Evidence Bible For Kessler 2.

EVIDENCE
MW 10:10am-12pm (Room 308)

Professor Lawrence (Larry) W. Kessler
Available via e-mail: speak2kess@yahoo.com
Office 235, (516) 463- ####
or via appointment (Reg. Office Hrs = 30 mins +/- class; walk in when door is open)
In a lot of ways evidence is easier than subjects of law: evidence is either admitted or not in trial.
Evidence: Class Outline
JUDICIAL NOTICE (Rule 201) - 1238-1247
*In re Marriage of Tresnak (Iowa 1980) ................................................................................................ 2
WITNESS EXAMINATION
Direct (Rule 611(c)-- 333-339
*Straub v. Reading Co. () -- 335-339 ...................................................................................................... 4
Preparation of Witnesses -- 316-333; 237- 246
*Resolution Trust Corp. v. Bright (3rd Cir. 1955) ................................................................................... 5
*People v. McGuirk (App. Ct. Ill. 1969) .................................................................................................. 5
*Opinion No. 79, Legal Ethics Committee (D.C. Bar 1980)
7
Refreshing (Rule 612) -- 340-352
*US v. Riccardi (3rd Cir. 1949) ..................................................................................................................7
Past Recollection Recorded (Rule 803(5) -- 539-540
*US v. Porter () .................................................................................................................................... []
Cross -- (Rule 607,611(a)(b)(c)) -- 362-381
*Finch v. Weiner (Conn. 1929) .............................................................................................................. 11
*People v. Sallis ()
Redirect B- 381-385
*Commonwealth v. OBrien () ........................................................................................................... []
REAL PROOF/RELEVANCE
Factual Relevance (Rule 401,901)-- 97-122
*McAndrews v. Leonard (VT 1926) ........................................................................................................ 13
*Almeida v. Corriea (Hawaii 1970) ......................................................................................................... 14
*De Baillet Latour v. De Baillet Latour 94 (NY 1950) ......................................................................... 14
*Bruces Juices v. US (5th Cir. 1952) ....................................................................................................... 14
*Miller v. Pate (US 1967) Add the following facts: .............................................................................. 15
- The blood was Type A
- The decedent had Type A blood
- 40% of the population has Type A blood
- The shorts were found 3 days after the crime
*Anderson v. Berg (Kansas 1969) ........................................................................................................... 16
Preliminary Issues of Fact - 169-172
*Sliker v. US () ........................................................................................................................................ 16
Logical Relevance (Rule 401)-- 1-15
*People v. Adamson (Cal. 1946) ............................................................................................................. 17
Evidence notes outline (jhm)
Page i
Prejudice -- (Rule 403) -- 15-35

*State v. Poe (Utah 1968) .................................................................................................................. 18, 19
*US v. Zimeri-Safie (5th Cir. 1978) .......................................................................................................... 18
*State v. Bray (Mo. 1955) ........................................................................................................................ 18
*Robbins v. Whelan (1st Cir. 1981) .......................................................................................................... 19
*Old Chief v. US (US 1997) .................................................................................................................... 19
Reproductions/Photographs -- (Rule 901) -- 150-176
*Knihal v. State (Neb. 1949) ................................................................................................................... 22
*Loftin v. Howard (_) ........................................................................................................................... []
*Bannister v. Town of Noble (_) ........................................................................................................... []
*US v. Carbone (_) ............................................................................................................................... []
Diagrams -- 176-181
Views -- 136-139
*People v. Crimmins (NY 1970) ............................................................................................................. 22
Demonstrations -- 139-150
United States v. Wanoskia (10th Cir 1986)................................................................................................ 23
*Larramendy v. Myres (Cal. 1954) .......................................................................................................... 23
*Hall v. General Motors (D.C. 1980) ...................................................................................................... 23
WRITINGS............................................................................................................................................................. 25
Foundation -- (Rule 901-902) -- 181-211
*Keegan v. Green Giant Co. (Maine 1954) .............................................................................................. 26
*Zenith Radio Corp. v. Matsushita Electric Industries (Penn. 1980) ....................................................... 26
*US v. Labovitz (Mass. 1996) ................................................................................................................. 28
*University of Illinois. v. Spalding (NH 1901) ........................................................................................ 28
Best Evidence (Rule 1002, 1004, 1006, 1007) -- 211-237 ................................................................................... 29
*Myers v. US (_) ......................................................................................................................................31
*Davenport v. Ourisman-Mandell Chevrolet, Inc.
*Amoco v. US Relevance and Sufficiency (_) ..........................................................................................32
Circumstantial Proof -- 35-51
*Regina v. Onufrejczyck, (Eng. 1955)
In re Winship, 397 U.S. 358 (1970)
State v. Brewer, (Maine 1985)
Statistical Proof -- 51-79
People v. Collins
Smith v. Rapid Transit, Inc.
State v. Rolls
REVIEW OF RELEVANCE
Collateral Evidence (Rule 806) -- 402-405
State v. Oswalt
Stephens v. People
People v. Pargo
People v. Terczak
People v. Wilson
CrimPro class notes (jhm)
Page ii
COMPETENCY
Common Law B (Rule 601) B 255-277
Rock v. Arkansas
Zeigler v. Moore
Truthfulness -- 285-291
US v. Ward
Ability to Perceive B (Rule 602) -- 291-297
State v. Raniere
Infancy -- 297-305; 563;
Mental Disease B 305-316
OPINION EVIDENCE
Lay Opinion -- (Rule 701) --352-362
Wilson v. Pennsylvania RR Co.
US v. Stamps
Expert Opinion -- (Rule 702-5) -- 954-1067
Een v. Consolidated Freightways
People v. Taylor
Meier v. Ross General Hospital
Daubert v. Merrell Dow Pharm.
US v. Chischilly
US v. Scop
US v. West (Rule 704)
Rabata v. Dohner
Pelster v. Ray (Rule 703)
People v. Anderson
Learned Treatises -- (Rule 803(18)) -- 766-771
Lie Detectors -- 467-471
CROSS EXAMINATION
Anticipating Cross -- 385-390
US v. Cosentino
Impeaching Own Witness B( Rule 607) - 390-401
Impeachment Subject Matter
Bias -- 406-416
Gordon v. US
US v. Campbell
Henning v. Thomas
Grudt v. City of LA
Crimes -- (Rule 609) -- 416-429
People v. Sandoval, 24NY2d 241 (1974)
US v. Valencia
Cree v. Hatcher
Page iii
Bad Acts -- (Rule 608) -- 429-438

People v. Sorge
People v. Duffy, 36NY2d258 (1975)
STATEMENTS
Prior Inconsistent B- (Rule 613; 801(d)( 1)(A) -- 453-462; 522-530
Denver City Tramway Co. V. Lomovt
Rowe v. Farmers Insurance Company, Inc
Nucci v. Proper, 95NY2d 597 (201)
Letendre v. Hartford Ins Acc & Indemnity Co, 21 NY2d 518 (1968)
Prior Consistent -- (Rule 801 (d)(1) (B)) -- 540-549; 552-554
Tome v. US
Beech Aircraft Corp. v. Rainey (Rule 106)
CIRCUMSTANTIAL PROOF
Character
Other Crimes -- (Rule 404, 405) -- 808-815; 819-853; 861-875
People v. Molineux, 168NY264 (1901)
People v. Zackowitz
State v. Spraggin
State v. Abercrombie
People v. Steele
Gaddis v. State
People v. Cole
US v. Montalvo
People v. Santarelli (Review 703 & 702 with these facts)
State v. Bock
US v. Figueroa
Lyles v. State
Huddleston v.US
Reputation -- (Rule 803(21); 404 (a); 608(a)) -- 875-887; 438-447; 464-467
Michelson v. US
US v. Dotson
Civil Cases -- 914-921
Dallas Railway & Terminal CO. v. Farnsworth
Habit & Custom -- (Rule 406) -- 921-926
Frase v. Henry
Settlement Offers -- (Rule 408) -- 938-947
Page iv
HEARSAY
(Rule 801)
Definition (Rule 801 (a)-- 475-522
Leake v. Haggert
People v. Eady
Brown v. Coca Cola
Kingdon v. Sybant
Safeway Stores Inc. v. Combs
Hanson v. Johnson
Koury v. Follo
US v. Jackson
Betts v. Betts
Bridges v. State
State v. Galvan
Rex v. Wysochan
Wright v. Doe D. Tatham
Silver v. New York Cent. R.R. Co.
Kinder v. Commonwealth
Admissions (Rule 801(d)(2)(A-E)-- 563-605
Bill v. Farm Bureau Life Insurance Co.
Schrffius v. Orr
East Kentucky Rural Electric Co-op. v. Phelps
US v. McKeon
Mahlandt v. Wild Canid Survival & Research Center, Inc.
Brookover v. Mary Hitchcock Memorial Hospital
Wilkerson v. Carnival Cruise Lines, Inc.
Bourjaily v. US
US v. Urbanik
(Rule 804)
Unavailability - Rule 804(a)(1-5)
Dying Declaration - Rule 804(b)(2)-- 753-760
People v. Callahan
People v. Nieves
Declaration Against Interest- (Rule 804(b)(3)-- 605-634,218-285
Potter v. Finan
Carpenter v. Davis
People v. Brown
Williamson v. US
Former Testimony - Rule 804 (b)(1)-- 723-737; 747-752
Lloyd v. American Export Lines, Inc.
Fleury v. Edwards
State v. Ayers
Commonwealth v. Canon
US v. DiNapoli
(Rule 803)
Business Records BR.803(6) & 803(8)B 679-723
Page v
Palmer v. Hoffman
US v. Jacoby
Johnson v. Lutz
Beech Aircraft Corp. v. Rainey
Baker v. Elcona Homes Corp.
Commonwealth v. DiGiacomo
Physical or Mental Condition -- R.803(4) B 645-654; 718-723
Wadena v. Bush
US v. Tome
State of Mind -- R.803)3) B 654-679
US v. Brown
Mutual Life Ins. v. Hillmon
US v. Annunziato
Smith v. Slifer
In re Anderson=s Estate
Spontaneous or Excited Utterances -- R.801-2) --634-645
Commonwealth v. Coleman
US v. Obayagbona
Catchall -- (Rule 807) B 774-796
Robinson v. Shapiro
Constitutional Limitations Confrontation
Handout:
Crawford v. Washington
Davis v. Washington
Page vi
Class Notes
Monday, August 23, 2010
Seating:
Central column; 4th row; seat 3 from left.
Introductory Hypo
1. My wife likes the color green. You are her friend. I plan on getting her a blouse; what color should I get
her? Ans: Green.
2. My wifes birthday is coming up. You are her friend. I plan on getting her a blouse: what color should I get
her? Response: How are things in the sack? Have you been fighting? Ans:
-
Relevance whether or not two things have a connection with each other that is appropriate. A central
concept of lawyering.
On EVIDENCE
- Extraordinarily practical and technical
- A lawyers course on relevance.
Note: The Federal Rule of Evidence (2010) has been changed, effective Jan. 2011 stylistic only.
Makes this a statutory interpretation course (much easier).
Kessler will tell us where Federal rules significantly branch from New York common law rules.
We will cover roughly 40-50 pgs per class | Proceeding in order of syllabus | Really know the Fed. RULE.
We cant trust triers-of-fact (jury) b/c theyre idiots (x > 50% of sub-average intelligence); and human.
We cant trust lawyers b/c we are also human (w/ attendant frailties) AND were corrupt (interested).
Therefore, we need Rule of Evidence to safeguard against corruption and subversion in the court.
Rules of Evidence exist to EXCLUDE EVIDENCE (which should not be heard) which may be introduced
before court by flawed entities in a flawed system. Product of capitalism in American adversarial system.
//Sounds like Hobbes Life is nasty, brutish, short//
Evidence class notes (jhm)
Page 1
KEY EVIDENCE PRINCIPLES:

Relevance
To exclude that which is irrelevant / that which is not sufficiently logically connected / or / that
which is logically connected, but tainted by bias or susceptible to prejudice.
Competence
To exclude that which is incompetent / unreliable

e.g.: coerced confessions (i.e. water-boarding, torture)
e.g.: insanity, mental instability
Materiality
(Fed. R. Evid. 401) A fact that is of consequence to the determination.

i.e.: more probable or less probable...
We analyze the elements of the Federal Rules of Evidence to see what is allowed so we can better determine
what should not be allowed. Always break them down!! (like a statute)
JUDICIAL NOTICE AND JUDICIAL REVIEW
Example:
Rule 201(b) Judicial Notice of a fact is proper when

If, not subject to reasonable dispute,
and, generally known w/in the territorial jurisdiction of the trial court,
or, capable of accurate determination by a source that cannot reasonably be questioned.
In re Marriage of Tresnak (Iowa 1980): Lower court denied custody of two male children (ages 11 and 9) to Linda
Tresnak for reason of judicial notice of a fact that law school work was too demanding. Court erroneously held that
father, Jim Tresnak, was able to provide a better, more stable environment as an employed teacher. Held: Reversed and
remanded.
Rule: Illustrates that we cannot trust judges either: theyre still people. L. Kessler
1. ON JURY SELECTION
In US system, Court Clerk picks the jury (cards go in a box and picked in a raffle)
Then, lawyers unpick the jury for cause (obvious prejudice)/ no cause (peremptory challenge) OR voir
dire (see speak) examination
- Voir dire, a limited (in scope and matter) cross examination
- Obviously, we all want a jury that is biased in our favor.
Hypothetical:
a)
= John Smith, initiating action to close the plant
b)
= HMR (Hanson Meat Rendering)
c)
Plaintiff claims the odors violate the statutory requirements of air pollution
d)
Defendant will contest the odor as air pollution and defend existing equipment as sufficient
Q:
What kind of person do you want on this jury?

Outdoor recreationists; families with small children; people w/ houses near the plant (Free Riders);
environmentally conscientious (?); people sensitive to smell;
- The point is, the outcome of the jury selection process is not easy to predict.
- Clarence Darrow article stereotypes are important
Jury selection process reveals susceptibility.

You have to ask the judge for a ruling, but only when it helps you.
Next Class:
Developing a Theory of the Case for Smith v. HMR, hypo). How will you prove it?
Page 2
Class Notes
Wednesday, August 25, 2010
Hypothetical (Hanson v. HMP)

John Smith lives about mile West of the Hanson Street park. The park is on Hanson Street, the major north/south street in the
city of Hanson. Hanson Street is the demarcation between the residential and commercial areas of Hanson. The park is on the East side
of the street. Immediately to the west of the street is a large industrial area that is filled with heavy industry factories, such as steel
mills and the like. Immediately across the street from the park is the Hanson Meat Rendering factory. HMR is a large factory
extracting fluids from meats. The byproduct of the extraction is the release of an extremely noxious odor. Although HMR has filtering
equipment designed to retain the noxious gases, odors are released.
When the wind blows from west to east these odors can be detected in the park. John Smith is the plaintiff in an action to close
the plant for violation of Hanson Ordinance #111: It is prohibited to impair, pollute or destroy the air or other natural resource. It is
an affirmative defense that an industrial release has been caused despite the use of the best available equipment to abate such release.
The Hanson Street park was developed at about the same time as HMR was built. The parkland had been a farm. The park
covers about 12 acres. Fill from the construction of many of the industries and single family homes in Hanson was used to create a
sizeable hill. The entire park was planted with as large a variety of local flora as could be assembled. 40 years later, the park has a
towering forest area and fields of native plants. Walking tours describe the flora and the fauna that have been attracted to the fields,
forest and pond. A large pond was dug and now is a stopping place for migratory birds. Of course, the park also contains a baseball
field, a basketball area and assorted playgrounds.
John Smith claims that the smell from the plant literally sickens him and his children and that they have to leave the park. He has
four witnesses who support his testimony about the nature of the smell.
HMR will call four witnesses, none of whom can be in any way connected to the company, who will testify that the smell does
not bother them and that the park is constantly filled with children and adults, with or without regard to any smells. HMR also will call
an expert witness to testify that it is using the best abatement equipment available for a plant of their size. She will also testify that
better equipment would be far too expensive and would necessitate a closing of the plant.
What information do we need for the Plaintiff (or Defendant) need to prevail?
THEORY OF THE CASE
Using the rules of evidence to structure your case and
the operative facts in a way that best helps your case.
1. Was the Ordinance violated? | FACT INVESTIGATION
a) What is a natural resource? (Air or Hanson Street Park)
b) (Theory) The Park is a natural resource impaired, polluted or destroyed by the smell. Artificial park, but it
has since flourished w/ local flora and fauna. Ans: It was not a natural resource to start, but we can prove it is
now substantially more than what it once was. Confirm by calling in EXPERT and FACT WITNESS(ES).
2. Is there a rule of law at issue? Yes. Can a smell be a pollutant?
a) We dont argue along the lines of the Ordinances text on destroy and pollute b/c, respectively, that would be
difficult to define/prove and in light of (equally credible) contrary fact witness. So, proceed with impair.
b) Since we have four witnesses each for both sides, proceed on the fact that air shouldnt hurt anyone. SURVEY.
View: Bring the jury to the park. Be Warned: others may not be as affected by stank as the Plaintiff.
c) Was the best equipment used? Note: Facts show that HMRs own activity shows that the smell is bad.
(Abatement efforts re: noxious odors.) Furthermore, other factories spend even more money for better equipment.
2. Upon which viable argument should we proceed? (Doesnt matter, Court will tell us if a claim has been dismissed.)
Evidence is applied in court much in the way you determine a foul in baseball. You have to ask for a ruling.
L. Kessler
Page 3
The Form of the Question
WITNESS EXAMINATION | DIRECT AND CROSS EXAMINATION

DIRECT EXAMINATION (Rule 611(c)), CB, p. 333-339
What the examining lawyer is NOT allowed to do:
You are not allowed to ask questions that call for a long-winded, irrelevant answers.
(i.e.: Well, in my day) Waste of time. | Questions have to be targeted to elicit a
specific statement tailored to a time and place. L. Kessler
NARRATIVE
ARGUMENTATIVE QUESTION: You are not allowed to argue with the witness testimony.
LEADING QUESTIONS:
1. What is a leading question? It is a question that
a) implies the answer;
b) calls for a yes or no answer;
c) puts words in the witness mouth;
d) starts with any version of the words to be
(i.e.: was it?, wasnt it?, isnt it?, arent you?, werent you?, have you?, havent you?, did you?, didnt you?)
Leading questions do not require witnesses to give you the answer sought.
Questions that start w/ who, what, when, where, why, describe, explain are NOT leading questions.
Some lawyers try to get around the leading question problem by using whether or not
The point is that you do not trust the witness to use the words that they want!
Witnesses are terrible actors. L. Kessler
2. Why are leading questions not allowed?
Note: Judges tend not to mind leading questions b/c moves things along quickly. (see CB, p. 334: organizational
phrasing of the question, the exact words picked as ordered, culled the precise point needed.)
a) WITNESS TESTIMONY is composed of both the answer and the question. A reason we dont want to have
leading questions is that the danger of having an incorrect testimony affecting the outcome of the case.
The exact words of the examination (questions as well as answers), as picked by the lawyer, are more
helpful to the client than if the witness happened to use those same words themselves.

b) Macro- theory of the case / Micro- determining credibility of that witness (yours or theirs)
C)
WITNESS CREDIBILITY
I am going to buttress the credibility of my witnesses and attack the credibility of their witnesses.
The real reason to prohibit leading questions isnt that the witness says things they dont believe in, but
that those questions deprive the jury of the ability to make a determination of credibility.
Truth can be defined as either (1) statements about what actually happened, or (2) that which one
believes to be accurate. Mere inaccuracy does not mean the witness is necessarily lying to the court.
3. What is the significance of leading questions in ?

a)
Straub v. Reading Co. (3d Cir. 1955): Where the District Court had ruled in favor of Appellee (Plaintiff) on a claim of
accident/injury, Appellant seeks reversal due to deprivation of a fair trial through the extensive use of leading questions.
Held: Reversed.
Rule: whereconduct is a set piece running the length of the trial which produces a warped version of the issues as
received by the jury, then that body never did have the opportunity to pass upon the whole case and a judgment
based on that kind of a twisted trial must be set aside (CJ McLaughlin, opinion CB, p. 335)
Page 4
TEST for leading questions:
A question forcing a witness to shape for himself an answer other than yes or
no is less likely to be condemned as leading. See Ingalls v. Holleman, 12
So.2d 751 (Ala. 1943); CB, p. 335.
PREPARATION OF WITNESSES, CB, p. 316-333; 237-246 (Horse-Shedding the Witness | break them in)
People v. McGuirk (App. Ct. Ill, 1969): Issue was whether instructing a 9 year old girl to identify the defendant charged
with her rape and indecent liberties upon her by pointing to the man sitting at the table was improper conduct by the
prosecutrix in coaching (preparing) her witness.
Rule: It is highly improper for a prosecutor to induce a witness to say anything but the truth and it is a denial of due
process for a conviction to be obtained on testimony known by the prosecution to be false. (Napue v. Illinois, 360
U.S. 264 (1959) (emphasis added).
There is a limit to the effectiveness to witness preparation.
They will come up with new material, get tongue-tied, etc. L. Kessler
Resolution Trust Corp. v. Bright (5th Cir. 1993): Aggressive interview strategy (affivdavit)
Issue: What constitutes sanctionable conduct in procuring a favorable construction of witness testimony/affidavit?
Page 5
Next Class: Working on the witness testimony, changing the story, etc.
Page 6
Class Notes
Monday, August 30, 2010
REVIEW:
On Leading Questions:
1. Not allowed during Direct Examination; permitted on Cross
2. Starts with any variation of to be
3. Any question that calls for an answer other than Yes or No
4. Rule 611 discretion of the court to determine whether
EXCEPTIONS TO PROHIBITION ON LEADING QUESTIONS on Direct Examinations:
1. Child. | Incompetence, stress on the child, time considerations.
2. Hostile witness | Opposite party or so closely associated (i.e.: employer/ee rel.) In the absence of a status
relationship, the judge may be asked to declare a witness hostile based on conduct.
3. Preliminary | Not a part of the disputed facts in the present case. Similar to judicial notice (uncontested).
4. Laying the Foundation | Introducing facts that are necessary to introduce another fact. (Ex: To introduce a knife
used in a murder, you are allowed to introduce facts establishing that this is in fact the knife, not any old knife.)
PREPARATION OF WITNESSES (contd), CB, p. 316-333; 237-246
Preparing a witness (to make more credible, suitably dressed, etc.) is admissible practice (in fact, almost malpractice not
to do so). The question arises when considering to what extent an attorney may influence the substantive testimony.
Example: Difference btwn Not Really and No
| Not Really insists Yes Was your view of the accident blocked in any way? Not really.
Study shows that when non-professional actors are asked to convey emotions through body language alone, only
two emotions come through (anger/happiness and sadness).
Worry more about Perjury than the Canons of Ethics. L. Kessler
ON MEMORY.
HYPO: On motion to suppress, two officers. Each says the other gave Miranda warnings. So, what do you do?
1. Only two officers on scene, so is it a violation of Resolution Trust to say Someone gave the warning right?
Great, you two go figure it out and come back with an answer as to who gave the Miranda warning.
2. Not a violation of ethics b/c not actively seeking falsehoods, merely encouraging truth.
3. Also, not violation of ethics to suggest reasonable answers.
4. Focus lies in Kessler having first ascertained the fact re: what the witness wants to say.
LOFTUS (sociologist) bad memory influenced by bias and guessing. Families picked who had ~11 year old
kids w/ no history of being lost in a mall. Trusted adult plants a seed of Remember the time you were lost in the
mall? We were so worried. Result: 60% of kids remembered being lost in the mall (complete w/ detailed
descriptions of the false event).
(Functional MRI sees brain working in real time.) We store memories like directories/subdirs in a computer.
Witness Identification. Can be effecting by the questions asked by the Police officer.
Resolution Trust Corp. v. Bright (5th Cir. 1993): Aggressive interview strategy Trying to help [her] remember.
Issue: What constitutes sanctionable conduct in procuring a favorable testimony or affidavit?
Page 7
REFRESHING MEMORY.
Rule 611(c)
Leading questions. Leading questions should not be used on the direct examination of a witness
except as may be necessary to develop the witness testimony. Ordinarily leading questions should be
permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness
identified with an adverse party, interrogation may be by leading questions.
Rule 612
Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a
witness uses a writing to refresh memory for the purpose of testifying, either
(1) while testifying, or
(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to crossexamine the witness thereon, and to introduce in evidence those portions which relate to the testimony of
the witness.
1. A witness saying I dont know is a predicate to establishing the right to refresh memory
2. Act of showing something for the purpose of changing something they said under oath. (Not allowed to change a
witnesses testimony unless it is necessary! I dont know strongly suggests that the answer might be different if
you did remember. a good excuse to now try refreshing memory.
3. No limitation on what you can show to refresh the memory.
(i.e.: Dead fish, old shoe, but usually, a past deposition or statement is most commonly used.)
Past recollection recorded vs. Present recollection revived
Opinion No. 79, Legal Ethics Committee (D.C. Bar 1980):
REFRESHING RECOLLECTION
Another Exception (from Riccardi)
Q: Were you on the intersection of California Ave. and Front Street?
A: I dont remember. //Laying the fact foundation!!//
Q: Look at this document to yourself? Does that refresh your memory?
A: Oh, I was //answers the previous question// (supposed to say yes, but they never do)
Rule: Witness is not allowed to read the document out loud, because doing so would be tantamount to reading
in open court documents that were not admitted into evidence.
The witness is likely unable to remember specific events a year or more ago, but we only care about the
completeness of the witnesses testimony, not the admissibility of the doc. //Refreshing the memory can
be more credible, and desirable, than the production of the actual document itself.//
United States v. Riccardi (3rd Cir. 1949): Wealthy lady (note: contemporaneous tax matter shows up in other casebooks)
testifies to particular possessions, among a ton of other possessions. Continuously refreshing Judge found she was
in fact remembering each time she looked at the doc, so allowed her to continuously use the doc to refresh her memory.
//she might as well just read it out loud!!//
Riccardi appealed on grounds that opposing counsel got the trial court to (inappropriately) allow to continuously refresh.
For purposes of witness testimony,
Page 8
Rule 803 (5)
Hearsay Exceptions; Availability of Declarant Immaterial / (5) Recorded recollection

A memorandum or record //writing//
concerning a matter about which a witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and accurately, // get witness to say dont remember//
shown to have been //1// made or adopted by the witness //2 was it made or adopted when//
when the matter was fresh in the witness memory and //3// to reflect that knowledge correctly.
And add, //4// not enough memory to
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.
To use 803(5), you have to try 612 and fail (didnt refresh her memory).
In New York Court, I want to enter this into evidence as past recollection recorded.
In Federal Court, Want to enter this into evidence under Rule 803(5).
Next Class:
The only Spanish-speaking FDA agent in New York City, was undercover to arrest drug dealers.
Kesslers client was #4 on the indictment. (Took a bag and gave it to another person). Report prepared
by case agent (OBrian) who included matters on all of the indicted suspects, including the small part that
Kesslers client was involved in. Anglo- agent testified dont know, can Kessler get the full report
admitted into evidence under 803(5)?
Page 9
Class Notes
Wednesday, September 01, 2010
Back to the DEA hypo:

