by a person authorized by the party to make a statement concerning the subject. The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority.Party offering evidence of the alleged agent’s admission must first prove that the declarant is an agent of the adverse party and the scope of that agency. This may be done directly by the testimony of the asserted agent, or by anyone who knows, or by circumstantial evidence. Rule applies to both statements by agents authorized to speak and by those authorized only to act for the principal.

Kirk v. Raymark Industries, Inc. P sued D for asbestos-related injuries. D offered expert who said that D’s material could not have caused P’s injury. Over D’s objection, P was allowed to read to the jury prior trial testimony of D’s expert from an unrelated earlier asbestos action. D’s expert had earlier stated that D’s products could cause injuries of the type suffered by P. D arugued that this evidence was hearsay. P argued that the testimony was an admission by a partu-opponent since it is a statement by a person authorized by D to speak concerning this injury and this was not hearsay under 801(d)(2)(C). At oral argument, P suggested that the testimony of any expert that D has previously used in a trial can be used in future litigation against it as an authorized admission. Ct says P misconstrues the entire premise of calling expert witnesses. In theory, despite the fact that one party retained and paid for the services of an expert witness, expert witnesses are supposed to testify impartially in the sphere of their expertise. 801(d)(2)(C) requires that the declarant be an agent of the party-opponent against whom the admission is offered, and this precludes the admission of the prior testimony of an expert witness where, as normally will be the case, the expert has not agreed to be subject to the client’s control in giving his or her testimony. Since an expert witness is not subject to the control of the party-opponent with respect to the consultation and testimony he or she is hired to give, the expert witness cannot be deemed an agent. Ct here unwilling to adopt the proposition that the testimony of an expert witness who is called to testify on behalf of a party in one case can later be used against that same party in unrelated litigation, unless there is a finding that the expert witness is an agent of the party and is authorized to speak on behalf of that party.

D. Agent or Servant 801(d)(2)(D) A statement is not hearsay if the statement is offered against a party and is 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. The contents of the statement shall be considered but are not alone sufficient to establish the agency or employment relationship and scope thereof .

Mahlandt v. Wild Canid Center Child allegedly attacked by wolf. Admissibility at issue for 3 pieces of evidence – (1) note left for owner of sanctuary by owner of wolf (EE of sanctuary) saying wolf had bit child; (2) statement made by wolf owner to sanctuary owner that wolf had bit child; and (3) minutes from meeting of sanctuary directors in which there was a great deal of discussion as to the legal ramifications of wolf biting child. Trial judge said that (1) and (2) were hearsay, and that (3) was subject to the same objection of hearsay and unreliability because of lack of personal knowledge (wolf owner not present at meeting). Ct says statement in the note pinned on the door is not hearsay, and is admissible against wolf owner. It was his own statement, and as such was clearly different from the reported statement of another. (Ex: “I was told that . . .”) It was also a statement of which he had manifested his adoption or belief in its truth. Are statements admissible against the sanctuary? They were made by wolf owner when he was an agent or servant of the sanctuary and they concerned a matter within the scope of his agency, or employment (his custody of the wolf) and were made during the existence of that relationship. D argues that Rule 801(d)(2) does not provide for the admission of “in house” statements; that is, it allows only admissions made to third parties. But advisory committee notes to (C) (which has the same rationale as (D)) state that communication to an outsider has not generally been thought to be an essential characteristic of an admission. Thus a party’s books or records are usable against him, without regard to any intent to disclose to third persons. As to personal knowledge – while both Rule 805 and rule 403 provide additional bases for excluding otherwise acceptable evidence, neither rule mandates the introduction into Rule 801(d)(2)(D) of an implied requirement at the declarant have personal knowledge of the facts underlying his statement. So the ct concludes that the two statements are admissible against the Sanctuary. As to the meeting minutes, the directors had the authority to include their conclusions in the record of the meeting. So the evidence would fall within 801(d)(2)(C) as to the Sanctuary. But there was no servant, or agency relationship which justified admitting the evidence of the board minutes against the wolf owner. None of the conditions of 801(d)(2) cover the claim that minutes of a corporate board meeting can be used against a non-attending, non-participating EE of that corporation. Evidence is not admissible against wolf owner. Only question left is 403 – trial judge said evidence was not reliable, since none of the statements were based on the personal knowledge of the declarant. Advisory Committee Notes to 801(d)(2) say, “The freedom which admissions have enjoyed from technical demands of searching for an assurance of trustworthiness in some against-interest circumstances, and from the restrictive influences of the opinion rule and the rule regarding first hand knowledge when taken with the apparently prevalent satisfaction with the results, calls for generous treatment of this avenue to admissibility.” Ct says 403 does not warrant exclusion of (1) or (2). But the limited admissibility of the minutes, coupled with the repetitive nature of the evidence and the low probative value of the minute record, all justify supporting the judgment of the trial ct under 403.

E. Co-conspirator 801(d)(2)(E) A statement is not hearsay if the statement is offered against a party and is a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. 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.

Declaration must have been made while the conspiracy was continuing and must have constituted a step in furtherance of the venture. Preliminary Q’s of fact with regard to declarations of co-cons are governed by FRE 104(a) and must be established by a preponderance of the evidence.

Bourjaily v. U.S. Sup ct granted cert to answer 3 questions regarding the admission of statements under 801(d)(2)(E): (1) whether the ct must determine by independent evidence that the conspiracy existed and that the D and the declarant were members of the conspiracy; (2) the quantum of proof on which such determinations must be based; and (3) whether a ct must in each case examine the circumstances of such a statement to determine its reliability. FBI informant selling drugs to L (not a party in this action). L said in a taped telephone conversation that he had a “friend” who wanted to ask some questions about the cocaine. Agent took drugs to parking lot and L took coke from agent’s car to D’s car and both L and D were immediately arrested. Govt introduced, over D’s objection, L’s telephone statements regarding the participation of the “friend” in the transaction. Dist ct found that govt had established by a preponderance of the evidence that a conspiracy involving L and D existed, and that L’s statements over the phone had been made in the course of and in furtherance of the conspiracy. Accordingly, dist ct held that L’s out-of-court statements satisfied Rule 801(d)(2)(E) and were not hearsay. Before admitting a co-con’s statement over an objection that it does not qualify under Rule 801(d)(2)(E), a ct must be satisfied that the statement actually falls within the definition of the rule. There must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made “during the course and in furtherance of the conspiracy.” FRE 104(a) provides: “Preliminary questions concerning the admissibility of evidence shall be determined by the court.” FRE does not define the standard of proof the ct must observe is resolving these questions. The preponderance standard ensures that before admitting evidence, the ct will have found it more likely than not that the technical issues and policy concerns addressed by the FRE have been afforded due consideration. Therefore the ct holds that when the preliminary facts relevant to 801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of the evidence.D argues that in determining whether a conspiracy exists and whether the D was a member of it, the ct must look only to independent evidence – evidence other than the statements sought to be admitted. Otherwise hearsay would lift itself by its own bootstraps to the level of competent evidence – bootstrapping rule from Glasser. Does it survive after FRE? D concedes that rule 104 appears to allow the ct to make the preliminary factual determinations relevant to Rule 801(d)(2)(E) by considering any evidence it wishes, unhindered by considerations of admissibility. But D argues that the bootstrapping rule survives FRE 104. Ct disagrees. It would be extraordinary to require legislative history to confirm the plain meaning of Rule 104. The Rule on its face allows the trial judge to consider any evidence whatsoever, bound only by the rules of privilege. Ct here thinks that there is little doubt that the co-con’s statements could themselves be probative of the existence of a conspiracy and the participation of both the D and the declarant in the conspiracy. Each of L’s statements may itself be unreliable, but taken as a whole, the entire conversation between L and the informer was corroborated by independent evidence. On these facts, the trial ct correctly concluded that the govt had established the existence of a conspiracy and D’s participation in it. The ct here says it need not decide whether the cts below could have relied solely on L’s hearsay statements to determine that a conspiracy had been established by a preponderance of the evidence.Dissent says that the FRE did not change the long and well-settled law that facts relating to a conspiracy must be established by evidence independent of that statement itself. This abandonment will eliminate one of the few safeguards of reliability that this exemption from the hearsay definition possesses.

Bourjaily held that the putative co-con statement itself can be considered by the trial ct in determining whether a conspiracy exists and its scope. However, the statement is not sufficient by itself to establish these facts under the FRE.

The 2nd sentence of Rule 801(d)(2) provides that the contents of out-of-court statements are not alone sufficient to establish the preliminary facts. The requirement can be satisfied by the testimony of nonconspirators or by corroboration of facts contained in the statements of the conspirators.

If there is a charge of conspiracy, acquittal on the conspiracy charge does not render statements inadmissible under Rule 801(d)(2)(E). The conspiracy that forms the basis for admitting co-conspirators’ statements need not be the same conspiracy for which the accused is charged. A statement of one co-conspirator is admissible against another member who joined after the statement was made.

4. Present Sense Impression 803(1) – The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(1) Present Sense Impession. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

Houston Oxygen Co. v. Davis Woman testified that a car (that later got into an accident) has passed her on the highway. When woman was asked if anyone in her car made a statement as the car went by, P’s objected. The excluded statement was that the woman had said, “they must have been drunk, that we would find them somewhere on the road wrecked if they kept that rate of speed up.” Ct here says statement should have been included because it is sufficiently spontaneous to save it from the suspicion of being manufactured evidence. There was no time for a calculated statement. It is believed that such comments, strictly limited, to reports of present sense-impressions, have such exceptional reliability as to warrant their inclusion within the hearsay exception for spontaneous declarations.

“Opportunity of witness to observe matter” – Rule 803(1) does not require that the witness who recounts the hearsay utterance have had an opportunity to observe and check what the declarant describes.

“Immediately thereafter” – The rule requires that the declaration, if not simultaneous with the event, be made “immediately thereafter”. “Immediately” permits only a “slight lapse” of time. “The present sense impression exceptions to the hearsay rule is rightfully limited to statements made while a declarant perceives an event or immediately thereafter, and we decline to expand it to cover a declarant’s relatively recent memories.”

“Personal knowledge of declarant” – A hearsay declarant, like a witness, must have personal knowledge of the matter the statement is offered to prove.

5. Excited Utterance 803(2) – The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

City of Dallas v. Donovan Accident at an intersection caused by removed stop sign. City not liable unless the city fails to correct the situation within a reasonable time after actual notice. Jury said city had notice. City claims ct erred in admitting testimony of a man who said that a woman had driven up to the scene minutes after the accident. He said that she was very upset and that her voice was crackling. He said that she volunteered the statement that days prior to the accident she had reported to the city that the stop sign was down. P’s contend that statement was admissible as an excited utterance under 803(2) of TX rules of evidence. City claimed the statement lacks the necessary relationship to the startling event – it bears no relationship to e events immediately preceding the accident, the accident itself, or the resulting injuries. Ct said the statement about her report to the city does tend to explain or illuminate the accident, and it does relate to happenings causative of the accident. Also, advisory commit notes say, “Permissible subject matter of the statement is limited under Exception (1) [rule 803(1) on present sense impressions] to description or explanation of the event or condition. In Exception (2) [rule 803(2) on excited utterances], however, the statement need only “relate” to the startling event or condition. 3 required conditions for admission – starling occasion, a statement made before time to fabricate, and a statement relating to the circumstances of the occurrence. Ct here says the only requirement concerning time with respect to admission of excited utterances is the necessity that the statement be made while in a state of excitement caused by the event. In this case, the woman’s statement was offered to prove an incident distinct from, but related to, the startling occurrence.

The startling event which triggers an EU need not be the crime or accident itself.

The contents of the statement itself, along with circumstances including the declarant’s behavior, appearance, and condition, may be relied upon to establish the occurrence of the exciting event.

