EVIDENCE OUTLINE

Hofstra Law, Professor Biancavilla, Fall 2009

I. INTRODUCTION
a. Why do we need the Rule of Evidence?
i. Mistrust of Juries – want to ensure accurate fact-finding
1. Control information jury receives, b/c no checks on what occurs during deliberations.
a. Hearsay – assume amateur fact-finders cannot properly evaluate statements made outside of
its presence
b. Character – assume juries place too much weight on such proof incorrectly.
b. What is evidence for purpose of the evidence rules?
i. The evidence rules are directed to the words spoken by witnesses and the tangible evidence shown to
the fact-finder. The rules don’t apply to facial expressions, body language, tone of voice, arguments,
statements by judge, etc.

THE PROCESS OF PROOF

I. THE STAGES OF THE TRIAL

a. Pretrial Motions – attys meet with judge to try to settle or agree on various issues. Jude might resolve
outstanding issues by making evidentiary motions. Prevents prejudice to jury via exposure of
inadmissible evidence.
b. Jury Selection – voir dire
c. Preliminary jury instructions
d. Opening statements
i. Π/Pros usually goes first. Δ can then go immediately after, or after Π’s entire case-in-chief. Not an
argument, so no advocating. Counsel presents fact-finder w/ brief roadmap of case.
e. Presentation o Evidence & Limiting Instructions
i. Several forms of evidence:
3. Witness testimony
b. Direct – open-ended questions, no leading. Broad or narrow. Usually calls for long narrative
answers.
c. Cross – leading question permitted; used to control witness.
 4. Presentation of docs – includes demonstrative evidence (charts, graphs, re-enactments)
ii. Presenting Evidence – throughout trial court may rules on issues. To prevent confusion/prejudice,
this is done outside jury’s presence.
iii. Limiting/Cautionary Instructions
3. After ruling on an evidentiary motion – (1) if court sustains an objection, will instruct jury to
disregard questions, (2) if court grants motion to strike witness’s answer, will instruct jury to
disregard answer.
4. Rule 105. Limited Admissibility – If evidence is admissible as to one party or for one
purpose but not another, the court shall restrict the evidence to its proper scope & instruct
jury accordingly.
iv. Stages of Presentation of Evidence
3. Π/Pros’s case-in-shief – assert affirmative argument; establish prima facie case
4. Δ’s case-in-chief – if affirmative defense, establish prima facie case. Offer evidence undermining
Π’s case.
5. Π/Pros’s rebuttal – Π can rebut Δ’s case-in-chief, but limited to issues raised by Δ. Ct may grant
Δ surrebuttal.
v. Motions after Presentation of Evidence –parties may ask court to decide on all or parts of the case
“as a matter of law.”
vi. Closing Arguments – use evidence inferences to show jury why they should find in their favor
vii. Jury Instructions
viii. Jury Deliberation & Verdict
3. 2 types of verdict:
b. General verdict – declares who wins & remedy
c. Special verdict – jury answers specific questions. Court uses answers to determine precise
verdict.
4. Jury deliberations – in secret; court usually allows jury to examine evidence & if testimony, then
jury comes back to courtroom to hear court reporter read from transcript
ix. Post trial motions & Entry of judgment - JNOV, etc.

II. APPELLATE REVIEW OF EVIDENTIARY ISSUES

a. Rule 103(a)(1) & (2) – to successfully appeal an evidentiary error
i. Must preserve issue for appeal by making an objection or offer of proof
1. Objection must be timely & states specific ground, unless obvious. Timely means as soon as
basis for objection is clear – right away.
2. Offer of proof – record of what excluded evidence would have been, unless apparent.
 ii. Must persuade appellate court that trial court committed an error in admission or exclusion of
evidence
1. Note: Diff btwn “may” (discretionary) & “must” (no discretion) rules for judges.
iii. The error affected a substantial right – it was prejudicial

SOURCES OF EVIDENCE AND THE NATURE OF PROOF

I. WITNESS: COMPETENCY, PERSONAL KNOWLEDGE & OATH/AFFIRMATION

a. Witness Competency
i. Rule 601: General Rule of Competency: Every person is competent to be a witness except as
otherwise provided in these rules.
1. Children - Even a small child can be a witness, although other issues arise – reliability, etc.
a. New York
i. To be competent, the court must be satisfied that the witness possesses sufficient
intelligence & capacity to justify reception of evidence.
ii. A child may not testify unless under oath or affirmation. If child is incapable of
understanding an oath, she is equally incapable of testifying. NY law says a witness
understands the nature of an oath if he appreciates diff btwn truth/falsehood, the necessity
for telling truth, & that you can be punished if you don’t tell truth.
1. However, the NY Fam Ct Act makes an exception giving judge discretion on whether
or not to place minor under oath
2. But, in quasi-crim/Crim cases, no finding can be based on unsworn evidence of a
child.
2. In civil, if state law applies to substantive element of claim/defense, then competency also
determined by state law.
3. Rule 610: Religious Beliefs or Opinions
a. Evidence of religious beliefs/opinions of a witness is not admissible for the purpose
impairing or enhancing a witness’s credibility.
ii. Exceptions to Rule 601
1. Rule 605 – Competency of Judge as Witness: The judge presiding at the trial may not testify
in that trial as a witness. No objection need be made to preserve the point – may offend judge by
objecting; also obvious error
2. Rule 606 – Competency of Juror as Witness
a. At the Trial. A member of the jury cannot be a witness in the same trial. If called to
testify, opposing side may object out of presence of jury.
 i. This can be done afterwards b/c juror & perhaps entire jury may be offended by objection
– so objection doesn’t need to be done wirhgt away (exception to Rule 103(a)). Point is
to allow objection to be made at a time when they won’t be ufairly prejudiced by it.
b. Inquiry into validity of verdict or indictment – a juror may not testify to any matter or
statement occurring during jury deliberations, or of any juror’s mental process.
i. But a juror may testify about:
1. Extraneous prejudicial info that was improperly brought to jury’s attention
2. Outside influence improperly brought to bear upon any juror; or
3. A mistake in entering verdict on verdict form.
a. Note – this only applies to clerical errors – not mistakes regarding facts, law, etc.
ii. Distinction btwn evidence of outside influence (admissible) vs. internal
(inadmissible).
1. Tanner v. United States - After Δs convicted of mail fraud, they moved for a new
trial on ground of juror misconduct. 2 jurors admitted to defense counsel that during
the trial some jurors were drinking alcohol, one constantly smoked pot, others
ingested cocaine, & some falling asleep during trial. Held that evidence of juror
misconduct was inadmissible under Rule 606(b) b/c it was not outside influence, but
rather internal to the jury.
2. Reasons for distinction
a. Jurors should feel free to decide case w/o fear of having their thinking dissected,
b. allowing inquiry into the mental operations & emotional reactions of juries would
invite tampering & harassment, & would put every verdict in jeopardy.
c. Finality would never be achieved.
d. Inquiries into “outside influences” such as threats, bribes, or introduction of
prejudicial information, can be pursued without intruding into jurors ‘ private
mental process and without deterring full and frank discussion in the jury room.
i. So a juror can testify that another juror brought a prejudicial newspaper
account into the jury room or that someone threatened a juror in order to
induce a certain verdict.
3. Some possible exceptions: (veering away from a strict reading of the rule)
a. Where jury’s verdict was reached by chance rather than by a rational process,
the evidence that verdict was reached “by flip of a coin” is admissible in some
states. In this case, the reasons we protect jury deliberations don’t apply.
b. Where verdict was reached b/c of racial prejudice – per rule 606(b), still would
be inadmissible. But valid argument that here there’s no reason to insulate verdict
from scrutiny. Finality is desirable only where the verdict is the product of values
within some acceptable range of principles.
iii. Rule 606(b) only limits a juror from testifying. Other witnesses are competent to testify
to jury misconduct that they observe personally.
iii. Competency of Witness Whose Recollection has been refreshed through Hypnosis.
1. Witnesses frequently suffer from memory problems, so law enforcement agencies have used
hypnosis to help witnesses remember details. But when these witnesses are later called to testify,
there may be a reason to fear that the hypnosis may have made their testimony unreliable.
Hence, some courts have held that such witnesses are either entirely or partially
incompetent.
a. Credibility: Rule 601 assumes that jurors are able to understand credibility problems and,
thus, can accurately weigh the testimony of a witness. Credibility issues associated with a
witness who has been hypnotized may be different.
i. The witness appears more certain as a result of the experience and is unable to distinguish
actual and false memory. As a consequence, the jury may not be able to accurately weigh
the testimony in the usual manner by observing the demeanor of the witness and hearing
the cross examination.
b. Entirely Incompetent – Some courts hold that witness cannot testify at all if hypnosis used.
i. People v. Shirley – Pros for sexual assault. Trial court permitted the victim to testify after
her recollection was refreshed through hypnosis & after was able to recall certain critical
& incriminating facts. Δ was convicted. CA Supreme reversed, concluding that the
witness was not competent to testify because “the professional literature … demonstrates
beyond any doubt that at present time the use of hypnosis to restore the memory of a
potential witness is not generally accepted as reliable by the relevant scientific
community.”
1. Under rule 601, the witness here would be competent. Rule 601 on competency does
not make a distinction b/c of the use of hypnosis.
c. Partially Incompetent – Some courts (state laws) hold that only partially incompetent –
meaning that they can only testify to matters recalled before hypnosis.
i. If the witness is the Δ in a criminal proceeding, a state law or court ruling that limits
Δ’s testimony due to the use of hypnosis (making witness incompetent) is
unconstitutional because it violates the Δ’s constitutional right to testify in her own
defense.
1. Rock v. Arkansas – Δ was accused of shooting her husband. She gave a sketchy
account of the incident; her atty then arranged hypnosis. She recalled while under
hypnosis facts suggesting she did not have her finger on the trigger and the gun
discharged when her husband struck her arm. An expert then tested the gun &
verified it could go off w/o the trigger being pulled. Arkansas’s incompetence rule
for witnesses whose memories were refreshed by hypnosis was that witness only
permitted to testify matters recalled prior to hypnosis. Δ was convicted. SC reversed
on the ground that the state law violated Δ’s constitutional right to testify in her own
defense.
a. However, a state can create a rule of evidence that identifies the circumstances
under which evidence of a specific type might be so unreliable as to be
inadmissible.
d. New York Rule
 i. People v. Hughes – rape victim was unable to positively identify her attacker until after
she had been hypnotized. Trial court permitted the witness to testify to all that she
remembered, saying that hypnosis was just a method of refreshing recollection, and any
issues with that considered under credibility. Ct Appeals disagreed; held that witnesses
are incompetent to testify to post hypnotic suggestions. Hypnosis is not generally
accepted by scientific community as a reliable method of refreshing recollections.
1. Inherently suggestive procedure that taints potential witness in three ways:
a. The witness may be susceptible to suggestion given by the hypnotist or others
present.
b. The witness may confabulate or intentionally fabricate facts to fill in blanks.
c. The witness may acquire artificially enhanced confidence in her pre-hypnotic
memory, impairing cross-examination.
2. But, hypnosis does not necessarily render a witness wholly incompetent. Witness
may testify to matters recalled prior to hypnosis, provided that hypnosis did not
substantially impair opponent’s ability to cross-examine.
a. Pretrial hearing must be conducted to establish the extent of the witness’
prehypnotic memory.
i. Mark permissible testimonial boundaries.
ii. Examine circumstances of hypnotic session
iii. Ascertain whether procedures used may have unduly tainted the prehypnotic
recollections.
iv. Did procedures unfairly impair opponent’s ability to meaningfully cross-
examine witness?