The only Spanish-speaking FDA agent in New York City, was undercover to arrest drug dealers. Kesslers client
was #4 on the indictment. (Took a bag and gave it to another person). Report prepared by case agent (OBrian)
who included matters on all of the indicted suspects, including the small part that Kesslers client was involved in.
Anglo- agent testified dont know, can Kessler get the full report admitted into evidence under 803(5)?
1. Who needs to testify?
Spanish speaking agent needs to be the testifying witness.
2. Applying 803(5): //there are two equally good foundations to either (a) the witness himself wrote the
document, or (b) the witness reviewed and adopted the report prepared by another person//
Q: Do you recall the events of the arrest? A: I dont recall, no.
Q: (Apply 612) Please read this to yourself, does this refresh your memory? A: No.
Q: (Now, apply 803(5)) Is this a written memorandum concerning the events? A: Yes.
Q: Did you review this writing at a time when the events were fresh in your memory? A: Yes.
Q: At the time you reviewed it, when the events were fresh in your mind, did it accurately reflect your
memory? A: Yes.
Q: Thank you. I now offer this writing into evidence as Exhibit A. PAST RECOLLECTION RECORDED.
Note: Remains [] until the judge rules on admissibility.
//This writing can be credible b/c habit and custom supports
a finding of reliable systems of recording and checking.//
What the opponent can do:
1. NO OBJECTION.
2. OBJECTION.
Judge will sometimes say sustained or over-ruled b/c admissibility is obvious. Other times,
the judge will ask
Q: (Judge to opp. counsel) Why?
A: (Opp. counsel to Judge) Foundation. Witness has not established accuracy of the writing.
3. VOIR DIRE.
An examination where you can ask limited questions where the subject is limited to foundation.
Q: (O.C. to witness) You said the writing was accurate, correct? A: Yes.
Q: Are you certain that
Solution: Factualize A Kessler-ism. Cull specific facts about what the agent did to authenticate the doc at the time.
So, why cant this document be admitted into evidence as past recollection recorded?
HEARSAY problem! Since it is a report covering the timeline of the whole case, it cannot be past recollection recorded b/c
the witness has to testify only about what he knows. (Remember, the Spanish-speaking DEA agent, Rivera, was only
brought in at the end to stage the deal while OLeary (anglo-agent), who was conducting the entire investigation, was the
actual person who wrote the report in its entirety.
Solution:
Redact all parts that Rivera did not have knowledge about and re-submit as Exhibit 1-a.
Couldnt do this in civil court b/c, there, exhibits are marked prior to trial.
Both sides try to enter the whole report into evidence or raise blanket objections, respectively,
because theyre hoping that the other side is stupid. Its a game.
//The preceding is an example of using witness examination to lay a foundation for submitting a writing into evidence.//
*****
Also, could use CIRCUMSTANTIAL EVIDENCE, to establish a foundation, by focusing on contextual HABIT & CUSTOM.
Page 10
Distinguishing types of Evidence:

CIRCUMSTANTIAL from DIRECT evidence (concerns relationship btwn the facts/the evidence introduced and what youre
trying to prove with that evidence)
- Circumstantial (a witness can testify to fact that proves things by inference. i.e.: Though I was in the back room,
customers walking into Jims Deli were dripping wet and some had wet umbrellas.)
-
Direct (witness proves things with direct statements, i.e.: It was raining.)
TESTIMONIAL and REAL PROOF

Testimonial proof, relying on a witnesses testimony (credibility issues involved)
On CROSS EXAMINATION
There is a presumption that the testifying witness is not your friend.
Types of Leading Questions you can use:
- Real leading questions
- leading questions:
- Half-Assed questions (ok in depositions, but dont use them here L. Kessler)
So, why allow leading questions in cross examination? Ans: Jury has already heard the witness give her side of
the story using her own words.
SCOPE OF CROSS is limited to the subject matter of the direct. L.Kessler
Means two things:
1. What the witness testified about;
2. Credibility factors.
Hypo: Bank robbery. Teller who was specifically robbed is called to testify. She was handed a note, gave money but
put the exploding purple dye into the sack.
Direct: Came to work. Had
Defense:
Psychiatric defense (crazy). Wants to use her high school interactions with defendant (whom she liked
romantically), so starts asking her questions about high school, not about the robbery.
Opposing questions
ATTACKING WITNESS CREDIBILITY

There is another rule which states that you cant attack the credibility of your own witness. 607()
Cant attack the credibility of your witness
COHERENCE
Distracting facts
Per hypo, scope include the bank robbery, but broadly interpreted. Related preceding events.
Perception (you couldnt seeprescription glasses),
Memory (it was a long time ago),
Capacity (infancy, adolescence, insanity),
Bias (you were gonna be married to him and he stood you up at the alter),
Criminal convictions (//obvious//),
Bad acts (things youve done but have not yet been charged).
Page 11
Finch v. Weiner (Conn. 1929): (Respondeat Superior case) Car collision in which ps car collided with ds truck. At the
beginning of presentation of evidence, S, the driver of the truck was called as a witness. S was asked if he was employed
by D and to identify the accident report. The ds counsel, over ps objection cross-examined S and elicited form him his
version of the accident and the events preceding and following it, none of which had been touched on in the direct
examination. Then, D called S as his own witness and this time, on direct, asks S version of the accident. D got to
present his version twice.
Problem of a necessary witness for a specific purpose. Truck drivers (ds) own lawyer raised the manner of
driving the truck //not within the scope of cross//
Important b/c it illustrates but not the normal scope of cross doctrine that we follow. L. Kessler
An ethical problem in considering scope
Assume Kessler (with an intended defense of insanity) cross examines the Bank Teller and starts to ask her a
barrage of questions about her perception of the defendants appearance and mannerisms in high school.
These questions are proper b/c they go to the credibility of the witness. They rationally, neutrally, raise questions about
her credibility, but the hidden agenda is that Kessler was trying to elicit information about their high school interactions.
Objectively:
Subjectively:
(The standard imposed by the rules) //Think: As long as Im following the rules, Im good.//
Whether the question and answer introduce a fact which logically aids the jury in determining the
credibility of the witness in testifying that the [defendant] was the person who robbed the bank.
//Consider the CivPro rule: A fact thats introduced for one purpose can be used for any purpose L.
Kessler//
Kessler is obviously trying to introduce evidence of defendants apparent insanity to support defense.
Making the Witness My Own

Stop doing cross and start doing direct examination you turn the witness into a collaborating witness to your argument.
The judge doesnt have to allow you to do this discretionary. (It can be confusing!)
Following your direct, opposing counsel is allowed an opportunity to RE-DIRECT, but
again limited in scope. LQs not allowed.
Why would the judge allow this?
Convenience to the witness! (e.g.: scheduled open heart surgery, prepaid tickets for a month long trip, etc.)
On the flip-side, this is always a short process.
Exercise. See whether you understand whats happening by making up your own fact hypotheticals. Factualize! Test it!
Next Class:
Real Proof any tangible object. Problem: is it (the item itself) doesnt tell you what it is, only what
someone else is telling you what it is. //leads to a hearsay problem!//) Issue of RELEVANCE. Can only
be described by testimonial proof.
For Real Proof to be admissible, it has to be (a) the real thing (i.e., the actual poisoned water bottle) and
(b) connected to the case (i.e., requires causal connection/factual relevance AND logically relevant).
//We will study REAL PROOF (R401) and RELEVANCE (R) side-by-side.//
McAndrews (soft spot in the head) Add change in testimony: [insert fact: Ds expert says it is soft,
but that point is good for you and everyone should have skulls designed this way!]
Page 12
Class Notes
REAL PROOF/ RELEVANCE

Rule 402:
All relevant evidence is admissible, except as otherwise provided by the con/n of the US, by act of cg, by
these rules, or by other rules prescribed by the SC pursuant to statutory authority. Evidence which is not
relevant is not admissible.
Rule 401:
Relevant evidence means 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 evidence.
Rule 901:
Requirement of Authentication or 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.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples
of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting,
based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert
witnesses with specimens which have been authenticated.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns,
or other distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical
or electronic transmission or recording, by opinion based upon hearing the voice at any time
under circumstances connecting it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the
number assigned at the time by the telephone company to a particular person or business, if
(A)
in the case of a person, circumstances, including self-identification, show the person
answering to be the one called, or
(B)
in the case of a business, the call was made to a place of business and the conversation
related to business reasonably transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed
and in fact recorded or filed in a public office, or a purported public record, report, statement, or
data compilation, in any form, is from the public office where items of this nature are kept.
(8) Ancient documents or data compilation. Evidence that a document or data compilation, in
any form,
(A)
is in such condition as to create no suspicion concerning its authenticity,
(B)
was in a place where it, if authentic, would likely be, and
(C)
has been in existence 20 years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result and
showing that the process or system produces an accurate result.
(10) Methods provided by statute or rule. Any method of authentication or identification
provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to
statutory authority.
*****
Page 13
REAL PROOF/ RELEVANCE

McAndrews v. Leonard (Vt. 1926): Following automobile accident, P underwent a surgical procedure (trepanning) to
remove a depressed fracture (which caused pressure) from her skull. Nine months later, at trial, each side called their
witnesses to prove whether the hole in her skull was either soft and exposed or healed over with protective callus.
Issue: Whether or not the offered evidence (s head) is going to make the fact more or less likely.
Held: Yes. Court allowed jury touching examination but noted that a verdict could not be made exclusively on that
basis alone, but only upon the examination together with all of the evidence in the case. (CB, p. 99).
HYPO: (McAndrews case) got in an accident. claims as a result of the accident, he got a soft spot on his head.
argues no soft spot. s expert claims there is a soft spot. s expert says there is no soft spot. wants to introduce
real proof (s head). Offers it so that the jury can touch it. Why? Eliminates the credibility issue between the two
experts by having the jury use their own sensory impressions. Will the jury be able to come to a decision better? This can
only be answered by the addition of a few more facts.
What do we have to know about the soft spot before it is determined relevant?
1.
Are the two experts discussing the same spot?

Prove by having the expert point to the spot and submit medical records.
2.
Was the spot already been there before the accident?

can testify to this b/c it is his head. Although has ample reason to lie, that does not mean the
facts are insufficient for the purpose of admissibility. Fact that a self-interested witness gave the
testimony goes to the weight of the evidence.
Changed HYPO: Same situation, except now Ds expert acknowledges the soft spot but further testifies that soft
spot developments are good b/c it will prevent or minimize his chance of brain damage should experience a
future blow to the head. Is s head still relevant to offer? Ans: NO. Not admissible b/c the head is no longer
relevant. The jury does not have to decide whether G has a soft spot. Rather, they have to decide if a soft spot is
good to have.
The process
1.
Factual relevant what facts do we need to bring before admission
Facts of the accident. He didnt have the soft spot before the accident. This is the spot he got hit on. This is
hi head. The dispute of admission because of conflicting testimony.
The legal issue is touching the soft spot something that gives the jury info that logically decides the case? So
here thery are saying what is his head. Inference- this must be able to bring the logical inferences that the jury
needs to make the decision. The touching and finding out if it is hard or soft ( this help because we all have
one and it is point of reference) and it dont take a genius to know this is bad
Change the factschange the issuesomething may no longer be relevant.
What if the other attorney yes it is soft spot and it is the best thing to have. Now there is no longer a fact in despite
because change. Both say attorney saying soft spot. However plaintiff is offering it. Now we have to prove that it makes
the inference that can be made that the jury can decide =relevance.
Now the claim is that by feeling it the jury can tell that it is not good to have. The only thing in dispute is if it is good to
have. But in the real case the plaintiff attorney was trying to get it in because he wanted to prove that it was there.
This change does not affect the underlying fact at issue (whether the skull is soft), only an additional specific issue
which renders the evidence (expert testimony) inadmissible as not relevant. L. Kessler
*****
You cant tell whether an admitted piece of evidence is relevant until you know what it is meant to prove. L. Kessler
Page 14
Almeida v. Corriea (Hawaii 1970): (Child Alimony) During a family court trial proceeding, the court allowed the mother
to show her 9 month old child in exhibition before the jury for 30 seconds so that the jurymen could (a) see the live baby
and (b) generally appraise the physical characteristics of the baby (in relation to the defendant-appellant (alleged father).
Issue: Whether you can show a child at trial to illustrate the parental resemblance to the father.
Held: No. [A] jury gains nothing from an exhibition even when their attention is focused upon the relevant inherited
traits since independent interpretation is required. (CB, p. 101)
Kessler Tangent:
In trying to convict A of murdering B with a knife, you must:

1. Prove that B is dead
a. On scene officer found the body, preserved it until ME arrived
b. ME (cause of death expert) examined the body and determines cause of death
c. B was in fact pronounced dead
2. Prove that B was killed with a knife (actual cause of death)
a. Look to MEs testimony
3. Prove that this is the knife used to kill B
Note: Each piece of fact that he adds relates to an attribute of the knife.
- All of these factors form the foundation and all of the foundation factors are
necessary to introduce evidence! //i.e.: makes a fact more or less likely!//
Second Tangent:
In trying a statutory rape case, based on Almeida: (i.e.: use of the baby to convict D)
(Foundation) To be able to introduce the baby, you must..
a. Prove that the baby is hers (she can testify to that)
b. Age of the baby (you can prove the same fact with different witnesses
because the jury might not believe the first witness credibility issues)
i. Need the age of the baby and her (mothers) age.
1. Prove there was active intercourse;
2. Prove, based on babys age, that mother was under the age of 16 at time of sex;
3. Prove the baby is, in fact, Ds genetic child.
Watson v. State (Ind. 1957): At trial, jury instruction allowed the jury to to deliver the verdict which included a finding
of guilt and that defendant was 38 years old despite the absence of testimony as to his age.
Issue: Should jury have been allowed to determine if D was over the age of 16 by mere observation. (CB, p. 105)
Held: No. One of the purposes of the trial is to confine the evidence which a jury or court may consider to that which
meets the legal test of being material, relevant, and otherwise competent. (CB, p. 105)
De Ballet Latour v. De Baillet Latour (NY 1950): (Marriage annulment)
Kessler Hypo: Assume shes loaded ($$$) and hes broke. The only basis of annulment is the absence of marital
consummation (no sex). She tells you as her lawyer that she has extreme scaring on her torso as a
result of a childhood horse-riding injury. Critical that husband didnt know of the scars.
State v. Scarlett (NH 1978): (Identity)
Issue:
NYT Article: D charged with rape claimed that he didnt do it. As proof of his innocence, he offers that he
has a golden chain permanently attached to the top of his scrotum hanging down below. Looks
like a criminal and has a rap sheet. Solution: introduce his past girlfriends. (Cant miss it.)
Bruces Juices v. US (5th Cir. 1952): (Funky barrels of juice) Libel (maritime) action where juice distributor received a
shipment of blended pineapple and grapefruit juices which were claimed to have been decomposed at time of receipt.
Libellee offered as evidence a sample of the same barrels, a year after receipt, for the jury to smell. (FUNK!!)
Kessler:
When seeking to admit evidence, you may have to look closer at the evidence offered. Here, the drums
were offered into evidence but the real issue was the condition of the juice contained therein.
Page 15
Factual Relevance:
Logical Relevance:
What you offer to prove determines what you have to establish about it.
You have to establish that the physical item you are offering is the item you claim it to be.
In order to be admissible, it must be both factually and logically admissible.
Hypo: When A, 19 years old, is killed in a bar for a drug sale, introducing As high school
grades (straight B student) as evidence is not relevant, therefore, not admissible.
Miller v. Pate (US 1967): D was convicted of murder resulting from a brutal sexual attack on an 8 year old girl. Key
expert evidence was a pair of mens underpants with stains. P expert testified that it was Type A blood, offered shorts as
proof, knowing it was paint. On writ of habeas corpus, chemical microanalyst determined it was just red paint.
Phenomenal incompetence, prosecutorial malice, miracles of the justice system where the guy got out anyway. Kessler
Hypo:
For the purposes of this classassume it was TYPE a Blood. What makes the underpants with Type a blood factually
relevant? What connects the shorts to the case? The shorts were found a mile and away from the crime. 3 days after.
These are the real shorts P found, but they are not necessarily connected to the case.
Facts Kessler wants to emphasize:
Mens shorts
Blood was Type A (she had type A, he did not) 40% percent has Type A
Shorts found 1 miles from the scene, three (3) days later.
What are we trying to prove?
Ans:
(Identity) To prove that he did it.
How is it [factually] relevant?
Ans:
1. His shorts, 2. Her blood
(Argument you make/inference to be drawn):

(a) He had to be undressed in order for the blood to get to his shorts; since the
criminal activity produced blood, it is more likely that he was undressed, at
the scene, and blood was on his shorts
(b) Fact that 40% of the population is Type A might make the likelihood more
likely, but it does not remove enough of the possibilities (40% of 5 million is
still 2 million people). Not a winning argument!
(c) In the 60s, look to the type of shorts found:
- male style //half the population, as opposed to women//
- size 32, //adult sized, eliminates the children//
- white colored, //most popular color//
- Fruit of the Loom //most popular style//
- jockey, not boxer, style //limited sales demographic//
- RESULT: pool of 2 million is now down to ~500,000. Still too many.
How is it [logically] relevant?
Ans:
Now add the following fact:
A (witness) kid on a bike happened to be in the open unkempt field where shorts were
found when placed. Kid saw a guy in a trench-coat and cap looking around
suspiciously | Identified in a line-up.
Now, we have Ds incriminating behavior.
Contextually,
Next Class:
More Relevance.
Page 16
Class Notes
Monday, September 13, 2010
More on Relevance
CB, p. 119
Anderson v. Berg (Kansas 1969): (Bottle of Wax) In trial for Ds negligence arising from Ps slip and fall on an overwaxed floor in Ds office building, the court reopened the case after jury had begun its deliberations to admit the wax
bottle as new evidence. P/appellant argues mistrial. Held: judgment reversed w/ instructions for new trial.
Issue: Not the propriety of using that bottle of wax, but whether the janitor improperly applied the wax or whether P was
not careful/clumsy.
Rule: Evidence admitted has to be in the same condition as when cause of action accrued.
Must establish foundation before entering into evidence;
Laying a foundation is eliciting a fact from the item(s) submitted
Foundation is the fact of object as testified by witness; Sufficiency of the foundation is a finding of admissibility.
Notes:
1. Bottle of wax was never offered into evidence. Why?
ANS: A liquid wax does not retain the same consistency 4 years later in an unsealed bottle without change.
2. How can they introduce evidence after the trial was over?
Judge re-opened the case for the limited purpose of introducing the bottle of wax as evidence. Remember
Rule 611 on the Judges power to [control] the introduction of evidence.
Hypo: Now, P sues office building owners (instant Ds) and Johnson & Johnson (wax) manufacturers. After the
accident lawyers visit janitor, grab the same bottle used, pour contents into air-tight container just in case.
Can you introduce the bottle as evidence against building owners/janitor?
ANS: Yes. Use airtight container and the original bottle as proof of unchanged circumstances.
Can you introduce the bottle as evidence against Johnson & Johnson?
ANS: Yes. Use the original bottle with manufacturers name clearly written on the label. (Need addl
expert witnesses to show that comparable bottles of manufacture were either mislabeled or too slippery.)
(Note: Here, nobody will care what condition the wax is in today. L. Kessler)
Facts: What you claimed it was when you argue it was logically relevant.
Preliminary Issues of Fact - 169-172

CB, p. 169
United States v. Sliker (2d Cir. 1984): At trial, witness Carbone was unable to determine whether the voice recorded was
in fact his voice (never heard his voice recorded before). Judge later listens to the tape on earphones and determines that
is was in fact his (Carbones) voice. Held: Judgments of conviction are affirmed.
Issue: Whether trial judge abused his discretion by determining, by himself, that the voice identity was established
(sufficient to support a finding that foundation was lain.
Rule: Illustrates the difference between laying a sufficient foundation to get past the judge and then convincing the jury!
See Fed. Rules of Evid. 104(a) and (b) on preliminary questions
Page 17
LOGICAL RELEVANCE (Rule 401) -- 1-15

People v. Adamson (Cal. 1946): D convicted of strangling 64 year old widow w/ lamp cord after entering apt by climbing
up a garbage chute and breaking the inner door of her trash cabinet based on fingerprints
Issue: Could a reasonable jury believe beyond a reasonable doubt that she was murdered and that D did it?
Two part inquiry:
(1) Was she murdered?
Yes.
(a)
Lamp cord around her neck //offered to prove that homicide occurred a little more likely// and
(b)
Pathologist declared cause of death to be strangulation.
I can introduce each fact one at a time to prove that the cause of death was a little more likely. L.K.
I can also introduce it subject to connection, trust me judge, Ill lay the connection later on. L.K.
(2) Was D the person who committed the act?
Maybe.
(a) Ds physical description: We can introduce the Ds physical size b/c (although a lot of people are the
same size) HERE, there is no prejudicial effect the jury cannot misinterpret the facts/evidence that
is presented;
(b) Large diamond rings: Prosecution shows that (I) decedent
(c) Fingerprints: (Although fingerprints last a long time, limited as to when they were placed)
Fingerprints, here, were clear evidence that he was at the scene.
(d) Stockings: Tops of womens stockings were found in his bureau drawer while the bottoms of
womens stockings were found underneath the decedents body.
I - Prosecutions role is to prove that he had no need for the tops of womens stockings
1- At the time, a popular African-American mens hair style required the use of a temporary
cap made from a cheap material to preserve their hair while caustic materials dried.
2- Basically means that for a man to have the tops of womens stockings, he had to be black.
3- Any alternative meaning would be that he was a sexual freak.
Rule: (Rule 403 on Prejudice) Relevant evidence shouldnt be admitted where it substantially outweighs the probative
value. (Jury could ascribe far more significance
Hypo: (On logical relevance) Now, assume the decedent was found in the living room on a rug with vines and
peacocks where the walls were beige colored. Does it matter?
ANS: Any info that helps the jury visualize and understand the background of the crime is admissible if
it furthers the jurys understanding of events. But, there is a limit to logical relevance.
Notes:
1. Lots of circumstantial evidence but no direct evidence.
(a) Hypo: Proving each of (1) that the light at that intersection was red at 3:15pm on the day of [event] and
(2) the red car passed through the intersection at 3:15pm, does not alone prove anything, but each fact
alone makes the events, as argued, a little more likely, and, together, works to establish the story.
2. At the time, a reasonable standard of sufficiency of evidence (i.e. does a jury believe to be more likely or
not) existed. Different standard exists today.
3. Why did the Prosecutor have to offer the stockings as evidence?
Ans: If Prosecutor didnt act on proving Ds interest in the tops of womens stockings, the Defense would
have argued Ladies and Gentlemen, you havent heard one fact that the D was a deviant who
(1h 20m)
Attack on the Moral, not legal ethics, or the Attorney: (Prejudice, Cumulative Evidence, etc.)
Cumulative Evidence or the waste of time | Kesslers experience w/ a maritime case (barge moored in Bkyn)
where 20 firefighters all testified to the same thing (i.e.: barge was on fire)
Page 18
BALANCING: (LOTS OF) PREJUDICE versus PROBATIVE VALUE.

Not every relevant fact should be admitted.
A fact that is over-estimated is prejudicial. L. Kessler
PREJUDICE -- (Rule 403) -- 15-35
//Concern with the bias, personal hostility, animosity of juries against any defendant in heinous crimes.//
CB, p. 20
State v. Poe (Utah 1968): D, relative newcomer, was convicted of 1 st Degree murder re: Kenneth Hall, a longtime resident
in a small community.
Rule: There has to be some relevance (probative value), then there has to be no prejudice. (Here, jury might be
enflamed by viewing the pictures.)
You dont get past R401 unless you have some probative value. (Little more likely that this was the angle of the bullets)
Condom in Wallet:
(R401) On Inadmissibility
Argument:
Interest in sex alone is not of itself an indication of ones interest in committing a rape.
(R403) Is reviewed on pure issue of law/ abuse of discretion grounds much harder!! (Try to stick w/ R 401!)
Argument:
CB, p. 10
US v. Zimeri-Safie (5th Cir. 1978): Guy is charged with helping illegal immigrants to get fake ids. Search of his
apartment yields names of recently deceased [kids] and a book on getting false IDs (The Paper Trap).
Issue: Prejudice? (Nah, its a pretty narrow interest)
//Great way to get into things that are really inflammatory! prejudice vs. probative value//
CB, p. 11
State v. Bray (Mo. 1955):
Next Class:
Robbins v. Whelan (how much is enough?), Old Chief

Specific Foundation I am a cop interested in the criminal (drug traffic) conspiracy engaged in by Houck
and Shirofsky. Im gonna bug their room w/ voice activated recorder. Two scenarios: (a) bug, listen,
tape (b) bug, tape, no listen. What facts do I have to prove to introduce evidence in court.
Page 19
Class Notes
CB, p. 20
State v. Poe (Utah 1968): G, arrested for rape, has picture of a naked woman in his wallet. Prosecutor wants to offer it
into evidence. Appellate court reversed on the grounds that the prejudice outweighed the probative value.
What is this being offered to prove?
Shows an increased interest in sex consistent with somebody who would commit the crime. It was offered to show state
of mind. Problem with probative value is that there is not evidence to show someone with a naked picture is more likely
to rape. No known relations. Therefore, no probative value and significant chance of prejudice when dealing with a
moral majority jury.
CB, p. 27
Old Chief v. United States (US 1997): In his current charge of illegal possession of a firearm, Old Chief sought to
preemptively concede his prior criminal conviction (stipulate). Prosecutor wanted to admit the actual document of his
conviction as evidence in order to establish his status as a felon, a prerequisite to conviction under 18 U.S.C. 922(g)(1).
Why the Prosecution did not want to stipulate.
The predicate felony was essential evidence to this offense but the details of that prior felony was not.
1. Certainly passes Rule 401 scrutiny (relevance) but cannot pass Rule 403.
2. Stipulation: Agreement btwn the [two] parties which either (a) admits the truth of facts or (b) coordinates
factual testimony. (In either case, it avoids the need to call adversarial witnesses)
CB, p. 15
Robbins v. Whelan (1st Cir. 1981): (Mercedes stopping speeds) Trial judge refused to admit a chart which measured the
minimum distances needed to stop a moving 1971 Mercedes. Officer on scene noted 160 skid marks. Chart showed that
169 max was needed to stop at speed of 60 MPH. Driver (Whelan) claims he was driving at 40-48 MPH. He lied.
Stupid lawyer, dumb judge. L. Kessler
Stopping distance in relation to speed (per evidence offered) is relevant only if it is linked to the 1971 Benz.
Logically relevance is established b/c chart would provide circumstantial evidence of driving speed/negligence.
Factual relevant is troublesome b/c (a) chart data was based on professional driver/closed course/brand new car,
(b) 1971 cars dont have anti-lock brakes //skidding//, (c) other variables (i.e. human, mechanical, environmental)
Held: Evidence should have been admitted because it was close enough to actual performance of Whelans car.
Rule: Conditional Relevance.
*****
HYPO:Victim is knifed/murdered while opening the door to her apartment; boyfriend Bob is charged.
Local store sells a type of serrated knife. Similar knife found at the crime scene in a bush near the door.
Is this knife admissible?
Foundation:
//Not conditional, it is either yes or no.//
Body found search conducted by police knife found under a bushis this enough?
Is it necessary to show there was blood on the knife/death caused by wounds, wounds caused by
this knife before you admit it into evidence.
The failure to show facts about [proffered evidence] L. Kessler [42m 0s]
What if there was a voice message left on her message at the time of the death? Relevant?
Relevant only if we can further show that the defendant-boyfriend left the msg from a (distant) landline.
Page 20
HYPO:Robbery. Afterwards, defendant was arrested and found with $1,500 in his pocket. Relevant?
Not yet. Even though proffered evidence does make it more likely that he committed the robbery, there are
lots of possible reasons for why he could have the $$$, unless we can show a stronger linkage to the robbery
victim. (i.e.: Must show cash was stolen, same denominations, etc.)
Three Step Inquiry (for admitting evidence):
1. Is it admissible at all?
2. How weighty is the proffered evidence?
3. Is there any over-riding concern of prejudice, etc.
*****
Again, foundation for offering evidence is not conditional, either yes or no.
On Specific Foundation
Hypo: I am a cop interested in the criminal (drug traffic) conspiracy engaged in by Houck and Shirofsky. Im gonna bug
their room w/ voice activated recorder. What facts do I have to prove to introduce evidence in court?
Two scenarios:
(a)
police bugs the room and listens to the tape
(b)
police bugs the room but does not listen to the tape.
Facts Needed for Foundation/Admissibility:
(a) Bugs + Listens:
-
Room was in fact Ds room;