Then Existing Mental, Emotional, or Physical Condition 803(3) The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(3) Then existing mental, emotional or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, 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 execution, revocation, identification, or terms of declarant’s will.Statements need not be made to a doctor. Any person hearing a statement may testify to it, but descriptions of past pain or symptoms are excluded.Sometimes the emotional or mental state of a person is the ultimate object of an inquiry (intent to do something, etc.) It is not introduced as evidence from which the person’s earlier or later conduct may be inferred but as an operative fact upon which a cause of action or defense depends. While a person’s state of mind may be proved by his actions, the statements of the person are often a primary source of evidence. i. Then existing physical condition

Casualty Insurance Co. v. Salinas Workers comp case. Dr.’s said P was not seriously injured. To offset this medical testimony, P called 3 lay witnesses and tendered proof that P had complained of present existing pain at various times subsequent to his injury. Trial ct excluded this testimony. Ct says this is an error. Declarations of a party himself, to whomever made, are competent evidence, when confined strictly to such complaints, expressions, and exclamations as furnish evidence of a present, existing pain or malady, to prove his condition, ills, pains and symptoms, whether arising from sickness, or from an injury by accident or violence. Statements of existing bodily pain need not be made to a physician in order to be admissible, although this circumstance may have some bearing upon the weight given the declaration by a jury. Nor is it essential that the expression of pain concerning which testimony is offered be of an involuntary nature such as a scream or a groan. A verbal and articulate statement of complaint comes within the exception to the hearsay rule.

State of Mind “In Issue”

Adkins v. Brett Alienation by D of P’s wife. Question of admission of statements made by P’s wife to P regarding her involvement with D and the things that they had done together and how she felt about D. D objected, saying that such statements were hearsay. Ct says that rule is well-settled that, when the intention, feelings, or other mental state of a certain person at a particular time, including his bodily feelings, is material to the issues under trial, evidence of such person’s declarations at the time indicative of his then mental state, even though hearsay, is competent as within an exception to the hearsay rule. But here the statements do not just tell us about wife’s mental state, but also state events that can be very harmful to D’s case. Ct says nevertheless, the evidence, competent for the purpose of showing the state of the wife’s feelings, is not rendered incompetent by the fact that it also tends to prove other material matters, to prove which it is not competent. When an evidentiary fact is offered for one purpose, and becomes admissible by satisfying all the rules applicable to it in that capacity, it is not inadmissible because it does not satisfy the rules applicable to it in some other capacity, and because the jury might improperly consider it in the latter capacity. The opponent of such evidence, so likely to be misused against him, is entitled to such protection against its misuse as can be reasonably given to him without impairing the ability of the other party to prove his case, or depriving him of the use of competent evidence reasonably necessary for that purpose. Ct here says limiting instruction at lower ct was inadequate and did not protect the D.

Declarant’s state of mind must be material. And the statement must be of declarant’s, not another’s, state of mind. 803(3) does not authorize receipt of a statement by one person as proof of another’s state of mind. Also, must be “then existing” state of mind. Statement recalling a previous state of mind is not admissible under this exception.

State of Mind to Prove Conduct

Statements of Memory or Belief Where a state of mind would tend to prove subsequent conduct, can the two inferential processes be linked together, with the declarations of state of mind being admitted as proof of the conduct? A person who expresses an intent to kill is undeniably more likely to have done so than a person shown not to have that intent. The accepted standard of relevancy, i.e. more probable than without the evidence, is easily met. Statements of state of mind are now recognized as admissible to prove subsequent conduct. Leading case is Hillmon. Although 803(3) does not explicitly address the question of admitting intent for the purpose of proving the doing of the intended act, the advisory committee stated that it was to continue. Therefore, under Hillmon, statements of intent to perform an act are admissible as proof that the act was in fact done. What about when the action sought t be proved is not one that the declarant could have performed alone, but rather is one that required the cooperation of another person? Despite some objection, cts have admitted these statements. The result is that the statement is used as proof of the other person’s intent and as proof that this intent was achieved.

U.S. v. Pheaster Disappearance of multi-millionaire’s son. Dispute over admission of statements from friends of the son restating what the son had said the day that he disappeared. Said that son told them, “I’m going to meet Angelo in the parking lot and I’ll be right back.” Dist ct allowed testimony, with limiting instruction that testimony could only be considered for mental state of son, not for truth or falsity of what he said. Gov’ts position that son’s statements can be used to prove that the meeting with D did occur raises the Hillmon doctrine – part of the “state of mind” exception. Under the state of mind exception, hearsay evidence is admissible if it bears on the state of mind of the declarant and if that state of mind is an issue in the case. Hillmon is different. HD does not require that the state of mind of the declarant be at issue in the case. Instead, under HD, the state of mind of the declarant is used inferentially to prove other matters which are at issue. When the performance of a particular act by an individual is an issue in a case, his intention (state of mind) to perform that act may be shown. Obviously the theory of HD is different when the declarant’s statement of intention necessarily requires the action of one or more others if it is to be performed. When hearsay evidence concerns the declarant’s statement of his intention to do something with another person, the HD requires that the trier of fact infer from the state of mind of the declarant the probability of a particular act not only by the declarant but also by the other person. The statement by the son “I’m going to meet Angelo in the parking lot” is really two statements – the first is the obvious statement of the son’s intention. The 2nd is the implicit statement of Angelo’s intention.Hillmon case – letters from Waters saying that he was going away with Hillmon. Ct allowed in letters as evidence of Waters’ intention, tat he was intending to go away, and going with Hillmon, which made it more probable both that he did go and that he went will Hillmon, than if there had been no proof of such intention.Hillmon has been cited as the “leading case on the admissibility of declarations of intent to do an act as proof that the act thereafter was accomplished.” But how is the HD treated by the FRE? Advisory Committee says HD left undisturbed by 803(3). But the notes of the House Committee says 803 treats HD as follows: statements of intent by a declarant are admissible only to prove his future conduct, not the future conduct of another person. Although it is close, and HD has been the subject of much criticism, the ct says the dist ct did not err in admitting the testimony in this case. (Strongest critique of HD – Justice Traynor – “A declaration as to what one person tended to do cannot safely be accepted as evidence of what another probably did.”

Although Hillmon says that statements of intent to perform an act are admissible as proof that the act as in fact done, a statement by the declarant that he had in fact done that act would be excluded under this exception to the hearsay rule. EX – “My husband poisoned me.” – not admissible under this rule. Forward-looking statements of intention are admitted while backward-looking statements of memory or belief are excluded because the former do not present the classic hearsay dangers of memory and narration.

Norton v. State Man killed by his boss. Pros. allowed to introduce evidence of a phone call made by boss (D) to victim. Victim’s wife testified that her husband received a phone call from his boss telling him to come into work. 2 elements in this testimony: 1) Husband was telling his wife that he was going into work; and 2) Husband was telling his wife that he was going into work because his boss had told him to. Trial judge gave limiting instruction that the testimony was only to be considered to show the state of mind of the deceased and not for the truth of the matter asserted by the declarant. Ct says to admit memory declarations under the state-of-mind exception would defeat the entire hearsay rule. That is the reason that memory declarations are expressly excluded by the rule. Thus the victim’s statement to his wife that he intended to go to work was admissible for the limited purpose to show that he intended to go to work. But the 2nd factor communicated that the V was going there because his boss had called and asked him to clearly states a fact remembered which is specifically excluded from the exception. The remainder of the testimony that did not fall within the hearsay exception because it was recounting of past conduct was not admissible even with the limiting instruction.

Statements for Purposes of Medical Diagnosis or Treatment Rule 803(4) The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for the purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.Test for admissibility is whether the subject matter of the statements is reasonably pertinent to diagnosis or treatment. 803(4) eliminates any differences in the admissibility of statements made to testifying, as contrasted with treating, physicians.

State v. Moen Govt claimed D killed wife and mom-in-law in domestic struggle. Govt wanted to introduce testimony of Dr. that MIL had been very upset at her medical appointments and that her home situation was stopping her from being able to receive necessary treatment. She told him that she was upset about her daughter and son-in-law, that her son-in-law had been physically abusive to her daughter, and that she “felt he might kill them both.” Dr. diagnosed her with depression. Rationale of medical expression is that the patient’s desire for proper treatment or diagnosis outweighs any motive to falsify. 2nd policy ground for admissibility of these statements - a fact reliable enough to serve as the basis for a diagnosis is also reliable enough to escape hearsay proscription. To be admissible under 803(4) a statement must meet 3 requirements – (1) must be made for the purposes of medical diagnosis or treatment; (2)statement must describe or relate “medical history or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof; (3) statement must be reasonably pertinent to diagnosis or treatment. Here, MIL’s statements were made for purposes of obtaining medical treatment. When she first mentioned the D, it was in response to Dr.’s question as to why she was depressed. She made the statements as a patient to her treating Dr. during a regularly scheduled visit to his office. Statements related directly to the severe emotional distress that she was suffering at the time of the visits. Requirement 2- statements were proper, and D doesn’t contend otherwise. Requirement 3 – reasonably pertinent to diagnosis/treatment – the rule commentary states “the guaranty of trustworthiness also extends to statements regarding causation of a condition, if reasonably pertinent, in accord with the current trend. Here the V gave the Dr. info concerning the cause of her depression and, in doing so identified D. The fact that the continuing cause of her illness was the presence and conduct of a named individual is not a basis for excluding the statements. Ct noted that statements by a child abuse victim to a Dr. during an examination that the abuser is a member of the V’s immediate household are reasonably pertinent to treatment. Admissibility of statements of the type challenged here is not limited to cases involving child abuse.

Under this exception, the statements need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included. But 803(4) does not cover statements by a Dr. or other medical personnel to the patient, or statements between medical personnel. Also, 803(4) is not limited to statements for purposes of medical treatment; it extends to statements to a non-treating Dr. consulted solely for purposes of expert testimony.

Recorded Recollection 803(5) – Recorded Recollection The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Requirements: 1) witness must have firsthand knowledge; 2) record made while the witness’ memory was clear; 3) witness must lack present recollection of the event; and 4) the witness must vouch for the accuracy of the written memorandum (either the person who prepared the writing or one who read it at a time close to the event must testify to its accuracy.

U.S. v. Patterson the D’s nephew said that the D had told him that forklifts had been stolen. At trial nephew couldn’t remember what the D had told him about the source of the forklifts, although the pros had tried to refresh his memory. Trial judge allowed portion of GJ testimony to be read under past recorded recollection exception to the hearsay rule. Doc is admissible under this rule if (1) the witness once had knowledge about the matters in the document; (2) the witness now has insufficient recollection to testify fully and accurately; and (3) the record was made at a time when the matter was fresh in the witness’ memory and reflected the witness’ knowledge correctly. Ct here can’t say the trial judge abused his discretion in finding that nephew’s memory was fresh at the time he testified before the GJ, although it is a close one. Still, well within the discretion of the trial judge.

Memorandum admitted under this rule does not go to the jury room.

Records of Regularly Conducted Activity 803(6), (7) – The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of act, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12) or a statute permitting certification, unless the source of the information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.(7) Absence of Entry in Records Kept in Accordance with the Provisions of Paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.Many times no special exception will be needed for a regularly kept record – it will often come in under another exception: EX: if record was made by a party to the suit, it is admissible against that party as an exception. If the entrant is produced as a witness, it may be used to refresh memory, or it may be admissible as a record of past recollection. Sometimes the record may be admissible as a declaration against interest. Records of a personal nature do not fall within the rule but if kept for business purposes are within the rule. The activity need not be legal to qualify. When records are prepared in anticipation of litigation, they will often lack the requisite trustworthiness. Police reports and records can meet the requirements for the regularly kept records exception to the hearsay rule but they also qualify under the hearsay exception for public records and reports. (803(8)). The most commonly used foundation witness is a person in authority in the recordkeeping department of the business. Anyone with the necessary knowledge is qualified – witness need not have firsthand knowledge of the matter reported or actually have prepared the report or observed its preparation.Keogh v. Commissioner of Internal RevenueD, blackjack dealer, accused of underreporting income to the IRS. All of the dealers pooled tips. Govt wanted to introduce diary of another dealer in which he’d recorded all of his tips. Ct said diary was admissible under 803(6). Other dealer’s diary, even though personal to him, shows every indication of being kept “in the course of” his own “business activity.” The reliability of the tip entries is corroborated by the fact that other entries corresponded with the dealer’s payroll records, and that reliability is not tarnished by the fact that the second dealer, like the D was accused doing, reported to the govt smaller amounts of tip income than he in fact received and recorded in the diary. The record gives no reason to believe that the dealer did not rely on his person financial diary; therefore ct does not find that the tax ct abused its discretion in admitting the diary, even without the other dealer’s personal testimony (his wife testified as to the foundation of the diary.)