b. The “Personal Knowledge” Requirement

i. Rule 602: A witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter.
1. Rationale:
a. common law’s insistence to have the most reliable sources of information.
b. Shield jury from unreliable evidence. Evidence to prove personal knowledge may, but need
not, consist of the witness’ own testimony.
2. The personal knowledge requirement applies to testimony of all lay witnesses, but is subject to
the provisions of rule 703, relating to opinion testimony by expert witnesses.
ii. Sufficient to Support a Finding:
1. This is a lower standard than preponderance of the evidence. So, perceptions can be limited or
flawed without disqualifying the witness.
a. However, evidence concerning the problems of perception is admissible to permit the jury to
weigh the witness’s testimony.
 2. A determination of personal knowledge is made under Rule 104(b), thus preserving for the jury
its essential role of deciding what weight to give testimony. (see infra, I.b.ii)
iii. Requirements of Personal knowledge:
1. Perception by the 5 senses – sight, hear, smell, touch, taste (no dreams)
2. The ability to understand the perception – if witness hears something in a language he does
not understand, there is perception, but since he cannot understand, there’s still no personal
knowledge.
3. Present Recollection – a witness cannot just read s document, although the document may be
admitted or used to refresh recollection
4. Ability to communicate what was perceived, understood and recalled
iv. Lack of personal knowledge v. hearsay
1. Hearsay - if the witness quotes or attributes the out of court speaker
2. Lack of Personal Knowledge - If the witness simply repeats the facts described in the out-of-
court statement, but does not attribute the out of court speaker
3. Example: There is a shooting. A witness did not see the shooting, but heard a police officer say
that Δ was the shooter.
a. If witness testifies: “Δ was the shooter,” there is lack of personal knowledge.
b. If witness testifies: “The officer told me Δ was the shooter,” there is personal knowledge, but
this would be hearsay.

c. The Oath or Affirmation Requirement

i. Rule 603: Before testifying, every witness shall be required to declare that the witness will
testify truthfully by oath or affirmation truthfully, affirmation, administered in a form
calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do
so.
1. Rationale:
a. Need to establish predicate for perjury prosecution.
b. Need to impress upon witness importance of being truthful.
2. Affirmation – means promising to testify honestly. So if an atheist refuses to take an oath, they
can still make an affirmation to tell the truth & be prosecuted for perjury.

II. REAL EVIDENCE: AUTHENTICATION AND THE BEST EVIDENCE RULE

a. Introduction

i. Evidence comes in two forms: (1) Witness testimony and (2) Tangible Evidence
ii. Tangible evidence
1. PROPONENT MUST LAY THE PROPER FOUNDATION!!!
a. Authenticate the evidence
 i. Things may not be taken at face value
ii. Can’t assume it is what it appears to be
iii. You must prove the point
b. Mark it for identification
i. By asking witness these questions, you authenticate:
1. Do you recognize?
2. What do you recognize it to be?
3. How do you recognize it to be….?
ii. When you decide when you should offer the item into evidence – now or later?
1. Why later? B/c opponent may challenge the authentication & this interrupts the story
witness is telling. Might want to finish direct before offering into evidence.
2. Real evidence – refers to tangible things related to the event in question.
a. Except for writings, law of evidence does not require production. Existence and nature may
be established through testimony.
b. Generally all items will be admitted, although practical considerations may preclude
admission (Size, odor, inflammatory)
3. Demonstrative Evidence – this is tangible proof that makes a graphic point to be proved; it’s
created for illustrative purposes only, but played no actual role in the event. Exhibit fairly and
accurately depicts/represents the matter in question. Includes: photographs, diagrams, maps,
models.

b. Authentication

i. Rule 901(a) - 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.
1. Aspects of Rule 901(a)
a. Authentication is a condition precedent to admissibility
b. It requires proving that the item is what the proponent claims it to be.
i. Ex: Issue is whether Δ accepted offer in a breach of contract case. Π produces a letter that
reads, “I accept your offer.” Π must allege & prove the letter is from the Δ. Π proves
this by showing signature is that of the Δ.
c. Proof must meet the “sufficient to support a finding” standard.
i. To satisfy the standard, the court must find that there is enough evidence to permit a
reasonable person to conclude that the item is what the proponent claims it is.
2. Rule 901(b) gives a nonexclusive list of examples of how to authenticate.
a. Testimony that a matter is what it is claimed to be.
 b. Nonexpert opinion on handwriting.
c. Comparison by trier or expert witness with specimens which have been authenticated.
d. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken
in conjunction with circumstances.
e. 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.
f. Telephone conversations - evidence that a call was made to the # assigned at the time by the
telephone company, showing who made the call.
g. Evidence that a writing authorized by law to be recorded or filed, or was in fact done so.
h. Evidence that a document or data compilation is in such condition as to create no suspicion
concerning its authenticity, was in a place where it, if authentic, would likely be, and has
been in existence 20 years or more at the time it is offered.
i. Evidence describing a process or system used to produce a result and showing that the
process or system produces an accurate result.
j. Any method of authentication or identification provided by Act of Congress or by other rules
prescribed by the Supreme Court pursuant to statutory authority.
ii. Specific Problems of Authentication
1. Authentication of Photographs - What constitutes adequate authentication depends on what
counsel is offering the photo to prove.
a. Distinguish:
i. If a photo is being offered as demonstrative evidence, authentication can be
accomplished by asking the witness if the photo is a fair & accurate representation of the
actual location at the time of the event. It is “demonstrative” evidence to illustrate the
witness’s testimony concerning the appearance of the location in question. Rule 901(b)
(4).
ii. If a photo is being offered as real evidence, the witness needs personal knowledge to
authenticate. This is b/c it is being offered to prove more than a “fair & accurate
depiction.” It is being offered to prove that the photo itself is what it is alleged to be – a
photo of the location at the time of the event. Only the person who took the photo has
personal knowledge of this. Rule 901(b)(1).
2. Authentication through Chain of Custody
a. Determining when it is necessary to establish a chain of custody:
i. Unique “one of a kind” items – usually easy to authenticate. You call a witness who
identifies the item based on its unique appearance. No chain of custody is needed.
ii. But as to non-unique “generic” items, a witness cannot easily identify an item as the
specific one found at the crime scene if it looks like many other copies (simple knife).
1. Two ways to authenticate in this situation:
 a. marking the item when it was recovered (which turns it into “one of a kind”); and
b. laying a chain of custody.
iii. Examples of Authentication Under Rule 901(b) – Problems posed by New Technologies
1. United States v. Simpson – Δ was prosecuted for receiving child pornography. The gov’t offered
a computer printout of the alleged internet chat room exchange between Δ and an FBI agent. Δ
claimed the printout could not be authenticated (as having coming from him) b/c it did not
consist of handwriting or audible vocalization, precluding the use of Rule 901(b)(2),(3) or (5).
The court pointed out that the subsections of Rule 901(b) are merely illustrative and that, taken
together, there were enough facts to satisfy the “sufficient to support a finding” standard of Rule
901. This flexibility in Rule 901 is important because new technologies will continue to
present authentication problems not anticipated at the time Rule 901 was written.
2. United States v. Jackson – Δ convicted of attempting to defraud UPS by making a false claim
that packages shipped to her were defaced with racist remarks. Pros claimed that, as part of the
scheme to make it appear there were racists at UPS, Δ attempted to send hate mail to prominent
African Americans through UPS. Δ denied doing any of this and claimed that the hate mail
came from white supremacist groups. To prove this, she offered evidence of postings on the web
sites of these groups, with postings that they took responsibility for the mailings. Court refused
to admit evidence b/c it lacked authentication, b/c anyone (including Jackson) could post the
comments.
3. NY - Electronic Data
a. C.P.L.R. §4518 (a)
i. An electronic record . . . used or stored as [a business record], shall be admissible in a
tangible exhibit that is a true and accurate representation of such electronic record…
1. The court may consider the method or manner by which the electronic record was
stored, maintained or retrieved in determining whether the exhibit is a true and
accurate representation of such electronic record.
2. All other circumstances of the making of the memorandum or record, including lack
of personal knowledge by the maker, may be proved to affect its weight, but they
shall not affect its admissibility.
ii. Definition of “Electronic Record” - information, evidencing any act, transaction,
occurrence, event, or other activity, produced or stored by electronic means and capable
of being accurately reproduced in forms perceptible by human sensory capabilities.
iv. Self-Authentication
1. Certain documents or things are said to be self-authenticating under Rule 902. This means that
no secondary evidence (evidence other than from the mouth of the witness now testifying) is
necessary to authenticate the item. Such items are authenticated based on what they look like or
say on their face.
a. The list in Rule 902 is exclusive. So if not included in 902, then must authenticate.
i. Domestic public documents under seal
ii. Domestic public documents not under seal if genuine signature of gov’t officer acting in
official capacity.
 iii. Foreign public documents, executed/attested in official capacity by person authorized
under laws of a foreign country to do so.
iv. Certified copies of public records
v. Official publications (books, etc.)
vi. Newspapers and periodicals
vii. Trade inscriptions – like a bottle of a specific brand of soda.
1. Reason why self-authenticating – b/c conventional authentication by a witness with
knowledge that the specific bottle was manufactured by them is often impossible.
viii. Acknowledged documents (notarized, etc.)
ix. Commercial paper and related documents
x. Anything declared by Act of Congress to be presumptively genuine/authentic
xi. Certified domestic records of regularly conducted activity
xii. Certified foreign records of regularly conducted activity
c. The Best Evidence Rule
i. Rule 1002: To prove the content of a writing, recording, or photograph, the original writing,
recording, or photograph is required, except as otherwise provided.
1. Rationale: The most reliable evidence of what is stated in a writing or other tangible collection
of data is the original item itself.
2. When the Best Evidence rule applies
a. This does not mean that only the best evidence if admissible to prove a fact in question. It
only applies when evidence is offered to prove the contents of a writing, photo, tape, video,
disk, or any collection of data in tangible form (things like a purse or briefcase is not subject
to the rule).
i. Whether something exists – no best evidence necessary
ii. What something said (its contents) – best evidence necessary
1. Typically, the rule applies when an issue in the case turns on the contents of a legal
instrument like a will, a contract, or a deed.
3. How the Best Evidence Rule is satisfied (if it applies)
a. The content of a writing must be proved with the “original.”
i. A printout of computer data is considered an original under the definition (1001(3))
ii. Note: There are other permissible ways to prove contents.
1. Rule 1003 permits duplicates
a. Must be produced by a technique which accurately reproduces the original – i.e.,
cannot be a handwritten copy; must be Xerox, etc.
 b. However, a duplicate is not admissible if a genuine question is raised as to the
authenticity of the original.
2. Rule 1004 permits other evidence (like witness testimony), but only where all
originals are lost or have been destroyed, unless the proponent has done so in bad
faith.
3. Rule 1006 permits summaries of voluminous documents