Police listened to the tape in its entirety;
Removed the tape and entered into safe custody (chain of custody);
Officer purports that the tape is what he claims it to be (per Rule 901);
//critical// Witness must identify the voices on the tape to, in fact, be that of the defendants.
See Rule 901(b)(1). Testimony by a witness w/ knowledge Officer: I know what they sound
like b/c I have heard and saw them in/enter the room.)
(b) Bugs + DIDNT Listen:

-
Officer will have to testify as to the way in which the recording system functions.
See Rule 901(b)(9). Process or system. Must show the recording system works as intended, i.e.,
it activated whenever voices were in the room.
THEN, officer must transcribe the tape to perfectly preserve the tape evidence/authenticity.
Also, has to confirm the voice of defendant to be that which is on the tape by getting them to speak upon
arrest, finding another investigating officer who does recognize the voice, expert voice analyst, etc.
See Rule 901(b)(5). Voice Identification. )
(c) Now, onto the COCAINE: NOTE: This is a fungible (interchangeable) object.
-
Officer must testify that he bought the cocaine from the defendant
Then, officer must then prove that the chain of custody was not broken:
Lock/Seal Envelope (metal clamp tears envelope when opened) or Alligator Bag (heat sealed
plastic bag) and usage of security safe w/ protected transportation.
Cocaine must have then been properly tested by a chemist. (see chain of custody, above)
Must obtain testimonies of officers, transporting couriers, testing chemist, court officers, court clerks, etc.
//OR//
Parties can simply stipulate as to the contents of the cocaine bag.
UNDER United States law if you have one ounce of [controlled substance] and one pound of sugar, you have one pound
of [the controlled substance]. //Problematic, if you spill a drop of LSD onto car seat, you now have two tons of LSD.//
Rule: With FUNGIBLE ITEMS, we have to take some action which distinguishes this item from other identical items
i.e., scratch initials, mark + seal, etc.
Page 21
REPRODUCTIONS/PHOTOGRAPHS -- (Rule 901) -- 150-176

Rule: Being a mere representation, photographs must be authenticated by special testimony that they are fair and
accurate representation of the persons or objects depicted at the time of occurrence.
Knihal v. State (Neb. 1949):
Loftin v. Howard (
Bannister v. Town of Noble
US v. Carbone
DIAGRAMS -- 176-181
Offered to show relations of one thing to another, not to scale.
Replica (See Rule 901) Also admissible where someone who knows can attest to the same appearance
Next Class:
[Lara Mende] case on models and demonstrations of events;

Writings, authentication (Rule 902)
Page 22
Class Notes
REPRODUCTIONS/PHOTOGRAPHS -- (Rule 901) -- 150-176

Rule: Being a mere representation, photographs must be authenticated by special testimony that they are fair and
accurate representation of the persons or objects depicted at the time of occurrence.
HYPO: Car full of guys pull over to change a flat tire. Motorist passes by and hits/kills one of the guys. All other guys
were out in the woods relieving themselves. No one but the driver/motorist saw the events. P wishes to introduce
a picture showing a car, pulled over, up on jacks w/ a man of average dimensions squatting next to the raised car.
Testimony has been offered to show that the picture represents how the car was positioned. Admissible?
Ans:
Admissible only if a witness can testify as to fair + accurate representation of the persons or objects at
the time of the accident. **Problem: all other passengers werent there to say exactly where the deceased
was at the time of the accident (i.e., knelt down by the tire/ standing back to look at the tire / jacking up
the car) | Nobody can provide the requisite foundation to introduce the Ps proffered photograph!**
HYPO: (Accident at California Ave. + Front St. in the fall of 1997) Recent photo of the same intersection taken in the fall
of 2010. Party opposing photo exhibit points out that a white building on the SW corner didnt exist in 1997.
Proponent of the photo establishes that, aside from the white building, everything else is a fair and accurate
representation of the intersection. Admissible?
Ans:
Depends on what the photo is being offered to prove. If offered to prove visibility going [E-W], then
admissible: if offered to prove visibility [N-S], then not admissible.
Knihal v. State (Neb. 1949): Bar owner (Knihal) fights with a drunk patron (Shymkawicz) over another patrons change.
Knihal threatens Shymkawicz with a double-barrel shotgun, shoots at the latter as hes running out of the bar and shoots/
kills Martin Urn (another patron). Two photos offered of the crime scene.
Rule: //illustrates the two hypos, above//
VIEWS -- 136-139
A judicially authorized road-trip. Occurs only by judges discretionary grant of permission when one party alleges that
you have to be there to fully understand the happened events. Note that this shows up in high profile cases. L. Kessler
Think about the Hearst case:
Judge/Jury went to the closet she was kept in to experience what she alleged she felt
(fear/stress/pressure) from inside the closet.
HYPO: Car drives onto the Astoria train yard, oncoming train hits it, killing the driver. Estate sues for wrongful death.
Plaintiff wants viewing saying we just want jury to see what a trainyard looks like. What is Ds objection?
Unless you can place a train of the same dimensions/characteristics in the precise place at the exact time of accident,
the jury will become prejudiced where despite whatever you may tell them.
People v. Crimmins (NY 1970): Jury member independently went to the scene of the crime where witness saw + hear D
+ her male accomplice carry child out at 2am and killed it by throwing into a car (My God, dont do that to her!) to see
if the witness could have seen/heard what the witness testified to seeing/hearing. (--Not proved to be factually relevant--)
Prob.: Jurors become unsworn witnesses to the case, not subject to cross examination, and information not proved to be
factually relevant (i.e.: trees //visibility// may have been cleared in the years or months since event).
Rule: [P]roof of the fact of the unauthorized visit is sufficient to warrant a new trial without proofof how such a visit
may have influenced individual jurors in their juryroom deliberations. Such a visit, in and of itself, constitutes
inherent prejudice to the defendants. (CB, p. 137) (emphasis preserved)
Page 23
DEMONSTRATIONS CB, p. 139-150

Most involve moving things. To be granted the courts leave (discretion) to perform the demonstration, it must be a fair
and accurate representation of the events as alleged. L. Kessler
Involves:
(1)
(2)
(3)
factual knowledge by the person who is demonstrating,

the physical or cognitive ability to recreate, and
not likely to be prejudicial within the meaning of Rule 403.
Probative value:
Diff. between listening to oral testimony and seeing a demo of the events.
HYPO: P alleges bus took off while she was trying to exit the rear of bus. Viewing is authorized showing the exact bus
(which happens to be parked outside the courthouse) to the jury. Defense shows that a start-up disengagement
device is built into these buses which prevent engine start/ movement whenever the doors are open.
How can you (as Ps counsel) demonstrate that this bus is in the same condition at the time of the accident?
[must prove that THIS bus AT THE TIME OFACCIDENT was
(CB, p. 139)
United States v. Wanoskia (10th Cir. 1986): (suicide or murder| how long must her arm have been to shoot herself
from 12?) Husband either shot her or she shot herself. GSR indicates shot was taken from 12 inches away. To shoot
from 12 away, demonstration using woman of similar build with 22 long arms had to shoot w/ one thumb on the trigger.
Happy v. Walz (Mo. 1951) | Rule:
If such examination in the presence of the jury would expose ghastly

wounds, hideous deformities, or would elicit cried of pain by the plaintiff, or
induce pitiful attempts at locomotion, or otherwise would dramatize
plaintiffs injuries in a manner calculated to inflame the minds of the jury.
Osborne v. Detroit (Mich. 1886): Doctor thrust a pin into the paralyzed portion of Ps face.
(CB, p. 148)
Larramendy v. Myres (Cal. 1954): (Abbotts Pufferoo case) P-dancer set off the theatrical smoke-generating device
which then emitted flame in addition to smoke. Fire chief prepared demonstration using a power chemically similar to
that powder supplied by manufacturer. Not admissible. Court instead turns on the same device and it flames up anyway.
Kessler believes this is a strong case. The demonstration was determinative/ would have led to an admission/ settlement.
Notes:
1. Difference (in the demonstrations) was the type of powder used: Fire Chiefs test used a chemically similar
(CB, p. 145)
Hall v. General Motors Corp. (D.C. 1980): While driving along in her 5-month old Buick Electra on a smooth, dry road
at 40-45MPH when it suddenly lurched up + to the right before leaving the road, travelled 700 feet, and hit a tree.
Permanent quadriplegia.
Ds demonstrations //1st rejected for not being sufficiently comparable, 2 nd dismissed for expiration of time to test//
Notes:
1. Precedent Facts of THIS (automobile) case:
a. [Audi] case is what led to all cars needing to be in Park before you can start the car/put it in
gear.
b. Manufacturer couldnt figure out what was wrong so they called it an unidentified transient problem
with the computer module.
2. It all hinges on what the judge believes, in his discretion, is able to be demonstrated.
Page 24
Remember:
A thing is not a thing, its a group of specific detains corroborating the [allegation]. L. Kessler
Page 25
WRITINGS CB, p. 181-236

Authentication
Problem of evidence with WORDS WRITTEN ON THEM is: Just because the thing claims to
be something doesnt prove that it is a truthful representation of what really is. (e.g., the bottle
may say Pepsi but we need a foundation to show that the words written on it are factually true.)
All writings start out as hand-writing, someone had to write it before it got printed.
See Rule [on authentication]. 901, 902, 1001
Keegan v. Green Giant Co. (Maine 1954):
Next Class:
Rules 901 (authenticating the writing/laying foundation), 902, 1001 (Best Evidence Rule/ limiting what
you can introduce for unreliability!)
Page 26
Class Notes
WRITINGS | Foundation -- (Rule 901-902) -- 181-211

Real Proof in the form of tangible items that have writing on them
Fair + accurate isnt good enough anymore. Now, must be the same. L.K.
HYPO: Kessler and Roddy Ryan enter into commercial K for sale of [x] Ryan units at [x] per Ryan. Kessler only pays for
half and Ryan sues. How can Ryan introduce the written and signed signature into evidence?
ANS:
Call witness familiar w/ Kesslers signature who says the offered signature is what its claimed to be (i.e.
Kesslers signature) OR call expert analyst and provide the proffered K signature + a control sample
(unknown to the expert). << Recognition (lay persons analysis) or Comparison (expert analysis) >>
See FRE 901(b)(2) Nonexpert opinion on handwriting | Expert witnesses not necessary, indeed, even
the jury is allowed to gauge authenticity of the writing.
FUNGIBLE ITEMS, Authentication.

What happens at a closing?
Everyone signs everything! Takes previously fungible, unidentifiable goods and

makes them identifiable. (Note: some courts even have systems which
authenticate entire documents based on the signature)
Hypo: Same Kessler/Ryan fact pattern except now Ryan gets a phone call ordering 5000 Ryan units for Kessler.
Ryan accepts w/o written K and delivers to Kessler; Kessler calls and denies having ordered the units.
Ryan just happens to record his phone calls. How can Ryan prove Kessler placed the order?
ANS:
(W/o hiring an expert voice analyst) Ryan needs a known sample of Kesslers recorded voice.
Hypo: How do you authenticate a transaction where A calls B, then B calls back to confirm?
Rule: (The Reply Doctrine) Set series of facts that have been deemed sufficient proof for the
introduction of A, Ryans voice/letter response.
Hypo: Kessler calls Pizza Hut and gets so verbally harassed that he sues for IIED. Ans: Use Reply Doctrine.
Hypo: Kessler calls the Smith residence; Mrs. Smith picks up and Kessler sues for abusive conduct/harm.
Rationale Reply Doctrine does not apply to residential premises, only commercial! In commercial
setting, the employer company is liable for any employees actions when picking up phone (respondeat
superior). No comparable vicarious liability exists in the residential setting.
ANCIENT DOCUMENTS, Authentication.
Hypo: Your client has a will bestowing some hefty riches. Dispute centers around which Will is legally binding.
Could call someone who can recognize signature, but lets assume it was signed in 1973, ~ 40 years ago)!
Rule: (Ancient Docs Rule, FRE 901(b)(8)) | To prove that a written document is ancient, must prove:
(a) such condition as to create no suspicion concerning its authenticity; //
(b) found in a place where, if authentic, would likely be; //lawyers office, safe deposit box, etc.//
(c) has been in existence for 20 years or more at time it is offered. //is the doc dated?, etc.//
Putting all 3 together, you have circumstantial evidence permitting an inference of authenticity.
Page 27
(CB, p. 195)
Zenith Radio Corp. v. Matsushita Electric Industries (Penn. 1980): Document at issue was the transcript (from mtg
before the Commission) Guy who wrote this is in Japan and they couldnt prove that they are what they said it is. The
court allowed circumstantial evidence to be used. If you have enough circumstantial evidence to say this is what you say
it is than you can win the case.
Notes:
1. Cases importance arises from Matsushitas strategy: (1) dont agree to nothing, (2) makeem come to Japan!
Larry Kessler
2. Think about for next time: Zenith lawyers applied the ancient doc rule towards this non-ancient document,
even though it was not ancient, (a) looks like it should look, (b) where it was supposed to be, does not appear
to have been tampered with.
Hypo: Kessler has his 15 minutes of fame. A particularly (scaberous), shitty journalist committed libel. Article
published in Sept. 9, 2009 edition. Kessler sues the journalist and offers the NYT article as evidence.
Will he succeed?
ANS:
D You cant do that, nothing in 901 that supports! |

P Ah ha, but there is 902! (Self-Authentication) |
D bah, thats just a can of peas! (i.e. trade inscription)
Why would he say its a can of peas!?! //see below, FRE 902(6)//
(CB, p. 181)
Keegan v. Green Giant Co. (Maine 1954): (injured pea swallower v. canned food distribution giant)
Manufacturer won on basis of [not enough evidence to prove that they manufactured the cans]
Note:
1. This holding feels wrong b/c it was decided in Maine state court before 1975 (not following the Federal Rules of
Evidence). NOW, look to FRE 902 for guidance
2. On above HYPO | Ans: No, Kessler cant introduce it b/c hes suing the journalist, not the NY Times. Offering
the NYT only proves that the newspaper company [1h 25m]
a. Substantive law: Any entity which publishes a defamatory statement cannot defend w/ a passive
involvement. Publication is an affirmative act [of support]. Liability extends to publisher.
3. There is a difference btwn proving that something was said and that the thing said was accurate. L. Kessler
FRE 902
Self-authentication | Extrinsic evidence of authenticity as a condition precedent to admissibility is not

required with respect to the following:
(1) Domestic public documents under seal
(2) Domestic public documents not under seal
(3) Foreign public documents
(4) Certified copies of public records
(5) Official publications
(6) Newspapers and periodicals
(7) Trade inscriptions and the like
(8) Acknowledged documents
(9) Commercial paper and related documents
(10)
Presumptions under Acts of Congress
(11)
Certified domestic records of regularly conducted activity
(12)
Certified foreign records of regularly conducted activity
Most printed works are not self-authenticating. Trade inscriptions, commercial papers, and the like are now selfauthenticating.
Page 28
HYPO: Now, murder not defamation. We find three pieces of paper.

(1)
Dear H, Im upset. The whole value of my property is being destroyed, I bought a gun and Ill have to
take care of this with the 3030 (gun). Signed, SC
(2)
(carbon copy of letter)

Dear SC, Its just money. Take a breath and relax. Use the money to get some deer during hunting
season. Signed, H
(3)
Dear H, Im going to go through with it. Doing it tomorrow.
Now, murder happens the next day after the 3rd letter w/ a 3030, victim was obviously taking action which
affects Steve Chengs property value. Steve has a weak alibi + police cant link a 3030 to Steve. H has dropped
dead, leaving his wife (possible witness).
Strategy:
Start with #2. Call the wife to introduce evidence of Harolds (Steves uncle) custom.
Page 29
(CB, p.
US v. Labovitz (Mass. 1996):
(CB, p. 206)
University of Illinois. v. Spalding (NH 1901)
United States v. Branch (4th Cir. 1992):

United States v. Moore (1st Cir. 1991):
Next Class:
Best Evidence Rule/ Statistical Evidence/ Circumstantial Proof
Page 30
Class Notes

//Missed Class//
BEST EVIDENCE RULE:
(Applies to documents, photographs, and recordings) If the contents are the subject of the
testimony, the party offering the testimony must provide the original of the writing,
document, or recording.
-
This was applied strictly under the CL.

Need writing because it smells fishy, the reason is if document said what you claim it
does you would have brought it with you to prove your point.
But the Fed Rules can be satisfied by introducing a copy or by providing a
satisfactory excuse for failure to have the original.
If you want to prove context of the writing than you must produce the original.
But, if you only want to prove the mere existence of the item, than no need
for the original.
Rule 1002:
To prove the contents of a writing, recording, or photograph, the original writing, recording or
photograph is required, except as otherwise provided in these rules or by the Act of Congress.
Rule 1001(1): Writings and recordings consist of letters, words, or numbers or their equivalent set down by
handwriting, typewriting, printing, Photostatting, photographing, magnetic impulse, mechanical or
electronic recording, or other form of data compilation.
Rule 1001(2): Photographs include still photographs, X-rays, films, videotapes, and motion pictures.
Rule 1006:
Rule 1007:
On the Best Evidence Rule: this is an anti-fraud rule.

For example, if I have K with Z, and I sue her for failing to perform under the K, and I dont bring the K in,
there is something strange and suspicious going on. Also suspicious if I dont bring in the original, bring a
copy, or only provide the notes for making the K. Inherent suspicion competency/ reliability problem.
Rule: If a document is offered to prove its contents, you have to have the original or satisfy an exception!
Note:
Oral testimony of what Z and I agreed to is relevant, but also inherently suspectunreliable.
Should notes of what the K said and the oral testimony be admissible? Are they competent?
B.E.R. says no because inherently suspect and therefore unreliable. BER is a rule of competency.
Contentswhat the verbiage offered for the contents of the writing are a definitional distinction. It has defined
some writings as inadmissible for the BER but it has defined it admissible for the words. We are actually
distinguishing between different types of words that are on it. Which words are necessary for the doc to be
logically relevant.
HYPO: I want to offer evidence of proof that there is a K, between me and Z. I have a draft, or a zerox of what
we signed. The problem with the zerox is that it can be easily altered without being obvious. Corollary rule in
K casesParole Evidence Rule! BER says only an original K is admissible (obviously, duplicate originals
are ok).
Page 31
EXCEPTIONS (TO THE BEST EVIDENCE RULE)

Rule 1004:
The original is not required, and other evidence of the contents of a writing, recording, or
photograph is admissible if:
1. Originals lost or destroyed: (misfiled is most often) All originals are lost or have been
destroyed, unless the proponent lost or destroyed them in bad faith; or
2. Original 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 contents would be a subject of proof at the 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.
The objection to the best evidence rule is testifying to something that is not in
evidence Ask!!
Most common acceptable excuse for not providing an original is MISFILED! Cant find it. This is satisfactory.
Unacceptable excuseI was so mad I ripped it up, I threw it out, and I thought I didnt need it.
Self-destruction is not a satisfactory explanation.
NOTE
The BER does not exclude or prohibit the introduction of secondary evidence to show that the
writing EXISTED: it only precludes secondary evidence used to prove its CONTENTS!
Contents of Writingimplicates BER
Existence of Writingdoes not implicate BER. It is the words necessary to identify it, to
lay the foundation.
Ex. OBJECTION BER | Response BER d/n/a here. Not offering evidence of a writing. Only showing
receipt of a writing.
HYPO: Z says I paid you $1,000 already. P saysYou paid me that based on a past debt. Z objectswhere
is that writing? P doesnt have it. Pevidence that there is another writing is not what this case is
about. I didnt need that writing. If all that is relevant is the existence of a writing, then it is not
suspicious that P does not have it.
Issue Spotting: Z and R sat down. Z agreed to sell 1000 W to R. Z never delivered. Where is the BER
problem? Does not mention a writing specifically, but all lawyers know they agreed by signing a K. So, Zs
lawyer should object for BER b/c R is introducing the contents of a contract.
(BER makes it a written transaction. Different from paying rent which does not necessarily produce a writing).
Issue Spotting: Z gets married to A. A wants a divorce but does not have a marriage certificate. Is the
marriage certificate a receipt (existence) or is it a transaction (contents)? The exchange of vows (event itself) is
getting married; the certificate is a receipt. Therefore, A can testify that they got married without implicating
the BER. If A offered the receipt, the objection would be BER b/c if they offered it, it must be the original.
Can you introduce evidence for the existence then use content? ANS: No, the other attorney has to object. It
will be okay b/c not in evidence for this objection then you say he is reading from something that is not in
evidence
Page 32
Best Evidence Rule: If a writing is only relevant to show the existence of a writing, BER does not apply and
therefore, you can introduce oral testimony. However, you are not allowed to testify to the contents of a writing
unless it is in evidence. Must authenticate the writing and put it in. Need a witness to identify.
Ex. Objection!! The witness read the contents of a letter not admitted in evidence.
How do you authenticate a writing without testifying to its contents?
-There is a distinction between words in a writing that describes it, and words of details of the transaction contained in the
writing. Words that lay the foundation, necessary to authenticate the writing are words to show it exists. Not to describe
its contents. Identificatory words and details! Details are what are meant by the contents (its the bulk).
Ex. Words that show it existsthen because it is the real thingintroduce itlet the jury hear the rest. Publish it to the
jury. Read it yourself or have a witness read it. Only way the jury gets to know the contents if it is published.
U.S. v. Meyers, (): D was indicted for perjuring his testimony before US subcommittee and for suborning the
perjuries of Meyer. Rogers, the chief counsel at the subcommittee had heard all of Ds testimony and was permitted to
testify as to what D had sworn to. Objection BER. R is testifying to the contents of a writingthe transcript from the
deposition. The responsethis was not a written transaction! This was oral testimony under oath from which a transcript
was produced at the end. Anybody who heard the deposition could testify.
Statements alleged to be perjured may be proved by any person who heard them, as well as the reporter who
recorded the statements. BER is limited to cases where the contents of a writing are being proved.
//The question asked is Is the prosecutor telling the truth? Depends on how you interpret the prosecutor was telling the
truth. The answer was ambiguous. Is the prosecutor allowed to give oral testimony to what was said at trial (similar to
senator ) why doesnt BER apply. It is a physical right that produce the transcript.//
For oral testimony to be allowed, it must be an oral transaction that produces a writing. You cannot ask about a writing
unless it is in evidence! (BER violation)
If BER does not apply, but does create an inequality, how might you object? 403! The presentation of oral memory of the
substance of the conviction exceeds the probative value. Note in Meyers, the ds attorney used the transcript to cross
examine Rogers. OBJECTIONthe transcript was not put into evidence. Thus, the cross examination violated the BER
by reading from a document not in evidence.
Rule: Once a document is in evidence, the objection against Rogers interpretation of the testimony is that it is
improper because THE DOCUMENT SPEAKS FOR ITSELF! Once it is in evidence, the witness can read it
but the witness cannot interpret it. Tie the jury. If in plain language, the opinion about what the words in
the document mean is irrelevant.
Exception:
If the document contains terms of art, codes, or specialized language, a witness can provide
expert testimony to the jury so they can understand it. Supreme court change the ruling
trustfjul but defend miss leading another can no be perjury. If P was smart to answer 2 nd answer it
is his fault. This means you are going to need a transcript witness need to say exactly what was
said when speaking of substantive issue.
This case has been overruled about 20 years ago involving a movie producer:
Q:
A:
Do you or your companies have any Swiss bank accts?

I have never had a Swiss bank acct.
He was charged with perjury b/c his companies had lots of them.
Conviction reversed b/c the answer was not responsive and you cant take a non responsive question and claim it is
perjury and give up!!! You should ask the next question.
Page 33
The BER hasnt changed. Rather, the courts stringent requirement of proving falsity has changed.
Another example: if the witness says that M implied something, the attorney may ask the witness to show the specific
words to which he refers. Have the witness read from the document to show the words, but no interpretation b/c the
document speaks for itself.
HYPO: Car accident. You just changed the brakes, oil, etc.: want to bring in the sticker into evidence. OBJECTION:
BER. What they should have done is satisfactorily explained why they couldnt bring it in (not removable from car, etc.)
Amoco v. US, (): P sought to quiet title to certain mineral rights. D claimed that Federal Mortgage Co. had reserved
a interest in a piece of property it sold. D contended that A had an obligation to pay royalties to the govt b/c they
reserved this interest. The original deed and all copies other than the recorded version were no longer in existence. D
claimed that the words regarding the interest were on the back of the form. The recorded deed did not have this back.
Government claim information is on the back They had the front of the form and a blank copy of a T1-037 form with the
back on it.
Issue: Can we get oral testimony + introduce front of the original form w/ blank form to avoid the BER Rule?
What is the logical relevance of what we have? What are you going to offer them to establish and how are they going to
establish it? Way to get past BER is to say original dont exist anymore (fit within exception)
First: Getting in the front page of the form: we have to establish that it is a copy of the original front.
1.
Satisfactorily explain the absence of the original. This is an easy exception.
2.
Amoco can stipulate about what this looks like, it was in Amocos files Rule 803(6).
You some time Amoco to say the one I got new is the same as it did before. The form new change. Need individual to say
this because he was around then or say if we change we would change the # and 1234 has been the same and never
change
(was the form that was used then) Cant get document two if you introduce one need person to say this is an accurate copy
of the front because if we can introduce 2 we cant get 1
Second: Getting the blank K in? Call a witness who knows
Q: What is this?
A: A blank T1-037 form.
OBJECTIONnot the real thing. Not connected to the case.
RESPONSEI am offering it as an exact duplicate to show that the original had a back identical to the one we had.
Third: What testimony do you need to prove that this is what the form looked like back in 1940?
a. They are all the same now.
b. They have always been the same.
(Fair and accurate representation) ex. This is the only T1-037. It has never been changed. Someone has to testify that the
blank one was the one that was used. [Here, admissible as evidence as to what the back of the original was. Used
circumstantial evidence to prove the replica was an exact copy. Authenticated it and got around the BER Rule].
Next Class:
Page 34
Class Notes
Circumstantial Proof [Sufficiency and Circumstantial Evidence] (CB, p. 35-51)

Why this is not a new issue. So far, we have been dealing w/ Real Proof + its relevance to the case at hand.
Now, were looking at everything.
Does not deal with admissibility, but rather sufficiency of the evidence. Sufficiency is a CIV PRO issue.
It looks like a new issue (admissibility versus sufficiency), but there is a continuum in the analysis process of a
relevant offered fact. Same analysis is used to determine sufficiency. Now, were looking at all facts of the case.
Whether all the facts together make it likely that a reasonable jury could believe more likely than not that P wins.
(The relationship between facts offered and the inters)
Sufficiency:
An inference that can be drawn from all the facts.