Foundation for qualifying a business record under 803(6) consists of 4 elements:(1) record was made and kept in the course of regularly conducted business activity; (2) it was the regular practice of the business activity to make the record; i.e., it is a routine record; (3) the record was made at or near the time of the event that it records; (4) the record was made by, or from information transmitted by, a person with knowledge; the person with knowledge must have acted in the regular course of business, or as it is sometimes put, must have had a business duty to report. These elements must be shown by the testimony of the custodian or other qualified witness. An “other qualified witness” is any person who can credibly testify that the records satisfy the requirement of the exception. Not required that the custodian/witness have personal knowledge of the contents of the particular entry or the circumstances in which it was made. It suffices that the witness can testify that the records generally satisfy the conditions of the rule.

Rule 803(7) permits proof of the non-occurrence or nonexistence of a matter by showing that no record of it is found in regularly kept records that would be expected to have recorded it if it did occur or exist.

U.S. v. Baker Stolen treasury checks. Question of the admissibility of forms that the intended payees filled out saying that they did not receive their checks. Ct says forms do not fall within the hearsay exception for records of regularly conducted activity. The justification exists b/c business records have a high degree of accuracy. Here the intended payees were not acting in the regular course of business and their statements did not fall within any other hearsay exception. Therefore the forms are inadmissible hearsay.

The EE who makes the record or entry need not have personal knowledge of the facts recorded, but some person who is a member of the organized activity must have personal knowledge.

As this case illustrates, if a business record incorporates a statement by a person who is not part of the regular organized activity and who thus has no business duty to make the report – an outsider to the organized activity – and the record is offered to prove the truth of the incorporated statement, the record will be treated as ”double hearsay.” The statement by the outside declarant will be inadmissible for its truth unless it independently for its truth unless it independently falls within an exception to or exemption from the hearsay rule.

Scheerer v. Hardees Lady fell down after buying herself a burger meal. P says ct erred in admitting into evidence the “incident report” as a business record under 803(6). Incident report was prepared by a non-witness Hardees EE and contained a description of the surface of the parking lot (dry, not wet or oily) and a statement attributed to a “friend” of the V that the cause of the accident was her slick shoes. Hardees argues the report is admissible as a business record and was trustworthy because such reports are routinely made when a customer is injured. Ct says report is not admissible as a business record under 803(6) b/c the source of the info (the statement) was never identified at trial. Also, the report was inadmissible b/c it had been prepared in anticipation of litigation, not in the ordinary course of Hardees’ usual restaurant business operations.

Public Records and Reports 803(8)-(10) – The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, (avoiding Con Clause issues) or (C) in civil actions and proceedings and against the Govt in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. (Again, avoiding Con Clause issues.)(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.(10) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.The special trustworthiness of official written statements is found in the declarant’s official duty and the high probability that the duty to make an accurate report has been performed. The simplicity of foundation requirements, the convenience of proof by certified copy, and the lack of need for the testimony of a custodian make the official records exception an attractive choice over business records when an available option.

U.S. v. Quezada Entering the US illegally after being deported. Question of admissibility of INS Form, the warrant of deportation. Triggered 803(8)(B), public records and reports. Reasons for exception – trustworthiness of public documents prepared in the discharge of official functions, and necessity, since public official likely wouldn’t remember one occurrence of a repeated event. Law enforcement exception – adversarial nature of confrontation between police and defendant makes observations of officers not as reliable. But this form was drafted in a non-adversarial setting so it is admissible.

Foundation for public record – Not necessary to show that record was regular or made at/near time of event recorded. Need only establish that the document is authentic and that it contains one of the three types of matters contained in the rule.

Public records may present “double hearsay” problems (just like business records.) Rule is the same here. Most courts will not admit for its truth a statement by an outsider declarant having no official duty to report, unless the statement happens to fir within another hearsay exception/exemption.

Beech Aircraft Corp. v. Rainey Navy training aircraft crash. Spouses sued manufacturer of the plane. Question of admissibility of investigative report completed during the weeks following the accident. Opinion section stated accident likely caused by pilot error. Does 803(8)(C) (exception for public investigatory reports containing “factual findings”) extend to conclusions/opinions in the reports? Yes, factually-based conclusions or opinions are not excluded from the scope of 803(8)(C). Not clear that “factual findings” means only “facts.” Also rule only refers to admissibility of reports, not to statements within reports. So neither language of the rule or intent of framers calls for distinction between fact and opinion. Holding – portions of investigatory reports otherwise admissible under 803(8)(C) are not inadmissible merely because they state a conclusion or opinion, as long as the conclusion is based on a factual investigation and satisfies Rule’s trustworthiness requirement.

Beech rejected a narrow interpretation of “factual findings” and held that “factually based opinions and conclusions” could be included within the exception.Still, even if admissible under 803(8), public record/report can be deemed inadmissible by statute.

Learned Treatises 803(18)- The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Zwack v. State Defense attorney asked expert witnesses if they were familiar with a book but did not have anyone read from it while on the stand. Wanted to read portions of book to jury after prosecution rested. Issue – can either side, under the facts presented here, read as substantive evidence excerpts from a learned treatise? No. Learned treatises are to be used only in conjunction with testimony by an expert witness, either on direct or cross-examination, even though the authority of the publication is otherwise established.

Foundation – testimony by a qualified expert that the item is recognized in the relevant discipline as a reliable authority. Not sufficient that article appears in a particular periodical. In practice, unlikely that authority will be established by judicial notice although rule recognizes this possibility.

 Former Testimony 804(b)(1) – Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.Actual cross-examination is not required if the opportunity was afforded and waived.“Predecessor in interest” – when the testimony is offered against a criminal D, the D must have been a party to the former proceeding. In civil cases, ct must insure fairness directly by seriously considering whether the prior cross-examination can be fairly held against the later party.

State v. Ayers Woman and current husband accused of killing ex-husband. First tried jointly, then separately. At second trial, state wanted to introduce against wife portions of husband’s testimony from when they were being tried together, per 804(b)(1). Wife claimed that she lacked the “similar motive” to examine husband at the two trials and therefore the 804(b)(1) exception was not applicable. First trial wife claimed killing was justified. Second trial wife tried to suggest someone else committed the crime. Findings of fact necessary for admissibility under the hearsay exception of 804(b)(1) – unavailability of the witness and the opportunity and similar motive to examine. Court held judge at 2nd trial was justified in using husband’s statement to discredit wife’s assertion that her new approach precluded her from having a similar motive to cross-examine husband at both trials.

Rule does not require that the party against whom the prior testimony is offered had a compelling tactical or strategic incentive to subject the testimony to cross-examination, only that an opportunity and similar motive to develop the testimony existed.

Clay v. Johns-Manville Sales Corp. Products liability case – exposure to asbestos. Question of admissibility of deposition of expert who had died before trial. Issue as to “predecessor in interest” wording in 804(b)(1). Ct holds phrase to mean - if it appears that in the former suit a party having a like motive to cross-examine about the same matters as the present party would have, was accorded an adequate opportunity for such examination, the testimony may be received against the present party. Under these circumstances, 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.

Statement Under Belief of Impending Death 804(b)(2) – Statement under belief of Impending Death.(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:(2) Statement Under Belief of Impending Death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.Dying declarations are inadmissible in criminal cases other than homicides.

State v. Quintana Defendant sought to exclude statements made by victim that had been elicited by the victim’s family attorney. Victim never told by doctors that he was going to die. Victim told attorney that he knew his back was broken and that there was a strong possibility of dying. Victim gave attorney details of shooting but not name of his shooter. Died three hours later. Question – what is “impending death”? Fear or belief that illness will end in death is not enough. Courts have said - must be a settled hopeless expectation that death is near, and that what is said must have been spoken in the hush of impending death. No specific words have to be said by dying victim. If it can be reasonably inferred from the state of the wound or the state of the illness that the dying person was aware of his danger, then the requirement of impending death is met. So he does not have to be told that he is dying – it can be obvious from the circumstances.

Statement Against Interest 804(b)(3)- Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.EX of pecuniary interest – statement that declarant does not own personal property.EX of proprietary interest – acknowledgement that declarant is indebted (owing a debt is against one’s financial interest.)With regard to penal interests, the statement need not be a confession, but it must involve substantial exposure to criminal liability. Civil CasesRobinson v. Harkins & Co.Personal injury action under respondeat superior. Wife had to prove that her husband was driving at time of accident (husband no longer available). Question of admissibility of a notice of injury report that husband had filed with accident board and of inculpating statements made by husband to wife. Hearsay exceptions require showing of trustworthiness. Founded on the principle that the ramifications of making a statement that is so contrary to the declarant’s interest that he would not make the statement unless it was true. 3 general interests considered under the rule – pecuniary, penal, and social. Here, the evidence serves as declaration against all three. The disserving nature of the proffered evidence outweighs the self-serving aspect.

Criminal Cases Offered by the prosecution

Williamson v. U.S. DEA agent spoke to party charged with cocaine possession as to where cocaine was from and who it was for. Party freely admitted his own role in the drug scheme. Party later refused to testify against defendant at trial. Court allowed agent to testify as to what party said to him under 804(b)(3). Defendant argued that this admission violated 804(b)(3) and confrontation clause of 6th A. Issue is that the statement included both self-inculpatory and non-self-inculpatory parts. Is entire statement admissible, or does 804(b)(3) only cover those declarations within the confession that are self-inculpatory? Court says rule does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. Test for admission under statement against penal interest exception: whether the statement at the time of its making so far tended to subject the declarant to criminal liability that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.Williamson held that only the specific parts of the narrative tat inculpate qualify. Applying Williamson, federal cts have most frequently admitted third party statements that inculpate a D where two general conditions are satisfied: 1) the statement was made to a private person and does not seek to curry the favor of law enforcement authorities, and 2) it does not shift blame. Offered by the AccusedU.S. v. PaguioFraudulent loan application – used fake 1099’s and tax returns. Father tried to get loan for son and daughter-in-law. Father made statement to son’s lawyer saying that son had “nothing to do with it.” At time of trial, father was a fugitive so defense tried to get statement admitted under absent witness hearsay exception for statements against penal interest, 804(b)(3). District ct said that those portions of the father’s statement implicating himself could be admitted, but those exonerating the son could not. Requirements for 804(b)(3) – declarant unavailable, statement sufficiently implicates declarant so that a reasonable person would not have made the statements unless they were true, and corroborating circumstances clearly indicate the trustworthiness of the statement. Father was unavailable, and most circs make statement seem true. But father’s love for son could induce father to make false statements. While a jury could conclude that the father was lying to save his son, other corroboration existed. Govt argued that father’s statement that the son “had nothing to do with it” should be seen merely as exculpatory of the son, and not as inculpatory of the father. Court disagreed, saying that Williamson doesn’t mean that the trial judge must always parse the statement and include only the inculpatory parts – simply requires statement to be analyzed in context to see if the portion at issue was against interest.