III. JUDICIAL NOTICE

a. Rule 201 - Judicial notice is a way to prove facts without offering evidence. To take judicial
notice, it must be a fact that is capable of accurate determination by resort to sources whose
accuracy cannot be questioned reasonably.
i. Court must give opportunity to challenge the taking of judicial notice for it to be appropriate.
ii. Facts capable of accurate determination by resort to sources whose accuracy cannot be questioned
reasonably:
1. The day of the week a specific event fell on (determined by the date & a calendar)
2. Governmental records (like DMV records)
3. A breathalyzer result, if the breathalyzer is one that is commonly used & known to be accurate.
4. Not judicially noticeable:
a. The judge’s personal awareness that something is true.
iii. Rule 201(g). Instructing Jury.
1. In civil cases, the court shall instruct the jury to accept as conclusive any fact judicially
noticed.
2. In criminal trials, a judge may instruct the jury that it may, but is not required to accept a
judicially noticed fact as conclusive, b/c there is a constitutional right to a jury trial.
a. Rae v. State – Δ was charged with various traffic offenses, including driving with a revoked
license. Relying on the records of the DMV, the court took judicial notice of the fact that Δ’s
license had been revoked. The court then instructed the jury that this was conclusive proof
and the jury must follow it. This is capable of accurate determination, but problem here is
that it’s a crim trial, so can’t require jury to accept proof as conclusive.
b. Note: Although it might be irrational for jury to reject the noticed fact, Rule 201 forbids a
jury instruction requiring jury to accept the proof as conclusive in a criminal case.
iv. Rule 201(f) allows a court to take judicial notice “at any stage of a proceeding,” including on
appeal.
v. Distinguish between “legislative facts” and “adjudicative facts” – Rule 201 governs only
adjudicative fact.
1. “Adjudicative facts” are simply the facts of a particular case (i e day of week; street case. i.e.,
location.)
2. “Legislative facts” are those which have relevancy to legal reasoning and law making process.
 a. For example, a court deciding to recognize a parent-child privilege b/c it would encourage
parent-child communication – the fact that it would encourage parent-child communication is
a legislative fact.
b. Matters such as this are not indisputable, but courts and legislators must rely on them
constantly when developing the law.

IV. LIMITED COMPLETENESS DOCTRINE: RULE 106

a. When a writing or recorded statement or part thereof is introduced by a party, an adverse party
may require the introduction at that time of any other part or any other writing or recorded
statement which ought in fairness to be considered contemporaneously with it.
i. Only applies to writings, not oral statements/conversations.
ii. Based on two considerations:
1. Misleading impression created by taking matters out of context.
2. Inadequacy of repair work when delayed to a later time.
3. Does not prevent adverse party from developing the issue on cross-examination or as part of her
own case.

RELEVANCY

I. RELEVANT EVIDENCE
a. Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible.
i. All relevant evidence is admissible, except as otherwise provided . . . . Evidence which is not
relevant is not admissible.
1. Reason for excluding irrelevant evidence:
a. Waste of time
b. Might confuse the jury b/c they can’t figure out what to pay attention to
b. Rule 401: Definition of Relevant Evidence:
i. Evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.
ii. The definition has two elements:
1. of consequence, and
 a. What is “of consequence” is a function of substantive law.
i. Examples:
1. Under contract law, the secret, unspoken intent of the parties is irrelevant to
formation. Therefore evidence of the secret intent is not relevant.
2. Negligence is not of consequence in a strict liability case.
2. more probable or less probable
a. The test is whether the evidence affects probabilities (as opposed to how much it affects
those probabilities)
i. Ex: Testimony of witness who observed Δ running away from crime scene minutes after
it occurred – this evidence makes guilt more probable. However, the evidence doesn’t
prove guilt beyond a reasonable doubt & would be insufficient to convict. Still, the
evidence is relevant.
b. Examples:
i. Testimony of a witness that she dreamed Δ committed the murder in question does not
make Δ’s guilt more or less probable, b/c our experience tells us dreams are not accurate
reflections of reality.
iii. State v. Jaeger – Δ convicted of murder in the shooting death of his girlfriend. He denied
committing the shooting, claiming her death was a suicide. Wanted to offer evidence that when she
was a young teen, she may have attempted suicide.
1. Evidence is relevant.
a. Evidence offered to prove fact of consequence - whether death was suicide or homicide.
b. Evidence makes suicide more probable b/c it is reasonable to accept the validity of a
generalization that a young teen who tries to commit suicide is somewhat more likely to try
again some years later than is one who has never attempted suicide.
2. Probative Value - necessary to consider the strength of the generalization about suicide as
applied to the facts at hand.
a. Factors that might affect probative value here:
i. Amount of time that passed btwn earlier suicide attempt & the alleged victim’s death
ii. The degree to which her personality had changed
iii. Her general emotional state in the days, weeks, and months before her death.
b. Probative value also varies depending on the amount of other evidence tending to show the
same thing the evidence is offered to prove.
iv. Chain of Inferences
1. Even if the testimony asserts exactly what it is offered to prove, one must infer at least four
things about Witness and her statement in order to find the statement relevant:
a. Witness observed the event accurately.
 b. Witness remembers the event accurately.
c. Witness is testifying honestly.
d. We understand correctly what Witness is communicating by her testimony.
2. After this, there are other inferences you might need to make to find a statement relevant.
The inferences have to be rationale – supported by acceptable generalizations.
a. Example:
i. In murder prosecution of Δ for murder of victim, evidence that victim turned Δ down for
a date a week before victim was shot.
1. 2 inferences required to move from the evidence to the act, and must be able to
articulate each stop in reasoning & each generalization supporting that step:
a. The Δ developed a motive to hurt victim following victim’s refusal to go on a date
with Δ
i. Generalization: someone whose been turned down for a date is more likely to
harbor ill-will than someone who hasn’t
b. The Δ acted on that motive
i. That a person harboring ill-will towards another is more likely to harm the
other than is someone who doesn’t harbor such feelings.
v. Relevancy of Evidence depends on the purpose it’s being offered for
1. Example: Murder prosecution of Δ. Δ alleges self-defense. Evidence that a week prior, victim
threatened Δ’s life; Δ did not hear that threat. Relevancy would depend on whether Δ is offering
evidence to prove that either victim attacked first, or that Δ was justified in being the first
attacker b/c he feared for his life.
a. If offering to prove victim attacked first – then its relevant b/c the threat makes it more
probable that victim attacked first.
b. If offering to prove he was justified – then it is irrelevant b/c Δ had not heard the threat to
make him fear his life.
i. Note: If someone had told Δ that victim threatened his life, then it would be relevant,
even if it’s not true – b/c it’s relevant in offering to prove Δ’s state of mind – fear.
vi. Background Evidence such as a witness’s name & address - Although it doesn’t involve a dispute
matter, it is universally offered and admitted as an aid to understanding.