CIVIL: More likely than not |
CRIMINAL: Beyond a reasonable doubt.
Regina v. Onufrejczyck, Ct of Crim App of Eng. (1955): Appellant, of Polish descent who had been in England since
1947, was convicted for the murder of Sykut, another Pole before J. Oliver after a 12 day trial. Issue before the court:
was the proof offered sufficient given the peculiar circumstance of corpus delicti Sykuts body (or trace) never found.
Appellant and victim co-owned a farm and business was very bad. Sykut wanted to sell out for 700 or force farm sale.
Evidence in question: whether Sykut had gone to the Blacksmith on the 14 th (Bs records) or the 17th (Ds suggestion).
Issue: Is there sufficient evidence to get to the jury where there is no proof that Sykut is dead. //0h2m//
Why does court point to this specific fact of the Blacksmiths testimony? If we remove that evidence, is there still a case?
Blacksmiths testimony is not that extraordinary. Doesnt speak to Ds suspicious acts, its his
Notes:
1. Marks the first time a murder conviction, corpus delicti, was upheld w/o ever seeing a corpse.
2. Once, there was a unitary standard (same amount of evidence needed for a civil or criminal case).
a. See CB, pages 39-41 (discussing )
3. At the time of this case, people routinely disappeared by simply moving away 300 miles away. (Grass
Widows) It took an explosion in technology for jurisprudence to become comfortable w/ saying we dont
need to find the body. | Prior to that, you needed someone to see a body.
4. Direct evidence through eyewitnesses. Direct evidence was required b/c back then, there was no way to keep
track of people. People disappeared all the time. Then, needed to establish in that he was, in fact, dead.
State v. Rewy, Rule 607- the failure to call witness is not an presumption of guilt because both parties can call witness.
You can not impeach your own witness. In addition this doesnt allow the fact finder to draw any inferences as to whether
the witnesss testimony would be favorable or unfavorable to one of the party ( too speculative
HYPO: D charged with murdering S. Facts to suggest Ss disappearance is peculiar.
-S stopped writing to his wife he left in Poland.
-Didnt take any of his clothes.
-Left his farm and did not sell it.
-Blood in the kitchen.
D tried to get control of the farm. D made a misrepresentation to do so. Does that mean S is dead or that D knew he was
not returning? KESSLERthis is a very thin case.
Yet msut improve facts is defendant went to Black smith to lied about + he saw him one thing that would be clear of false
testimony is if court say defendant give him to say one thing.
Page 35
B. Strength of Circumstantial Evidence:

Consider the facts of a 35 year old case: People v. Scott
Rich wife, husband is getting sick of her. Tells cops conflicting stories (left town, skipped away with her lesbian lover)
Is there enough for murder conviction if:
(a) Her glasses were found in the back yard? Nope.
(b) If there is a large BBQ pit in the back yard? Nope.
(c) If her dental bridge was also there? Yep, became critical evidence (owner wouldnt leave something like that)
(d) Direct evidence of an eyewitness (Reward)? Nope, credibility issue arising from financial incentive.
CB, p.
People v. Scott (Cal. ): S married to a wealthy woman. She told her friends she would divorce him/ not get a penny.
She disappears. S says she left with her lesbian g/f leaving her $$ with him. Evidence found in a ditch: her eyeglasses
and artificial dental bridge (most important evidence). Dramatic evidence that she was dead and S had a strong motive.
Held: The jury did not believe Scotts witnesses. Felt the circumstantial evidence was more reliable than eyewitnesses.
Rule: Circumstantial evidence is more dangerous than Direct evidence. With DE, someone is coming forward and
putting their credibility on the line. Everything is scrutinized. CE can seem more substantial than it is. It is just as
good as DE if you have enough of it. Circumstantial Evidence v. Direct Evidence. Core problem that exists but
its impact is minimized in CE. The problem is witness credibility.
*****
HYPO:Woman walks her dog every day at 7:00pm along tracks. Night before, a body wasnt there. At 7am following
day, dead body found. Coroner says death by blunt impact could be caused by train impact. Only one train
went by in the intervening 12 hours. Train engineer saw nothing unusual. Wrongful death | negligence action.
Engineers testimony is suspect b/c culpable conduct could have been negligent in performing lookout duty.
As a civil suit, do we have enough to get to the jury? If he committed suicide or was pushed, then the evidence
so far proffered is not sufficient to establish negligence. Claimant assumes that the victim was standing in front
of the train (the only place where conductor could possibly have seen him) when impact occurred. Case was
dismissed b/c there are other permissible explanations for impact. (Equally likely he was hit by the side of train.)
Can you infer Wrongful Deathbreach of duty causing the injury which causes death?
1.
You can look at the elements of the tortdeath, causation, and negligence
Problem with proving the train caused the injury? If the jury believes the coroner, there are enough to
show that the train caused the death. A reasonable person could believe that it is more likely than not that
the train caused the injury. Its the location +!!
What about negligence? P claims failure to keep proper look out. However, do we know he was visible?
What if he jumped in front of the train? What if he was pushed? If other possibilities are equally
probable, must be equally likelycant say more likely than not. //
HYPO:Woman is standing on the curb when she gets hit by a truck. No one was paying attention and truck drives off.
Woman testifies that it was a green truck, smelled of bread, w/ gold lettering on the side. As it turns out, the D is
the Green Truck Bread Company who uses gold lettering.
What about possibility of memory damage from her head injury? Irrelevant, speaks to credibility (jury issue)
We are concerned with whether P has raised a sufficient claim (for now, construe facts in her favor).
(CB, p. 51)
Smith v. Rapid Transit, Inc., 58 N.E.2d 754 (Mass. 1945): (Big Grey Bus) Woman hit by a big grey bus. Cant say
which one. But the lawyer claims that at the time she was hit, only 1 bus was scheduled to be there and that was the Ds.
The D also had a big grey bus.
Held: Insufficient. Could have been an unscheduled bus. | (Tweak: Say street was Hempstead Turnpike)
Page 36
Rule: A proposition is proved by the preponderance of evidence if it is made to appear more likely or probable such that
there is actual belief in its truth derived from the evidence. It is necessary to provide some non-statistical and
individualized proof before compelling a party to pay damages.
(Generally) Mathematical evidence may not be introduced without some supporting direct evidence.
On NAKED STATISTICAL PROOF
Preponderance of evidence is 51%.
(If 70% likely, good enough. We use numbers either b/c we want to or we are forced to.)
Case Illustration:
Fighter jets that fly over farmers field scare his cows so they dont produce milk. P sues the
federal government for flying too close to his field. There were 10 jet planes in the air. All were
identical. Problem is that 7 were flown by the US air force and 3 were flown by the State militia.
P did not sue the State.
s Arg:
You cant prove it was our planes that caused the harm.
s Arg:
70% likely that it was your plane. Meets preponderance of evidence.
Held:
Statistical proof alone is NOT sufficient. (SCotUS)
Rationale:
Supposed to be subjectively certain that it was more likely than not. Problem
with pure statistical proof is that you cant get passed the statistics to reach a
subjective degree of certainty. For ex, if you ask the likelihood of one of the
planes being responsible: 1/10. So how likely is it that it was a US plane? 1/10
or 70%? You cant tell. The Naked Statistics problem: Probability can
never lead to a personal conviction of the result. L. Kessler
Gatecrashers HYPOthe problem with Stats:

Circus tent with 1000 people. A fire broke out. Everybody was killed. Ticket booth shows only 501 tickets were sold.
There are 1000 dead. Your estate sues. The circus says You dont have a ticket. 501 were sold. More likely than not
that you did have a ticket. However, what happens when all 1000 sue. It will work every time b/c 51% likely that you had
a ticket. If you changed these facts to 499 tickets everybody would lose b/c less likely.
Problem with pure statistics as proof b/c it leads to inefficiency. Everybody wins or everybody loses. We want a
way to believe that the jury at least deliberated.
Rule: Although pure statistical proof is not enough, this goes to insufficiency, not admissibility.
Naked Statistical Proof is only really [used] in two (2) types of cases:
1. Cancer causation (smoking)
2. Employment Termination
OTHERWISE, naked statistical proof is not sufficient, but merely admissible.
How do we then distinguish Rapid Transit from the Naked Statistical Proof [presumption]?
//Underlies the dispute resolution aspect of our jurisprudence(1hr5m)speaks to a common sense approach//
Page 37
If you do use statistical proof, WHAT IS ITS ROLE and are there ANY SPECIFIC PROBLEMS TO WORRY ABOUT?
(CB, p. __)
State v. Rolls, : (good statistics case) dealing w/ probabilities and advancements in DNA/ bloodtyping science
D convicted of various crimes says that the FBIs testimony that approximately 5% of the population would possess all 3
blood characteristics which the victim possessed and that were present in a bloodstain on Ds pants. D closely matched the
description of the victim. D claims insufficient foundation.
Held: Expert testimony in light of the additional facts was admissible.
Rule: Circumstantial statistics evidence is what [court is dont in non statistics decision from inference.]
It is relevant evidence which in tandem with the other evidence in the case may help the jury come to its verdict.
Notes:
1. Here, the statistics plus other facts made the evidence overwhelming. The only bar on admissibility here
would be 403. The inherent unreliability b/c of the 5% and prejudice exceeds probative value b/c the jury will
overvalue it (think 95% is 100%). Larry Kessler
2. Theory of Mass Numbers:
In huge numbers, improbable things become probable. Jury might not understand this.
General Rule: Statistical proof in combination with other evidence can be enough.
Bad statistical evidence is not enough because dont know where come from
(CB, p. 67)
People v. Collins, 438 P.2d 33 (Cal. 1968): Eyewitness testified that Caucasian woman with blonde hair and ponytail ran
from the scene of an assault and entered a yellow automobile driven by a black male with a mustache and a beard.
Greedy prosecutor hired college mathematics instructor to testify that based on all the variables, likelihood that it could
have been another couple was 1:12 million. (auto: 1/10, man (mustache): , girl (ponytail): 1/10, girl (blond): 1/3, etc.)
Held: Reversed. Nothing that product rule of elementary probability theory had been misapplied, the assumed
probabilities (i.e., yellow car, man w/ mustache, girl w/ ponytail, girl w/ blond hair, black male, interracial couple
in a car) lacked an evidential foundation: the 6 characteristics were not shown to be independent; and the whole
procedure tended to embarrass the jury and counsel who were unused to thinking in such terms.
Rule: Statistics are admissible, but it is up to the trial court to determine whether the method used to create them
was reliable. | i.e., statistics are meaningless unless you have reliable underlying data and [independence].
Notes:
1. Greedy prosecutor case.
2. Even now, if you heard these facts, the jury could figure out for themselves that it is not so common an
occurrence without expert testimony. Common sense about cultural patterns. Problem with allowing 1
expert to testify as to probability is that it tells you what you already know and makes you tend to
overvalue it. Introduction of statistics to prove common sense is dangerous enough in itself. He didnt
have any way of establishing that the independent variables were actually independent. L. Kessler
Page 38
*****CARRIED OVER FROM WED., SEPT. 29th 2010 CLASS NOTES/HLR OUTLINE*****
HYPO: G has a big commercial fishing boat. Going from Boston to FL. Has a route plan. Never shows up in FL. G
last seen going through a large fishing area known as Grand Banks. G was going South on the 3 rd day. The night of the 3rd
day, a troop ship heading towards England approached something in the water with a light on it and hit something. The
next day, wreckage of a boat was found in that area. Could have been Gs boat, could have been someone elses.
Wrongful death case is filed.
Negligence? (not keeping proper standard) Can argue that they saw a light. The only thing that might have enough light to
be seen is that of a human agency. After they saw the light, they hit something. Can infer they hit a boat. Can infer that
they hit the boat:
-never showed up in FL
-G was in the area at the time
-wreckage was found in the area where they hit something
Therefore, his boat.
Death?(facts to show that he is dead) He was in the middle of the ocean. If the ship is destroyed in the middle of the
ocean, wont be able to swim. Too many miles and too cold. This suggests he is dead along with the fact that he never
showed up. Court permitted this.
What is the problem with these inferences? There are too many imponderables.
Building an inference on an inference is a problem!!! Its too big a stretch. Ex. the product liability case. Too many things
are possible in between. You can infer that it was there before, but how can you infer that it was never there or that it was
defective??? You cannot infer this merely b/c it wasnt there after the accident.
HYPO: Parents walk out of their house in a farming community. 2 year old with serious traumatic injury is found right
near the road. Grease marks are on the child. The road eventually becomes a dead end when it passes by the farm. The
road splits off from the main road. At the intersection is an old guy sitting on the porch who watches traffic. Sees a taxi
going up the hill very fast. Some time later, sees the taxi coming down even faster.
Can you prove the taxi hit the kid? Shows opportunity. The guy saw the taxi. Relevant to admit but not enough to get to
the jury. Grease on the child? Hit by something mechanical. Therefore, rules out a baseball bat. Something with a
machine hit him. Still does not have to be a car. Location of the bodyhit by a mechanical object near the road. Taxi
going fastspeeding could have caused the accident. Car going even faster on the way backflight is an admission of
guilt. Each fact is relevant b/c the inference drawn from it came from all of them. Have enough so that each fact is
admissible. Hes fleeing the scene! Yet one may say he could be rushing the back to get another fair. The court said is
suffent because clear case of what probability could be anything against is to broad so jury get to se it.
Robbins v. Whelan
- 1971 Mercedes which is in accident with Frye car - Accident by a rest stop like merge
- Frye says I looked and first he was far, than got closer
- Had to have been doing 70 b/c all of sudden smashed him
- Robbins says no way Pulled out in front of me
- Cop on scene measured 160 feet of skid marks by Frye
- Issue centers on Ps offer of proof Want to offer into evidence stopping distance chart How many ft it takes
1971 Mercedes to stop going at different speeds
- Charts made under best conditions closed course by professionalNO anti-lock brakesMachinery automatically
softening amount of breaking while starting to skid w/ anti-lock
- On chart No marks- chart shows 160 ft to stop when car going 70- W/out skidding
- Professional drivers also no skid b/c they have better reflexes as to this
o Variation
o Is stopping distant chart Factually relevant Is it real thing
Page 39
o
o
o
o
o
To be logically relevant, has to be a chart that shows u how fast 1971 Mercedes was going Therefore,
need same car in the same conditions by the same driver
According to P, this needs to be logically relevant
Logically relevantOffering prove going 70 b/c how long (160 ft) stop
However, under chart there is not same conditions as accident Not same car w/ same wear and tear,
etc.
Need prove chart and accident are Sufficiently Similar to make the chart relevant
Perspective-Stopping chart relevant b/c gives ball park figure-perspective
All understand a professional, under these conditions, etc So reg person needs actually MORE
stopping time and has to be doing a high speed
Gives understanding and perspective as to Relationship b/w stopping distance in a Mercedes and
speed
Offered to make it little more likely he was going faster than the speed limit because the chart
gives a ball park figure as to speed and stopping.
To show factually relevant, need to prove it is what you say
Offered to prove this car was going 70 b/c takes 160 ft to stop, have to show is chart this car in
this place, but if offered to give PERSPECTIVE of RANGES AS WE DO HERE THIS IS
ENOUGH
What if differences that P is trying to say no matter DO REALLY MATTER Like the tires,
conditions, etc.
A- Voir Dire
B- Relevance how much proof a little more likely
o Admissibility
o Met proof of production of evidence for admissibility
The people who are testing these cars are professional drivers!! They used brand new cars with
perfect condition. It was a test track, absolutely perfect. How is it relevant if there are so many
differences??? Logical relevanceits going to show how fast you were going.
How do you establish factual relevance?
Gives you a standard to use for comparison.
The admissibility does not require perfect identity b/c its offered as background to show a standard.
Notion-relevance no require identical Requires prove thing is what has be to logically relevant
- Actual issue in this case is that the judge was stupid and the Ps lawyer was confusing
- So here the judge was stupid and the Ps lawyer screwed up - Find for P and let it in. its reversed b/c no matter
how dumb the lawyer was, the judge shouldve understood.
KNOW THE OLD CHIEF CASE!!!!!!!!! MERCEDES CASE PG. 15.
I
*****CARRIED OVER FROM WED., SEPT. 29th 2010 CLASS NOTES/HLR OUTLINE*****
Next Class:
4 pages on collateral evidence rule: competence w/ focus on infancy (will cover fast)
Page 40
Class Notes
Monday, October 4, 2010
COLLATERAL EVIDENCE RULE

If its collateral, it doesnt come in. Collateral evidence is evidence which is not important enough to be admitted.
Could have broad impact, but in practice it only applies to a very limited range of fact settings. L. Kessler
The limited range is as follows: Christina testifies on direct. (I do not wear glasses.) Kessler cross-examines the liar
limited to only certain types of questions. But later, Kessler will be able to call witnesses! He calls Shanti, Christinas
optometrist. (Her vision is not 20/20, but 2000/20). Underlying matter is an auto accident where Christina witnessed.
Issue: Can Kessler call Shanti Nelson as a collateral witness? No! Intermediate Question: Is Nelsons testimony
directly relevant to whether the red car went through the red light? NO, it is only indirectly relevant.
Test:
Whether the matter is collateral or not [and so may be contradicted], is this:

If the answer of a witness is a matter which you would be allowed on your part to prove in evidence if it have
such a connection with the issue, that you would be allowed to give it in evidence then it is a matter on which
you may contradict him. It must be connected with the issue as a matter capable of distinctly being given in
evidence. (CB, p. 402, quoting Chief Baron Pollock in Attorney-General v. Hitchcock, 1 Exch. 90 (1847).
Notes: Nelsons testimony is not collateral if it is relevant to Christinas evidence.
(ASK: What is it offered to prove?)
1. Past Convictions: Proving that someone has a criminal conviction is never collateral. Easy (to prove).
2. Bad Acts: Trying to prove whether witness did a bad act (e.g. embezzling money), w/o a prior conviction,
is always collateral. (Confusing b/c it would require another trial w/in this trial just to prove the fact!!)
This is a review of relevance/credibility Perception | Memory | Capacity | Bias | Bad acts

Three (3) Important Categories: (1) Perception, (2) Memory, (3) Capacity
(CB, p. 402)
State v. Oswalt, 381 P.2d 617, 618-19 (Wash. 1963): Prosecution of O for robbery in Seattle, on July 14, 1961. Ardiss
was Ds witness, a restaurant owner in Portland, who testified O was in his restaurant at time of robbery. Prosecution
offers a police officer who testifies to seeing O in Seattle on June 12 th and that O said he came from Portland 2 days prior.
Held: Admission of officers testimony was error.
Rule: It is a well recognized and firmly established rule in this jurisdiction, and elsewhere, that a witness cannot be
impeached upon matters collateral to the principal issues being tried.
Could the fact, as to which error is predicated, have been shown in evidence for any purpose independently
of the contradiction? [In other words Must be directly, not indirectly, relevant to case at hand L. Kessler]
Notes:
1. Basic purpose of CER, Is it worth the courts time to go back and forth on this specific fact?
2. Purpose of rule: 2 Wigmore on Evidence (3d Ed.) 1002, p. 656
a. Avoidance of undue confusion of issues, and
b. Prevention of unfair advantage over a witness unprepared to answer concerning matters unrelated or
remote to the issues at hand.
3. Prosecution tried to get the officers testimony in, going around CER, by suggesting a direct relevance.
a. Makes it more likely that O (i) knew how to get to Seattle and (ii) had been planning to commit the crime
Court dismissed these arguments.
Page 41
(CB, p. 404)
Stephens v. People, 19 N.Y. 549, 572 (1859): Prosecution for poisoning. P showed that D or his brother-in-law bought
the rat poison, who responded that they were using the poison on rats in a provision cellar. Prosecution gave evidence that
there were no provisions in the cellar. Conviction affirmed.
Use of the no provisions evidence:
1. Makes it more likely that he was using the rat poison for a purpose other than killing rats.
(CB, p. 403)
People v. Terczak, 238 N.E.2d 626 (Ill. Ct. App. 1968): Alibi witness for Terczak was his girlfriend, who says she was
with him on a bowling date on Monday, Dec. 19th (off work on Mondays and Fridays). Prosecution showed her own work
records which says she worked that day, but not Thursday. She explained that her manager agreed to record her Monday
hours on pay day (Thursday). Manager unavailable, so Assistant Manager was called to confirm and cannot do so.
Which category:
Perception? No. | Capacity? No. | Bad Acts? No. | Memory? Maybe | Bias? Maybe
Rule: (Exception to Oswalt) When the witness testimony is relevant to show/ establishes that/ [Christina] wasnt there,
thats so important that it is not considered collateral. If shes lying, then she wasnt even there to witness events!
Notes:
1.
(CB, p. 404)
People v. Pargo, 50 Cal.Rptr. 719 (App. 1966): A driver of a car of a certain description stole a watch from a hitchhiker
on Nov. 8th in the San Diego area. D claims he did drive the car, but never south of the National City (L.A.) area.
Prosecution produces a police officer that claims he gave D a citation some 5 miles south of National City. Testimony
only showed that D lied about ever driving south of National City, not directly proving that he stole the watch.
At face, this is a mere credibility issue. NOT like Terczak b/c, here, witness being impeached was D, not an alibi witness.
IF this had been HIS car, then it would be COLLATERAL (wouldnt show anything directly relevant),
BUT since it was not his car, this testimony is admissible b/c indicative of his access (opportunity) to the car.
Held:
Notes:
1. Indicative of a nicer time. Instead of cutting off her arms, he just steals her (hitchhikers) watch.
(CB, p. 402)
People v. Wilson, 62 Cal.Rptr. 240, 242-43 (App. 1967):
[1h 21m 0s]
YOU HAVE TO SHOW WHAT [NELSONS] TESTIMONY IS BEING OFFERED TO PROVE. ITS NOT ENOUGH THAT
NELSONS TESTIMONY SHOWS THAT CHRISTINAS TESTIMONY WAS FAULTY ON PERCEPTION, ME
It only applies to whether you can call Nelson to address an answer you dont like indirect (no!) not whether you can
Page 42
TRUTHFULNESS
The Oath:
The idea that by taking the oath, the testimony is more likely to be truthful. Realistic?
1. What is the oath (I swear to tell the truth, the whole truth, and nothing but the truth, so help me
God.) vs. Affirmation?
a. See
b. The oath had a ceremonial importance. Mortal sin/ eternal damnation!
2. There are two (2) ways in which testimony can be wrong: (a) lying, (b) mistake the only
alternative is accuracy. The oath reduces the chance of people lying, not of making a mistake.
First-hand knowledge. Through our senses. You touched, smelled, etc.

FRE rule 602: Actually remember it and
(CB, p. 256)
Rock v. Arkansas, 483 US 44 (1987): (memory case) Influence of hypnotism on memory Case of an overzealous
hypnotist who was a true believer in repressed memory.
Notes:
1. On Hypnotism, generally: Has an ability to help people focus on past events and remember them better than
ordinarily recalled.
2. Our concern:
(a) suggested facts (intentionally, unintentionally, environmental/unaware),
(b) accessing actual memory,
(c) accessing extensive facts which are more than you could remember.
NEW YORK: (NY case where a van pulled up on Pier_ and opened fire into crowd. Everyone saw the van and
shooting, but no one remembered the license plate. Witness recalls license plate under hypnotism which
turned out the be the correct van!) Held that witnesses can testify to that which they knew prior to the
hypnotic recall.
New Jersey:
Follow the proper procedure and they can testify to anything!
(CB, p._)
State v. Raniere, 586 A.2d 1094 (Rhode Island 1991):
Next Class:
Infancy and the Dead Mans Rule (Zeigler v. Moore) |

Starting w/ hypos (on these cases) and the rule.
Page 43
Class Notes
Wednesday, October 6, 2010
COMPETENCY
HYPO: Can Kessler collect against the estate of a dead man by claiming the deceased owed him money (after searching
the internet and finding some way to piece together a story about how Kessler and deceased had crossed paths)
No. Dead Man rule.
But, easy way around DMR is to call [Scott] as a witness, not party to the suit, to corroborate.
Rule 601
Dead Man Rule not competent to testify if you didnt see what happen. Can be called to
testify for only things that you personally saw, you touch, smelled, heard with your ears etc.
Rule 602
This rule only apply to the testimony of the living party (to the suit)
Dead man (statutory) if one party is dead, that side is deprived of testimony, therefore the only way to make
equal is to prevent the other party from testifying about the subject matter.
Two (2) types of Dead Man statutes
(Federal rules dont have a dead man rule)
1. Stop the living party from testifying about a conversation that took place because one of
the sides is dead. You cant repeat what was said, but you can call a witness to testify to it.
2. Prevent one of the parties from testifying about any transaction with the dead person.
(NY rules | Very complicated and confusing DM statutes rules Will not be covered. L.K.)
Ziegler v. Moore (Nevada 1959): sheriff was barred from testifying, even though he was not party to the
transaction.
Held: Improper to exclude sheriffs testimony.
Notes:
1. There are offensive and defensive uses of the Dead Man statute. The hypo, above, is an example of
the defensive use. An offensive use would be if Kessler, as widower, used her death as an excuse for
saying that her debtor did not satisfy his or her debt (in paying back Kesslers wife directly).
2. Would you be barred in Federal Court?
(Would turn on whether claim was based on or will be settled by application of state law.)
3. Deals with a statutory mechanism (one of the only ones!) for declaring incompetence of a witness.
4. If the estate calls [Scott] to testify to the transaction, they have waived the DM statute protection.
NEW YORK says No! Discovery is designed to do away w/ surprise testimony: DMR d/n/apply.
[0h 24m] //see Kesslers discussion of strategic uses of the DMR// (CB, p. 281)
Page 44
INFANCY
A problem with no solution: Parents have a disturbing penchant for abusing children & children havent developed brains.
Prosecution of parents, for abuse, hits a problem where there is no clear proof of abuse children arent reliable witnesses!
What walks on 4 legs, then 2 legs, then 3 legs? Other problem: Senior adults revert back to a similar mental state.
The presumption that a child is incompetent can be overcome by testimony. Shirley T., a precocious 3 yr old. Kess
1. From ages 5-14, can only testify if show the following;

a. The child must know the difference between truth and falsity as well as understanding the
consequences for not telling the truth (appreciate the significance of the oath).
b. In New York, a kid under 4 cannot testify.
2. How do we establish this? Ask the kid questions that are common sense honesty questions.
a. The children has to prove that he or she appreciates the truth.
b. Traditionally, this was done in the judges chambers or on the judges lap. No longer done for
fear of sexual abuse and harassment of children. What if the kid is incompetent? Now we
sometimes allow a person who the kid has talked to testify (ie. Doctor). This of course
circumvents the HS rule (exception for medical diagnosis and treatment).
3. The tendency now is to be more hesitant to allow kids testimony.
*****
See CB, p. 299 Standards for competency

(1)
(2)
(3)
(4)
State v. Young, 477 S.W.2d 114, 116 (Mo. 1972)

State v. Watson, supra at 60
Present understanding of or intelligence to understand, on instruction, an obligation to speak the truth;