Forfeiture by Wrongdoing 804(b)(6)

Rule 804(b)(6) – (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.U.S. v. AguiarParty caught with cocaine in his luggage. Cooperated with police and led them to defendant. Party entered into plea agreement and provided info against defendant. Party changed his mind and said that he had been threatened by the defendant via letters. Provided letter to the police. Party then backed out of plea again. Police searched party’s cell and found 2 letters. Party still refused to testify against defendant. At trial, govt sought to introduce party’s earlier statements to police. Court held that defendant had procured the unavailability of the party and therefore waived his confrontation rights and hearsay objections. Defendant claims that this violated his due process rights – court here disagrees. Holding – defendant who procures a witness’ absence waives the right of confrontation for all purposes with regard to that witness, not just to the admission of sworn hearsay statements.

“Neither in criminal or civil cases will the law allow a person to take advantage of his own wrong.”

Residual Exception 807– A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can produce through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will be best served by admission, of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare the meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

Idaho v. Wright Statement from child declarant to examining pediatrician. Court found younger child not capable of communicating to the jury. Ct admitted statements made by younger girl to doctor under residual clause. Defendant appealed, arguing admission violated her rights under the confrontation clause. Ct of appeals reversed, finding that the admission violated defendant’s right to confrontation and the testimony did not fall within a traditional hearsay exception and was based on an interview that lacked procedural safeguards – questions were leading and the interview was not videotaped. Sup. Ct said dispositive weight had been placed on the lack of procedural safeguards. Particularized guarantees of trustworthiness must be shown from the TOC, but the relevant circs include only those that surround the making of the statement and that render the declarant particularly worthy of belief. Unless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement. The use of corroborating evidence to support a hearsay statement’s “particularized guarantees of trustworthiness” would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial – this is at odds with the requirement that hearsay evidence admitted under the Confrontation Clause be so trustworthy that cross-examination of the declarant would be of marginal utility. Sup ct said the lower ct had properly focused in the presumptive unreliability of the out-of-court statements and on the suggestive manner of the interview. TOC surrounding younger daughter’s responses to Dr.’s questions have no reason for supposing that the incriminating statements were particularly trustworthy. (Ct can’t consider corroborating evidence when deciding if a child’s statement is trustworthy. Only look at circs surrounding making of statement.) Dissent said was an error to adopt a rule that corroboration of the statement by other evidence is an impermissible part of the trustworthiness inquiry.

Note – restriction against supporting a finding of trustworthiness by reference to corroboration (Idaho v. Wright) is part of the confrontation clause doctrine, not an interpretation of Rule 807. Therefore, the restriction applies only to evidence offered against an accused.

Factors bearing upon circumstantial trustworthiness: spontaneity, consistent repetition, mental state of child at time statement was made, use of terminology unexpected of a child of similar age, lack of motive to fabricate.

17. Hearsay and Confrontation Before Crawford, Sup Ct caselaw on hearsay and confrontation required distinguishing among 4 types of caselaw statements:1. prior statements by witnesses who testify in the present proceeding under oath and are subject to cross-examination RE the prior statement (mostly falls under firmly rooted hearsay exception)2. former testimony of a presently unavailable witness (Shealy thinks that this one is affected by Crawford, even if author of book doesn’t. GJ testimony – usually pros in criminal case could get GJ testimony in if witness was no longer available at trial. No cross at GJ. So Crawford will likely not permit this.)3. other hearsay falling within a “firmly rooted” exception; and4. hearsay not falling within a “firmly rooted” exception Crawford adopted a new approach which does not affect 1 or 2, but it substantially changes the treatment of hearsay statements by nontestifying declarants offered under hearsay exceptions, whether firmly rooted or not. (Formerly under Roberts – now much different under Crawford.) See book for further info – pg 257-258


Crawford v. Washington Crawford stabbed a man who had allegedly tried to rape his wife, Sylvia. State played Sylvia’s recorded statement describing the stabbing for the jury, even though Crawford did not have the opportunity to cross-examine. Question – was Crawford’s 6th A right to confront the witnesses against him? Sylvia’s statement differed from Crawford’s as to whether victim had a weapon before he was stabbed. Crawford claimed self-defense at trial, and Sylvia didn’t testify because of marital privilege. In Washington this privilege does not extend to out-of-court statements that are admissible under a hearsay exception – since her statement admitted that she led Crawford to victim’s apartment, state invoked hearsay exception for statements against penal interest. Trial ct admitted statement because it bore a “particularized guarantee of trustworthiness.” Ct of appeals reversed after applying a nine-factor test to determine if the statement bore a “particularized guarantee of trustworthiness” and finding that her statement was unreliable. Washington Sup Ct reinstated the conviction, finding that although statement did not fall under a firmly rooted hearsay exception, it bore guarantees of trustworthiness: “When a co-defendant’s confession is virtually identical (i.e. interlocks with) that of the defendant, it may be deemed reliable.”Ohio v.Roberts (1980) says that an unavailable witness’ out-of-court statement may be admitted so long as it had adequate indicia of reliability (falls within a firmly rooted hearsay exception) or bears “particularized guarantees of trustworthiness” (which was the part of the test relied upon in Crawford’s conviction in the lower court). Crawford argues that this test strays from the original meaning of the confrontation clause and argues that test should be abandoned. Ct looks at background of C Clause to understand its meaning. Said that history supported 2 inferences about the 6th A – 1. C Clause aimed at preventing the use of ex parte examinations as evidence against the accused. “Leaving the regulation of out-of-court statements to the law of evidence would render the C Clause powerless to prevent even the most flagrant inquisitorial practices.” Statements made in police interrogations can be testimonial, even if there is not sworn oath.2. Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.Sup ct caselaw has been largely consistent with these 2 principles. Roberts admitted testimony from a preliminary hearing at which the defendant had examined the witness. Bourjaily admitted statements made to an FBI informant after applying a more general test that did not make cross-examination an indispensable requirement. Ct says that although the outcomes have been faithful to the original meaning of the C Claus, the rationales were not. Roberts test (firmly rooted exception or particularized guarantees of trustworthiness) departs from historical principles because it is too broad (applies same mode of analysis whether or not hearsay consists of ex parte testimony) and too narrow (admits statements that do consist of ex parte testimony upon a mere finding of reliability).So, court now has 2 options to follow instead: 1. Apply C Clause only to testimonial statements, leaving remainder to regulation by hearsay law (this approach was rejected in White, and it doesn’t really matter her anyway, since Sylvia’s statement was definitely testimonial). 2. apply an absolute bar to testimonial statements unless there has been an opportunity for cross-examination.Looking at choice 2 – allowing a judge to admit statements that he deems reliable is at odds with right of confrontation. Clause does not command that evidence be reliable, but that its reliability should be tested by cross-examination. “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury trial because a defendant is obviously guilty. This is not what the 6th A prescribes.” Court then details how the subjective concept of reliability has been analyzed differently by different judges across the US. Court decides that the biggest problem with the Roberts test is not its unpredictability, but its capacity to admit “core testimonial statements that the C Clause plainly meant to exclude.”“Where testimonial evidence is at issue, the 6th A demands what the common law required – unavailability and a prior opportunity for cross-examination.” Crawford’s inability to cross-examine Sylvia’s statement was a violation of the 6th A.

U.S. v. Saget D said govt violated his confrontation clause rights by allowing in the testimony of a separately indicted co-con who was unavailable to testify at trial. Ct said testimony did not violate his confrontation clause rights because the statements were not testimonial and therefore did not violate the per se bar on the introduction of out-of-court testimonial statements, absent a prior opportunity for cross-examination, enunciated by Crawford v. Washington and b/c co-con’s statements were made under an indicia of reliability req’d under Ohio v. Roberts. Also, dist ct did not abuse its discretion by admitting the statements as against the declarant’s penal interests per 804(b)(3). Co-con had been speaking on a phone with an informant, telling him about their illegal activities. Since the co-con was unavailable to testify at D’s trial, govt sought to introduce phone conversations. Govt said statements were against co-con’s penal interest and were admissible under 804(b)(3). Crawford was decided in the middle of this case, which held that no prior statement made by a declarant who does not testify at the trial may be admitted against a D unless the declarant is unavailable to testify and the D had a prior opportunity to cross-examine him. But Crawford does not discuss the status of the Roberts line of cases insofar as these decisions deal with statements that are not testimonial in nature. Ct decides that Crawford leaves Roberts intact when it comes to non-testimonial statements. If the co-con’s statements are not testimonial, their admission does not violate the Con Clause so long as the statements fall within a firmly rooted hearsay exception or demonstrate particularized guarantees of trustworthiness. Although Crawford did not define “testimonial” they gave examples which all shared common characteristics – a declarant’s knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his responses might be used in future judicial proceedings. Here the co-con;s statements were not testimonial. B/c the co-con’s statements were not testimonial, the Con Clause does not bar their admission so long as the statements fall within a firmly rooted hearsay exception or contain particularized guarantees of trustworthiness. Ct here holds the statements bear adequate guarantees of trustworthiness.

Lopez v. State D accused of kidnapping. V had appeared for a discovery deposition and was questioned by defense counsel. V was no longer available at the time of D’s trial. Pros decided to only proceed on the charge of possession of a firearm by a felon. D sought to exclude statements made by V to officers. Pros argued that the statement was admissible under EU. D said statement didn’t qualify as EU and was a violation of the Con Clause. Trial ct said statement was admissible and the jury heard the statement that the V made to officers. Ct here said the trial judge could properly conclude that the statement was EU. V under stress and made statement only minutes after the abduction. Was the statement testimonial? Was it made with the reasonable expectation that it would be used at trial? It is more likely to have been expected to be used at trial if it is in response to questioning rather than volunteered. That’s why 911 calls are usually not testimonial. Ct says that they don’t think that EU’s can be automatically excluded from the class of testimonial statements. In a situation such as this, the statement does not lose its character as a testimonial statement merely because the declarant was excited at the time it was made. Statement here was testimonial. Was declarant (V) unavailable? He wasn’t at the trial but D did get to talk to him at the depo. Does a discovery depo qualify as a “prior opportunity for cross-examination”? No, a discovery depo does not qualify as a prior opportunity to cross-examine, although a deposition to perpetuate testimony might be.


Procedures for Admitting and Excluding Evidence

1. Objections and Motions to Strike 103(a)(1) – Rulings on Evidence(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) Objection. In case the ruling is one of admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.

A. Timeliness

Govt of the Virgin Islands v. Archibald Archibald accused of raping 10-year old girl, LaToya. LaToya said that she liked Archibald and that she knew that Archibald was the boyfriend of her sister, Tasha. At trial, LaToya’s mother, Ursula, was asked by the Govt how she knew Archibald. She said that he was a neighbor and had fathered a child with Tasha. Said that the child was 6 months old and Tasha was 15. (Therefore Tasha was 13 or 14 when Archibald had had sex with her.) After eliciting the response, Govt asked for sidebar and requested that the judge give a jury instruction limiting the response to be used only to demonstrate that Ursula knew Archibald. D’s atty objected under 404(b) and undue influence. Dist ct ignored objection and gave instruction to the jury, allowing examination to continue. FRE 103(a)(1) requires a timely objection. Here, D’s atty could not have expected this response to the Gov’ts question – How do you know the D? Because the delay was minimal and caused no demonstrable prejudice, Archibald’s objection was timely. Also, even if the evidence were admissible under 404(b), the ct said that it should have been excluded under 403. How does FRE 103(a)(1) relate to Archibald?– Must make a timely objection-why?– “Judicial economy”—what does this mean?– Make complete record below, allow judge to rule, allow opposing party to respond– What does “timely” mean here?– “contemporaneous” Rule?“ Contemporaneous Objection Rule”Must raise exception as soon as you know or reasonably should know of basis for objection. When does objection become apparent?– “as soon as the question is asked, since the question is likely to indicate that it calls for inadmissible evidence.”– Exception: An unobjectionable question can lead to an objectionable reply or previously admitted testimony becomes objectionable in light of subsequent testimony.