II. BALANCING PROBATIVE VALUE AGAINST DANGERS

a. Rule 403: Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of evidence.
i. What makes evidence unfairly prejudicial?
 1. Note that all relevant evidence is prejudicial. It is offered to prove an element in issue. If
evidence offered isn’t prejudicial to adversary’s position, then would not be probative of the
issue in question. So, the question is not whether evidence is prejudicial. The question is
whether the evidence is unfairly prejudicial.
2. Evidence is unfairly prejudicial it leads the jury to commit an inferential error by
overweighing the evidence or confusing its meaning.
a. Ex: gory photos may have an emotional impact way out of proportion to their logical import
b. Ex: pros of Δ for murder; victim’s body placed in a bag & thrown into lake, discovered 6
mos later. Pros wishes to offer the bag into evidence; the bag smells very bad. There is very
little probative value of this (that the body was placed in a bag) & adds little to jury’s
understanding of the facts. But the bag & odor would substantially unfairly prejudice.
i. In some situations, photos of the dead victim are highly probative. If the Δ claims self-
defense, then photo showing multiple wounds suggests aggressive behavior by Δ &
undercuts his self-defense claim. There is still a risk that the jury will overvalue the
photos, but in this situation, it will be admitted b/c higher probative value.
3. Evidence is unfairly prejudicial if it distracts the jury from the real issue and induces them
to decide the case on an improper basis
a. Ex: evidence of Δ’s prior criminal record might lead the jury to convict the Δ not b/c he
committed the crime with which he is now charged but because the jury dislikes him.
4. Evidence is unfairly prejudicial if it is admissible for one purpose but not another and
there is a danger the jury will use the evidence for the inadmissible purpose despite
instructions to the contrary.
ii. What’s the difference between relevance and probative value?
1. Relevance is whether evidence has any tendency to affect the probability of the existence of a
fact that is of consequence. It’s either yes or no.
2. The “probative value” of evidence refers to the extent to which evidence affects that
probability in terms of logic and need for the probability, evidence. Probative value can be
measured along a spectrum from very low to very high (even determinative).
a. Ex: Murder Pros, Δ is Caucasian. Eyewitness testimony that perpetrator was of medium build
logically has less probative value than eyewitness testimony that the Δ was seen shooting the
victim. The former affects the probabilities somewhat, but not much, since most people are
of medium build. The latter directly connects defendant to the crime.
iii. Feaster v. United States – Δ charged with sex offenses associated with child abuse. He offered into
evidence the grand jury testimony of a witness who denied observing any misconduct; witness
could/would not testify at trial. Trial ct excluded the transcript of the witness’s statement for lack of
credibility (& hearsay). Δ appealed, claiming this denied him his right to present a defense under the
6th amend. App Ct said court erred when it excluded evidence for lack of credibility. Credibility
determinations are usually for the jury, not the trial judge, to make.
1. Under Rule 403, the trial judge weighs probative value of testimony without respect to the
judge’s conclusions about the reliability of the witness. The court should ask what the
probative value of the evidence would be, assuming the jury finds the witness to be
reliable/credible.
b. Undisputed Facts
i. Evidence can still be relevant even if offered to prove an undisputed fact. Rule 401 does not
make a distinction btwn disputed & undisputed facts, and allows evidence for such situations.
1. Justification
a. By treating evidence that affects an undisputed fact as relevant, the Fed Rules leave this
question to the trial court under the standard of Rule 403.
b. Sometimes, even evidence offered to prove an undisputed fact can add a sort of “story value”
to a case that makes the relevant evidence more coherent.
 c. Different from other relevance rules – For example, CA evidence code defines relevant
evidence as any evidence having a tendency “in reason to prove or disprove any disputed fact
that is of consequence to the determination for the action.”
ii. However, if a party offers evidence to prove an undisputed point, its probative value in the
context of the case is slight, and might well be substantially outweighed by the danger of unfair
prejudice, or be needlessly cumulative, or be a waste of time. So, a court may exclude the
evidence under Rule 403.
1. Ex: Negligence action following an intersection collision. Δ admits negligence, but contests
extent of Π’s injuries. Π wishes to offer evidence that Δ ran the red light, striking Π’s car. Π is
offering evidence to prove an uncontested fact. Even if the testimony of the witness would not
consume much time, there might be a risk that the jury would be prejudiced against the
defendant for the nature of the act, and that such prejudice would lead the jury to render a verdict
larger than justified by Π’s actual injuries.
2. Old Chief v. United States – Pros for assault & for being a felon in possession of a firearm. To
prove the possession crime, pros offered evidence that Δ had previously been convicted of a
felony (assault). Δ offered to stipulate that Δ had been convicted of a felony, but wanted to keep
the nature of the crime from jury; court said no. SC reversed, holding that the stipulation should
have been enforced & jury told only that Δ was a felon in the generic sense.
a. The evidence that Δ was a felon is highly probative b/c it’s an essential element of one of the
crimes charged; jury is entitled to hear Δ was a felon. But the stipulation was enough; don’t
need the nature of the felony to prove that element.
i. The evidence that it was an assault is unfairly prejudicial:
1. jury could infer he is a bad person since assault is worse than other felonies,
2. the prior conviction was for same type of crime charged here, so jury might
improperly infer that b/c Δ committed crime before, he committed the assault at issue
here (b/c he did it before, more likely to do it again).
ii. Although jury using evidence in this way is not illogical, Rule 404(a) limits the use of
evidence in this way. In a criminal case evidence of a person’s character or trait is
not admissible for the purpose of proving action in conformity therewith on a
particular occasion (there are exceptions).
c. Dealing with Numbers
i. Trials never prove anything with certainty. Evidence always is offered only to prove the probability
of facts. Rule 401 defines relevant evidence as evidence that affects the probability of a fact of
consequence.
ii. Occasionally, evidence is offered in the form of quantified probabilities. This is especially common
when an expert witness testifies. The use of evidence stated in such a form is now common in cases
involving DNA testing, especially in criminal cases. The evidence can be powerful, but presents
dangers.
1. Ex: Pros offers testimony that the 2 perpetrators of a bank robbery were a black man w/ shaved
head, a beard & mustache, and a Caucasian woman with blonde hair & blue eyes. Δs have these
characteristics.
a. Calls mathematician to testify as an expert. Pros tells expert: Assume 1/10 men have a
shaved head, ¼ men have a mustache, 1/10 have a beard, 1/3 women are blond 1/10 women
have blue eyes, and 1/1000 couples are interracial.
i. Probability: 1/10 x 1/4 x 1/10 x 1/3 x 1/10 x 1/1000 = 1/12,000,000.
ii. This is the Product Rule – Given a set of independent variables, the probability of finding
them all present in one case is calculated by multiplying the individual probabilities.
b. Problems:
i. Where did the prosecutor get these numbers? Without a basis in the record supporting
the probabilities the prosecutor used, he is acting more as a witness than as an advocate.
ii. The product rule works only if the variables are independent. For example, many blonde
also have blue eyes – one variable correlates with another.
 iii. Adams v. Ameritech Services, Inc. - Action for age discrimination alleging employer used age to
determine who would be laid off. Π’s expert produced a report demonstrating that the % of workers
over 40 who were terminated exceeded the % of Ameritech workers who were over 40. The report
also showed that the % of older workers terminated exceeded the % of younger terminated workers.
The court states, “a spread of two standard deviations is normally enough to show that it is extremely
unlikely (that is, there is less than a 5% probability) that the disparity is due to chance.” The trial
court excluded the report on the ground that, although clearly not due to chance, the report did not
demonstrate that the different treatment in fact was attributable to age, as opposed to other variables.
But appeals court reversed, holding that the evidence was relevant because it ruled out chance,
even though the evidence says nothing about whether the different treatment was caused by variables
other than age. Those other variables could be ruled out by other evidence.