Mental capacity at the time of the occurrence in question truly to observe and to register such occurrence;
Memory sufficient to retain an independent recollection of the observations made;
Capacity truly to translate into words the memory of such observation.
*****
Under the Federal Rules, where a proposed witness is a child, can still exclude his testimony pursuant to R 403
if it seems the probative value of the testimony will be very weak b/c of the childs inability to tell truth from
falsehood.
R 803(4)
However, a childs statements made for the purpose of medical treatment and for medical diagnosis can be
admitted as testimony by the trained doctor. (Hearsay exception here, doctor is not merely relaying another
persons whole truths or lies but rather, the trained professional acts as a filter, testifying as to what they believe
and will subsequently base future treatment upon.)
Page 45
MENTAL DISEASE & DEFECTS (CB, p. 305-316)

What happens when the memory and capacity is itself suspect?
(CB, p. 305)
Schneiderman v. Interstate Transit Lines, 69 N.E.2d 293 (Ill. 1946): Mental defect, not disease, cause by
trauma to the brain. P was allegedly hit by one of Ds buses.
Held: After reviewing the totality of Ps testimony, judge determines you could figure out what basically
happened, so testimony was allowed.
R 104(a)
Qualification (competency) to testify is determined by the court. Judge can use any info when
determining. Unlike R 104(b), where judge is confined in determining factual admissibility.
What happens when memory is solid, but the witness cannot communicate her testimony? Lost in translation.
(CB, p. 309)
People v. White, 238 N.E.2d 389 (Ill. 1968): (Stroke: Witness inability to communicate)
Notes:
1. What happens when the circumstances do not lend themselves to fitting into the court system of
translator? You have to find a special purpose translator who understands that specific witness
mess. Think KJ.
2. On Special Purpose Translators: must evaluate
(a) that witnesses are actually able to communicate and
(b) that translator is actually able to understand that witness.
(CB, p. 311)
Cramer v. Tyars, 588 P.2d 793 (Cal. 1979):
ABILITY TO PERCEIVE
[1h 25m]
HYPO: Kessler called as a witness to testify that a car was going 50mph through a very short distance (alley).
Difference between R 602 and R 701 is the distinction between a fact based on sensory perception and
observations, interpreting existing fact, to construct testimony. All testimony could be opinions! L.K.
Rule 602
A witness isnt competent to testify unless they have personal knowledge. L. Kessler
Ability to Perceive - one is competent on things that they know from using their senses. The
guarantee of reliability is the oath and cross examination. [You cant bring out if the person is
lying if they arent held to what they know from other people senses because he or she may say
they were told something and they wouldnt be lying.]
Rule 701
Lay Opinion [...testimony based on a witness inferences from their own sensory perception
or from sensory perceptions of others]
THE HUMAN SOLUTION: common sense passively agree we communicate in a common code. (Green is )
Page 46
Opinion is an operation of the mind. An opinion is not fact but an interpretation of the facts. Object in
court by calling it an inadmissible L. Kessler
The Jerking Trolley
Two trollies, engineer/motorman in the first car attempts to fixes the stalled car
and it both start suddenly. Passenger falls from the trolley car and is injured.
Motorman is called as witness who testifies the 1st car didnt jerk. This is a fact
(sensory perception). Motorman is then asked whether the second car jerked:
Objection! Calls for an opinion (interpretation of fact, he wasnt in the 2nd car)!
Motorman is interpreting facts based on his past experience that if car 1 didnt
jerk, then car 2 couldnt have jerked.
If an opinion calls for thinking about significance of facts, inferences to be drawn from facts, this is what the
jury should be doing. Invasion of the providence of the jury. L. Kessler
R 701 Once you find out what the witness is going to say and still determine that it is admissible, then you
have a R 701 Lay Opinion. (Problematic b/c ordinary witnesses are not competent to give opinions.)
(CB, p. 293)
State v. Raniere, 586 A.2d 1094 (RI 1991):
Next Class:
Read 701-705, Daubert case (a NECESSARY CASE FOR THE BAR);

Spending a while about R 701 (circumstances where lay persons are allowed to give an opinion)
Page 47
Class Notes
Review:
HYPO: There is a car smashed into a tree. Everyones dead, no one was around. When they examine the
wreckage, the cotter-pin cant be found. (Like a bobby pin which joins two components of the
steering column.) Action against manufacturer for negligent manufacture. Enough to get to a jury?
Ans:
Sufficiency of evidence.
1. Taking all of the facts and evidence together (circumstantially) it is sufficient if it is
more likely than not that a reasonable juror will believe that the events, as alleged, have
occurred. (See negligence 5 fingers.)
2. Before anyone can ask whether the evidence is sufficient, it must already have been
admitted as evidence.
On Opinions, generally:
Witnesses are allowed to testify on facts; but not on opinions (operations of mind; analyses + interpretation)
1. If you came into the modern day highway, via time machine, directly from the 1850s, you wouldnt be able
to testify as to how fast they were going.
2. If youve never seen or heard of intoxicating substances, youd never be able to identify someone with
peculiar odor, red eye, unbalanced, etc. as a drunk.
3. Facts came first, now interpretation.
a. In order to form a reliable opinion, you need to have real experience/ capacity
b. Since the jury is the determiner of facts, opinions invade the providence of the jury
4. Two kinds of opinions: (a) rationally based on background knowledge / (b) Some are not
Lay Opinion (Rule 701; CB, p. 352-362)
Rule 701:
(Proper opinions) After we have decided that the question called for an opinion, other side can
object, but court can overrule declaring it is a proper opinion if:
(a) rationally based on the perception of the witness //reqs background, capacity, etc.//
In New York, lay opinions are allowed if: //also allowed under the FRE//
(i)
It is the kind of conclusion/opinion normally made by people (i.e.: That car
was flying down the road, that guy was drunk),
(ii)
Cant say it any other way of saying it. (It was loud, very loud)
(iii)
But not if it is a waste of time.
(b) helpful to a clear understanding [by the jury]
(c) not based on scientific, technical, or other specialized knowledge //Added after Daubert.//
How it will play out. (A is called as a witness)

Q: You were on Front St. on 10/10/2010 correct? Yes.
Q: Please describe the . (Could say drunk or slurring, staggering, smelled of alcohol
L2: Objection calls for an opinion.
J: Please describe the appearance of the . (Calls for a specific description of facts)
Page 48
Big Question: Are there any circumstances where we should let the jury hear the opinion vs. underlying facts.
Cons of opinions
Opinions w/o more deprive the jury of the underlying facts and could deprive opportunity
for independent analysis.
Pros of opinions
Speed. Clarity. Cant have both (opinion & accuracy b/c (a) people are lazy & (b) we
are manipulative, goal oriented lawyers)
L. Kessler
Opinions may be problematic, but we still use them in certain enumerated circumstances
in the interests of
See (CB, p. 357) Cyr v. J. I. Case Co., 652 A.2d 685 (N.H. 1994) (illustrating the
difficulty of understanding what a witness is saying without allowing a lay opinion).
(CB, p. 352)
State v. Garver, 225 P.2d 771 (Oregon 1950): On Ds appeal for a murder conviction in the first degree
carrying with it a sentence of death penalty. During trial, the court allowed
(CB, p. 355)
*Wilson v. Penn. RR Co., 219 A.2d 666 (Pa. 1966):
(CB, p. 360)
*United States v. Stamps, 430 F.2d 33 (5th Cir. 1970): Officer Sayre of the city of Miami had reason to believe
that D was in possession of stolen postal money orders. Went to Ds hotel, discovered Ds alias W. Saunders,
approached D and asked if that was his name. D affirmed, Officer Sayre arrested him for false info to [cop]
interfere w/ investigation. D was then searched and stolen money orders found. Later, false info charge was
dropped and money order charge was raised: motion to suppress denied, money orders admitted, D convicted.
Issue: Whether a lay person giving false info how were you [cop] misled? (Cop obviously knew who he
was, so the argument that he was misled is problematic. Court refused to allow the Q to be misled.)
Ultimate issue of law in fact that the jury is going to decide. - L. Kessler
A legal, not a factual conclusion.
Rule: There is a separate category for legal conclusions.
Page 49
Expert Opinion (Rules 702-705; CB, p. 954-1067)

Comes into play when a regular person like you or me cant understand what happened. The only persons who
can understand are those with specialized knowledge and training such as an expert in the field. L. Kessler
HYPO: If all the light bulbs in the room blew up and injured people, we wouldnt be able to say what happened
unless we had specialized knowledge and training. We can call two (2) types of people. The Electrical
Engineer, with a Ph.D from Harvard and 10 published books on electrical systems, or the Electrician,
with a high school degree and 30 years on the job at his fathers company. Both may be admissible.
The system is not biased in qualifying the EXPERT witness. See FRE 701(c)s added requirement
(after Daubert, lawyers were calling electricians as lay witnesses instead of calling electrical engineers).
First topic on Experts.
How do you get them in?
1. Expert Qualification: Relevant education, practical, etc.

[1h 0m 0s]
One part is to show specialized knowledge and training in the area or field. Other part is to impress
the jury. L. Kessler
Do you want to ask have you ever testified before in any previous trials?
ANS: Only a solid Maybe w/ the other kind (e.g. testifying/ s/ s whore(s)) L.K.
Definitely Yes! for an on-the-job-training (OJT) expert:
- OJT experts may not have anything useful to offer at all. So the fact that the OJT has previously
testified and has already been accepted by another judge as a credible witness means you wont
have to do extra work to impress this judge.
- After all, judges feel more comfortable with any kind of existing precedent! Larry Kessler.
2. Proffer the Expert as one qualified to submit his or her opinion in the field. Left for the court to agree.
Although you dont have to anymore, Kessler would do it anyway cause its nice to let the jury see that
the judge agrees with you.
- Judge doesnt have to rule on expert stuff until the expert is asked a question that calls for an
opinion(and there may not be an objection!) Opp. Counsels 3 choices: Ok, Object, Voir Dire
- The issue is whether or not the expert has sufficient knowledge to testify in the area of [radiology]
3.
(CB, p. 958) *Een v. Consolidated Freightways, 220 F.2d 82 (8th Cir. 1955)
(CB, p. 991) *People v. Taylor, 552 N.E.2d 131 (NY 1990) (rape trauma syndrome)
(CB, p. 993) *Meier v. Ross General Hospital, 69 Cal.2d 420 (Sup. Ct. 1968) (
Second topic on Experts.
How expert does an expert have to be to qualify in the area? Not much. Just
more than lay persons and enough to help juries figure it out. Larry Kessler
Someone can be an expert and still not be qualified to testify. (i.e. future tellers)
Need to establish: (a) an expert, (b) in an area that works1 (for the issue).
Everything that is around and accepted as safe is what we perceive to be safe through experience and the
test of time. But our tried and true thinking if flawed. (e.g. environmental disease, silicone = cancer)
Old Answer: Use of The Frye standard generally accepted in the __ community/ experts in the field.
(problems arose w/ expert minorities (a) HIV/AIDS + cancer treatments, (b) Battered Wives syndrome)
It takes a while to become generally accepted!! L. Kessler
Next Class:
Rule 702-703, Daubert
Page 50
Class Notes
Todays sex reference: (Kyllo v. US/ thermography search + doing private things, which also generate heat)
Review:
HYPO:
Dr. Smith is called to testify. Q: Is your name? Yes. You are a radiologist, correct? Yes. You have
practiced for 25 years? Yes. You were educated at Harvard college? Yes. Practice at ColumbiaPresbyterian? Yes. Also in a 4yr fellowship? Yes. Trained in wide range of subjects (imaging, etc.)?
Yes.
D: Objection! Leading on Direct Examination!
P: RESPONSE: Leading is OK b/c this is just preliminary matters.
D: Still, too many leading questions!
*****
Rule 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 an 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.
Rule 703
Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert at or before the hearing.
If of a type reasonably relied upon by experts in the particular field in forming opinions
or inferences upon the subject, the facts or data need not be admissible in evidence in order for
the opinion or inference to be admitted.
Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the
proponent of the opinion or inference unless the court determines that their probative value in
assisting the jury to evaluate the experts opinion substantially outweighs their prejudicial effect.
*****
Section 1. The Nature and Function of Expert Evidence

An expert has to present to the court a combination of personal qualifications (education or OTJ training) in
something that works and [opinions based on the facts (FRE 703)]. Old national standard was Frye. But
this has become problematic b/c we as a society recognize that generally accepted sciences may not suffice.
Scientific interpretation (Battered Wife Syndrome) and application () may be valid, even if not yet accepted.
All about deprivation | Jury was deprived of techniques not generally accepted and
(CB, p. 955) United States v. Robinson, 544 F.2d 110 (2d Cir. 1976):
Page 51
Page 52
Two major problems arose from the Frye standard and its opposition: Delayed Science + Junk Science.
Both came to issue in the case of Daubert. In the aftermath of Bendectin and an increase in limb malformation
defects, a slew of studies were conducted testing the cause but none conclusively determined a causal relation.
In Daubert, the plaintiffs employed an aggregation of all these studies and more to argue a causal relationship.
No more studies were possible because Bendectin had been since pulled off the market.
(CB, p. 962)
*Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993): Parents of minor children born w/ birth defects sued
respondent Merrell Dow for alleged defects of the anti-nausea drug Bendectin. Respondent moved for SJ
supported by expert opinion of Dr. Steven H. Lamm relying on epidemiological evidence and published studies.
Petitioners responded w/ 8 experts memos based on unpublished, re-analyzed statistical data of Bendectin.
Issue: (Qualifying experts for testimony) What is the standard for admissible expert testimonies?
Held: Frye is still persuasive, BUT the court started questioning the soundness of this rule in light of FRE
702(2) and congressional intent to employ a liberal application of admissibility in expert opinion bases.
Rule: Now, the JUDGE has to personally make the decision, setting aside what others have employed.
STANDARD (for the judge in employing discretion) is a determination of admissibility of scientific
evidence by evaluating the underlying validity of (1) its scientific method, OR (2) [application of that
method to the factual inquiry under consideration]
The Daubert Factors (CB, p. 986-987)
1. Was it subject to peer review?
2. Empirically testable?
3. Margin of error?
4. (NEGATIVE FACTOR) If the method was designed for the purpose of testimony, then not allowed.
But see, Popolino, ( _ ): Doctor was accused of murdering his wife in NJ and later, again, in FL.
The [Haupert] test, determining that the perfect murder drug would breakdown into two (2) inert
chemicals after injection/death and had in fact been used in this alleged murder, was created for the
purpose of this investigation and had not been used since that case. Just a one-time Florida anomaly.
Notes:
1. This is a terrific precedent for lawyers b/c now everything can be litigated and billable hours go up!
(Under Frye, questionable expert testimony was easily either in or out based on general acceptance.)
2. The design was to make it easier to admit controversial sciences; the effect has been to make it
harder! The Ds with deep pockets (corporations/ big pharma) have the means to just hire expensive
lawyers to keep junk science from coming before the jury.
3. Daubert is better than what we had before, but whether it solves the problem isnt settled. Kess
Daubert on judicial notice.
After the initial controversy in establishing admissibility, in a

jurisdiction, of a new or controversial technique, science, etc. there is little
reason to hold duplicative or even more successive hearings on the same
issue. At some point, that jurisdictions judges may just take judicial
notice and admit for future cases.
That does not remove the need to evaluate whether the (now
admissible) technique or science was properly applied by this expert.
Page 53
(CB, p. 980)
United States v. Chischilly, 30 F.3d 1144 (9th Cir. 1994): (DNA matching sciences)
Notes:
1. The decision you hear as a result of Daubert, where a court must determine whether the DNA
samples A (blood) + B (semen) came from the same person. Do matching sciences work?
2. Before you can admit a technique (as basis for expert opinion), you must prove the underlying
science as one that exists and is credibly valid.
a. Prove that DNA exists,
b. that DNA can in fact be spliced,
c. that all human beings share a commonality in the DNA sequences,
d. that you can compare differences btwn DNA strands to prove individual persons identity,
e. that these results can be replicated (empirically tested),
f. that the samples were not contaminated.
3. Sample Size concern. (How many DNA profiles do you need before you can state as a rule that no
two humans have identical DNA?)
a. FBI started the first database and kept 5,000 profiles only. Hasnt expanded the database! It
may sound arbitrary but you cant reach a determinative number short of profiling everybody.
Statisticians say this number is enough for a reliable inference of accuracy. Prove me wrong!
4. Representative sample. In a country as diverse as the US, it is incredibly difficult to maintain a truly
representative and up to date
5. DNA profiles are now used extensively in paternity cases. This trend in technology has overcome
the CL presumption that a child born during wedlock is unquestionably that of the father.
(CB, p. 958)
Een v. Consolidated Freightways, 220 F.2d 82 (8th Cir. 1955): P was rendered incompetent by car collision
w/ truck driven by D1 (Dulski) and owned by D2 (C. F.). Ds won below and Ps motion for a new trial alleged
court erred by allowing Ds witness, Holcomb from testifying that he believed the collision had occurred on
the west (defendants) side of the highway. Holcomb is a 17 yr vet of law enforcement investigating accidents.
Issue: Whether the matter (point of collision upon the highway) was a proper subject for opinion testimony.
Held: Motion for new trial denied.
Test: ASK Whether opinion testimony upon this subject matter from this particular witness may
appreciably assist the jury (7 Wig., Evd., 3d Ed., sec. 1923)
(CB, p. 991)
People v. Taylor, 552 N.E.2d 131 (NY 1990) (rape trauma syndrome)
Page 54
HYPO:
Assuming you have an expert who would testify, when cant you have an expert and when can you?
1. CANT when an expert wont help a trier of fact in understanding or determining a fact at issue. FRE 702.
2. CANT when it invades the providence of the trier of fact.
3. CANT where use of expertise will complicate (e.g., Polio vaccine harms 3/1,000,00 obscure/confusing)
1. CAN [should] get an expert when the other side has one. (more of a guideline than a rule)
a. (Kesslers Practical Advice: If they have an expert who says Night, you want expert saying
Day If you cant find one, find one saying experts cant tell if its night or day if you still
cant find one, settle or hope that their witness is incoherent, using multi-syllabic words, etc.)
2. MUST when an expert is necessary to PROVE YOUR CASE/ i.e., satisfy your burden to get to the jury.
(e.g., medical malpractice)
(CB, p. 993)
Meier v. Ross General Hospital, 69 Cal.2d 420 (Sup. Ct. 1968) Wrongful death action against hospital where
a committed patient was intentionally left unrestrained and then committed suicide by jumping out a window.
Hospital could have restrained the now-deceased, removed windows crank arm, etc. D offered exp. testimony
on appeal re: open door policy, and how it gave patients a feeling of freedom and meaning in life (trust).
Basis for Motion to Dismiss: P failed to produce an expert who could establish the standard of medical care.
P responds by saying they should have been exempt with regard to the open
window as opposed the Open Door policy.
Rule: A plaintiff who seeks to hold a hospital or physician liable for breach of medical care must produce
some expert testimony supporting an inference of negligence from the fact of the accident itself.
An exception occurs only where the subject matter of the case is such that lay people could infer as
a matter of common knowledge that the injury would not have occurred unless the Ds were negli.
Notes:
1. Why didnt the cross examiner (D attorney) ask if the Open Door policy included the open
window? Three (3) options are available: (a) he knew and tried to conceal, (b) didnt know, or (c)
Next Class:
Start w/ Hypo (review); Washington (p. 1005) (expert available but not useful, excluded);
Scot, Specht (opinions on legal matters; the part of FRE 702 dealing w/ reliably apply + FRE
703.
Page 55
Class Notes
HYPO:
Joe is standing on California Ave. and Front Street. He heard a crash, turned, and saw a red car speed
past the intersection. Is Joe credible? | No. He heard a crash, then turned to see.
HYPO:
Mary is being prosecuted for murder. Shes a prostitute. Witness testifies he worked on Smith Street
who saw her often walking slowly down Smith St., especially in the evening. It is a commercial street
and she lives 5 blocks from there. Prosecutions story = she was picked up by the decedent and he was
killed as a result of that relationship. Expert says its a high prostitution area and women of Marys age
do business by walking slowly down that street.
1. Circumstantial evidence. Notion is to infer from testimony, keeping in mind evid. is cumulative.
2. (Not) admissible under 403? (i.e., prejudice substantially outweighs the probative value?)
a. Kessler: Its a commercial street. Not uncommon that people would be walking down a street
where she lives so close to Smith Street. (traffic = crossing the street?) It is prejudicial where
there is incomplete data to infer that she is in fact a prostitute.
b. Washington(see below)
(CB, p. 1005)
Washington v. United States, 390 F.2d 444 (D.C. Cir. 1967): D sought reversal of a conviction for rape on
grounds that trial court should have acquitted because of insanity. Court of Appeals affirmed conviction.
Issue: Where an experts opinion is not going to be helpful to the jury. L. Kessler | FRE 704(a)-(b).
[role of the expert psychiatric testimony in relation to the insanity defense]
Held: (Dicta)
1. Durham v. U.S., 214 F.2d 862 (D.C. App. Ct. 1954), established a legal test (an accused is not
criminally responsible if his unlawful act was the product of a mental disease or defect) for insanity
intended to separate the role of the expert witness from that of the fact-finder.
2. This warning was not effective, as parties and their lawyers used the expert witness to promulgate
conclusory findings of insanity even though such findings were factual determinations properly
left for the jurys deliberation.
The jury must determine for itself, from all the testimony, lay and expert, whether the nature
and degree of the disability are sufficient to establish a mental disease or defect (CB, p. 1007)
3. Therefore, in McDonald v. U.S., 312 F.2d 847 (D.C. App. Ct. 1962, en banc), the court established
legal definitions, apart from the medical categories and definitions for disease and defect
(mental illness includes any abnormal condition of the mind which substantially affects mental or
emotional process and which substantially impairs behavior control).
Notes:
1. In this case, the court is limiting the expert witness ability to While in FRE 704(b), it is
Congress limiting the discretion of the courts.
2. Kesslers client committed a bank robbery/note job and, when speaking w/ Kessler as counsel, all
D could talk about was knifing little girls to offset his overwhelming sense of inferiority i.e.,
his mental disease or defect caused the [crime] to occur Productivity.
Page 56
HYPO:
(Specht scenario) Green + red cars thru an unregulated intersection. Representing D, Kessler want to
introduce evidence that drivers who approach intersections from the right have a legal right-of-way.
Calls law professor on personal injury law. Basis of your objection? Impermissible legal conclusion.
Scop legal conclusions
Specht pure matter of law
(CB, p. 1015, 1043)

United States v. Scop, 846 F.2d 135 (2d Cir. 1988): fraud stock offering/ artificial infl. of EAC share price
Jack Ringer approached Gary Brustein; Alan Scop EAC Pres. + sole broker (Amfco Securities, counderwriter to European Auto Classics offering); Herbert Stone Broker (Norbay Secs, co-underwriter to
EAC offering); Raphael Bloom Stock trader at Jay W. Kaufmann & Co., a securities firm;
Sam Sarcinelli key govt witness; a crook who joined and then w/drew on belief he was being back-doored.
Held: Convictions reversed. Impermissible conclusory statements by expert witness.
Expert testimony:
(Stanley Whitten) chief investigator spent over 1000 hours during 4 yrs investigating.
Had been a stockbroker for 8 years before joining the SEC enforcement division.
Testified at trial It is my opinion that the stock of [EAC] was manipulated and that
certain individuals were active participants and material participants in the
manipulation of that stock (CB, p. 1017) concern: embraced ultimate issue!!
Notes:
1. An expert witness would have been allowed to testify selling in this manner would lead to artificial
inflations of stock price but not to testify that these Ds engaged in manipulation of stock prices
2. Courts have to evaluate
a. Permissibility of the underlying science or methodology. Daubert / FRE 702
New York, we still use Frye. i.e., Does the theory work? (i.e. consensus in estab. field?)
b. Are they knowledgeable in the theory or science? (Qualifications of expert/ FRE 702)
c. Have they applied it is a reasonable way (FRE 702)
What about expert testimony that is not university educate-able sciences (e.g. medicine,
law, engineering, etc.) on-the-job (OTJ) training (e.g. counsel calls a guy who worked
25 years as unlicensed plumber W testifies attrition in the plumbing system lead to leak)?
(CB, p. 1021)
Specht v. Jensen, 853 F.2d 805 (10th Cir. 1988):
[Re-listen to 55m 0s]
HYPO:
Kumho Tire. A car accident is caused by a shredded tire. All the pieces were collected, but it is settled
that the tire had been used for 100,000 miles by the time of the accident. Defense = norm. wear+ tear.
OJT expert, industry-trained for 30 years, called to testify + devises 6 factor test for evaluating wearing.
The point of Daubert is that the court is obliged to determine whether expert knowledge is admissible.
See HLR Kess Bible, top of page 44.
Little detour into New York State: [1h 4m 0s]

Daubert has led to substantial changes in expert testimony federally. We are still a Frye jurisdiction on
brand new sciences. However, Frye dominates only on the standard used, all the rest of Daubert still applies.
Are fingerprints, handwriting reliable under [Daubert/Frye]?
[1h 22m]
Handwriting analysis was okay and in practice long before both cases. However, experts keep screwing it up!!
Page 57
(CB, p. 1028)
United States v. West, 962 F.2d 1243 (7th Cir. 1992): (Rule 704)
Hypothetical Questions: Now, eliminated!!
Asking experts for testimonial opinions using questions

that were based on assumed facts. (Assume that)
1. Existed in common law practice because FRE 705 (and FRE 703) didnt exist.
2. Experts retained to testify on their own knowledge re: facts which were not yet admitted into the record.
3. Relying on the experts knowledge, but not on the un-admitted facts requires the expert to rely on hearsay.
(CB, p. 1036)
Rabata v. Dohner, 172 N.W.2d 409 (Wis. 1969): Action for damages resulting from an automobile accident.
Rabatas attorney called Harold Vik as a reconstruction expert who testified that he had (a) been retained, (b)
viewed scene + vehicles, (c) photographed prior to clean-up and (d) studied police photographs, in evidence,
showing road conditions at the time of accident + position of vehicles. Defense counsel objected stating direct
questions were improper and safe and proper procedure (hypos) should be required. Later, D counsel asked
its own expert a long winded, exhaustive h.q. (taking up 4 pages of transcript and boring the hell out of jury).
Trial court entered judgment for . appealed courts allowance of direct (versus hypothetical) questions.
Issue: Whether this court should require, as a general rule, that the opinions of an expert should be elicited by
hypothetical, as opposed to direct, questions in those cases where they have heretofore been required.
Held: No. The use of hypothetical question frequently has a stultifying, somniferous (i.e. bores + confuses),
effect upon a jury and presentsso great a quantity of assumed facts that it is not reasonable to expect
them to have any clear idea of the expert opinion or its basis.
Hypothetical Qs now eliminated b/c:
HYPO:
(a) Juries couldnt understand (stupid-long hypo scenario); and

(b) The Hypo-Q strategy didnt do what it was supposed to do!
The basis for eliminating this stylization under the
hypothetical question is the subject of Rabata, above.
Carbon Monoxide poisoning. Lila Lawson is found dead in locked apartment w/ heightened levels of
CO in skin and blood, oven door is open w/ gas flowing, no flame, no circulation.
==> SOLUTION: Two (2) ways to bring out the Expert Testimony (the two-part structure)
1. Opinion first, explanation after
2. Education, facts, then opinion
Next Class: Psychiatric defense in DC. [1h 47m]

Page 58
Class Notes
HYPO:
Carbon Monoxide revisited. Expert witness on the stand

Q: How was she attired when she was found. A: I dont remember.
Q: Please look at Exhibit 1 and see if it refreshes your memory. Does it refresh your memory. A: No. Q: I show
you Exhibit 1 again. What is it? A: my report.
Q: Does it describe how Mr. Lila Lawsons body was positioned? A: Yes.
Q: I offer Exhibit 1 into evidence.
Is there an objection?
1. Question asked about attire cannot be refreshed.
2. FRE 803(5) Where there is a record recollection and the witness now has insufficient recollection
to testify fully and accurately, the writing cant be offered it into evidence, but it can be read to jury.
3. Foundation! Havent established the required elements to allow [page 2, detailing Ms. Lawsons
clothing when her body was found] of the recollection recorded to be read to the jury.
Review:
FRE 701
*****
RULES on Experts, what weve covered so far:
Illustrates the difference between lay and expert witnesses.
FRE 702 -
Daubert, but we also covered Frye b/c New York still follows consensus in the field std)
o Types of Experts: OJT versus university-educateable sciences;
o Proper application by this expert of principles + methods in forming opinions/inferences;
o Abuse of Discretion standard for Judge determinations under Daubert which means a
trial judges findings on admissibility are rarely overturned. (note: same std applies to FRE
403)
FRE 704 -
Expert testimony which embraces the ultimate issue (Scop);

Prohibited psychiatric testimony and culpable mental state in CRIMINAL cases (Washington);
FRE 705 -
Style/ Form of testimony: Explanation 1st?