Can avoid these problems with your own witness by making sure witness is properly prepped.How quickly does your objection have to be made? If raised within sufficient time to allow court to correct error then ok. How does court correct the error?• Admonish counsel• Curative instructions• Mistrial (not a cure, courts hate mistrials)Harmless error and plain error – opening clause of 103(a) incorporates the CL doctrine of harmless error, by stating as a prerequisite to any claim of error in the admission or exclusion of evidence that a substantial right of the party have been affected by the ruling. In determining whether an error is harmless, cts look at number of factors, such as: whether erroneously admitted evidence was primarily relied upon, whether the aggrieved party was nonetheless able to present the substance of its claim, the existence and usefulness of curative jury instructions, the extent of jury argument made upon tainted evidence, whether the erroneously admitted evidence was merely cumulative in and whether the other evidence was overwhelming. 103(d) recognizes the traditional doctrine of plain error – one that is not only clear in retrospect but also causes a miscarriage of justice. 4 prerequisites to finding that the ct committed plain error in admitting specified evidence – 1. an error; 2. that is clear and obvious under current law; 3. that affects the D’s substantial rights; and 4. that would seriously affect the fairness, integrity, or public reputation of judicial proceedings if left uncorrected. 4th Circuit has declined to “notice” plain error in light of overwhelming evidence (looks like harmless error analysis). “Connecting up” – Where an objection is conditionally overruled upon the proponent’s representation that required connecting or foundation evidence will be presented later, and the proponent fails to present the required connecting or foundation proof, a waiver occurs unless the objector renews the earlier objection by a motion to strike at an appropriate time (usually at the close of the proponent’s case.)

Motion in limine – whether a rejection motion in limine preserves error in the admission of evidence without objection at trial has been frequently litigated. Traditional rule is that trial objection is required. Primary way to anticipate objectionable evidence and attack it prior to trial or attempted admissionTraditional Rule in most jurisdictions:– Overruled MOL does not preserve error, must object at trial.– If granted, the losing party must offer proof to preserve erro rFRE (as of 2000 amendment): MOL will usually suffice to preserve error for appellate review– Elements Issue fully presented on motion. Issue was of a nature that it could be finally determined in advance. Court ruled without equivocation 


McEwen v. Texas & Pacific RailwayMan sued after his wife was injured when being assisted while getting off a train – P claimed D was negligent. P claimed trial ct in error when it permitted D to prove that P’s wife liked to play bridge. Atty for D asked wife if she liked playing bridge – P’s atty objected, saying the Q was immaterial. Ct overruled objection. Ct here said that objection was a general one, in that it simply claimed that the question was immaterial. General objection to evidence – one that does not definitely and specifically state the grounds upon which it is based so that the ct can rule on it – is, as a general rule, insufficient. Ct said “if it should be conceded that the testimony in question under any contingency was of a nature calculated to be prejudicial, it was not so clearly and certainly so as to relieve the appellant of the necessity of pointing out in his objection why it was so, in order to have the court’s action reversed.”


Specific objection, wrong ground – since an objection only preserves the specific grounds named, if an objection naming an untenable ground is overruled, the ruling will be affirmed on appeal even though a good but unnamed ground existed for exclusion of evidence. If an objection naming an untenable ground is sustained, the ruling will not be upheld on appeal on the basis of an unnamed valid ground if the valid ground might have been obviated by the proponent had it been raised at trial. Immaterial, irrelevant, prejudicial. Explain WHY ????? – Exceptions:Where ground for G-O is so manifest that trial court could not fail to understand it Where evidence offered is clearly immaterial, irrelevant, prejudicial. Inadmissible for any purpose Objection is of such as nature that it could not have been obviated Remember, an objection only preserves the specific grounds mentioned. Objection/wrong ground overruled: ruling will be affirmed if a good—but unnamed--ground existed. Same but sustained: ruling will not be upheld based on unnamed ground if the valid ground might have been obviated by the opponent had it been raised at trial.Specificity chartObjection Sustained overruled

G-O (some good ground exists) Specific, proper ground Unless the proper ground was “apparent from the context”• **Unless the good ground was manifestly remediable If part of an offer is admissible and another is inadmissible, an objection to whole, even if it names a valid ground may be overruled, and the entire offer admitted.Some standard objections: “Objection, argumentative.”– “So, were you lying then, or are you lying now?” “Objection, counsel is harassing the witness.” Not about the question, but overall demeanor of counsel. “Objection, compound question.”– “As you approached the intersection did you look down to change the radio station and try to adjust your child’s seatbelt?” “Objection, vague…ambiguous…confusing.” “Objection, misstates the evidence.”– “After you arrived in Charleston with a boatload of cocaine, where did you stay that night?” “Objection, asked and answered.” “Objection, improper opinion.”– “calls for speculation.” “Objection, the document speaks for itself.” “Objection, lack of personal knowledge.”

2. Offers of Proof 103(a)(2), – Offer of Proof(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admit or excludes evidence unless a substantial right of the party is affected, and (2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.Rule 103(b) – Record of Offer and Ruling The court may add any other or further statement which showsthe character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It my direct the making of an offer in question and answer form.

Padilla v. State During cross-examination of alleged victim, atty asked her Q’s about earlier trial. Her atty objected ad said that the other atty should have to refer to the transcript and furnish it to her while on the stand. Questioning atty said that he did not have a transcript, only an audio tape, and the judge sustained the objection. On appeal P said that even if in error, the error was not properly preserved on appeal per 103(a)(2). After trial ct sustained the objection, D never again made reference to it, in the form of offer of proof or otherwise. The offer of proof serves the function of calling the nature of the error to the attention of the judge, so as to alert him to the proper course of action and enable opposing counsel to take proper corrective measures. D’s failure to make an offer of proof prevented the attainment of these purposes. D argues that the Q itself was sufficient foundation as to time and place of the alleged inconsistent statement. Rule 103(a)(2) does make unnecessary an offer of proof if the substance of the evidence was apparent from the context within which questions were asked. The only indication of the expected testimony was in the atty’s question and does not meet the exception of 103(a)(2) which requires the substance of the evidence to be apparent from the context within which questions were asked.Form of offer of proof– Trial judge has discretion– Statement by counsel usually sufficient– Formal offer in question and answer form is better method. No doubt as to harm caused by exclusion Particular Clear “apparent from context” on cross this is usually obvious.

Overbroad offers: If counsel offers evidence that is partly admissible and partly inadmissible, without limiting to admissible part, the party can’t complain on appeal if court excludes entire offer. Rule 104 – Preliminary Questions(a) Questions to admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, 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.(b) Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.(c) Hearing of Jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness and so requests.(d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.(e) Weight and credibility. The rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.Judge, not jury determines prelim question of fact Examples:• Cocon exception• Expert qualifications• Competence of witness• Dying declaration104(b) applies to 404(b) evidence• Conditional relevancy: authentication or ID real evidence. Judge has to find that prima facie case is made not actual issue of genuineness. See 104(b) and 901(a).• “Connecting up” 104(b)• Hearing of jury: 104(b) - Judge’s discretion 104(d) prosecution can’t use testimony of accused given at prelim hearing in it’s case in chief. 104(e) rule does not limit opposing party from attacking witnesses credibility before jury.Rule 105 Limited Admissibility When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. If evidence is offered against party A, but not against party opponent B, then B may be entitled to a limiting instruction. B must object and ask for it timing of such and instruction is in court’s discretion, but usually done when admitted.Rule 106 – Remainder of or Related Writings or Recorded Statements When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

U.S. v. Sweiss D accused of conspiring to torch his grocery store. Govt introduced taped conversations between D and a wired false friend. But ct refused to admit transcript of earlier conversation. Another writing or recording should be heard if necessary to (1) explain admitted portion; (2) place admitted portion in context; (3) avoid misleading the trier of fact; and (4) insure a fair and impartial understanding. 2 qualifications to 106: the portions sought to be admitted 1) must be relevant to the issues and 2) only those parts which qualify or explain the subject matter of the portion offered by the opponent need be admitted. Foundation: specify part of testimony that is relevant and explains portions already admitted. Oral conversations: 106 only applies to writings and recordings. If witness only testifies to part of unrecorded conversation or event, opposing party can’t use rule to present remainder.Can 106 be used to introduce otherwise inadmissible matters? Split in circuits; 4th says no.Curative admissibility (opening the door)

Govt of Virgin Islands v. Archibald Hearsay was elicited from Williams mother whether she had ever seen the D and the V alone and whether she had heard any conversations between V and older sister concerning D and Williams said no to both. On redirect, over D’s hearsay objection, Williams testified that the older sister said she had seen D and V kissing. Govt argued that cross exam opened door. Ct reversed. Nothing in Williams cross was inadmissible.– OTD: when one party introduces inadmissible evidence, the opposing party may do so to rebut or explain same.– Redirect not admissible under Doctrine of completeness– Allows party to intro whole doc to extent it relates to same subject matter and concerns matter covered up.– DOC does not apply to separate utterances or occurrences pertaining to a different subject matter.4th Cir and “invited error”

US v Collins, 372 F.3d 629, 635 (4th Cir. 2004): D cannot complain on appeal of jury instruction which he requested. US v Jackson, 124 F.3d 607, 617 (4th Cir. 1997): any failure to prove D was a “convicted felon” was “invited” by erroneous stipulation to which defendant agreed. US v Neal, 78 F.3d 901, 904 (4th Cir. 1996): D could not complain on appeal of prejudicial testimony by gov’t witness which defense counsel elicited on cross examination.

Best Evidence Doctrine Content of writings is the main concern of the BED. Key concept: BED requires that content be proved by the writing itself when content of the writing is the issue, unless it is unavailable through no fault of the party seeking to prove the content.Rationale: – writings are of central importance in the law, other evidence is inferior, and producing the writing helps guarantee completeness and guard against fraud Recordings come within BED in Rules jurisdictions if they memorialize numbers, letters, or words.Photos are BE and include X-rays.

U.S. v. Duffy D accused of stealing car. Govt gave testimony as to shirt in trunk with D’s initials on it. D claimed govt should have had to produce shirt rather than testimony regarding the shirt under the BED. Ct said evidence was collateral to the crime, and that the shirt would not normally be considered a writing (chattel with inscription). Judge has discretion to call it chattel or a writing. So testimony about shirt was not a violation of BED.BED Does not apply:– Matters incidentally recorded may be proved in other ways—mere existence of a writing does not require its use to prove what it says. Example: party may prove payment by testifying that he paid even if he has a receipt that could prove the point (or an admission from other party, or other business record)– Absence of content can be proved without document. Example: can prove an item is not on list w/o producing the list itself.– Matters other than content may be proved without document, such as preparation or execution of a doc. EX: Suppose Peter sues Donna on a promissory note. Donna claims she paid off the note. She is prepared to testify that she personally handed over the requisite amount of cash to Peter in payment on the note, and she also has a receipt for the cash signed by Peter. Must she offer the receipt, or can she testify to the fact of payment? She need not offer the receipt. When she testifies to her action in handing Peter the cash, she is not proving the content of a writing. Instead she is proving a payment, and the BED does not require her to offer the receipt.  Donna can, however, offer the receipt. Any hearsay objection would be overcome because the receipt is Peter’s admission that he was paid. And if Donna chose to prove payment by using the receipt, then the BED would require her to offer the receipt itself. If she tried to testify, “Peter gave me a receipt that indicates payment in full, “ a BED objection would be sustained, unless the receipt were unavailable through no fault of her own.