PRELIMINARY QUESTIONS OF FACT

I. A SPECIAL APPLICATION OF RELEVANCE DOCTRINE: PRELIMINARY QUESTIONS OF

FACT
a. The focus is not on a rule of admissibility of a particular type of evidence, but on how all the
admissibility rules are applied. Many rules make admissibility turn on the existence of a fact or facts.
B. WHETHER A FACT ESSENTIAL TO THE ADMISSIBILITY OF AN ITEM OF EVIDENCE EXISTS IS CALLED A
“PRELIMINARY QUESTION” OF FACT. RULE 104 TELLS US HOW THESE PRELIMINARY QUESTIONS
ARE TO BE DECIDED.
i. 104 (a) Preliminary questions concerning the qualification of a person to be a witness, the
existence of a privilege or the admissibility of privilege, evidence shall be determined by the
court, subject to the provisions of subdivision (b). In making its determination it is not bound
by the rules of evidence except those with respect to privileges.
1. Burden is “by a preponderance of the evidence.”
ii. 104 (b) When the relevancy of evidence depends upon the fulfillment of a condition of fact, the
court shall admit it upon, or subject to, the introduction of evidence sufficient to support a
finding of the fulfillment of the condition.
1. Condition of fact: Ex – homicide case, pros want to bring in evidence that machete found in Δ’s
garage. The relevance depends on whether the victim was hacked to death by a machete or not.
Here, jury can make that finding of fact, b/c if victim was not hacked to death by a machete, we
can expect juries to use common sense & not use that evidence. For more complicated rules,
though, we do not trust juries.
2. To determine whether there is sufficient evidence to meet Rule 104(b), the court simply
examines all the evidence in the case and decides whether the jury could reasonably find
the conditional fact to be true by a preponderance of the evidence.
a. Huddleston v. United States - The Supreme Court applied Rule 104 (b) to the admissibility
of uncharged crimes under Rule 404(b). Issue was Δ’s “knowledge” concerning selling stolen
property. Admissibility turned on whether there was proof that Δ had committed the
uncharged crimes. Trial judge need only decide that the jury could find by a preponderance
of the evidence that the Δ committed the other crimes. The jury must actually be persuaded
by a preponderance of the evidence. If the jury makes such a finding, they can use other-
crime-evidence as circumstantial evidence of some relevant aspect of current prosecution.
c. Rationale: Note that both subdivisions contemplate that the court plays a part in deciding whether a fact
crucial to admissibility exists.
 i. Since the jury is the so-called trier-of-fact, why not turn all these issues over to the jury? The reason
is that there is a conflict between enforcing the evidence rules (which turn on the proof of
preliminary facts) and the jury’s job of reaching a verdict in the case.
1. For example, assume that in a murder case the prosecution offers the hearsay statement, “Joe (Δ)
shot Kenny!” Under Rule 803(2), the evidence is admissible only if the speaker was excited at
the time he made the statement.
a. If we turned over to the jury the job of deciding the preliminary question of fact, we would
require that if they found it’s not an excited utterance, then they would have to disregard that
piece of evidence. We are afraid that even if jury does not find the facts necessary for
admissibility, they would still pay attention to evidence b/c they’re simply unable to ignore it.
d. Rule 104(c) provides that “hearings on the admissibility of confessions shall in all cases be
conducted out of the hearing of the jury.”
i. Ex: Pros for murder. Pros wishes to present evidence of a written confession signed by Δ. Δ admits
signing the confession, but claims she only did so after the police threatened to investigate her entire
family for any possible wrongdoing. Δ is entitled to a decision as to the voluntariness of her
confession. Under Rule 104(c), this decision must be made by the judge. Even w/o rule 104(c),
same result b/c confession is likely relevant even if not voluntary.
ii. Harris v. New York – Δ’s confession had been suppressed for failure to advise Miranda Warnings.
Trial testimony at odds with confession, pros permitted to impeach Δ with confession. Should be
able to use Δ’s preliminary hearing testimony for impeachment purposes. But if confession is
actually coerced, can’t use for impeachment purposes.
e. More Examples:
i. 104(a) - Judge decides preliminary question of fact; standard is by preponderance of the
evidence
1. Pros of Δ for pick-pocketing. To prove Δ committed the crime, the pros calls Witness, who was
walking with the victim when the act occurred. If permitted, Witness will testify that just after Δ
reached into the victim’s back pocket and removed his wallet, Witness said to the victim,
“Someone just stole your wallet.” Hearsay, and admissible only if Witness’s statement described
or explained the event while she was perceiving it or immediately after she perceived it.
a. Preliminary fact: That statement was made while or immediately after perceiving the event
b. Because the statement itself will still be relevant even if that fact is not true, it is not a case of
conditional relevancy. It is excluded b/c it’s hearsay but jury may still take it into account.
ii. 104(b) – Jury decides preliminary question of fact; standard is sufficient to support a finding
1. Breach of oral K case re: sale of car. Π wishes to testify that Δ phoned Π, offered to buy Π’s car,
and that Π accepted the offer. Δ claims she never had this phone conversation with Π , and
objects to Π’s testimony concerning that conversation.
a. Preliminary fact: whether the phone conversation to which Π testified occurred with Δ
b. This is a case of condition relevancy – If convo did not occur w/ Δ, evidence of its content
would be irrelevant & jury can easily disregard it. If Π did speak with Δ, the convo is
relevant & jury would have heard it anyway.
2. Negligence action following a car accident. Δ had a passenger in the car. Π wishes to testify that
after the collision, Π walked over to Δ’s car, knocked on the window, asked what happened, and
that a voice answered, “I don’t know what happened. I fell asleep before the accident.” If Δ was
speaker, admissible hearsay; if passenger was speaker, inadmissible hearsay.
a. Preliminary Fact: Identity of the speaker.
b. Conditional relevancy - If Δ was not the speaker, it is irrelevant even though the hearsay rule
would exclude it; jury can easily ignore this. No concern that they will use inadmissible
hearsay. If driver is speaker, admissible hearsay & jury would hear it anyway.
i. However, if the speaker said: “I don’t know what happened, the windshield was all
fogged up,” it would be relevant no matter who said it, so even if passenger said it & it
would be impermissible hearsay, the jury might still use this evidence.
iii. Personal Knowledge - Rule 602
 1. Burden of persuasion for preliminary determination of personal knowledge is sufficient to
support a finding, which is lower than even preponderance of the evidence. Thus, perceptions
can be limited or flawed without disqualifying the witness.
2. A determination of personal knowledge is made under Rule 104 (b), thus preserving for the
jury its essential role of deciding what weight to give testimony.
iv. Rule 901(a) - 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.
1. Aspects of Rule 901(a)
a. Authentication is a condition precedent to admissibility.
b. It requires proving that the item is what the proponent claims it to be.
c. Proof must meet the “sufficient to support a finding” standard.
i. To satisfy the standard, the court must find that there is enough evidence to permit
a reasonable person to conclude that the item is what the proponent claims it is.
ii. Rule 901 is an analogue to Rule 602. They both set minimum standards for determining
what evidence is worth hearing.
1. Rule 901(b) gives a nonexclusive list of examples of how to authenticate.
2. U.S. v. Sliker - Admission into evidence of a tape recording of a telephone conversation. Issue
of authenticity. Rule 901 (a) requires “evidence sufficient to support a finding that the matter in
question is what its proponent claims. Judges admission of the evidence under Rule 104(b) is
conditional and subject to the introduction of evidence sufficient to support a finding of the
fulfillment of the condition.
v. Determination of the foundation for admissibility of coconspirator statements (rule 801(d)(2)
(E)) is governed by Rule 104(a).
1. U.S. v. Tracy - The question whether declarant was part of a conspiracy and whether the
statements were made in the course of and in furtherance of the conspiracy were for the judge
alone. The burden of persuasion was by a preponderance of the evidence. So, if, by the
preponderance of the evidence, the judge decides that the statements were made in furtherance of
a conspiracy, then the statement are allowed to go to the jury.
vi. Other Rule 104 (a) Issues
1. Whether evidence is inadmissible on a public policy ground.
2. Whether evidence is inadmissible hearsay.
3. Admissibility of confession.
4. Qualifications of expert witness.
a. Note: Evaluating witness credibility and weight of the evidence is for the jury (rule 104(b)).

THE HEARSAY RULE

I. INTRODUCTION TO HEARSAY
a. Rule 801: Definitions
i. Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at trial or
hearing, offered to prove the truth of the matter asserted.
1. A “statement” is an oral or written assertion or (2) non-verbal conduct of a person, if it is
intended by the person as an assertion.
2. A “declarant” is a person who makes a statement.
b. Rule 802: Hearsay is not admissible except as [otherwise] provided.
i. Rationale:
 1. We need to test the reliability of statements made by cross-examination, and by jury observing
the witness’s demeanor for credibility. Also, an in-court witness must take an oath or give an
affirmation to tell the truth. The threat of a perjury prosecution presumably eliminates some
lying. When a person’s out of court statement is offered into evidence, these safeguards usually
cannot operate.
2. When witness and declarant are same person, statement is still hearsay. This is b/c of the
need for contemporaneous cross-examination.
ii. Proving the facts of the declarant’s out-of-court statement
1. Allowing out-of-court statements to prove the facts described in the statement is the problem &
why we don’t allow hearsay. However, the danger that the declarant is lying or mistaken does
not present a problem if we are not offering the statement to prove a fact in declarant’s statement.
2. Fact of Consequence: If offered to prove something else, such as the fact that the statement was
made, then no such problem. The mere making of the statement is a fact of consequence, & not
hearsay.
iii. How to determine whether a statement is hearsay:
1. Is there an out-of-court statement?
2. Why is the jury being given this evidence? What is it going to prove?
3. If the declarant was lying or mistaken, would the jury be misled? Would it be receiving
unreliable evidence?
4. If so, it is hearsay. If not, it is not hearsay.
iv. Probative Value & Hearsay – Cannot admit inadmissible hearsay just b/c of high probative value. No
discretion by the court to admit such evidence.
1. However, some believe we should allow courts to admit hearsay when its probative value is high
and the dangers associated with hearsay are low. Rule 807, the “residual exception” partially
codifies the discretionary approach.
v. Hearsay Within Hearsay
1. When evidence consists of multiple levels of out of court statements, the evidence is not
admissible unless each level can survive a hearsay objection. This means that each level
either must be within an exception to the hearsay rule or must not be hearsay.