See also Hypothetical Question rule and how the Fed rules abolished it)
Section 2. The Basis of Expert Testimony

So, what is FRE 703 about?
With hypothetical questions, contested facts were assumed when

eliciting favorable opinions from experts. So, the problem we face is
whether experts can rely on assumed facts which are not (yet) admissible:
Three choices, which is it?

Is the expert able to rely on anything, admissible or not;
Is the expert able to rely on anything, admissible or not, without telling the jury;
Or, is the expert not allowed to rely on facts that are inadmissible.
Answer to all three (3) see FRE 703. (Basis of Opinion Testimony by Experts)
FRE 703
The facts or data in the particular case upon which an expert bases an opinion or inference
may be those perceived by or made known to the expert at or before the hearing.
If of a type reasonably relied upon by experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not be admissible in evidence in order for
the opinion or inference to be admitted.
Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the
proponent of the opinion or inference unless the court determines that their probative value in
Page 59
assisting the jury to evaluate the experts opinion substantially outweighs their prejudicial
effect.
More on.
If facts or data are of a type reasonably relied upon by experts in the particular field in forming
opinions or inferences upon the subject
Example:
Back injury where experts in the field usually rely on facts like //patient stating where it hurts//.
Example:
Radiologist testifying on X-rays seen outside of court, even if technical rules preclude admission
of X-ray films as evidence, if the trial court has a basis for believing that radiologists typically
consider those types of X-rays to be reliable.
Example:
Real estate assessor could testify about the value of a house even if the testimony was based in
part on hearsay statements by people who lived in the neighborhood, if relying on statements of
that kind is reasonable conduct in the field of real estate appraising.
[0h 23m]
FRE 403
Assumes it is admissible unless the (prejudicial value substantially outweighs probative value)
FRE 703
Assumes it is prejudicial unless the (probative value substantially outweighs prejudicial value)
Heres the difference: In that case I told you that the [] required a scintilla of evidence. The scintilla was
that the client/patient had been in an asylum 10 years earlier. Asylum had since burned down and all records
destroyed. Expert relied on what he heard and testified that client/patient was insane. No other indication of
insanity.
That information was introduced for a limited purpose (to assist the jury in evaluating the credibility of the
experts opinion). As such, the jury cannot use that fact for any other purpose (i.e., independent evidence of
insanity, etc.) Thats what FRE 703 does. (Allows facts not otherwise admissible as substantive [evaluations]
of the case Effect: you dont get a jury charge of insanity)
Definition: Evidential Value: limited purpose
Note: We have heard of limited admissibility before w/ diagrams and demonstrations.
i.e., A photograph or reconstruction of [car crash intersection] can assist the jury in evaluating the witness
statements and testimony but it is not substantive evidence of the case.
(**Rare exception**: Judge Weinsteins case where a picture of the barge/ship was blown up and then a
marking identification number was found the picture only then became substantive evidence)
[0h 34mreview hypo illustrates this example!!]
Page 60
*****
NOW, the 702 703 merry-go-round (testimony by experts to assist the jury basis of expert opinion)
HYPO:
Civil personal injury case. Ive got lots of money to litigate issues, so I try to keep the expert out.
Basis of objections:
1. This is bogus area of expertise (Frye) I lose
2. [This is not a reliable area of expertise (Daubert)] I lose
3. Doesnt know enough I lose
4. [not rationally applied]/ application of methodology- I lose
5. Some of the stuff the expert mentioned shouldnt be relied b/c experts dont use it I lose
6. Prejudicial I WIN!!
== > But, all this achieves is that the expert cant rely on the un (or not yet) admissible fact
Expert is only limited in that she cannot tell a jury that fact (what the tall, bald guy said) | FRE 703:
(expert cannot rely on that fact b/c court says probative value is outweighed by prejudicial value)
The 702703 merry-go-round: Since I won on 703 (prejudice), I can re-open my 702
objection (rationally applied) most of the time I will lose b/c judge will find that there is a
reasonably sound foundation and reasonably applied. I get a second cut at 702 if I win under 703:
all under an abuse of discretion standard! L. Kessler
*****
More on Experts:
-
Everything an expert knows has been told it to them in some way or form (i.e. professors, books, etc.)
We cant just rely on everything they have been told and forget about the troubling fact that they actually
dont know much (or anything!) first-hand. For lawyers, it is common practice to look something up and
get back to the client later: but, with doctors, we expect them to know it all!
So, what happens when a doctor, as expert, wants to look up something and wants to admit what he
found?
LEARNED TREATISES, a hearsay exception

[1h 25m]
HYPO: Kesslers brother-in-law (Doe), psychiatrist, is being sued (among 14 others represented by state
defenders office) by Marilyn Miller (a devout Christian Scientist) for treatment back when Doe was a
resident at Bellevue Hospital. Doe had interviewed Miller and prescribed Thorazine (a psychoactive
medication) STAT (emergency) in opposition to her previously stated religious objections.
Good Faith Defense if [it] hasnt clearly been established, Ds may defend on a basis of having acted
in good faith. Jones on Psychiatry a hypothetical medical treatise, p. 327 quote: the preferred
treatment for acute schizophrenia is psychoactive medication, such as Thorazine
FRE 803(18) (Learned Treatises)
Need a published [treatise] + + someone able to say not introducing incompetent evidence
Must be Jones on Psychiatry (the treatise itself, as opposed to the author) that is established as a reliable
authority (via testimony, admission, or j. notice) may be read, but not admitted as evidence.
Page 61
Next Class:
How do I get opposing side to concede that this treatise is a reliable auth.? Read up to bad acts.
Page 62
(CB, p. 1045)
Pelster v. Ray, 987 F.2d 514 (8th Cir. 1993): (Rule 703) P brought an action against D (unidentified) for fraud
in putting up for auction a used car that M knew had its odometer rolled back. At the trial, Ps expert, L,
testified about investigative techniques of odometer fraud. L testified regarding various documents that had
accompanied the subject car though its sales and transfers. L testified that based on these documents, he
believed the odometer had been rolled back. D objected on the grounds that the odometer readings on the
documents were hearsay and did not require an expert opinion to be understandable.
Held: Expert testimony is not appropriate where an untrained lay person could determine the issue
without expert assistance.
Under FRE 702, the test for determining the appropriateness of an expert is whether the untrained
layman would be qualified to determine the particular issue without enlightenment from those having
specialized understanding of the subject. A party may not attempt to bring in inadmissible hearsay
under the guise of expert testimony to prove facts that the jury is entitled to decide on its own.
(CB, p. 1053)
People v. Anderson, 495 N.E.2d 485 (Ill. 1986):
Page 63
Class Notes
Announcement:

$3,066 for the Advanced Trial Skills class.
Review of Expert Opinions/ Learned Treatises

How can you get in a published work? (i.e. How to get Dr. Jones to testify w/o paying the big bucks L. Kess)
1. Rule 803 (18). (An exception to the hearsay rule)
To the extent
called to the attention of an expert witness upon cross-examination or
relied upon by the expert witness in direct examination, //reliance, here, requires admitting that
your expert is less knowledgeable than the
leading figure in the area. L. Kessler//
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.
2. Admit the treatise through judicial notice:
a. Judge has to have heard of it
b. Judge has to have heard it so much that there is no question as to its truth.
c. e.g. Greys Anatomy (the text, not the show)
3. Cross-examine the other sides expert into admitting that the work is The Authority in the field.
Q: Did you [as a certified and schooled Psychiatrist] use this text, Jones on Psychiatry, when you were in
school? | A: No.
Q: But you do admit that over 1/3 of accredited schools use this text as an authority on the subject? or
that Dr. Jones is a respected and authoritative expert in your field? | A: Sure./ Yes.
Beware: Runs the risk of facing an actual conflict on what is the best practice in the field. L. K.
Mechanical and Chemical Means of Assessing Credibility
On Lie Detectors
HYPO:
(CB, p. 467-471)
If Kesslers client had previously passed a lie detector test and Kessler wants to call the expert who
administered the test as a witness, can he do it?
Yes, if the parties stipulate (other side doesnt object) or if the party calling the witness
Problem w/ lie detectors is that they have not been established, under Frye, as a reliable science.
Therefore, failing a lie detector test is not admissible in court! If you fail l. d. test, dont admit anything!
Also, might also implicate the privilege against self-incrimination (5th Amendment problem)!
This is a review of Daubert.
Truth Serum (CB, p. 471)
Page 64
Anticipating Cross Examination

Remember Staub, etc. making the witness your own. Not allowed to attack the credibility of your witness.
Certain facts are only relevant b/c they bring out negative information about your client.
CL rule that generally, you cant attack the credibility of your own witness (i.e., strategically taking steam out
of that incriminating fact) has now dwindled to you cant use prior inconsistent statements to impeach your W.
Remember, under Fed. Rules of Evidence 607, you CAN impeach. We are covering this b/c in NEW YORK,
you CANT attack the credibility of your own witness. See CPL ______ & CPLR ______.
A. Accrediting
(CB, p. 385)
US v. Cosentio, 844 F.2d 30 (2d Cir. 1988): (Plea Bargains/ Cooperation Agreements)
Issue: Whether the governments opening statement permissibly referred to the [cooperation] agreements.
FRE 607 The credibility of a witness may be attacked by any party, including the party calling the witness.
FRE 608 Evidence of Character and Conduct of Witness.
(a) Opinion and repudiation evidence of character. The credibility of a witness may be attacked or
supported by evidence in the form of opinion or repudiation, but subject to these limitations:
(1) The evidence
B. Discrediting
(CB, p. 390)
United States v. Ince, 21 F.3d 576 (4th Cir. 1994): (Prior Inconsistent Statements) At a criminal prosecution for
18 U.S.C. 113(c), assault with a dangerous weapon with intent to do bodily harm, Ds friend (Angela Neumann)
was called by the prosecution to identify D/Appellant Nigel Ince. When unable to recall the conversation where
D admitted to shooting the gun into the crowd, prosecution called Military Police (MP) officer Stevens who
testified that Neumann gave a written, but unsworn, written statement identifying D as the shooter.
Issue: Whether the introduction of Stevens testimony constituted reversible error.
Held: Conviction reversed. Government impermissibly called MP Stevens for the purpose of admitting
Neumanns unsworn statement, knowing full well that Neumann wouldnt testify that D fired the gun.
Rule:
Note:
1. [For to be admissible], not only must (a) the recantation be a surprise, but also (b) her testimony
must hurt the prosecutions case.
a. The distinction [59m 30s] is the deprivation of a benefit but the focus is not on what was
taken away from them but rather what was said. If she says we were bowling you can use a
prior statement, but if she says I dont recall you cant. L. Kessler
b. In NYS, it must be (a) a surprise, (b) affirmatively hurts prosecutions case, and (c) under oath.
Page 65
Bias, HLR outline pp. 54-55
(CB, p. 406 416)
[1h 16m 0s]

Back to the first week: Perception, memory, bias, [crimes, convictions, and] bad acts.
Bias speaks to the response that would to lie. An interested party. Flat out lies, stretch the truth, or reconstruct the world in a way consistent with your perception. All indicate a testimony is [unreliable].
love you/ hate you | IOU/ you owe me | Dependency | We share an apartment where you pay more than I
do + if you go to jail I cant make rent, etc.
Limitations (on Bias)
1. Has to be a presently existing bias. (i.e. Im 68 yrs old and we didnt get along in 5th grade wont cut it.)
2.
a. Bias, Interest, Corruption
(CB, p. 406)
United States v. Abel, 469 U.S. 45 (1984):
HYPO:
D charges w/ assaulting an officer who was performing his duties. Defense is self-defense. Ds mother
is called as witness. (See below, issue in Grudt)
Q: You are Ds mother correct? A: Yes.
Q: Officers who were trying to arrest your son (Objection! Characterization.) Sorry, Ill re-phrase. The
officers who were involved with your son are familiar to you? A: Yes.
Q: Officer Brown arrested you, correct? A: Yes.
Q: Officer Smith arrested your husband and cousins? A: Yes.
Q: All three officers are from the 18th precinct, correct? A: Yes. (Objection!) Your honor, I am simply
exploring the witnesses bias.
FRE 403
//Prejudice substantially outweighs the probative value.//
Enough is as good as a feast. L. Kessler

(CB, p. 414)
Grudt v. City of Los Angeles, 468 P.2d 825, 831-34 (Cal. 1970): (loose basis for hypo, above)
The twist is same rule that limits scope of cross, limits ability to get a new trial when witnesses lie about extend
of bias.
People v. Sandoval, 34 371 (NY):
Page 66
Re: Crime (Convictions) there are two (2) categories: Bad Acts and Crimes.
Separate Rules of Law, control
Crime:
FRE 609 and Sandoval.
In NYS, FRE 609 doesnt exist, and vice versa (Sandoval doesnt exist outside NYS)
Bad Acts, in NYS:
HYPO:
FRE 608 and People v. Duffy.
Imagine the witness (to a car accident at California Ave. and Hempstead Tpk) is a past felon who has
previously robbed multiple 7-11s and committed rape, murder, etc. (all bad acts), but on that day, was
just walking to Dunkin Donuts for a coffee.
Next Class:
Prior conduct, FRE 609 and Sandoval.
Page 67
Class Notes
Resuming Prior Convictions (convict as a witness-hypo above)

-
Problem: Should we allow convicted felons (people who commit bad acts) to testify? Do we trust them?
(One) answer: the courts and the Federal Rules of Evidence have let them in.
Problem: Lots and lots of people make mistakes/ do bad things but most of the time, they dont get
caught. Only thing that distinguishes criminals and people who just drive drunk every now and then is the
former had the bad luck of getting caught. So, how can we argue that criminals are less credible?
Prior Convictions
People v. Sandoval, (NY 1974): witness had been convicted of drunk driving
Rule: What is relevant to your believability, truthfulness, ability to reliably testify based on what we know
about what kind of person you are!
Note:
1. Remember FRE 403 (prejudice vs. probative value)
2. Luck: Not all crimes are created equal. What the hell does a misdemeanor offense for drunken
fight have to do with my ability to truthfully tell what occurred at a car accident? (Discussed in CB.)
a. (Spill-Over Effect) prior conviction admitted on cross to help jury decide whether to believe
you, but jury also uses it to decide if you are guilty.
i. Spill-Over Effect is much more likely to affect a civil suit. (Criminal defendants have the
constitutional right to testify)
b. Following Luck and Sandoval, New York still follows its CL rule (not found in any statute!):
Court would require a screening of past convictions only in regards to D in criminal cases.
(B/c this is only place where the spill-over effect would worry us.) No screening in civil cases.
c. Ultimately, up to the discretion of the judge. (long ago? what crime? impulse or calculated?)
Impulsive crimes are out: crimes of calculated villainy are in.
d. [] Judges let in too many of the Ds convictions. (minor items on the rap-sheet build up)
i. Problem of cumulativeness (slandering/ stigmatizing the defendant)
ii. (10 yrs ago) Error to let in half of the convictions
iii. (Today) Error to let in two (2) prior convictions! (Subject is this crime, not past bad acts!)
(CB, p. 422)
State v. Brunson, 625 A.2d 1085 (NJ 1993):
Rule: Only allowed to ask: Isnt it true that on [date] you were convicted of [crime]?
We are uncomfortable with using past convictions to influence the outcome in the present case at issue.
Old Chief hadnt been decided but we would have agreed.
Page 68
[0h 36m]
The following is only for NEW YORK STATE criminal defendants: not witnesses, or anyone else.
Sandoval Hearing
Ok, we allow a small number of prior convictions Q: How do we choose what prior convictions can
be presented? A: Hold a Sandoval Hearing, which functions like oral argument in closed chambers w/ judge.
D-lawyers have started to raise the facts of prior convictions to downplay the putative value (i.e. with a 2006
robbery conviction, lawyer would raise facts that his client was 20 years old at the time and merely a driver
while the principal was his 46 year old uncle who heavily influenced him prior conviction excluded).
The Sandoval Compromise Even though prosecution is allowed to ask about prior convictions, but they will
not delve into details (i.e. Werent you convicted of a felony on May 2006? Not, didnt you rape a child?)
So far, no court has been overruled for failing to apply the Sandoval Compromise.
[0h 50m]
Now, for the FEDERAL SYSTEM in any type of case (crim. or civil defendants, witnesses, anyone!)
FRE 609 ...is a reflection of our political culture (started as a judicial rule which then grew into legislative law)
Federal system says dont want to use a Sandoval approach b/c there is a problem with trusting judges
Bleeding heart liberals will let murders and rapists off the hook by blindly excluding prior convictions!
Redneck conservatives w/ crewcuts + shotguns will put you away for 100 yrs for spitting on sidewalk!
The Creases
Heres what we do:
Two mandatory categories (where trial judge has no discretion and must let the conviction in)
- Crime of false statement and deceit
- Crime of dishonesty
One mandatory category where trial judge has no discretion and cannot let the conviction in)
- Then there is all other misdemeanors (incl. murder, drunk driving, drug convictions, etc.) then
apply FRE 401 (probative v. prejudicial balancing!)
Result:
Where liberal and conservative positions intersect, the conservatives win ( [allowed] )
The Wrinkle
One more wrinkle in 609 if the person who is going to be cross examined is the defendant in a criminal
case. It is assumed that brining in conviction is prejudicial (under 403) and judge cannot allow it until judge
finds probative value outweighs the prejudice.
For any other, good old FRE 403 applies (assumed to be __, then ).
The Gloss
Federal judge think they are important people and are not happy about a deprivation of discretion. L. Kessler
(CB, p. 424)
Cree v. Hatcher, 969 F.2d 34 (3d Cir. 1992): (Judge gets to decide what fits into the categories) In a medical
malpractice case against a gynecologist, issue arose as to whether Ps expert pathologist could be excluded from
testifying due to a 1984 misdemeanor of willful failure to file a federal income tax return.
FRE 609(b)
Ten years means ten years from the time you got out of jail, not from date of conviction
(Think about Kesslers scumbag client who was convicted of beating his girlfriend in 1976 and
then kept going back to jail for violating parole kept it up for 16 years!) (See also CB, p. 428)
Page 69
Policy: people who serve jail time are [not truthful]

Bad Acts a moral deed that has not been reduced to a conviction L. Kessler
(CB, p. 429)
People v. Sorge, 301 N.Y. 198 (Court of Appeals 1950): woman had been accused by a Queens, NY jury of
living an immoral lifestyle (sleeping around with married men and not giving a shit about her kids)
So, why would a Prosecutor ask about these bad acts if [x] will deny and P will be stuck w/ the answer?
See CB, p. 431 - Shows effectiveness of cross, in showing believable facts, even though the bad acts
cannot be proved. (Even a suggestion is stigmatizing to the witness didnt you spend a lot of time with
5 year old boy? pedofile!)
Obvious concern is the possibility of stigmatizing the witness. Requires a good faith basis to
establish some likelihood that the facts are true before a prosecutor can ask about such bad acts.
(Still, a prosecutor fabricating facts can also fabricate a good faith basis!)
[1h 40m]
Distinction btwn NY rules and Fed rules.
1. Alice Crimmins didnt testify
New York
Unlike the fed rules, New York allows many more bad acts to be used
Federal
608(b)
608(b)(1)
may not be proved by collateral evidence (collateral evidence rule)

note: no abortions, no seedy lifestyle would be permitted under this rule b/c only bad acts
probative of truthfulness or untruthfulness. Selling drugs = not usable: If you sold sugar cubes
as drugs, the deceitful and useable!
People v. Duffy, (NY _ ): (Used calculated villainy phrase) Duffy is charged with theft from a person
(robbery) for $5 at LIRR Rockville Centre station. Victim says D walked up and took it from him. Duffy
testified that victim had a flat and paid him for help. Following facts developed no in the year of the offense,
but two years prior, D had been unemployed and addicted to heroin. Habit cost approximately $10 a day.
Infers that:
(a) he was more likely to steal $5 to finance his habit, or
(b) he was selling drugs/ associated with drug users
Still the law.
A lot less on bad acts than prior convictions b/c you can run a NY search and find a nice neat list of facts.
For bad acts, it is a lot harder to find
Next Class:
starting to Zachowitz
Page 70
Class Notes
Monday, November 1, 2010
Final Exam: Short Essay format. 20 Q x 5 pts. Each has some facts (most will be Q/A Objection! One
type, say what the objector would say to explain the response. Other type, no idea why other is
objecting: explain. Indicative of real practice. Know the hypos!!
Citing Rules: you can use the number or the name, but neither is needed. Make sure you identify
specific issue (hearsay problem doesnt cut it) & say something coherent APPLY FACTS from
the hypo to your answer! (If he thinks you know it = 3pts, if you took a lucky wild guess = 2pts)
Remember, the Test is in the E.D.N.Y. UNLESS it says otherwise. (P has brought a parallel
action in Nassau Supreme Court) Pay attention to court! It will tell you what rules to apply!
The only rules you need to know are what is covered in class! Larry Kessler
For New York, remember FRE 609 doesnt exist in New York; Sandoval does!!
We are on Cross Examinations.
With prior convictions, you are allowed to ask Isnt it true that on October 9, 2006 you were convicted of [x].
The thing that does the impeaching is the conviction (FRE 609), not the bad acts (FRE 608) |
In NYS, there is no similar distinction between the two. Here, a Judge determines admissibility of both
(convictions and bad acts) under a standard of fairness (to the defendant).
Prior Inconsistent Statements
(On prior inconsistent statements)
Number One.
A nice set piece a structure of questions and topics covered when crossing a witness b/c of prior
inconsistent statements (said something different in the past). Is the cross-examiner allowed to inform the
jury?
Applied:
Now, witness testifies the red car went through the red light three years ago, said green car
went through the red light | Provides serious ammunition against the credibility of the witness.
Bias is something else to attack credibility, but the structure is very different.
Number Two.
Do you want the jury not to believe the witness b/c (a) she was lying, or (b) she is confused? Not the same!!
Remember the hypo: Witness heard the crash, then turned to see the red car go through the red light
Applied:
Prior inconsistent statements can serve to buttress a primary argument that witness couldnt have
seen the accident b/c he or she was turned around. Jury has to believe that either the red car or
the green car went through the light so since one car HAD to be the runner, youll want jury to
believe YOUR version of the events.
OTHER, application of prior inconsistent is if opposing counsel has taken witness out to swank
restaurants, loaned money, helped her husband find a job = BOUGHT HER OUT!
Rule 613.
Prior Statements of Witnesses VERSUS Prior Consistent Statements
Both federally and in NYS, the prior inconsistent stmt NOW is generally not substantive evidence.
Page 71
613 is a SIX, and since it is not an EIGHT it is not an exception to the hearsay rule. Therefore, out of
court statements have a hearsay problem. Therefore, not so reliable.
Jury hears it, but its not substantive evidence.
It is admitted to the limited purpose of helping the jury understand the witness testimony:
FRE 703! (positively)/ FRE 613 (negatively)
FEDERALLY,
Most arent substantive evidence, but some are: FRE 803 defines the small group of substantive inconsistent
prior statements.
Not substantive evidence = statements made NOT UNDER OATH:

What you told the cop.
What you wrote down in a handwritten statement and handed to a cop.
What you told a friend
What you told the bartender
New York State:
Letendra v. Hartford Ins. Acc & Indemnity Co., 21 NY2d 518 (1968): Embezzlement of money from a
Canadian gas station. In NYS b/c an insurance company, who insured (bonded) one of the five employees,
operated out of this state. The bonded employee plead guilty, but then in NYS plead not guilty. Prior
inconsistent statement was
Rule: Prior inconsistent statements are evidence in New York State. //Or, so we believed for 30 years//
NOW, no, no, no we never said that
[case, three years ago]
Rule: Only RELIABLE prior inconsistent statements are evidence in NYS.
Notes:
1. Based on this case, we know that prior statements made under oath in court proceedings are good
evidence. But beyond this, we dont know b/c it hasnt been tested yet.
2. Therefore, all we know is that the New York scope of reliability may or may not be greater than the
federal scope.
What is a prior inconsistent statement? (almost self-explanatory)
prior
before the present testimony. (The kind of redundancy lawyers like); a moot point
inconsistent Not every (prior) statement is an inconsistent one/ Dont GLOSS over this one!!
statement
FRE 801(d)(1)(A)
inconsistent with the declarants testimony, and was given under oath subject to the
penality of perjury at a trial, hearing, or other proceeding, or in a deposition
Page 72
(CB, p. _)
Denver City Tramway Co. v. Lomovt, that motorman should be shot
More on Inconsistency
HYPO:
Think Archie Bunker. Ma and Pa sitting on twin rocking chairs on porch of home in Queens. Cars are
parked on both sides of street. Car and boy meet, painfully. Pa testifies on DIRECT exam red car hit
the boy. Prior inconsistent statement Kessler wants to use is the boy darted out in front of the car.
On Cross, Kessler says Isnt it true that the boy darted out in front of the car? Oops! (Trick Q!!)
Kessler hasnt asked about a prior inconsistent statement THEREFORE, 613 doesnt apply!!
Difference:
Kessler was intentionally NOT MENTIONING the prior statement. If he wanted to he

would have asked Isnt it true you previously said that the boy darted | BUT Kessler
doesnt want to ask that question. Heres what I want to ask: Isnt it a fact that after the
accident, you turned to your wife and said that kids parents should be shot for letting
him go out on the street alone! it is only a prior inc. stmt. if it fits within the
categories of prior inconsistent statements defined by FRE 613.
Why would opposing counsel object to that question? (Isnt it true you saidthat kids parents should be
shot for letting him go out on the street alone!) | Answer: Statement and the testimony are not inconsistent!
i.e. Testimony (Kid ran out) + Prior Stmt (parents should be shot) are not (yet) inconsistent! L. Kessler
Next Question: If its not inconsistent and Im not allowed to ask the question/say Isnt it true you saidthat
kids parents should be shot for letting him go out on the street alone! then what do I do? - L. Kessler
Remember, the initial hypo started isnt it true that the kid ran out
(supposed to be 30 sec topic, turned into 20 mins.)
Its really important to focus on the immediate facts
Answer: So, ask about reality i.e. Dont say anything about the inconsistent statement, but keep it in your
back pocket IF the testimony becomes inconsistent
Q: Isnt it a fact the boy ran out in front of the car A: No
Q: Isnt it true that this is every drivers worst nightmare, couldnt be prevented by driver? A: No.
Q: Isnt it true that the best way to avoid the accident was if parents were better supervising the kid? A: No.
(NOW, the prior statement has become inconsistent and, now, you introduce the prior
inconsistent statement under FRE 613!)
Q: Isnt it true that immediately after the accident, you turned to your wife and said
HYPO:
(same Ma + Pa see same accident) This time, Ma (Ds witness) testifies kid ran out in front of the car.
Kessler is now Ps attorney. Ma turned to Pa, said they ought to do something about that driving test!
Issue: Are the statement and testimony inconsistent? Yes. (Still almost exactly Lomovt)
Q: Isnt it a fact that you said to Pa that car was speeding, cant believe how fast he was driving!
Page 73
(Comes from a case: If both things could be true, then not inconsistent L. Kessler
these two could be not inconsistent!)
If Kessler is not allowed to say so Q: Wasnt that car speeding? (If Ma says No)
Now, Kessler can raise. This is best factual situation we want what the witness said and to say under oath!
Why bother cluttering up the record with three year old statements? Its pointless if you already have sworn
testimony that helps your case. L. Kessler
*****
Strategy: //Trash this witness//
1. Lock the witness in on their testimony. (Just to be sure, you said[x] correct?)
2. Accusation*, as a representation to the jury. (Q: Didnt the red car A: No.)
*You dont do this if the witness is confused, memory failure, etc. only if biased!
3. Raise the inconsistent statement/ Enhance significance. (Dont you remember saying under oath)
*****
Prior CONSISTENT Statements
Used as a defensive measure.