United States v Gonzales-Benitez Facts: Ds were convicted of transporting and distributing heroin. Ds complain that a participant’s oral testimony was admitted in lieu of audiotapes of conversations. Holding: BED not offended because gov’t wasn’t proving content of “writing,” but content of oral conversations—not a “writing”.Very important concept for BED, but difficult for most students to get. Fact that writing exists containing the matter on which oral testimony is offered doesn’t bring rule into play by itself. EX: Fred and Gordon enter into a written sales agreement. Fred is to sell his old Harley motorcycle to Gordon for $8000. The applicable statute of frauds states that a sales K for a price exceeding $1000 must be in writing. Gordon gets the Harley, but later Fred sues claiming that Gordon paid only half the price at the time of delivery and still owes $4000. Fred proposes to testify to the substance of their agreement, but Gordon raises a BE objection. Fred should produce the writing or good excuse as to why not. Statute of Frauds requires the writing, so content of the writing is the issue in the case. BED requires the party who would prove this content to produce the writing or a satisfactory explanation for non-production.

Rule 1004. Admissibility of other evidence of contents The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if-1) Original lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or (2) Originals not obtainable. No original can be obtained by any available judicial process or procedure; or (3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the content would be a subject of proof at a hearing, and that party does not produce the original at the hearing; or (4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

Neville Const. Co. v. Cook Paint & Varnish Co. – Breach of warranty case. Plaintiff won. D complained that oral testimony was admitted to prove terms of destroyed brochure, despite evidence that a duplicate existed. – Affirmed. FRE embrace English rule that there are no degrees of evidence. Judges decide most questions on BED, but juries decide questions relating to the existence and authenticity of writings and whether other evidence correctly reflects content.

Notes:4th Cir does not allow us to get in otherwise irrelevant or objectionable material. But 106 is not the same as “opening the door.” Deals only w/ recorded admitted statements. 4th Cir. Does recognize the “opening the door.”How does proof relate to relevancy? 2 issues – what does it take to get certain facts before jury? How do we get it on the table? If it is relevant it is on the table unless another rule of evidence applies. Next, once it is on the table, the jury is told that if they find that what’s on the table points to the D’s liability, then you must find him liable in a civil case. In criminal, if jury finds that what is on the table makes you believe beyond a reasonable doubt that he is guilty, then you must find so. FRE help us determine what goes on the table.If you put a witness on the stand, and you’re asking him questions, and you raise a challenge that he is lying (maybe he’s been bribed), then this allows your opponent to being in the fact that before the alleged motive to lie came about, the witness was telling the same story.Hillmon doctrine – see example in notes RE a guy who was taking a notice for his girlfriend to the apartment. An expression that someone makes about their intent to do something in the future is admissible under the state of mind exception and as substantive proof that they are likely to have done the thing in question. Also, the statement can come in against both the person who had the intent and against the person he was intending on doing the act wit, and it can be used as substantive proof that they both did the thing. But saying “C planned to rob the bank but I did not” is not admissible – it must be that both had planned to do the activity.If the defense has properly put character into issue - they can do it by one of 2 ways – reputation or opinion testimony. You as the pros. can say to the D’s character witness – “Did you know that he did this and this?” Still, this question would be subject to 403 but it would have to be egregious to be thrown out.Remember – first question we have to ask for any kid of evidence – is it relevant?Impeachment5 Methods of impeachment:1) Untruthful character (FRE 608, 609)2) Bias 3) Prior inconsistent statements (FRE 613)4) Defects of capacity5) Contradiction

Cross examination vs. extrinsic evidence, collateral matters: See source of evidence for impeachment – is it 1) evidence elicited (or attempted to be elicited) from the witness during cross-examination, or 2) evidence from another witness or introduction of a document into evidence. 2) is extrinsic evidence – impeaching matter is collateral. Usually, a party may not introduce extrinsic evidence to contradict a witness on a collateral matter solely for purposes of impeachment.

Bolstering – credibility of a witness may not be supported until it has been attacked. After impeachment, however, evidence may be admitted to “rehabilitate” the witness. If the type of impeachment is collateral, then rehabilitation will be limited to redirect examination. If the contradiction does not concern a collateral matter, extrinsic evidence may be offered to support the denial or explanation (subject to 403).

A. Prior inconsistent statement Rule 613 – Prior Statements of Witnesses(a) Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same (rehabilitation) and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

State v. Hines D appeals as to the Q’s that were used to impeach his alibi W. The first Q’s were as to why she had not mentioned certain facts when she first spoke to police. Not a matter of contradiction, but of omission of facts. Q in the case of omissions – would it have been natural for the person to make the assertion in question? Here, W’s failure to give all of the facts constituted grounds for impeachment. D now says that even if the omissions were prior inconsistent statements, impeachment should not have been permitted because the prosecutor failed to lay the proper foundation. But foundational requirement has been abolished by FRE 613(a). The only requirement is that upon request, the statement must be shown or disclosed to opposing counsel. Also, this was not a case of impeachment by insinuation, which is not allowed.

Impeachment of accused by silence is not allowed. As to extrinsic proof of PRIS after witness admits it: split authority. PCS are not generally admissible to rebut a PRIS attack, because the inconsistency remains, PCS are only admissible under 801(d)(1)(B) to rebut charge of recent fabrication or improper motive or influence.

Ex: X sues Y for unfair competition and violation of unfair trade laws. Bunn, and auditor hired by X, testifies that annual sales dropped as a result of Y’s competitive practices. Defense atty crosses Bunn extensively, but does not ask him about PRIS’s. During case in chief Y calls Reggie, a loan officer in a bank from which X had to borrow money at end of 2002. Reggie quotes Bunn as telling him that the 2002 drop in X’s revenue was caused by a “defective computer chip” and the “company has now remedied the problem.”Statement to Reggie by Bunn is extrinsic evidence and very relevant, not collateral. But, unless Bunn has opportunity to explain or deny, it could be stricken under 613(b).

Bias or interest

U.S. v. Harvey Govt’s case rested on 1 witness against D. Defense atty asked this W if she had ever had any problems with D and had ever accused him of fathering her child. W said no. D wanted to introduce an impeachment W who would establish that W1 had accused D of fathering her child and she was going to make him pay for doing so. Trial judge said matter was collateral and inadmissible. Ct says that law of evidence has long recognized that a cross-examiner is not required to “take the answer” of w W concerning possible bias but may proffer extrinsic evidence, including testimony of other witnesses, to prove the facts showing a bias in favor of or against a party. Also, it is req’d that W be given a chance to explain or deny after being impeached, but here W did not use her opportunity to do so and simply denied the questions.

Bias is NOT collateral and may be proved by extrinsic evidence.Special treatment is accorded evidence showing a motive to lie, because if believed all of the testimony is colored. But, witness who is challenged must be allowed to explain or deny. FRE 613(b). Trial ct has discretion, but not so much as to cut off a defense.Bias always relevant:– It is a matter of consequence to the determination of the action, thus, under FRE 401 it is always relevant.– May be explored on cross and proved by extrinsic evidence.– Cannot be unreasonably limited and is exempt from FRE requirement of limiting cross to subject matter on direct. FRE 611(b)—but court has discretion.Types of bias:– Family ties– Friendship– Sexual involvement– Membership in clubs– Business and finance– Interest in law suit– Settlement attempts– Plea bargain– Any influence by a party

Character for Truthfulness

Conviction of Crime 609 – Impeachment by Evidence of Conviction of Crime(a) General Rule. For the purpose of attacking the credibility of a witness, (1) evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 403, if the crime was punishable by death or imprisonment of more than 1 year under the law under which the witness was convicted, and evidence that the accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old s calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent time which was punishable by death or imprisonment of more than 1 year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.(d) Juvenile Adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that the admission in evidence is necessary for a fair determination of the issue of guilt or innocence.(e) Pendency of Appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.US v Tse Convicted of dist cocaine. Claims that ct erred in not allowing him to impeach govt informer and witness with prior conviction for assault and battery of police officer. Tse had prior conviction for same offense and moved to exclude. Trial court said issues were similar and excluded both. Issue: Should D have been able to impeach govt wit? And, what are differences between admitting convictions to impeach D vs a witness? Rationale: Different standards under 609 when prior record of accused vs mere wit is involved. Ct can exclude prior conviction of accused if prejudice merely outweighs probative value, but if mere wit then prejudice must substantially outweigh probative value.Balancing test:– C&M text: p. 338; HB p. 180 How much info about prior crime?– Name– When and where convicted– If mere wit, wit may get to explain, but may open door to other details.“Removing the Sting” bringing out prior record of govt wit on direct: little supporting theory, but a VERY common practice. How does D preserve the issue if court denies the motion in limine? D must testify and suffer impeachment to preserve the issue.

U.S. v. Brackeen Issue – does bank robbery involve “dishonesty” in terms of impeaching a W by evidence of prior convictions? Lower ct allowed impeachment under 609(a)(2), after having denied the use of the evidence as impeachment under 609(a)(1). Bank robbery does not fit in the definition of dishonesty because it is a crime of violent, not deceitful, taking. Advisory notes show congress only meant “dishonesty” to refer to “deceit.”

ii. Other misconduct 608(b) – Evidence of Character and Conduct of Witness (b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

Gustafson v. State D took stand as W in his own defense. Govt asked him about instances of prior misconduct involving theft. Ct held an act involving theft is probative of truthfulness, interpreting Rule 608(b) to be broader than rule 609(a)(2) though narrower than rule 609(a)(1) (does not include unadjudicated violent crimes). Rationale: 608(b). Using such information: 3 conditions:– Question must be asked in good faith.Ct may require evidence of good faith before question is askedQuestioner must have credible knowledge that the offense has been committed not merely rumor or innuendo– 403 analysis– Misconduct must relate to truthfulness or untruthfulness and that character traitRhodes overruled Gustafson on the theft point only. Sitz held that Rhodes precludes inquiry about embezzlement as well as other forms of theft. Whether acts of theft are permitted under 609(b) is not settled.Act vs charge or arrest– Ok to ask witness about bad act under 608, but not whether he/she was charged or arrested. An arrest or charge is hearsay and very prejudicial. This is an important distinction.

Smith v. State V accused D of sexual assault. D sought to produce witnesses, including himself, that the V had previously made accusations of sexual assault. Trial ct disallowed the testimony under the rape shield law. Evidence of this type does not involve the V’s past sexual behavior, but rather the V’s propensity to make false statements concerning sexual conduct. Most courts allow evidence that the V in a sex assault case has made prior false allegations against men other than D. evidentiary rule generally prohibiting specific acts of untruthfulness gives way to confrontation right to present a full defense. Govt then argued that even if the rape shield law does not prohibit the testimony, the testimony relates to the V’s character, which can only be attacked by evidence of the V’s general reputation for veracity; therefore, any specific instances of untruthfulness are prohibited. But cts have held that evidence of prior false accusations is admissible to attack the credibility of the V and as substantive evidence tending to prove that the instant offense did not occur. Still, before such evidence can be admitted, a ct must make a threshold determination o/s the presence of the jury that a reasonable probability of falsity exists.Wellborn: “The answer under the rules must be that neither 608(b) nor rule 405 applies, because the pattern of false charges or claims is not an attack upon general character for truthfulness, but rather is something much more specific, and much more probative, that is admissible under the open ended part of 404(b): a repeated pattern or “plan” of very specific conduct which the present case may be an instance.”

iii. Reputation or Opinion Evidence of Character for Truthfulness 608(a) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

U.S. v. Lollar After D testified at trial, govt recalled one of its witnesses and asked him if he would believe the D under oath, and W said no. D objected, saying it was error to allow the W to testify as to his veracity. A criminal defendant may not be compelled to take the stand but when he does so his credibility is in issue as with any other witness.While the D’s decision to testify does not open the door to general, it does free the govt to offer evidence bearing on the D’s believability as a witness. Rule 608(a) says that the credibility of a witness may be attacked by evidence in the form of opinion or reputation. Says that W’s may be asked directly to state their opinion of the principal witness’ character for truthfulness and they may answer, for example, “I think X is a liar.” Therefore Trial ct was within its discretion in overruling the objection.“Would you believe” is proper – “Do you believe” is not. While it is proper to ask the character W if he would believe the impeached W under oath, the character W may not testify to disbelief of the actual testimony of the impeached W.