II. THE DEFINITION OF HEARSAY - a statement, other than one made by the declarant while
testifying at trial or hearing, offered to prove the truth of the matter asserted.
a. Statement
i. A statement is an assertion, thus, it intends to communicate facts or data.
1. Usually this is done in form of a declarative statement, as in “Joe shot the victim. It also can be
done in a question, as in “Why did Joe shoot the victim?” This can be done orally, as in a
conversation, or in writing, as in a letter or a billing invoice.
2. Even conduct can be an assertion if it is intended to communicate facts or data.
a. Acts that are intended by the maker as expressive communications. People v. Salko.
i. Ex: Officer testifying that witness pointed to Δ in a lineup, when asked who committed
the crime. The eyewitness’s conduct is a statement – it was an assertion that the Δ was
the one who committed the crime. See also U.S. v. Caro.
b. Non-assertive conduct, that is, conduct not indulged in to assert some fact is circumstantial
evidence and its admissibility judged on that basis.
i. Ex: To prove that the surf was up at a particular beach, evidence offered that hordes of
surfers headed for that beach. This is not a statement b/c their conduct was not intended
as an assertion – they didn’t head to the beach to assert the surf was up, but rather headed
to the beach b/c the surf was up.
b. Declarant
i. Only a person can be a declarant.
1. This means that animals and machines cannot create hearsay.
 a. Ex: To prove Δ committed the crime, evidence offered that dog trained to track a scent
followed a trail from the crime scene and “pointed” to Δ. Declarant must be a person.
c. Other than one made … while testifying at the trial or hearing
i. When testifying in court, the assertions a witness makes then and there are not hearsay. This is b/c
the witness is subject to cross-examination concerning the facts she asserts. But we are dealing with
a statement “other than while testifying at the trial or hearing”
1. when a witness repeats what someone else said out of court,
2. when counsel offers a document someone wrote out of court,
3. or even when an in-court witness tells us what she, herself, said or wrote out of court.
ii. Examples:
1. Must be made while testifying. During a murder trial, a spectator stands up and yells, “Δ is a
murderer.” Although the statement was made in court, it was not made while testifying.
2. A deposition is not a trial or hearing. At a trial, a party wishes to offer in evidence a statement
made by a person in a deposition. Since the statement was not made at “the trial or hearing” at
which it is offered, it is an out-of-court statement for purposes of the hearsay rule. Although
there was opportunity for cross at deposition, the problem is lack of an opportunity to observe
the declarant at the time she makes the statement, in order to evaluate credibility.
3. Testimony must be at the same trial or hearing. Witness testifies at first trial that assailant had
blonde hair; that trial results in a hung jury. Witness dies. Pros wants to testify that witness said
assailant had blonde hair. The witness’s testimony was not given at this trial or hearing.
d. Offered to prove the truth of the matter asserted
i. Distinguish between “credibility of witness” and “reliability of the declarant”
1. When the statement is not offered to prove the truth of the matter asserted, it is the
witness’s credibility, and not that of the declarant, that matters in most cases.
a. If not offered in evidence to prove the truth of what it asserts, the inability to cross-examine
the declarant at the time she made the statement normally will not significantly disadvantage
the opponent. It’s more important to cross-examine the witness relating the out-of-court
statement to determine whether she heard the statement correctly, remembers it accurately,
has reason to be dishonest about it, and understood its meaning.
ii. Examples:
1. Pros of Δ for assault & battery on Victim. Δ claims self-defense. To prove that Victim attacked Δ
first, evidence is offered that the day before the altercation, Victim said, “I want to kill Δ.” The
assertion by victim is offered to prove that victim intended to kill Δ, which makes it more likely
that victim attacked Δ first.
a. However, if Δ admits he attacked victim first, but only b/c he feared victim would kill him,
the victim’s statement if not offered to prove that victim intended to kill Δ, but only that
victim said it, and it had an effect on Δ – that Δ became fearful.
2. In personal injury case, witness testifies that the light was green. To prove the light was red, Δ
offers evidence that at the scene of the accident, witness said the light was red. The statement is
being offered to prove that the light was red & so offered for truth of matter asserted.
a. However, if the witness’s prior statement that the light was red was proving offered to
impeach the witness by showing she is inconsistent & unreliable, it’s not offered to prove the
truth that the light was red, but that she said something diff than at trial.
3. To prove that a witness is insane (and not credible), evidence is offered that she said “I am
Elvis.” Not being offered to prove the truth that she is Elvis, but only that she said it.
a. However, if witness said, “I believe I am Elvis,” then b/c trying to say she’s insane, you’re
offering it to prove the truth – that witness believes she is Elvis.
III. HEARSAY V. PERSONAL KNOWLEDGE OBJECTIONS
a. It is important to be able to recognize when Rule 602 or Rule 802 is the proper basis for an objection,
b/c under Rule 103, it is necessary to state the specific ground for an objection.
b. Distinguishing between hearsay and personal knowledge objections is determined by the form of the
testimony.
 i. Hearsay Objection - If the witness quotes or paraphrases an out-of-court statement, the
objection is hearsay.
1. Auto accident; to prove Π had defective brakes, Δ calls a witness who offers to testify that on the
day before the accident, she heard an auto mechanic tell Π, “I just took a look at your brakes.
They are shot.” Witness is quoting what mechanic said & attributes it him.
ii. Personal Knowledge Objection - If the witness does not quote or paraphrase, but simply relies
on another person’s perception as described in an out-of-court statement, the proper objection
is lack of personal knowledge.
1. Auto accident; to prove Π had defective brakes, Δ calls a witness who offers to testify that Π’s
brakes were shot. Witness is relying on what she heard mechanic say. Hearsay is not a proper
objection b/c witness does not purport to quote or paraphrase an out of court statement. Lack of
personal knowledge objection is appropriate b/c witness did not perceive this with her senses.
IV. UTTERANCES & CONDUCT THAT ARE NOT HEARSAY
a. Words of Independent Legal Significance or Verbal Acts
i. Sometimes, the mere fact that words were uttered has legal consequences b/c of the substantive
law. Thus, when a witness testifies in court that she heard these statements made, the evidence
is not hearsay because it is not offered to prove truth of matter asserted. Rather, the testimony
is offered only to prove that the statements were made.
1. The making of the statement is a legally consequential act & not merely evidence of some fact.
a. Examples are the words “I accept” in a contract case, “you have the right to remain silent” in
a criminal case, and “that’s my land” in an adverse possession case.
2. Words of Independent Legal Significance
a. Breach of contract. Δ claims there was no contract. To prove a contract existed, Π offers
evidence that after receiving Δ’s offer Π said, “I accept your offer.” This is not hearsay b/c
Π’s utterance constituted words of independent legal significance. The words are not
evidence of accepting an offer; the acceptance is the offer.
i. However, if statement was “I accepted your offer last week,” this is hearsay. The
statement is not the act of acceptance – it is an assertion that Π accepted the offer
previously.
b. Libel suit against newspaper for publishing an article falsely stating that Π was a child
molester. Π offers the newspaper article to prove libel. Not hearsay. The article itself is the
libel & constitutes words of independent legal significance; not offered to prove the truth of
it, only that it was said.
i. However, if in order to prove the libel Π offered a statement that “the newspaper called Π
a child molester,” then this is hearsay. It’s being offered to prove that the newspaper did
that.
c. Π claims he acquired prop through adverse possession. Π offers evidence that for years, he
posted signs on prop “Property of Π! Stay off!” This is not hearsay b/c the words have an
independent legal significance – one of the elements to adverse possession.
3. Verbal Acts
a. To prove that a corporate board of directors approved a certain resolution, evidence is offered
that when the chairperson asked all in favor to say “aye,” a majority of directors did so. Not
hearsay b/c saying “aye” is the act of voting – which is a verbal act.
b. To prove Π owned a certain bracelet, she testifies that her grandmother, the prior owner, gave
her the bracelet while stating, “Here is your birthday present.” This is not hearsay. The
statement by grandma was a manifestation of her donative intent – it was part of the act of
making the gift.
b. When the Value of the Evidence Derives from the Fact that Words Were Spoken
i. Where the mere making of a statement is important not because of what is said but merely
because words were spoken, the truthfulness of the statement is not the issue. Rather, only the
reliability of the person who describes the making of the statement is at issue.
 1. Examples:
a. To prove that Deceased was alive at a certain moment, evidence is offered that at that
moment, Deceased told a police officer, “I haven’t kicked the bucket yet.” Not hearsay b/c all
that matters is that deceased spoke – that he said the words. Doesn’t matter what he said.
i. However, if evidence offered is of the widow testifying that the police told her “deceased
just said he’s alive,” then that statement is hearsay. It being offered to prove the truth of
it – that deceased said something & was thus was alive at that moment.
b. To prove that Zed spoke Spanish, evidence offered that the witness overheard Zed say to a
Spanish-speaking, “Hablo español.” This is not hearsay – the statement is not being offered
to prove the contents of what Zed said, but that he actually spoke in Spanish.
ii. Where the Words Are Being Offered to Show Their Effect on the Listener
1. Examples:
a. In a negligence case, giving notice of a dangerous condition can lead to a finding that the
listener assumed the risk by proceeding after hearing the notice.
b. In a murder prosecution, evidence that the listener heard the victim utter a threat may put the
listener in the state of mind necessary to establish a claim of self-defense.
c. Circumstantial Evidence of State of Mind
i. If declarant makes a direct statement concerning what is on her mind, and we are offering that
statement to prove that the statement is true, then it is hearsay. However, if the statement is not a
direct assertion about the speaker’s state of mind, but only circumstantial evidence of that
state of mind, it might not be hearsay.
1. Examples:
a. Will contest. To prove testator/declarant hated Joe, evidence offered that testator said “I hate
Joe” – this is hearsay – being offered to prove the truth of it. But if testator had said “Joe is a
thief!,” then not hearsay b/c it’s circumstantial evidence of the state of mind – the fact that it
was said shows declarant’s state of mind. Not being offered to prove the fact that it asserts
(that Joe is a thief; offered to show testator hated Joe).
b. Action for interference with contract. Π alleges Δ enticed customer to switch its business
from Π to Δ by falsely suggesting Π was going into bankruptcy. To prove this, Π wants to
testify that customer said “I’m switching b/c your future is uncertain.” Not hearsay. Not
being offered to prove the truth that Π’s future is uncertain, but only that customer believed it
to be true. That belief makes it more likely that Δ told customer Π going into bankruptcy.
i. However, if customer said “I’m afraid you will be going bankrupt soon and won’t be able
to fill our orders.” Then statement is hearsay b/c offered to prove the truth of what it
asserts – that customer is afraid. Statement asserts customer’s state of mind, and that’s
what is being proven.
2. However, consider:
a. Shepard v. United States – Δ was convicted of murdering his wife by poison. As she was
dying, she said “Dr. Shepard has poisoned me.” Pros introduced the statement into evidence.
The gov’t argued that the statement constituted circumstantial evidence that Mrs. Shepard
was not suicidal (b/c someone suicidal not likely to make such an accusation), which would
undercut Δ’s suicide defense & make it more likely she was murdered. But the statement
was still inadmissible hearsay. The probative value of the evidence on the issue of Mrs.