Three types
1. When prior inconsistent statement used to impeach the witness
2. When no prior inconsistent statement was used to impeach the witness
3. Subsequent similar statement (no claim that the person was intentionally
FRE 801(d)(1)(B)
consistent with the declarants testimony and is offered to rebut an express or implied
charge against the declarant of recent fabrication or improper influence or motive
//accusation of bias/
Unrelated Point:
//Collateral Evidence Rule doesnt apply on Cross//
Next Class:
A little more about this then, (Mostly Kessler talking) onto Other Crimes.
Page 74
Class Notes
HYPO:
Wednesday, November 3, 2010
(One where Kessler mentioned it for a quick point, but we missed the point) Look at Handout.
5 questions (30 minutes). Identify the particular sub-issue and use the facts to write something coherent.
Uses of PRIOR CONSISTENT STATEMENT: Three types

1. Prior inconsistent statement used to impeach the witness/ prior consistent stmt used to rehabilitate
a. Prior consistent statement must come before prior inconsistent statement b/c former is being used to
rehabilitate b/c opposition is saying that witness testimony is biased. Addresses concern of a
Recent Fabrication a subsequent arising motive created bias (i.e. plea bargain/ reduced sent.)
b. e.g. A and B arrested for a crime. At time of arrest, B says he didnt know A. At trial, he says it
was all As idea OR - Were hitting a big score tonight so get ready to spend a lot of money!
2. When no prior inconsistent statement was used to impeach the witness
a. (Same fact pattern) Here, B didnt say anything at time of arrest (want to see my lawyer). Same
line of argument on cross Q: So you didnt say anything until your lawyer struck a deal, correct?
b. The Prior Consistent Stmt is prior to the time the motive (to lie) arose, prior to the inconsistent
statement, and [shows that he had no benefit for lying].
Loquacious witness gives the same story at time of accident and at direct examination, but he gives
several versions of the story in between at country club. (Red car went thru the red light, but the car
might have been green)
a. Does not lead to any rational inference that he saw the accident. The argument is not that hes lying,
but that he is no longer credible.
b. Prior consistent statement is only allowed in if it rebuts a [19m 20s]
3. Subsequent similar statement (no claim that the person was intentionally [fabricating])
a. (Same fact pattern) B is let go on his own recognissance and goes home, says to girlfriend: I
tried to protect A, but my lawyer said Id get 20 years cant do time, so Ill testify that it was all his
idea since he got the drugs and cased the hit. At trial, Bs testimony is similar to that statement.
FRE 801(d)(1)(B)
//accusation of bias// consistent with the declarants testimony and is offered to rebut
an express or implied charge against the declarant of recent fabrication or improper
influence or motive
Only is reliable. Reliability is defined in the Fed Rules under [401] [under oath, at trial, ]
In other words, ALL PRIOR CONSISTENT STATEMENTS that you can use are prior evidence.
[//Ask: Which are substantive evidence?//...]
1. Who cares?
a. The thing the guy said (the prior consistent statement), he has already said under oath. (FRE 613
substantive evidence) therefore, you have it in evidence TWICE. Twice versus once doesnt
affect the jury twice-over. What the statement is, is
Page 75
CIRCUMSTANTIAL PROOF
Character
Other Crimes
Reputation
Civil Cases
Habit & Custom

Settlement Offers
*****
CHARACTER,
Evidence of OTHER CRIMES (still discussing bad acts, but now onto substantive evidence of guilt)
FRE 404 Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
(a) Character evidence generally. Evidence of a persons character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular occasion,
except:
(1) Character of the accused.
(2) Character of the alleged victim.
(3) Character of witness. Evidence of the character of a witness
(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 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
FRE 405 Methods of Proving Character
(a) ...
1. How can a prior bad act be substantive evidence of guilt?
a. HYPO: When youre robbing a bank in the suburbs, DONT USE YOUR OWN CAR! So, happened
to report his car stolen on the morning of the robbery (preparation) witness says she saw s
accomplice (Al) steal s car. Al says he just pulled up to a bank cause his friends said they had some
banking to do. Prosecution charges Al as an accomplice getaway car driver. Prep. incr. likelihood
b. Home Alone. Think of the Wet Bandits modus operandi (stopping kitchen sink /letting basement flood).
Common scheme or plan. If the person charged with this crime has committed prior crimes, then
proof that D committed a prior crime makes it a little more likely D committed present one = relevance!
2. How come it has its own rule?
a. (The Spillover Effect) Could be evidence that this D has a criminal disposition / evidence of a
propensity to be a //bad ass// | Belief that not good people do not good things. FRE 404.
b. This concept has limited legal justifications but we use it all the time! When youre worried about
opening a relationship with a shady business, you contact the BBB to see if theyre legit.
3. Difference btwn 609, 608 and 404 609 and 608 deals w/ convictions or bad acts of the witness:
Sandoval deals w/ bad acts of a criminal D only when he is a witness: 404 deals with bad acts only of D.
4. The world sometimes gets complicated. (The D testifies!) [56m 0s]
a. As prosecutor, Kessler now has two ways to show bad acts. 404 or 608 (affecting truthfulness)
5. The standard of admissibility under 404 is relevance to the instant case in the following sense:
a. 404(b) basically says, propensity is (almost) no good. It CAN be offered to prove [1h 3 20s]
preparation (stealing the car), identity (prior common scheme or plan)
6. Difference between Feds and New York State | Molineux illustrates the New York rule.
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Molineaux, son of a distinguished Civil War veteran, believed other men were having relations w/ his
girlfriend, later, his wife. One was poisoned, another survives. Prosecution tried to introduce the first.
(CB, p. 809, 810)
People v. Molineux, 168 N.Y. 264 (1901): D was a chemist and social climber from Brooklyn. Charged w/
first degree murder of Katherine J. Adams when she drank a bottle of Bromo-Seltzer laced w/ cyanide which
D had mailed to one Harry Cornish (w/ whom D had a feud). Adams had been lodging Cornish. At trial,
prosecution had entered evidence that D had been responsible for an earlier murder of Henry C. Barnett:
objective was to show that D had a propensity for murder, despite the fact that D had never been convicted.
Rule: The state cannot prove against a defendant any crime not alleged in the indictment, either as a
foundation for a separate punishment, or as aiding the proofs that he is guilty of the crime charged.
(Use of evidence of an unproven previous act of murder against the in a subsequent unrelated
trial violates the basic tenet of presumed innocence.)
[1h 15m] In New York, evidence of prior (similar) acts can be introduced for [acronym]
7. So, what happens in actual practice?
(CB, p. 808)
People v. Zachowitz, 172 N.E. 466 (NY Court of Appeals, 1930): D shot + killed Frank Coppola for sexually
harassing his wife. D and wife were coming home from a dance (where D had been drinking heavily). When D
fell behind to buy a newspaper, wife walked ahead passing four men who spoke to her insultingly. D caught
up w/ her to find her crying, went back to admonish but left w/o incident. Later, when his wife told him what
they had said, D returned + fight ensued: verbal fists Coppola attacked w/ wrench D fired a single shot
(25 cal. auto. pistol). D convicted of murder in Bkyn. D claimed self-defense + he carried the pistol all day.
Issue: What was Ds state of mind at the moment of the homicide? (premeditated or heat-of-the-moment?)
Prosecutions case:
Was permitted, below, to show D owned arsenal: 3 pistols and tear-gas gun in radio box.
All of this was intended to show that D was a man of vicious and dangerous
propensities more likely to kill with deliberate and premeditated design (CB, p. 809)
Sought to show a violation of existing state law on certain types of guns of
course, no conviction against D existed at the time.
Defenses case:
Only brought wife home to get her safe and then returned to confront the buggers.
Simply an act of self-defense. Claims he had the weapon in his pocket the whole time.
Held: (C.J. Cardozo) Conviction reversed.

Laughs at the idea he went home to pick the right weapon for the job. L. Kessler
Rule: Character is never an issue in a criminal prosecution unless the defendant chooses to make it one.
The law is not blindto the peril to the innocent if character is accepted as probative of crime.
The natural and inevitable tendency of the tribunal whether the judge or jury is to give
excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly
on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the
present charge. Wigmore, Evidence, vol. 1, 194.
*****
HYPO:
Guy in jail is stopped by a prison guard and searched lock in a sock found in his back pocket. While
walking D to solitary, a fight breaks out between the prisoner (D) and guard. Prosecution wanted to
introduce the lock in a sock as evidence of a predisposed intent to attack the guard.
Page 77
Problem:
How does Ds possession of this weapon make it more likely that we wanted to attack
this guard, as opposed to any guard or even any prisoner? D says proof that he has a
weapon might indicate a propensity to be a bad guy but, without more, is irrelevant.
Held:
Conviction reversed. Prisons are dangerous places. Possibly a defensive measure.
(CB, p. 812)
State v. Spraggin, 252 N.W.2d 94 (Wis. 1977): D convicted of intentionally aiding and abetting the delivery
of heroin. State narcotics agents bought heroin from a 3 rd party and then arrested D in her home. Search found
guns and possibly stolen guns. Police expert testified that, from general experience involving about 100 drug
transactions, dealers usually carry guns as protection and accept stolen goods from drug addicts as payment.
Rule: The very purpose of the other-conduct rule is to exclude evidence which is relevant only for showing a
disposition to commit a crime.
8. What can prior act evidence be offered to prove?
HYPO:
Somebody has stabbed and killed a priest in church and nobody else was around. Prosecution wants to
show that a year ago, D has thrown a brick through a stained glass window of a catholic church and,
recently, attacked a nun. See 403(b) motive. Here, prior acts were deemed admissible.
HYPO:
Someone sells drugs to an undercover cop comes into alley and sells 2 dime bags for 20 bucks. Cop
leaves, makes his report and other cops come and nab Kessler, who fits a description of red hair. Cop
testifies that, on two prior occasions, that D sold him drugs.
Next Class:
Do practice exam. Half an hour, 4 line answers only.
Page 78
Class Notes
Prior Similar Acts, (contd)

404, 608, 609,
Were now doing FRE 404(b)
for evidence to be admissible under this rule as substantive evidence the

prior similar act
Now, other [ ] proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident
HYPO: Cop buys drugs in the alley. Testifies that he (cop) had purchased drugs from this defendant several
times in the past. Also testifies as to the method (short hand to hand exchanges in alleys).
Also, common scheme or plan proves two things (1) identity of evidence, and (2) absence of mistake.
Absence of Mistake (formerly called modus operandi)
Should be called an uncommon scheme or plan.
Assumes that method is so uncommon that the same person did all of these identical crimes. (Identity)
Also, reqs asking whether D thought there was consent each and every time. (Absence of Mistake)
HYPO:
Woman is sexually attacked in her home. D has two obvious defenses: (1) identity did they get the
right guy? and (2) was there consent? after all, it was in her bedroom. Facts woman says; met at a
bar, spoke privately for a while, he asked if she lived nearby & offers to walk her home, when she
unlocks the door he rushes up, pushes her in, drags her to bedroom and sexually assaults her.
Another woman, later, testifies to the exact same common scheme or plan
(CB, p. 821)
US v. Montalvo, 271 F.2d 922 (2d Cir. 1959): (Kesslers friend was clerk) D convicted of selling heroin. Was
found with a pen-knife containing trace amounts of heroin on the tip. Great! Except the heroin on Ds knife
was different (chemically indistinguishable) from the substance recovered b/c different amount of a cut.
Issue: Could pen-knife be used to show that D possessed instruments suitable for the purpose of cutting drugs?
Held:
Notes:
1. Opens the door to a discussion of 404(a) and 404(b) prejudice versus probative value [17m
0s] The fact that there is a separate rule for it means that it is not too prejudicial this
interpretation stayed around for a while but, now, courts have excluded this type of evidence
(different heroin encrusted on the knife)
(CB, p. 822) [19m 45s]
People v. Steele, 174 N.E.2d 848 (Sup. Ct. Ill. 1961): (Drug fraud sale statute makes it a crime to sell a
substance purporting it to be a drug) Indictment charged D with making an offer to unlawfully sell a narcotic
drug and then didsell to John Stribling, Jr Plead not guilty. Convicted-affd.
Notes:
1. Drug fraud sale statute intended to provide alternative convictions against fraudulent drugs sales (i.e.
knowing sale of non-narcotics) only invoked by a undercover cops. Defense: I was defrauded as
well I thought it was heroin + didnt actually sell drugs, so impossible that I committed a crime.
2. This case is about the way in which the elements of the defense define the L. Kessler
Page 79
(CB, p. 825)
State v. Abercrombie, 375 So.2d 1170 (La.1979):
(CB, p. 824)
Gaddis v. State, 360 P.2d 522 (Okl. Crim. App. 1960): (Prior similar act case) Ms. June May case
(CB, p. 824)
People v. Cole, 194 N.E.2d 269 (Ill. 1963):
(CB, p. 843)
State v. Bock, 229 Minn. 449 (1949):
How much evidence do you need? (to make a prior bad act admissible as substantive evidence)
HYPO:
Guy wakes up, brushes his teeth, walks into his living room and finds a dead guy on his couch! How
did that get there?! Calls the cops, established that the decedent was murdered, but no evidence that he
committed the murder. Five years later, same thing happens but, this time, prosecutes him.
(Smith, Brides in a Bathtub case) Guy marries a girl and takes out insurance on her life. She drowns in
the bath tub and he collects insurance money. No suspicion of foul play. Then this happens five more
times with five difference insurance companies.
In the past, a prosecutor needed to show independent evidence (substantial offer of proof) that
(1) a crime had occurred and (2) that D committed the crime! Today, 861 and Huddleston.
(CB, p. _ )
Huddleston v. US,
Notes:
1. The standard is 404(b), the test of relevance is 401 and judges determination is controlled by
104(b).
2. This makes a difference because now the prosecutor need much less evidence that D committed a
prior crime. [35m 0s] (Only need enough to make it relevant. - L. Kessler)
HYPO:
DeBenedetto (a meat inspector) was convicted of accepting bribes He did not say I got the money
for winning a bet or I was a middle-man conveying money for charity or I didnt get the money
someone else did. What he did say was it never happened. (Bribes were like $50 for Christmas, a
turkey for Thanksgiving, bottles of whisky or scotch, etc.) Meat packing (Armour) executives had an
incentive to give up more names to offer to the prosecutor as part of the plea bargain.
[43m] For other bribes, executive testified
This is Old Chief! There, it was stipulated. In this case, they dont have to prove it b/c it was conceded.
(i.e. This was the guy that got the money, if any money was exchanged.)
Page 80
(CB, p. 835)
US v. Figueroa, 618 F.2d 934 (2d Cir. 1980): Jose Figueroa, Angel Lebron, and Ralph Acosta were convicted
after a 2-day trial in E.D.N.Y. upon jury verdicts finding them guilty of conspiracy to possess and distribute
heroin and possession w/ intent to distribute. During arrest of Acosta, latter threw the brown paper bag
containing 8 cellophane packets of brown rock heroin into a crowd of on-lookers and bag was never found.
Only evidence remaining was arresting DEA-vices testimony + recorded phone conversation w/ Figueroa only.
Issue: Admissibility of prior crime evidence (Acostas 1968 conviction for heroin sale) in a multi-D trial.
Rule: For evidence of a defendants similar crimes or acts to be admissible, the evidence must be relevant to
some disputed issue in the trial, FRE 404(b), and its probative value must not be substantially
outweighed by the risk of unfair prejudice, FRE 403.
(CB, p. 848)
Lyles v. State, 109 S.E.2d 785 (Ga. 1959): D was convicted of murdering her
[How do you, as judge, make decisions?]
You have a pre-trial hearing (like Sandoval). In New York, you hold a Molineux hearing. Federally, a 404
hearing
Think about case involving stolen goods and guns in the Ds home as indicative of fencing behavior.
Problem:
Because this is a criminal, not a civil case, we dont have lengthy, pretrial discovery so, the
judge doesnt know anything about the case. [49m]
Can rule admissible Ive seen this a thousand times
Can rule inadmissible
Or, Contingently exclude it, but allow for [party] to raise the issue again later
Defendants in criminal cases are not limited by what they said. L. Kessler
(Application: assume that D has agreed not to raise an identity issue, D asks So you say to handed
money to who you assume was Mr. Debenedetto in a dark parking lot?)
Judges power, 611, to re-open the trial (pursuant to discretion to control the order of proof)
Sometimes, defenses can open the door to prior similar act evidence.
Most obvious one = the defense of entrapment (you overcame my resistance to committing this crime) |
Defendants must show (a) they did something to overcome them, and (b) D was NOT predisposed to commit.
Once a D has raised this defense, Prosecutor must/should show that prior similar act evidence will show
that this D was predisposed to commit the crime.
HYPO:
DeLorean (prior act of bilking/ defrauding investors are different from drug purchase charges)
Page 81
HYPO:
At 7pm, Kesslers client charged with a stabbing in Brooklyn at 4pm, the same day, D had strangled
someone in Queens. Strangling and stabbing are not common schemes or plans assume there is no
other commonality between the crimes.
Assume, D raises a defense of alibi (was in Boulder, CO visiting his sister) | Prosecution can show
that 7pm alibi is false if they can show D was in fact strangling someone in Queens at 4pm.
Now assume, Ds alibi is that he was eating dinner with his sister in Manhattan at 7pm. 4pm strangling
cant be disproved by alibi.
(CB, p. 826)
People v. Santarelli, 401 N.E.2d 199 (Ct of Appeals NY, 1980): Guy takes out a shotgun and fires 5 shots,
killing his brother-in-law. Prosecution had to defeat a psychiatric defense (crazy as a bed bug) w/ their own
shrinks view (explosive psychopathy). Facts relied on by the shrink: (a) arrested for assault in bars, (b) hung
out w/ organized crime figures, (c) involved in extortions.
Court of Appeals interposes its own standards, here, saying that the psychiatric defense impermissibly opens the
door to everything the D has done in the past! There must be a limiting factor: relevance.
Organized crime figure friends?
Friends influence, but not relevant to explosive psychopathy.
Extortions?
(Not logically relevant) Subtle crimes are not only irrelevant, but also counter to
explosive crimes.
Assaults?
(Not factually relevant) Missing the reason for why the fights started
Federal Court. Would this get in?
Ans: Probably, we would have read
Remember, an alibi for 7pm being in Manhattan isnt relevant for / open the doors to a prior act at
4pm. But an alibi for Colorado does.
*****
Practice Exam, (2002 exam) | Rule - Reason Result or Rule Reason - Result
1. Meant to show RFs (witness) bias. As judge you are meant to rule on admissibility of testimony.
a. Start with procedure = on rebuttal (start w/ subject of objection! look for a rule on when you can call
witnesses on rebuttal?)
b. What is relevance of Ps involvement in Taliban? Relevant to whether RF is lying / falsely denied bias.
c. Rule = Collateral Evidence Rule (can offer extrinsic evidence of bad acts but only if relevant to bias or
bad acts directly). Witness (Spy) introduced for sole relevance of showing RF lied re: political involvement.
2. First, this is not an area of expertise under Daubert/Frye and, second, even if an area of expertise, witness
is not a sufficiently established and credentialed sufficient expert in that area.
3. Federal assault = discretionary area.
Only prior convictions which speak to dishonesty or deceit are admissible to attack the credibility of the
witness. This witness prior conviction is not admissible because the court will find a bar fight does not
make it less likely that the PT is lying about Ps condition/rehabilitation. Concern is the Spill-Over effect.
Sandoval does not apply b/c we are in FEDERAL court.
4. Diagrams. (possible question re: the accuracy of the diagram). Diagram admissible b/c it is the eye
witness version of what happened, not what the objecting party wants it to be.
5. Appropriate lay opinion?
Page 82
Ultimate question / Opinion of a law witness (Rule 701): need for inspections is (a) not rationally based
on the witness own perception, (b) is not helpful to a clear understanding of the witness testimony or for
determining a fact in issue, and (c) would require scientific training or some area of expertise. Rule 701.
*****
Reputation, p. 875-887, 438-447, 464-467 (
(CB, p. _ )
Michelson v. US,
(CB, p. _ )
US v. Dotson,
Civil Cases, p. 914-921
(CB, p. _ )
Dallas Railway & Terminal Co. v. Farnsworth,
Habit and Custom, p. 921-926 (Rule 406)
(CB, p. _ )
Frase v. Henry,
Settlement Offers, p. 938-947 (Rule 408)
Page 83
Class Notes
Review:

404(b) and Huddleston how much proof (evidence) is enough?
Now, what about the defendant? Can the D under 404(b) introduce evidence to show he or she didnt do it?
See Glen Close in The Jagged Edge a movie about applying this rule (murders w/ common scheme or plan)
Bach, (1900): (Check forging (endorsing) & uddering (trying to cash) on a batch of same checks)
HYPO:
D tries to cash a check (out of a batch of similar checks) by handing it to a teller and leaving (never to
come back) when teller asks Q: ID A: Oh sorry, its in the car. Another attempt made at another bank
uses the same modus operandi/ common scheme or plan.
Joinder and 404(b) (prior similar act evidence) [12m]
HYPO:
(Remember the same guy from handwriting analyst) Kesslers guy allegedly robbed four Chase
Manhattan Bank of the same exact bank at the same time (Friday at noon) every time. Also, he looked a
lot like the guy in the bank photos. Turns out another guy confessed to all the crimes. Kessler and
another law professor in Arizona called in to represent D on habeas corpus.
Rule: Cant join cases unless they have common issues of law and fact!
(Here, the tellers were different on all four days so, oddly, not common enough to join)
Now, prosecution seeks to attack the one where Ds alibi is the weakest. They choose robbery #1.
Then, they try to introduce the other three (3) as subsequent similar acts. Issue:
Is there sufficient
commonality to properly join?
Fifth Amendment and Prior Similar Acts
HYPO:
[Judy ] and Stockholm Syndrome/ jury gets to be in the closet. During her two years on the run,
prosecution believed she was involved in multiple other crimes w/ knowledge and w/o mistake, undue
influence. P asked her about these crimes by playing them down. She pled the Fifth (non-self-incrim).
Held: If you chose to testify, you waive your Fifth Amendment rights with regards to anything
within the scope of cross under Rule 404(b), prior similar acts are within the scope of cross!
AND, if these cases are joined as having a commonality of fact, then you are not allowed to plead
the Fifth Amendment on any of the cases
Page 84
Onto REPUTATION (Fed Rules of Evidence 404(a), 608(a), 803(21))

Here, witnesses will testify as to the REPUTATION OF THE DEFENDANT.
Hypo: Q: What is the reputation of D? A: Oh, hes really peaceful and honest) WTH? Kess.
Look to Defamation in Torts:
Kessler can sue for harm to his reputation (as a valuable commodity and
valuated in this way for hundreds of years) We know it, we talk about it,
we describe it like it really exists.
Applied: Can you describe a unicorn?
Reputation cannot be found by cleaving ones head in twain but by looking to what people say about you.
We really think it exists, we really think its important but in the criminal world, we are concerned b/c it is
created by specific things that happen in which you were involved (i.e. gossip) Presumably, it is a distillation
of many events in which youre involved over time it is a composite. Everything gets combined in evaluation.
HYPO:
X robs a lot of banks and killing lots of people in the process, but then gives his proceeds to the poor.
But at the end of the day, all of Xs good and bad acts will get thrown together to form Xs reputation.
You can only ask these questions:

(On direct, no inquiry into specific instances of conduct/ but each Q can be a line of cross)
Do you know the D?
Do you know other people who know D?
Have you heard them discuss his reputation for [x]?
What is that reputation?
What do you think about whether hes [x]?
This is the character witness.
Why call a character witness? Evidence of good character along can raise a reasonable doubt. You call
the best you got. If you know Derek Jeter, call him hopefully, his own reputation will sway the jury.
In practice:
Not too many character witnesses are called b/c after direct (limited scope) comes the cross (very open).
[48m]
[52m] In 404 and 405, there is the Door Opening Rule.
There is a character witness sitting in the next room behind a closed door.
[53m 21s] the open door stays open if [event: introduce evidence of good, peaceful character]
You only open the door to a good, peaceful person reputation (i.e. self-defense) of the victim, not the D! - LK
Page 85
CIVIL cases (p. 914-921)

[1h 1m]
HYPO: Kessler gets on a bus but just as hes about to sit down, driver starts the bus with a jerk and Kessler
lands on his ass: hurting himself. Kessler learns from other passengers that this driver jerks every time.
D will say it just shows a propensity (more likely he is a bad driver). P wants to introduce it as
motive (i.e. he jerked the bus every stop on this trip).
HYPO:
Slip/ sidewalk/ in front of Ds store. P wants to prove that other people have been slipping and falling
all day. P calls shop owner across the street to show that people had been slipping all day. (Establishes
actual or constructive notice.) Introduced to show (i) they were slipping all day and (ii) it was in fact
slippery (not that P was simply a klutz)
Now, assume the shop owner across the way had a slow day, register was positioned so he faced the
street, and this time nobody has slipped all day. Introduced to support Ds case.
Habit and Custom (Rule 406, p. 921-946)
[1h 8m]
The illustrative case is Oswalt v. State (p. 402) Diner owner witness testifies that D was a regular patron in
Seattle during Portland robbery, guy was in the diner Hes always in the restaurant on Friday night
To be admissible under common law, it has to be invariable habit and custom
(a) cant have started doing [x] yesterday
(b) invariable habit and custom is not a disposition
(c)
Appd:
D is a devout orthodox Jew. Goes to temple every Saturday.