U.S. v. Medical Therapy Services D claims he needs new trial b/c govt allowed to bolster the character of its own witness against the D. Evidence of truthful character is admissible only after the character of the W for truthfulness has been attacked by opinion or reputation evidence or otherwise. D claims that the foundation for character evidence was not present because D’s character for truthfulness had not been attacked. Govt brought out W’s convictions and then sought to bolster her character. Convictions were asked about on cross-examination, and the gov’t considered this to be “attacking” the W’s character. Ct here says that it is close but the trial ct was within its discretion in allowing in the line of questioning. Prior convictions may be brought out on direct for non-impeachment purposes. When the tenor of a direct examination does not suggest an “attack” on veracity, and cross-examination does constitute an “attack”, trial judge should retain his discretion on admission of character W’s.


Evidence MBE Practice Test

Capacity of the Witness

U.S. v. Lindstrom D appeals, arguing that he should have been allowed to question the govt’s W as to her psychiatric confinement and treatment, and that he should have been given access to her psychiatric medical records. Govt says psychiatric info simply raises a collateral issue. Ct says “Whether collateral or not, the issue of a witness’ credibility is committed to the providence of the jury.” Trial ct was afraid of W being put no trial, so only allowed D to ask certain Q’s. Trial ct abused its discretion in contradicting the right to confrontation and the rt to examine the adverse W’s psychiatric history. Jury was denied evidence necessary for it to make an informed determination of whether the witness’ testimony was based on historical facts as she perceived them or whether it was the product of a psychotic hallucination.• Certain forms of mental illness have high probative value on issue of credibility.• Mental health, or lack thereof, may produce bias• Wits credibility is for jury• Jurors were entitled to have defense theory before them so they could make an informed judgment. Jury could not determine if wits testimony was based on historical fact or wits mental illness.

Lack of opportunity for personal knowledge• Wit not in position to have first hand knowledge—too far from scene, etc.• Like “organic capacity” this can be shown by extrinsic evidence.

E. Contradiction

Kellensworth v. State D and his parents said that he loved his former wife. Ex-wife testified and said that D had been violent towards her. Govt called this rebuttal testimony. Ct of appeals says this is more than rebuttal testimony - it is being used to impeach. But a witness cannot be impeached on a collateral matter by calling another witness to contradict the testimony of the first witness b/c this would distract the jury. A witness can, however, be discredited on a collateral matter (via cross-ex, for example.) The state cannot produce witnesses to testify to specific acts of misconduct. FRE 405(b) says that when a character trait or character is an essential element of a charge, claim or defense, proof may be made of specific instances of misconduct. But the evidence offered is not an essential element of the charge of rape. Also, regardless of whether it was collateral, it was prejudicial and should not have gone to the jury.– Whether matter is collateral is determined by whether it is independently provable, if so, it is not collateral.Test is met by two kinds of facts: (1) those relevant to a substantive issue in the case, and (2) bias, interest, conviction of a crime, want of capacity, knowledge of witness. Only real issue in Kellensworth is whether D’s opening the door has the effect of permitting extrinsic or merely cross exam regarding the otherwise inadmissible mistreatment of his former wife. Though D opened door to cross on inadmissible matters, collateral facts doctrine remains in place. Cannot get into full blown trial on unrelated matters

Impeaching one’s own witness 607

Rule 607 – Who May Impeach The credibility of a witness may be attacked by any party, including the party calling the witness.

U.S. v. Webster Govt called witness against D, who actually made statements that, if believed, would exculpate D. Govt introduced W’s prior inconsistent statements that had inculpated D. Ct instructed jury to use statements only for impeachment purposes, but D claims this isn’t good enough, and that the govt shouldn’t be allowed to get inadmissible evidence before the jury by calling a hostile W and then using his out-of-court statements, which would otherwise be inadmissible hearsay, to impeach him. Ct agrees, and says that impeachment by prior inconsistent statements may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible. But ct finds that there was no bad faith in the acts of the govt here; therefore conviction is affirmed. Can’t call a witness whose inconsistent testimony is expected. Must be good faith.

If the prior statement offered by the calling party is not hearsay, or is fully admissible hearsay, then there is no Webster problem – statement received without restriction.

Rule 610 - Religious Beliefs or Opinions Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.

Hearsay within Hearsay 805 – Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.If one out-of-court statement contains (reports the substance of) a second out-of-court statement, and the purpose is to prove the truth of the matter asserted in the second statement, the situation presents an issue of double hearsay. To make matters worse, the second statement might report the substance of a third, and so on. For example, a hospital record might contain a patient’s story about the cause of the injury. First see if the record is admissible. Then imagine the record coming to life and actually “saying” what was written upon it. If that “person’s” statement would be admissible, then both levels of hearsay are admissible and the hearsay within hearsay is ok. Another example – car accident – X sees license plate and gives number to Y, who gives number to police. Present sense impression within present sense impression. X - her impression of the license plate, Y’s impression (via her hearing) of what X told her. But remember that present sense impression requires personal knowledge, as well as immediacy. If X had told Y the license plate number over a CB radio, this would not be admissible because neither Y nor the police officer who Y spoke to could verify that X was reporting based on personal knowledge of the event. So no foundation could be laid showing personal knowledge or immediacy. If, however, X had said, “I just saw this car speeding away and the license plate was . . .” In that situation, a judge could determine (104(a)) if the personal knowledge requirement was satisfied.

EX of oral statement: Suppose a witness testifies to a statement by Abe reporting what Bob said, and the purpose is to prove the matter asserted by Bob. Abe’s statement is hearsay when offered to prove that Bob said something, and Bob’s statement is hearsay when offered to prove the truth of what Bob said. A hearsay objection to this testimony can be overcome if what Abe said and what Bob said both fit exceptions.

EX of written statement: If a party offers a writing by Ann reporting a statement by Betty, the writing is Ann’s out-of-court statement and it is hearsay if offered to prove Betty said something. And again, what Betty said is hearsay if offered to prove the truth of the matter asserted. Again, a hearsay objection can be overcome only if Ann’s written statement and Betty’s oral statement both fit exceptions.

Reliability and Relevancy of the Evidence

Daubert v. Merrell Dow Children born with birth defects. Issue – what test do we use when you are arguing a new or novel area of expertise? Simple way to do this is to look at the cases. U.S. v. Frye was the standard for a long time – whether the scientific technique is generally reliable by the scientific community. Frye is dead in federal ct. Problem with Frye was that it was too conservative – how do we ever get new experts in federal ct? New rule – judge must ensure that expert’s testimony must rest upon a reliable foundation and is relevant. Reliable = scientific method. Factors identified in Daubert:• Is methodology testable?• Has theory or technique been subject to peer review (journals)? This happens upon publication.• Known or potential rate of error – 90% reliable? 80%?• General acceptance is relevant but not dispositive

Rule 403 applies to expert testimony Will not lead to “free for all” or establishment of “repressive scientific orthodoxy ”Dabert back in the 9th cir. (435) “Brave new world” What cts must do: Resolve disputes among experts in areas where there is no scientific consensus as to what is and what is not good science and occasionally expert testimony because it was not derived from proper scientific method.New Factor: whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying . . . experts whose findings flow from existing research are less likely to have been biased toward a particular conclusion by the promise of renumeration.

Kumho Tire Co. v. Carmichael Daubert’s holding and trial judge’s gatekeeping function applies not only to scientific knowledge but other technical and specialized knowledge as well. Also a ct may consider one or more of Daubert’s fators when doing so helps with reliability but the reliability test is flexible and Daubert’s factors neither necessarily nor exclusively apply to experts in all cases.Forms and Bases of Expert Testimony: 703 & 705 703 recognizes 3 sources of facts relevant to the case:Personal knowledge of expert witness Evidence at trial through other witnesses and exhibits Facts made known to the expert at the hearing if reasonably relied on by expert in the field.Purpose of 705: Abolish CL requirement that the factual basis for the opinion be stated in advance of the opinion. 2 ways to state in advance:• Hypotetical• Excused from the rule and listen to witnesses and review exhibits.

Form and bases of expert testimony: Hypos When use the traditional rules apply: Facts in Q must be supported by facts previously adduced at trial May choose among conflicting factual versions May not omit plainly material uncontroverted facts On cross expert may be asked to assume competing versions of facts

Inadmissible data:If expert’s opinion based on facts not admissible in evidence:• Judge must determine that the data is reasonably relied on by experts in the field• Judge may consider experts own testimony or affidavit• Testimony or affidavits of others• Judicial noticeIf elicited on direct, Judge must find tat the probative value in assisting the jury to evaluate the jury’s opinion is substantially outweighed by prejudicial effect. A limiting instruction that facts can only be used to evaluate the opinion not as substantive evidence.

Opinion on Ultimate Issue: 704 Torres v. County of Oakland (458) Holding: Q was improper b/c it was phrased in terms of a legal conclusion, but error was harmless. A slightly different Q (did her nat’l origin motivate the decision?) could have made a difference.

Authentication and Identification 901-903 Document or physical item of evidence – first you have to prove to the ct that it is what you say it is. – this is authentication. Requirements:Lay the foundation – cts don’t take things at face value. Skepticism applies across the board to all physical evidence except live testimony. You don’t “authenticate” live testimony.Procedure for authentication:Juries decide authentication issues and judges play a screening role by requiring the proponent to offer enough evidence to support a jury’s finding that it is what it is. When are authentication issues resolved: At trial in criminal and in pretrial in civil cases.How are handwritings authenticated?• Lay opinion testimony based on knowledge of handwriting – HB 283 n. 6• But not if familiarity w/ writing comes from litigation (901(b)(2))• Expert opinion based on comparison with exemplar HB 283 n. 7 – unlike CL, exemplar doesn’t have to be “genuine”, only “authenticated” (supported by sufficient evidence to support finding it is genuine)• Jury opinion based on comparison with exemplar

Best evidence doctrine – BED Traditional formulation covered only writings and required production of originals rather than copies, but modern formulation extends doctrine to recordings and photos and allows proof by means of duplicates. A writing is anything that contains or memorializes numbers, etc.Ex – what is a writing?US v. Duffy pg 480How do you decide if something is a writing or an inscribed chattel? Originals – Original writings = the writing or record itself and any counterparts intended to have the same effect that have the most relevance in light of the claim or defense being made, the circs, party intent, and substantive law.Application of BED – typically in 2 situations:Substantive law requires party to prove content of original, i.e. suits on written K’s where the PER has this effect – see TWEN notes.

Opinions and Expert Testimony Rule 701 Opinion Testimony by Lay Witnesses If the witness Is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702.

Govt of Virgin Islands v. Knight D claimed that it was an error to exclude a W from giving his opinion that a shooting was accidental. Ct said that this opinion would be helpful to the jury and allow the W to speak with ease. The W had firsthand knowledge of the event, making it admissible if it could help the jury resolve an issue of fact.– Modern trend favors op testimony and cross will reveal weaknesses.Qualification of Witnesses 702Rule 702 Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of opinion or otherwise, if 1) the testimony is based upon sufficient facts or data, 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably to the facts of the case.

U.S. v. Montas D objected to govt agent’s testimony that drug smugglers frequently use different names on their tickets and luggage claim slips in order to avoid being caught. Ct said that this info would have been easy for a jury to understand and did not require expert testimony. Also, the risk for prejudice was great. However, the admission of the testimony was not plain error.

U.S. v. Paul Q of whether handwriting analyst should be allowed to testify as to an extortion note allegedly written by D. Ct said analyst was qualified and that his testimony would assist the trier of fact. Also, testimony not barred by 403.