Shepard’s will to live is substantially outweighed by the danger of unfair prejudice (and
perhaps confusion) caused by the very logical use of the evidence to prove the truth of the
matter asserted—that Dr. Shepard poisoned her.
ii. Another example is where an out of court statement is offered to show only that the speaker had
knowledge of the facts described, not that the facts were true.
1. This should only work in cases where the “knowledge” is very detailed, to the degree that it
would be virtually impossible for the declarant to make up or guess the details, and where there
is little chance that the declarant could have obtained the knowledge in some other way.
 a. Ex: Murder pros. To prove Zed committed the murder, and not himself, Δ offers evidence
that Zed described the murder scene exactly as it was & the murder scene was very unique.
The statement is not hearsay b/c it’s not being offered to prove what the scene looked like,
but rather that Zed knew what it looked like, and therefore could have been the perpetrator.
2. But Caution: In most situations the speaker’s knowledge of a fact is not in itself relevant.
a. Ex: witness at the scene of an auto accident states that the blue car ran the red light. The
statement would it be admissible to prove only that the declarant knew that the blue car ran
the light (nor to prove it was a red light b/c would be hearsay).
i. Otherwise, the hearsay rule would be reduced to a virtual nullity b/c the argument almost
always can be made that a statement is offered only to prove the declarant’s knowledge
of or belief in a fact.
ii. This type of “knowledge” theory for classifying a statement as non-hearsay is only
available in unusual circumstances as described above.
d. Words or Conduct that are not assertive or are assertive of something other than
what they are offered to prove
i. Just like verbal or written statements, conduct also can be circumstantial evidence of the
actor’s state of mind.
1. Examples:
a. Ship lost at sea, owners trying to insurance proceeds. Insurers alleged that the ship was lost
b/c the ship was not safe when it left port, which isn’t covered. Owners offered evidence that
before the ship left port, the captain went on to the ship, thoroughly inspected it, and only
then boarded his family and cast off. This is not hearsay b/c the captain’s conduct was non-
assertive, so there is little danger he was trying to mislead anyone. The danger of insincerity
is not significant – b/c a person is less likely to lie indirectly than directly. Plus, if captain
believed ship was unsafe, his conduct in boarding his family would have been suicidal. His
conduct was circumstantial evidence of his state of mind.
b. To prove a hurricane was expected to hit the town, evidence is offered that the citizens
boarded up their homes and businesses. Not hearsay b/c not asserting the fact it’s being
offered to prove – that a hurricane was coming.
c. To prove a person had a contagious disease, evidence is offered that her doctor placed her in
an isolation room. The doctor did not do this for the purpose of asserting that the patient was
contagious, but to protect others from the patient.
d. Pros of Δ for robbing the River City Bank. To prove Zed, rather than Δ, robbed the bank,
Defendant offers evidence that shortly after the robbery, Zed was seen carrying bags of
money. Not hearsay b/c Zed was not carrying bags of money to assert he had robbed the
bank.
V. EXEMPTIONS TO HEARSAY: OTHER STATEMENTS THAT ARE NOT HEARSAY
a. Introduction
i. Just because evidence falls within the definition of Rule 801(c) does not necessarily make it
hearsay. Rule 801(d) creates exemptions to the general definition of hearsay.
1. Statements which are not hearsay:
a. Prior statements by a witness. [Rule 801 (d) (1)]
i. Prior Inconsistent Statements
ii. Prior Consistent Statements
iii. One of identification of a person made after perceiving the person.
b. Admission by party-opponent. [Rule 801 (d) (2)]
ii. Rationale: The evidence should be considered non-hearsay, not b/c it is especially reliable or
needed, but b/c we can expect the adversary process sufficiently to expose any reliability problems
and, thus, the trier-of-fact can be trusted to give the evidence its proper weight.
b. Party Admissions: Rule 801(d)(2)
i. SIMPLE PARTY ADMISSIONS: RULE 801(d)(2)(A)
 1. Definition has two parts:
a. it must be a statement by a party; and
b. it must be offered by the opponent.
i. There is no requirement that a party admission be against interest. The party need not
admit to damaging facts.
2. Rationale: If a statement by a person is admitted against that same person, he can’t very well
claim prejudice by being unable to cross-examine the declarant. He can simply take stand and
explain his statements.
3. Examples:
a. Auto accident; negligence action. Δ claims to remember no details about the accident. At
trial, Δ wants to testify that a week after collision, Δ told Π “I fell asleep just before the
accident.” This is a party admission & is not hearsay. Statement made by a party, Δ, and
offered by the opponent, Π.
b. It is not required that the declarant have personal knowledge of the facts forming the
basis of their statements.
i. Thus, if Π also wants to testify that Δ said “I crossed the center line just after I fell
asleep,” Δ need not have had personal knowledge of this.
ii. Rationale for not requiring personal knowledge:
1. because the statement will be that of a party;
2. because the party is present to deny making the statement or explain its meaning; and
3. because the party has every incentive to deny or explain, courts assume that the
adversary system will take care of any fact-finding distortions caused by admission of
the statement.
c. Statement must be offered by the opponent.
i. Δ told Π “Maybe someone slipped something into my coke, b/c I certainly had no
warning that I might fall asleep.” Δ wants to offer this statement. Since it’s being
offered by the party what said it, not a party admission.
1. Note: Completeness doctrine applies only to written statements.
2. Also, since not a party admission, there is a personal knowledge problem here. The
statement is pure speculation.
ii. ADOPTIVE ADMISSIONS: RULE 801(d)(2)(B) - a statement that is offered against the party that
made the statement, and where the party has manifested an adoption or belief in its truth
1. Note: for the statement to be admissible:
a. the party must have heard the witness’s statement;
b. the party must have understood the statement;
c. this is a situation in which one would expect an innocent person to deny the accusation’s
truth; and
d. the party’s conduct did not constitute a denial.
2. Sometimes even silence can be the basis for an adoptive admission. The court must evaluate
circumstances in light of what we assume about normal human behavior. For example,
someone says, in Δ’s presence, “Δ shot the victim.” Δ then nods his head in apparent agreement.
If it would have been normal for Δ to deny an accusation made in his presence, his silence may
be deemed acquiescence and, thus, an admission.
a. State v. Carlson – Pros for drug possession. Pros offered testimony that when police asked Δ
about track marks on his arms, he said that the marks were injuries that he had received from
working on a car. His wife broke in and yelled, “You liar, you got them from shooting up.” Δ
then “hung his head and shook his head back and forth.” Δ claimed that the shaking of his
head manifested his rejection of the wife’s statement, not its acceptance.
i. Note: Determining what the headshaking meant is a 104(a), not (b) analysis. If it were
left to the jury, it would be prejudicial. Even if jury decided the headshaking meant he
denied what wife said, jury can’t ignore what wife said. Standard is “preponderance of
the evidence” or “more likely than not.”
 b. Sometimes, what we consider a normal reaction is not always so.
i. Ex: Pros of Δ, a gang member, for murder of victim, a member of a rival gang. Δ denies
involvement. To prove Δ killed Victim, the pros calls Witness, a member of Victim’s
gang, to testify that shortly after the killing, he approached Δ in a bar and said, “You son
of a bitch! You killed my friend!” and that Δ just stared at him and smirked. In this
situation, it is uncertain what Δ meant by staring & smirking. Although a normal reaction
would be to deny it, a gang member in the setting might very well not, even if innocent.
Further, if Δ was surrounded by members of his own gang, there’s very little incentive for
him to deny it.
c. If someone has just been read Miranda rights, silence is probably not an adoptive
admission.
i. Ex: Pros for bank robbery. After being read Miranda rights, a bank teller approaches Δ
and said, “You pointed a gun at me.” Δ does not respond. It would be unreasonable to
conclude silence is admission, since he was just told that he may remain silent. Also,
allowing pros to use his silence against himself would violate his constitutional rights.
III. VICARIOUS ADMISSIONS: AUTHORIZED AND AGENCY ADMISSIONS
1. RULE 801(d)(2)(C): AUTHORIZED ADMISSIONS – a statement that is offered against the party
that made the statement, and made by a person authorized by the party to make a statement
concerning the subject
a. This is often used in cases where a party is a corporation or other legal entity. Because these
are not natural persons, they never speak for themselves; they can only speak through agents.
Of course, the exception can apply to any situation in which a person, even a natural person,
speaks through another.
i. Ex: Δ breached K with Δ; K was for Δ to star in Δ’s musical. Π says he couldn’t perform
b/c he broke both legs in a ski accident 2 weeks prior to start date. To prove Δ was
physically fit to perform, Π calls witness, a reporter, to testify that shortly after alleged
skiing accident, Δ’s publicist told her that Δ was feeling fine & looked forward to his
planned mountain climbing expedition schedule the following week. If the publicist had
authority to speak (most likely yes), then this is an authorized admission & not hearsay.
b. The contents of the statement shall be considered but are not alone sufficient to
establish the declarant’s authority. Thus, the declarant’s own statement that, “I am
authorized to tell you,” is by itself insufficient to establish an authorized admission.
2. RULE 801(d)(2)(D): AGENCY ADMISSIONS – a statement offered against the party that made
the statement, and made by any agent or employee, even if she was not specifically
authorized to be a spokesperson.
a. 3 elements to a qualifying a statement under this section:
i. the speaker must be an agent or employee of a party;
ii. the statement must relate to a matter within scope of agency or employment; and
iii. the statement must have been made during the relationship.
b. Examples:
i. The agent need not have been authorized to speak for the market, as long as he was
an agent, still falls under 801(d)(2)(d).
1. Π sues market for slip & fall injuries, alleging there was a puddle. Δ denies there was
a puddle. To prove puddle existed, Π wants to testify that the manager told Π, “Sorry
for not cleaning up the puddle.” Δ says manager had no authority to make that
statement. The manager is an agent (employee), it was made within scope of
employment, and manager was at the time working for market. Doesn’t matter that he
had no authority.
2. The statement must be offered by the opponent.
a. Thus, if on cross of Π, Δ wishes to ask whether mgr also told Π that he should be
careful b/c Π was carrying too many bags, this statement would not be an agency
admission, b/c not offered by Π, the opponent.
 ii. Statement must be within the scope of employment.
1. Delivery truck operated by Δ business collided with Π. Truck driver, Δ’s employee,
told Π, “My company will pay your damages.” This statement is not an agency
admission b/c it was not made within the scope of the driver’s employment. The
scope of his job is to drive the truck, not determine the company’s liability.
3. Preliminary Facts for both of these types of admissions should be decided using Rule 104(a).
The reason is that a person’s statement concerning a matter at issue is relevant whether or not the
person is authorized to speak for the party. The court must decide the existence of authority to
speak, applying the “more likely than not” standard.
iv. CO-CONSPIRATOR STATEMENTS: RULE 801(d)(2)(E) - a statement that is offered against the
party that made the statement, and made by a coconspirator of a party during the course and in
furtherance of the conspiracy.
1. The four elements of Rule 801(d)(2)(E) are preliminary facts to be decided under Rule
104(a).:
a. a conspiracy,
b. declarant is member,
c. the statement was made during existence of the conspiracy,
d. the statement was made in furtherance of the conspiracy.
2. Whether a statement was made during existence of a conspiracy is determined by
substantive law.
a. Ex: Δ on trial for murder & conspiracy to commit murder. To prove Δ supplied poison to kill
the victim, evidence offered that a few months prior to killing, Zed told Δ, “If you can get the