Habit & custom = D couldnt have done the robbery b/c it was Saturday and he wouldnt work on Sat.
x Disposition = D is a good person, therefore a good driver
(CB, p. --)
Frase v. Henry, --- (--):
[1h 28m] Review: types of character witnesses that are allowed to testify
Settlement Offers (Rule 408, p. 938-947)
We want to encourage settlement by encouraging people to talk about compromise. Rule excludes statements
made during settlement negotiations
Two types of negotiations:
1. Interest based
2. Rights based Im going to win b/c I have three people who saw my side of the events. Yeah, but
there are no injuries, the back injury is bogus Ok, lets say that $100K will cover the injuries.
Page 86
Problem to consider:
Was it a settlement negotiation or not? L. Kessler

(Immediately after a car accident) It was my fault, send me the bill and Ill take
care of it. Was this a settlement negotiation, or an admission of negligence?
So what about criminal cases/ statements made pursuant to a plea bargain/ cooperation agreement?
[1h 40m]
(CB, p. 938)
Hiram Ricker & Sons v. Students Internl Mediation Socy, 501 F.2d 550 (1st Cir. 1974):
Hearsay
Note: Much less important in the real world than in law school or on the bar exam.
(B/c its easier to test on small, factual nuances of hearsay in m-c exams AND it relates to relevance.)
What is Hearsay?
(defined)
What somebody said out of court and is going to say in court.
(example)
Q: What do you know about this case?
A: John said he was there and saw the red car go through the red light
Whats the problem with Hearsay?
Remember, evidence has to be both relevant and competent. This is a competency issue.
Problem:
The jury might not understand the risk of relying on Johns hearsay statements.
What we really have to think about is what do we think about John? (We dont know anything about him!)
Is there an indicia of reliability? None.
Just b/c there are indicia of reliability and that the statement is does not mean its true.
We expect that people are going to lie. In court testimony under oath may be reliable, but that doesnt make it
true.
[1h 58 m]
Hearsay rule has a definitional rule if what Nicole told him is relevant
Bad = truth of the matter asserted
Good = if statement is offered to the mere fact that it was said.
Every hearsay fact pattern has three actor roles:
Joe (Declarant - said something out of court);
Nicole (heard Joe make the statement out of court; and
Nicole (testifies in court).
Next Class:
We will discuss the significance of the three roles (above).
Page 87
Class Notes
Hearsay, contd
Three Roles of the Hearsay Witness: (including the Witness dual role)
1. Declarant says something outside of court
2. Someone (W) hears declarant say that thing (event)
3. W, then, testifies about that event
If a declarants statement is offered for the mere fact that it was said, but not for the truth of the matter
asserted, then it is not hearsay.
(CB, p. 475)
Leake v. Hagert, 175 N.W.2d 675 (N. Dakota 1970): Womans (Ds) car and Ps tractor/plow collide. P
claims for medical expenses and D counterclaims for car damage (contributory negligence statutory
requirement that after dusk, tractors on public roads must have at least one working red light visible from 1000
away). Insurance adjuster called as witness and he testifies during trial that Ps son said the lights had been out
for some time. Son was unavailable during trial b/c he was away at war.
Issue: Whether the sons statement was inadmissible hearsay offered for the truth of the matter asserted.
Held: Yes.
Rule: Truth of the matter asserted means a statement which is only relevant to jury if it is factually accurate.
HYPO:
K between Kessler and Bryan. At some point, Bryan says Ill buy 10K widgets at $5/widget. After
Kessler delivers the price of widgets drop and Byan refuses delivery. At the trial, Kessler wants to
testify as to Bryans promise to accept the merchandise but Bryans lawyer objects. Grounds?
Ask:
Then, ask:
What is the statement offered to prove? ANS: Shows that a contract existed. (i.e. I accept)
Is the statement only relevant if it is true? Remember, K acceptance is an objective standard.
(If a statement is relevant without regard to its truthfulness, then it is not hearsay. L. Kessler)
Kesslers Mechanistic Approach: //17m//

The issue of truth of the matter asserted is a sense impression that the Declarant has communicated her
impression is important.
Two court mechanisms which help to ascertain a statements truthfulness: (the indicia of reliability)
Oath
Cross-examination
If (statement depends on the sense impressions of the declarant), then (offered for truth of the matter asserted).
Page 88
HYPO:
(Hearsay/ Non-hearsay Distinction) Woman calls police and says Help, help, hes killing me in
apartment 20A Police receive the call from dispatch and respond. When they arrive, police dont hear
anything but based on dispatchs statements, they bust in and see man standing over his wife (who has
fresh bruises) and a pile of what appears to be cocaine and scales. Man arrested for beating up his wife.
Mans lawyer moves to suppress for lack of probable cause (to enter the apartment)
Probable cause = reasonable belief to believe:
(a) that a crime was being committed,
(b) that D had committed the crime, and
(c) that there was no time to get a warrant.
Result: Not hearsay b/c not offered for proof of the matter asserted (that he was killing her) but, rather,
it is offer because it speaks to the objective state of mind of the entering police officer(s).
Therefore, suppression denied
NOW, at trial (where D is charged with abusing his spouse), what is this same statement offered
to prove? Ans: Statement is offered to prove that D was in fact beating his wife. Hearsay.
Hypo is based on People v. Eady, 294 N.W.2d 202, 203 (Mich. 1980). Kessler doesnt like
the Eady triangle approach prefers his own approach better)
Easy to spot a (possible) hearsay issue!
W says declarant told me/ declarant said/ etc.
[37m]
HYPO: (Coca-cola case where glass found inside glass bottle and years have gone by w/o needing an operation)
Doctor says if you get worse, youll need an invasive stomach operation speaks to (1) emotional
harm/ pain and suffering of plaintiff and (2) the fact that P needed an operation (possibly, if you are
not very smart/ not listening too carefully).
See Brown v. Coca-Cola Bottling, Inc., 344 P.2d 207, 208-210 (Wash. 1959).
Rule: Fact that a declarants statement was said, even if there is alternative reason for proffering the
statement as proof of the matter asserted (#2, above), should still be admitted (see #1, above) if
the prejudice doesnt outweigh the probative value.
Another hearsay exception:
Operative Facts
A large subset of all non-hearsay statements are operative fact statements.
Defined as a statement that has legal significance in the case.
All operative facts are not hearsay. Almost a tautology.
Writings, Gestures, silence can also be hearsay, assuming there is an underlying intent to be a statement.
HYPO:
Child is given medicine and hurt. Medicine bottle clearly says Not for Pediatric Use Whose
statement is this? ANS: An un-named employee (John) of the pharmaceutical company.
Issue: What is the label offered to prove: mere fact that it was said (doctor had notice) or truth of the
matter asserted (medicine was not intended to be used for children).
This is an example of a writing can be a statement of the writer, as declarant, and how it can give
rise to a hearsay problem (hearsay dangers and no indicia of reliability).
Page 89
So why is non-hearsay any different?

One, easy answer:
Not offered for the truth of the matter asserted

Remember, we are concerned with lies and mistakes when we exclude hearsay.
Alt. answer:
While this statement is still by definition hearsay, an exception is proper if this

statement is reliable (for independent reasons) b/c it is not laden w/ hearsay dangers.
[1h 0m] Labels are self-authenticating so why is this any different?

ANS: Relevant + competent. Label can be relevant (not for pediatric use) but we can find that the
author is not competent.
Kingdon v. Sybant,
Gestures
HYPO:
Share-croppers, now called tenant farmers (who pay by shares of the crop). In this case, tenant paid LL
with 40% of the crop (2 out of 5 cribs, dumpsters, full of corn harvest). Farmer needed to pay off the
LL and the bank (who provided capital for the operation). LL came and said I see the crop is in, which
is mine? | T pointed at two of the five cribs. Later, before LL could collect, the bank foreclosed
Issue: What was the pointing as a statement, offered to prove
See (CB, p. 486) Hanson v. Johnson, 201 N.W. 322 (Minn. 1924) (Held: in this setting, the pointing to
the two dumpsters speak to an operative fact of the case i.e. legal significance (as a K matter, the
pointing was characterized as K delivery and therefore not hearsay.) Since we are dealing with
fungible goods, it didnt matter that these two cribs (as opposed to any of the 5 cribs) were identified:
all that matters is that the pointing signified delivery.
Warnings
HYPO:
See (CB, p. 486) Safeway Stores, Inc. v. Combs, 273 F.2d 295 (5th Cir. 1960)
Woman is shopping in the back of the store (operated as a Ma-and-Pa establishment operating under
the national name-brand) and falls sues for negligence. Ma, called as witness, was working as a
cashier in the front of the store. She testifies about Pas statement Lady, dont step on the ketchup!
Q: What, if anything, did you hear/see? A: I heard Pa say [Pas warning]. (Objection!)
Issue: What was the statement offered to show? That a warning was made
Problem dont we want more out of this statement? Dont we have to lay a foundation to show that
this statement (logically relevant) is also factually relevant (i.e., that statement was (a) made in such a
way that P heard it and (b) that, if true, it was made before she slipped/fell: speaks to Ds negligence)?
1h 30m [Factual relevant factors we have to prove before we can show that it was logically relevant]
Strategically, we have to show that the warning was made in some appreciable time before the fall
(otherwise its a pretty shitty/insufficient warning).
Notes:
1. Useful to illustrate collateral evidence and hearsay issues. Evidence is a cumulative doctrine.
Page 90
Silence
Silence can be hearsay because
HYPO:
(Kessler) Q: You are wearing a grey shirt, correct? A: Yes. Ladies and gentlemen, you have heard the
W say that he is wearing a grey shirt!
Alone, the answer is nothing
HYPO:
See (CB, p. --) Silver v. New York Cent. R.R. Co.,

Woman claims that, while she was on the train, she was sickened due to cold and exposure. Witness is
the conductor of the train and employer (Railroad) wants him to testify that there were no complaints
from passengers about the train being cold.
Who is the declarant?
All the passengers on the train.
What is the statement?
It wasnt unduly cold
Rule: With the right foundation, you can show that silence is a statement.
Need two (2) factors:
(a) everybody is similarly situated and
(b) the people who did not say anything would not prefer to stay silent.
Wright v. Doe D. Tatham, (inferred people cant be

//1h 45m//
Practice Exam, revisited
#2
Cusinaire expert says they can reliably predict

Answer:
Obviously, under Daubert, there is a question of the experts analytical technique. (Whether the
technique could be used?) Would ordinarily look to (scientific) publication, peer-review, etc. and (nonscientific/ Kumho Tires).
1. Identify the issue.
2. Then, apply the facts to say something sensible. (Either is or is not admissible under Daubert/ i.e.,
take a side on an ambivalent issue and defend it! USE THE FACTS)
#3
Cross-examining an expert on a criminal conviction.

1. What court are we in? Federal Court FRE 601 issue. Not a mandatory issue, not more than 10
years old prejudice versus probative value not the Criminal Defendant. (ALSO, do NOT use
Sandoval b/c we are not in NYS court!!)
#4
Brick falls on someones head
#5
(Lay Opinion)
1. There is an opinion. He is P He is not an expert Issue: Admissibility of Lay Opinion.
Page 91
Class Notes
Assumptions,
Assumed hearsay testimony
HYPO:
After a major train-wreck, in a time without emergency air transport, EMS arrives on the scene to find
bodies strewn all about. The primary EMS goes to one body, does something, moves on to the next
body. Primary EMS does this several more times until he comes to an elderly mans body, does the
same thing, then picks up the man, transports him to the hospital where he arrives D.O.A. In an estate
suit by the relatives over rights of successorship (mans adult daughter was among the deceased who
was passed over), the daughters immediate heirs and assigns duke it out with the other heirs and family
over the issue of who died first (father or daughter). If the other heirs want to introduce the primary
EMS actions as indicative of the fact that daughter was already dead at the scene, is this hearsay?
Assuming the EMS is not available, even without having said anything, his actions can be seen as an
actual statement to the effect of this woman is already dead, father is not try to save him first.
HYPO:
Owners of a bourbon distillery hire a finder (one who goes out an finds buyers, akin to the role of a
real estate agent) who works on commission. The finder travels to Europe where he meets an Italian
count who agrees to purchase 10,000 bottles at $50 per. A few months pass and the finder isnt paid.
Sues the distillery owners. Can the Finders testimony that the Count agreed to purchase be admitted?
HYPO:
Before a voyage of a large ocean liner, the Captain and his family arrive at the dock. Captain tells his
wife and children to wait until he summons them aboard. He goes onto the ship and some time later
beckons for them to come aboard. Ship never returns/ lost at sea. In this era, insurance companies
would only pay out if a ship was sunk by natural storm, never for negligence of the crew or poor
manufacture. Can the Captains actions be admitted as proof of the ships sound construction, or is this
inadmissible hearsay?
Captain could have been trying to stash his secret rum so that his wife wouldnt get pissed off not
necessarily true that he was checking the soundness of the ship.
In the federal system of rule, assumed inferences are allowed. In New York, they are not.
We exclude hearsay because it is (1) laden w/ hearsay problem(s) and (2) no indicia of reliability.
Exceptions exist because either of the two are missing:
(1) no hearsay problem or
(2) independent indicia of reliability.
Page 92
Class Notes
Hearsay exceptions
Rule 801 a hearsay exception stuffed within the rule itself
801(d)(2)
Admission by party-opponent
The statement is offered against a party and is
(A)
the partys 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 partys 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 declarants 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).
This is mechanistic. As easy as: (1) is declarant an opposing party? (2) made a statement?
HYPO:
Bill, a farmer, and his wife come home to his son hanging dead in the barn. Pastor comes by and asks
Do you have any doubt that this was suicide? Pa silently nods no. Admissible? Yes.
HYPO:
Mom is in the kitchen on the phone and kids are playing in the yard out of the field of vision. She hears
a growl, kids come running and says a kid was bitten by a dog. Mom didnt see or hear the attack, and
didnt recognize the growl but she says Tippy, our dog, just bit someone.
This is the very type of statement (where declarant makes an out of court statement w/o regard of
truthfulness) which hearsay is designed to exclude!
Years ago there was a bizarre county that charged property tax by requiring residents to just write the
value of their homes on a form and charging thusly. Guy declared his home was worth $10,000 for several
years
HYPO:
Declaration Against Interest | In FRE 804 and a hearsay exception. Problem: Many authors and judges
write about admission against interest. An admission should be just an admission merely a misnomer.
804(b)(3)
A statement which was at the time of its making so far contrary to the declarants 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 declarants
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.
TIME FRAME: (we care about for admissions/declarations against interest) is at the trial. At trial, when they
are made for declaration. Why? Declarations against interest are independently reliable at the time they are
made under oath, b/c nobody would make them
Page 93
PARTIAL ADMISSION, (Only admits part L. Kessler)

HYPO:
Bank robbery. Four people are charged and one is the defendant. D says I had nothing to do with that
robbery, I was just there to make a deposit. (i.e. I was there but had nothing to do with it). This is a
partial admission because he admits part and denies part. Who does this statement help?
ANS: Obviously it helps both the defense and the prosecution.
Helps the prosecutor only in as much as he or she can prove through the other evidence in the case that
the D is in fact the robber (captured on clear/grainy video).
Helps the defense by saying he wasnt the criminal.
801(d)(2)(B) The statement is offered against a party and is (B) a statement of which the party has
manifested an adoption or belief in its truth,
HYPO:
Kessler, as Trust Administrator, is in the vault counting out cash with the trustees when he says $500
per stack trustee: No, $5,000. Kessler: Right
Admissible b/c clearly heard, didnt
801(d)(2)(C) The statement is offered against a party and is (C) a statement by a person authorized by
the party to make a statement concerning the subject,
HYPO:
This also applies to attorneys who made statements on behalf of their clients.
Kessler, defending the robbery suspect (above), says We are going to prevail because the Prosecution
cannot prove that my client was at the bank. Ds later statement
HYPO:
[Northern Oil] lost a big lawsuit. Opposing lawyer says I never thought wed win that crap case!
Later action by Northern Oil for frivolous lawsuit. Opposing party argues lawyer was not authorized
to made this statement. Admissible?
801(d)(2)(D) The statement is offered against a party and is (D) a statement by the partys agent or
servant concerning a matter within the scope of the agency or employment, made during
the existence of the relationship,
HYPO:
Truck gets into an accident and driver/employee says Sorry officer, it was my fault. Problem is that
employers authorize their employees to say sign here, where do you want the merchandise, etc.
NOT admitting to guilt!
Of course, Plaintiff wants to enjoin the Employer to make this statement admissible as against the
principal/employer (respondeat superior), as a vicarious admissions made by the agent.
Rule: Any statement made by the employee about what the employee does is admissible.
Problem with these statements lies in policy. See Sophie the Wolf.
HYPO:
Selling light bulbs in the state and a customer asks why are they all the same price? I answer Big
guys get together in Chicago and set all the prices. Now, I have certain amounts of discretion to
change prices, etc. Statement made with absolute disregard for truthfulness. Notion: I am stuck with
what I said. But problem = why be stuck w/ what a dumb employee said?! ANS: Dont care or 403(b).
Page 94
Sophie the Wolf

One day, the Pooh family who takes care of Sophie and hears her baying incessantly at the moon. They go out
and find Sophie with either paw around a two-year old boy with scratches on his face. P says Sophie reached in
past the fence and pulled the kid through. D argues that kid climbed over the fence and fell scratching himself.
So far, we have done 801(d)(2)(A) - (D).

Now,
801(d)(2)(B) The statement is offered against a party and is (E) a statement by a coconspirator of a
party during the course and in furtherance of the conspiracy.
Easiest application:
One co-conspirator makes the statement and it is used against another.

Generally, a conspiracy ends when the crime is committed.
If a crime has already happened, and D1 is arrested/makes an incriminating statement,
then (technically) the statement is not admissible under 801(d)(2)(B) b/c i the
conspiracy has already ended so this statement is not longer made by a co-conspirator
and iicannot be in furtherance of the conspiracy.
Were still concerned w/ these statements, even though we admit them, b/c the declarants are scum. Kessler
Several years back, Nicky Barnes, a drug dealer who was acquitted five times in state court, sold wholesale
heroin in New York City. A back-alley (small time) drug dealer says This product was blessed by Nicky
Barnes himself! Problem: this small-time dealer could have said this b/c (1) dangerous business sounds like
he had an organization behind him or (2)
801(d)(2)
The contents of the statement shall be considered but are not alone sufficient to establish the
declarants 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).
Can you use a statement (re: a crime that was never completed) against
[Bojelette]
Issue: How much evidence do you have to show to prove that a prior crime exists?
Rule: there is no preliminary proof requirement, all a matter of whether it is relevant under 801. So existence
of conspiracy doesnt need to be proved by evidence before you get to co-conspirator statements. [1h
8m]
See also Huddleston (covered under circumstantial proof) both saying the same thing.
HYPO:
Kessler says Bloomberg has authorized me to see you the Brooklyn Bridge for a good price
You cant prove that Kessler was employed by Bloomberg based on the words out of his mouth.
Therefore, inadmissible.
Page 95
[1h 22m]
The whole problem with 801(d)(2)(D) is
As long as theyre talking about what they did after they were fired. Only w/in scope of their employment.
*****
CB, p. 570 note
Documents that are attached to other documents.

Ans: No doubt about therefore the easiest way to get them in.
*****
[1h 28m]
You have to first decide that its hearsay versus non-hearsay. The only exception to that thinking is that
So what happens to the large number of statements that are offered for the truth of the matter asserted?
A gaggle of hearsay exceptions: FRE 803, 804
All involve scenarios where courts have decided these are reliable as in-court statements Only If exact
elements of each exception are met. (If elements met then we have independent indicia of reliability.)
804
Hearsay Exceptions; Declarant Unavailable (thereby making it necessary to rely on/evaluate hearsay)
(a)(1) - Declarants Privilege/ Pleads the Fifth
(a)(2) - Declarant is in contempt of court
(a)(4) - Sick or dead
(a)(5) - Declarant is in the wind
(a)(3) - Declarant is present, and even on the stand, but cant remember saying the statement.
804
(b)(1) - Former testimony

(b)(2) - Dying declaration
We have this b/c we look to (ecclesiastical view) back in ancient common law where a dying
person wouldnt lie just before meeting God or to (rational person view) its the dying persons
last chance to get back at the bastard who killed you.
Old common law used to also require a mortal wound unavailable means declarant has
to be dead.
In New York, we only use this when the declarant has actually died [1h 38m]
HYPO:
President Reagan was shot and had a mortal wound but was saved. Lets say he named
his bodyguard as the shooter. According to the story, Reagan told the nurses jokes as he
was being wheeled to triage. Hard to show that he thought he was going to die.
(b)(3) - Declaration against interest Kesslers phrasing (i.e. statement against interest)
(b)(4)-(6) //These rules are not even going to be covered L. Kessler//
Next Class:
Declaration against interest focusing on aspects of the scenario of when the statement was
made and why it leads us to think the statement is reliable.
Page 96
Class Notes

[missed first half of class]
Page 97
Exception to HS: Business Records
HYPO:
(Parklane Hoisery | a hearsay within hearsay problem) Comptroller listens as Mr. Parklanes
(foolishly) intends to extend the loan. Former writes downs the latters statements
Not admissible Cover Your Ass principle
Palmer v. Hoffman, (--): railroad company sends out an investigator every time an accident happens. RR
argues that these accident reports should be considered business records
Held: Not admissible. Missing element: not relied on in the operation of the business.
HYPO:
VP of Parklane (who does not have power to approve a loan) writes down a record of Mr. Parklanes
request to extend the loan and then presents the document to the companys internal
R. 803(8)
HYPO:
Police Reports as Business Records
(Johnson v. Lutz) Car/plow accident in the police report, the officer takes down a bystanders
statement that
Problem:
(W/o the Declarant-officer to testify, this is a self-serving prior consistent statement

Remember: prior consistent statements arent admissible!
Objection! Hearsay within hearsay!
This will be excluded from evidence b/c the bystanders statement has none of the
checks on business (reliance for operation of the business) which make the business
record admissible
HYPO:
NOW, if the bystander testifies that green car went through the red light, you can
An Alternative Hearsay Analysis bystander is (R. 613 not as substantive evidence)
HYPO:
Arrow Shirts. Owner of a burned down shirt company offers Johns order for 1 thousand shirts
R. 803(8)
Public Records and Reports

Cant use it if prepared in anticipation of litigation or criminal conviction.
Note: R. 803(6) cannot override R. 803(8) if it fails (8), then it cannot pass (6)!
R. 803(4)
Statements made for the purpose of medical (CL) diagnosis and (FRE) treatment
(physical or mental)
(Same HS exception and rules in NYS)
1. What is this? Any statement relied upon by the doctor.
2. Who? Anyone (kids dad tells mom) can make the statement to anyone (triage intake)
3. Includes hypochondriacs whether it is physical or mental injury is irrelevant: we are
concerned with the honest of the declarant (i.e. no reason to lie leg could get amputated!)
Limitations:
A statement will be deemed HS and redacted if it includes more details than necessary to
diagnose or treat (e.g. I was hit by a car when red car went through red light) [ italicized part]
Page 98
HYPO:
Hospital has an intake person at the ER. Man staggers in and tells intake person My stomach hurts and
it hurts so badly that I didnt think Id get here. My wife poisoned me with rat poison. He dies.
Autopsy reveals that he dies by [wahfrin] blood thinner once used on rats but the rats became immune.
Admissible? Yes. Call the custodian of the record and have them say the magic words.
(In New York, you can subpoena the hospital record and just admit that. Reliable + saves time)
R. 803(3)
HYPO:
Then existing mental, emotional, or physical condition (state of mind #2)
In a criminal proceedings, two statements are offered to show motive for murder:
803(3) state of mind
801 state of mind
I hate John.
If Johns gonna go to the party, then Im not going.
[defined at 52m.45s] GET THE DEFINITION

Note: State of mind has to be distinguished from 803(4). State of mind under 803(3) is admissible
only if it is about your present state of mind
(e.g. Im furious at John is ok / Ive been furious at John for a week is not ok)
Problem:
I believe John owes me $2,000. This may show my present state of mind, but it may be
relevant to something that happened in the past!
e.g. If I (ckn distributor) sell to you (ass-end purchsr), the wholesalers will cut me off.
A present state of mind statement cant go into what happened in the past, but it can be used to prove
something that happened in the past. L. Kessler
HYPO:
Dying rich lady (declarant) in the hospital says Protect me if they come again, they are cruel and then
changes her Will to cut out the aunt the cruel one.
R. 801 is used when we infer someones state of mind in the absence of a statement. (Non-hearsay)
Mutual Life v. Hillman,
[1h 8m]
R. 803(1)
Present Sense Impression (what someone said when events occurred)
Excited/ Spontaneous Utterance (what someone said as uncontrollable, response to an event)
Page 99
R. 807
HYPO:
Catchall (made by SCOTUS case Green v. Evans)

Courts are free to experiment with new hearsay exceptions that do not fall neatly in the
existing categories.
(Robinson v. Shapiro) Supervisor, Worker, Building Superintendent. Building with
Evidence and The US Constitution

Only for criminal cases, not in civil
The Confrontation Clause.
Crawford
Only in criminal cases
Only for the purpose of
If a statement is made in a setting in which the statement is made for the purpose of being used against
somebody for a trial, that STMT shouldnt be used by a person testifying b/c it is a testimonial statement
and belongs in the Ws testimony itself.
i.e. If its testimonial (involving courts or cops) then cant be used!
What about statements made during a call to 911 where woman says come quick, hes killing me!
Transcript out of Davis changes from woman saying defensive statements and dispatch asking questions
to identify
Page 100

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EVIDENCE

MW 10:10am-12pm (Room 308)

Evidence notes outline (jhm)

Prejudice -- (Rule 403) -- 15-35

CrimPro class notes (jhm)

CrimPro class notes (jhm)

Bad Acts -- (Rule 608) -- 429-438

CrimPro class notes (jhm)

CrimPro class notes (jhm)

CrimPro class notes (jhm)

Monday, August 23, 2010

Central column; 4th row; seat 3 from left.

Evidence class notes (jhm)

KEY EVIDENCE PRINCIPLES:

To exclude that which is incompetent / unreliable

(Fed. R. Evid. 401) A fact that is of consequence to the determination.

Rule 201(b) Judicial Notice of a fact is proper when

What kind of person do you want on this jury?

Jury selection process reveals susceptibility.

Evidence class notes (jhm)

Wednesday, August 25, 2010

Hypothetical (Hanson v. HMP)

Evidence class notes (jhm)

The Form of the Question

WITNESS EXAMINATION | DIRECT AND CROSS EXAMINATION

3. What is the significance of leading questions in ?

Evidence class notes (jhm)

TEST for leading questions:

Evidence class notes (jhm)

Evidence class notes (jhm)

Monday, August 30, 2010

Evidence class notes (jhm)

For purposes of witness testimony,

Evidence class notes (jhm)

Rule 803 (5)

Hearsay Exceptions; Availability of Declarant Immaterial / (5) Recorded recollection

Evidence class notes (jhm)

Wednesday, September 01, 2010

Back to the DEA hypo:

Evidence class notes (jhm)

Distinguishing types of Evidence:

TESTIMONIAL and REAL PROOF

ATTACKING WITNESS CREDIBILITY

Evidence class notes (jhm)

Making the Witness My Own

Why would the judge allow this?

Evidence class notes (jhm)

Wednesday, September 8, 2010

REAL PROOF/ RELEVANCE

Requirement of Authentication or Identification

Evidence class notes (jhm)

REAL PROOF/ RELEVANCE

Are the two experts discussing the same spot?

Was the spot already been there before the accident?

Evidence class notes (jhm)

In trying to convict A of murdering B with a knife, you must:

Evidence class notes (jhm)

In order to be admissible, it must be both factually and logically admissible.

What are we trying to prove?

(Identity) To prove that he did it.

How is it [factually] relevant?

1. His shorts, 2. Her blood

(Argument you make/inference to be drawn):