Two basic issues under 702. Whether subject matter is appropriate for expert testimony Will scientific, specialized, or technical knowledge assist the jury?. Is the witness personally qualified? By knowledge, skill, experience, training or education

Arkansas State Hwy. Comm. v Schell Facts: condemnation of part of Schell’s poultry farm for a hwy. The jury awarded $50,000.00, about twice as much as fixed by Commission witnesses but less than set by Schell’s. Trial court refused to permit commission to elicit from its expert certain matters that formed the basis of his opinion. The Commission’s expert would have testified that he relied on information from others. Holding: it is hearsay but it is admissible under 703-705 FRE 703 recognizes three sources of facts relevant to the case.Personal knowledge of expert witness.Evidence at trial through other witnesses and exhibits.Facts made known to the expert at the hearing if reasonably relied on by expert in the field. Purpose of 705 To abolish the common law requirement that the factual basis for the opinion be stated in advance of the opinion. Two ways to state in advance:Hypothetical Excused from the rule and listen to witnesses and review exhibits.If expert’s opinion is based on facts not admissible in evidence,… The judge must determine that the data is reasonably relied upon by experts.May consider experts own testimony or affidavit Testimony or affidavits of others Judicial notice If elicited on direct the judge must find that the probative value in assisting the jury to evaluate the jury’s opinion is substantially outweighed be prejudicial effect. A limiting instruction that facts can only be used to evaluate the opinion not as substantive evidence.

Rule 704 Opinion on Ultimate Issue(a) Except as provided in subdivision (b), testimony in the form of opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto. Such ultimate issues are for the trier of fact alone.

Torres v County of Oakland Facts: Torres was passed over for a promotion and claimed it was because of her national origin. Ds won. Torres complains that Dr. Quiroga, who took part in the selection was allowed to testify to his opinion that she was not discriminated against. Holding: question was improper because it was phrased in terms of a legal conclusion, but error was harmless. A slightly different question (Did her national origin motivate the decision?) would have sought a factual and not a legal conclusion.Testimony as to ultimate facts may be permitted under rule 704, but not legal conclusion. Examples – HB 217-219.

U.S. v Thigpen Facts: D was convicted of weapons offenses. Jury rejected the insanity defense. All psychiatrists agreed he was mentally ill. D complains of questions by prosecution to govt and defense witnesses as to whether a person suffering from schizophrenia would be unable to appreciate the nature and wrongfulness of his actions. Held: affirmed. 704(b) forbids only testimony as to whether the D possessed a particular mental state or condition.Adopted in reaction to John Hinkley’s case.

Rule 901 Requirement of Authentication and Identification(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

What does it mean to “authenticate” a proffered item of evidence?Simply, showing that it is what the proponent says or claims it to be.What is the requirement to “authenticate”? To authenticate means to “lay the foundation.” This is necessary because courts do not typically take things at face value. This skepticism applies across the board to all physical evidence, not live testimony. You don’t “authenticate” live testimony.What is the procedure for authentication?Jurors decide authentication issues and judges play a screening role by requiring the proponent to offer enough evidence to support a jury’s finding that it is what it is.When are most authentication issues resolved?At trial in criminal cases and in pretrial in civil cases.What counts as proof of authentication?Appearance, contents, and internal characteristics count and all of these may be considered to together with other proof, but objects are not taken at face value.How are tangible objects authenticated?Two ways: (a) by a witness with knowledge who can and does testify to distinct characteristics of the object, and (b) chain of custody.How are writings authenticated?Lay opinion testimony based on knowledge of handwriting. HB 283, n. 6.But not if familiarity with writing comes from litigation. 901(b)(2)Must have minimal factual basis to know the writing of another.Expert opinion based on comparison with exemplar. HB 283, n. 7.Unlike common law, exemplar doesn’t have to be “genuine” only authenticated, that is, supported by sufficient evidence to support finding it is genuine.Jury opinion based on comparison with exemplar. HB 283, n. 7.Same rule as expert re exemplar Distinctive characteristics, including proof that the writing “replies to the inquiry” directed to the apparent maker of the writing (“reply letter doctrine”) and proof that the writing embodies knowledge or code words known or used by the person who is the apparent maker.HB 283, n. 8.How are public records authenticated?By certified copy, i.e., self-authentication Showing public record or filing Testimony by a knowledgeable witness Other methods as used for other writings, i.e., lay opinion as to handwriting, etc.HB 287, n. 3.What are ancient documents?Old common law rule was 30 years, but now shortened to 20. Despite label, it refers to data compilations in any form, computerized material is included now. Age may be shown by person who knows or expert.HB 284, n. 10.Hearsay exception: 803(16), to get around hearsay problem.So, how do you know it’s “ancient”? Looks old enough: physical appearance and internal characteristics, but written or other internal date not enough standing alone.Found in appropriate place: where old document would likely be found.No suspicious circumstances

What about tape recordings? Because they can be edited and altered, and because conversation raised issues of completeness, two steps are required:Process: proponent should explain how done or made, and that persons involved were competent and there are no material alterations.Identify participants: proponent must show who participated in conversation and identify voices As an alternative a participant or observer could testify that a recording faithfully recorded the voices.What about photos?May be authenticated by testimony of knowledgeable witness that photo accurately depicts thing or scene. Photographer need not testify.Two views on photos:Merely illustrative: photos said to merely illustrate testimony of witness, but strong trend is to treat as independently relevant.“Silent witness” doctrine: surveillance photos taken by automatic cameras may be authenticated by testimony explaining the process and showing the camera took accurate photos.HB 282, n. 5.Self-authentication: taking something at face value despite strong tendency not to do so.Strong but not conclusive: doesn’t mean authenticity can’t be challenged but criteria are strong so it could lead to mandatory instruction, but not usually against criminal defendants.Examples Sealed public docs and certified copy of public docs Certification states that doc is true and correct and is signed by appropriate public official.Official publications: court can rely on a legend found in the doc that says its official Newspapers and magazines Trade inscriptions and labels affixed in course of business: can be used to show ownership, control or origin, maker of product Acknowledged docs (deeds) and some commercial paper (bills of lading). HB 287, n. 4.Demonstrative Evidence?Evidence that conveys a “firsthand sense impression.” Includes “real” (the things or items actually involved: gun, clothing, docs, etc) and “illustrative” (charts and diagrams illustrating testimony) evidence Foundation: Item depicts relevant info that will or has been proven by other substantive evidence, that it is accurate, and it will aid trier of fact.Drawings, maps, models, diagrams, charts: authenticated by testimony that items are accurate portrayals Displays: Showing scars or injuries. Court has wide discretion. Demonstrations: Parties or witnesses acting out, showing how something happened. Re-enactments in form of video. Including “day-in-the-life” videos.Animations: May involve computer generated image that would require expert testimony. Court has wide discretion.Experiment: May be done in court or out to show scientific principles involved. Wide discretion on court’s part.Jury view: Hooray! We get to leave court and go on a “field trip.” Court has wide discretion.

US v Johnson Facts: Johnson convicted of assaulting Papse with a long handled ax. Ax introduced based on Papse’s weak ID. Papse said he was “pretty sure” it was the ax, and Papse had seen it in Johnson’s hand and was familiar with it. Holding: FRE 901(a) does not set a high standard, especially for “real” evidence. Steps in Authentication process: (1) mark item for “identification purposes only.” (2) proving it is what proponent claims it is, using testimony of witness with knowledge (3) Formally offer exhibit in evidence (4) Let counsel for other side examine (5) Allow opportunity for objection (6) Obtain ruling on objection (7) Marking object as an exhibit (“moving it in”)

Chain of custody: Usually only (or especially) necessary when exhibit is fungible, or when witnesses can’t testify to identifying marks, or because there is great possibility of mistake, deception or tampering. Examples: OJ’s bloody glove, drugs, blood, hair, etc. Call each person who touched or handled the item. Gaps in “chain” are not often fatal, at least in Fed Ct. Need not keep round the clock watch or guard on the evidence. Must be reasonably certain as to chain: stricter standard at common law than FRE. See HB 281, n. 4. Factors:  Nature of evidence, i.e, fungible Likelihood of tampering Importance that it be in same condition as when found. Natural change in item likely. Significance of item of evidence

US v Olson Facts: D convicted of murder and attacks chain of custody of certain bullets and bullet fragments. After items were brought to lab, they were unwrapped and repackaged to be sent to FBI lab by agent Hunter. Hunter died before trial and there was no testimony detailing how they were removed and repackaged. Holding: gaps in custody do not usually defeat chain. Gaps go to weight and not admissibility. If trial judge is satisfied that in reasonable probability the evidence has not been tampered with or altered in any material respect, it should be admitted.  Also, D raised no affirmative evidence of tampering, nature of evidence was not fungible (?), and where items are in official custody and there is no affirmative evidence of tampering a “presumption of regularity attends official acts of public officers and the courts generally presume that their official duties have been discharged properly.” Distinctive characteristics and reply letter doctrine: Distinctive Characteristics: match knowledge to a person The offering party may show X wrote a doc by showing that the author of the doc knew things X knew or used code terms X used. Where matches are unique to X (nobody else knew that stuff), the proof is strong and convincing, but it suffices if few people (including X) knew such things. See US v Harvey, supra. Reply doctrine: letter or other doc can be shown to have come from A, if it is shown to be an apparent reply to letter or other inquiry directed to A.  Mere signature or name on doc is not enough standing alone, but is one factor. Same with letterhead.

Review: Bootstrapping – piece of evidence that by itself might not justify its entry. But other evidence might help to bring it in. That other evidence may be other hearsay that has been admitted. Need to look to other evidence (conspiracy) to justify its entry.Pre-Crawford cases talk about indicia of liability – do not talk about this on the exam. These questions are no longer good law. Now the question is – is it testimonial?Think about it in terms of a “reasonable person’s point of view” – would they believe it was in anticipation of litigation? Or would they think that their statements might be used in a legal proceeding?2 situations in which problems arise: 911 dispatch calls – repeating an event in progress Police arrive on scene and person explains what happens These could be EU’s, but cts have not yet decided how these statements should be treated after Crawford. Some cts say they are EU’s or that the person didn’t expect these statements to be used in court, but other courts will likely go the other way. Most firmly rooted exceptions will be ok because the statements there are not testimonial.

If you have Q’s and the answer itself is what the ct needs to hear to decide if it is hearsay – how do you preserve the record? If it is simple enough, then you can say to the judge at a 104(a) hearing o/s the presence of the jury, “I want to ask him X and I think he’ll say Y and this is an exception to the HSY rule.” If the judge says no then your objection is still preserved. Or you can have a 104(a) hearing, actually call your witness and ask your question, the other side would have a chance to cross, judge would rule.Character trait brought in must be relevant to the crime charged.

Bridges v. State – SOM exception – What is really at issue here is whether or not other people’s discussions with her could have caused her to fabricate. Ct used SOM b/c it shows what her knowledge was and that she did not fabricate. It is not offered to prove what the home looked like, but that she had accurate knowledge – her ability to perceive was intact.

Affidavits are typically hearsay. Could be a Crawford problem as well if used against D. Morgan case – used against Govt – adopted admission that drugs belonged to “Timmy”.

Co-cons – there is a co-con hsy exception. If there are co-cons in the fact pattern then you are doing a different analysis. Is the person whose statement we want to use in the conspiracy? If Y, then was the statement made in furtherance of the conspiracy? Whether or not the co-con on trial is present when that statement was made and overheard it is irrelevant. Think of the co-con thing as an exception, not an admission.

Present sense impression and EU:PSI – immediacy of the event is a strict requirement. Must describe the event at the time you are seeing it. Statement ought to describe or relate to the event. Can describe the event (Houston Oxygen case) but there is an immediacy requirement. Also, you have to actually perceive the event. You have to actually witness it. Statement must be strictly descriptive.EU – some external stimulus, and an excited speaker. Must relate to the event but does not necessarily have to be contemporaneous, but most of the time it will be


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