poison, I’ll take care of the delivery.” This would fall under 801(d)(2)(E) if at the point the
statement was made a conspiracy existed, but this depends on the substantive law.
i. The statement made by an alleged co-conspirator may be considered, but is not
sufficient in itself, to establish the existence of a conspiracy. Thus, if the only evidence
of the conspiracy was that one statement above, then this is insufficient to establish there
was a conspiracy.
ii. A co-conspirator statement need not be offered only when conspiracy is charged.
Thus, the Δ could only be charged with murder, and if it can be established that there was
a conspiracy (using rule 104(a)), then admissibility will not be affected (& not hearsay).
3. The statement must have been made in furtherance of the conspiracy.
a. Ex: Zed & Δ arrested for poisoning victim with arsenic. On the way to the police station, Zed
says to Δ, “We should have picked something less detectable in the body.” This statement is
not in furtherance of the conspiracy. However, it may be offered against Zed, who said it,
under 801(d)(2)(A) (simple party admission – party’s own statement).
c. Prior Statements of Witnesses: Rule 801(d)(1)
i. Introduction
1. There are two key points.
a. First, a statement can still be hearsay even if it is the prior statement of a person testifying as
a witness.
b. Second, even if a statement is offered to prove the truth of the matters asserted, it is not
hearsay if it falls within any of the subdivisions of Rule 801(d).
2. Under Rule 801(d)(1), three types of prior statements by a witness are not hearsay. For any part
of that provision to apply, the witness/declarant must testify at the trial and be subject to
cross-examination.
ii. RULE 801(d)(1)(A): PRIOR INCONSISTENT STATEMENT - a statement inconsistent with the
witness’s trial testimony and was given under oath at a trial, hearing, or deposition.
1. The witness/declarant must testify at the trial and be subject to cross-examination.
2. Often used to impeach a witness.
3. An inconsistent statement given at an accident or crime scene is not admissible under this rule
because such statements are not given under oath.
 4. Rule 801(d)(1)(A) only applies where the statement is offered to prove the truth of the facts
asserted. An inconsistent statement offered only to impeach is not hearsay under 801(c) because
such a statement is offered only to show it was made, not that the facts in it are true.
iii. RULE 801(d)(1)(B): PRIOR CONSISTENT STATEMENT
1. The witness/declarant must testify at the trial and be subject to cross-examination.
2. The provision makes prior consistent statements of a witness not hearsay if
a. the declarant testifies at trial,
b. is subject to cross-examination,
c. the statement is consistent with her testimony, and
d. the statement is “offered to rebut an express or implied charge of recent fabrication or
improper influence or motive.”
i. Prior consistent statements cannot be offered just for the limited purpose of supporting
witness credibility. It is highly unlikely that a juror can cognitively separate using the
statement for this limited purpose from using the evidence to prove the truth of the facts
asserted in it.
ii. Therefore, this fourth element requires that the credibility of the witness must first be
attacked in one of the ways described. If no such attack has occurred, the consistent
statements are inadmissible.
3. Note: NY law is different
a. The testimony of a witness may not be corroborated or bolstered by evidence of prior
consistent statements made before trial, when offered to prove the truth of the matter asserted
are hearsay under NY law.
i. But, it may be admissible to rehabilitate credibility of witness, when testimony has been
impeached as a recent fabrication – using the prior consistent statement to rebut a charge
of recent fabrication is to lend credibility to testimony of witness.
iv. RULE 801(d)(1)(C): STATEMENTS OF PRIOR IDENTIFICATION
1. Elements:
a. the witness/declarant testifies at the trial or hearing;
b. she is subject to cross-examination concerning the statement; and
c. the statement identified a person after the witness/declarant perceived that person.
2. Examples:
a. Witness is not required to be under oath when the statement was made.
i. Ex: Pros for bank robbery. Eyewitness is asked if she recognizes the robber in the
courtroom. The witness identifies the Δ. On cross-examination, defense counsel
establishes that after the robbery the witness went to the police station to view a lineup,
pointed at someone who was not the Δ, and said, “That’s the robber.” This would not be
admissible under 801(d)(1)(A) (prior inconsistent statement), b/c it was not made at trial,
hearing or deposition (while under oath). But under 801(d)(1)(C), it is admissible, b/c not
required to be under oath when she made the statement.
b. It does not matter if the statement was introduced by a witness other than the one who
made the statement, as long as the witness/declarant is at trial/hearing, she is still
subject to cross concerning that statement.
i. Ex: Witness ID’s Δ in police lineup. Witness testifies at trial, but Pros, on direct does not
ask about the lineup. Then police officer, present at lineup, testifies that witness ID’d the
Δ.
c. The witness testifying about a statement of prior identification need not have personal
knowledge about the accuracy of the identification, but only of the statement of
identification itself. Thus, a police officer present at a lineup can testify to who a witness
ID’d as the perp.
d. Perception includes looking at a photograph. So, a witness/declarant could have ID’d the
perp by looking at photos.
 e. It is not required that the ID be made in a formal procedure. Thus, witness IDing the
perp at the police station (not in a lineup) is also included.
f. Describing the perp is not the same as IDing him. Thus, a description by witness that
matches what Δ actually looks like is not an identification.
3. Note: NY law is different
a. You may use the prior identification to bolster the witness/declarant’s in-court ID, but
someone else cannot use the prior ID without actual witness/declarant present at trial.
i. People v. Mobley - Error to allow a police witness to testify that the victim of a robbery
pointed at Δs shortly after the robbery, when victim had already made in-court
identification. Had she testified as to her own prior ID that would have been permissible.
ii. However, if witness IDs Δ at time of crim, then affirms ID later, but unable to make an
in-court ID, another person who made the earlier ID may testify to it.
VI. EXCEPTIONS TO THE HEARSAY RULE
a. Introduction - Not all hearsay is inadmissible.
i. Rationale - The rationale for most exceptions is either that the hearsay is reliable enough to admit or
that there is a need for the evidence. Sometimes a hearsay exception is supported by a combination
of both rationales.
ii. The exceptions are contained in three rules: 803, 804, and 807.
1. Exceptions in Rule 804 require the declarant to be unavailable to testify, while the exceptions in
803 do not require unavailability.
2. Rule 807 is the so-called catchall or residual exception
b. Rule 803: Exceptions to Hearsay where Availability of Declarant is Immaterial
1. RULE 803(1): PRESENT SENSE IMPRESSIONS
a. Rationale: Hearsay of this type is reliable enough to admit because, if a statement is made close
in time to the events being described, it is less likely that the declarant will suffer a failure of
memory.
b. Elements:
i. an event or condition;
ii. a statement describing that event or condition;
iii. the statement was made while declarant perceived it or immediately thereafter.
1. Note that, unlike Rule 803(2), Rule 803(1) does not focus on the emotional state of the
speaker. Timing, not excitement, is the key.
iv. independent corroboration (NY)
1. NY exception requires independent corroboration of facts set forth in statement. So there
needs to be another person present with the declarant who can verify the accuracy of the
declarant’s statement.
c. Examples:
i. Pros of Δ for murder of victim. Δ claims he was in another town the day of murder. Pros calls
witness to testify that on day of murder, witness was on phone with victim, and victim said,
“Δ just walked into the room, looks like he wants to show me his new chainsaw. Call you
back.” Victim never called back. This prob qualifies as a present sense impression – victim
described the event that was occurring as it was occurring.
2. RULE 803(2): EXCITED UTTERANCES
a. Rationale: Hearsay of this type is reliable enough to admit because excited people don’t have the
presence of mind to lie.
i. Critique - excited people frequently make mistakes of perception and narration, and really
good liars don’t need a lot of time to think.
b. Elements:
i. a startling event or condition;
ii. a statement relating to that event or condition; and
 iii. the declarant was under the stress of excitement caused by the event or condition when
she made the statement.
1. Note that the rule does not explicitly make timing an element, although it is true that,
after a startling event, the more time that passes the less likely the declarant will still be
excited.
c. Examples:
i. To prove that a killing took place outside a bank at 1pm, Pros calls witness to testify that she
was in front of the bank at 1pm when she heard bystander scream, “Did you hear that
gunshot?” Although hearsay, this is an excited utterance & admissible. Also, this would
prob qualify as a present sense impression.
1. However, if bystander did not scream until witness noticed bystander looking around
frantically & asked what happened – then not as clear. It depends on whether the remark
rose from the startling event or was a deliberative reaction to question asked.
a. Note that this determination is a 104(a) analysis, where court would have to find
by a preponderance of the evidence. The evidence would only be admitted if pros met
this burden. Therefore, if court is evenly balanced on the issue, then proponent has
not met their burden (more likely than not) & not admissible.
ii. Δ on trial for attempted murder. Witness, a nurse, to testify that several weeks after attempted
murder, victim finally awoke from coma and first thing he said was “Δ did it!” Although
several weeks have actually passed, no time at all has passed for the victim, so this would
qualify as an excited utterance.
3. RULE 803(3): THEN-EXISTING STATE OF MIND OR PHYSICAL CONDITION
a. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but
not including a statement of memory or belief to prove the fact remembered or believed
unless it relates to the execution, revocation, identification, orterms of the declarant’s will.
b. Rationale:
i. When the declarant speaks about her present internal sensations, condition, or state of mind,
she suffers no perception problem.
ii. Further, there are no memory problems since the exception only applies to internal conditions
that are contemporaneous with the statement.
iii. The exception might also be justified on the basis of need for the evidence. State of mind
frequently is an issue under the substantive law and there are few reliable ways to prove state
of mind other than through the words of the person whose state of mind is at issue.
c. Examples:
i. The evidence is admissible under this provision only when it is offered to prove
something internal to the speaker; not to prove facts external to the speaker
1. “I believe I am the Czar” would be admissible to prove declarant believes he is the Czar
(relevancy – show insanity). His belief is an internal state of mind that, presumably, the
speaker accurately perceives. But that statement should not be admissible to prove a fact
external to the speaker, such as his membership in the royal family of Russia. Speaker
could be wrong about that external fact.
a. “but not including a statement of memory or belief to prove the fact
remembered or believed.”
i. Thus, “I believe I am the Czar” is not admissible under this provision to prove the
speaker is the Czar b/c that would be a statement of belief offered to prove the
fact believed.
ii. Pros for murder. To prove Δ was killer, evidence that a few days before killing, victim said,
“I am afraid of Δ.” Relevant b/c it tends to show that Δ did or said something that would
make victim fearful. Hearsay b/c being offered to prove what it asserts – that victim was
fearful of Δ. Falls under 803(3) b/c it is the victim’s statement of his then existing state of
mind.
 1. However, if victim’s statement was, “I am afraid b/c Δ threatened to kill me,” only the
part that states he was afraid is admissible under this exception. “B/c he threatened to kill
me” would not be admissible, and would be extracted (called redaction). It is not
admissible as a party admission either, b/c the statement (threat) is contained within
inadmissible hearsay (victim’s statement that Δ made the threat).
iii. Most courts would only admit evidence under 803(3) if offered against the person who
made the statement. Although the evidence has high probative value as to the
declarant’s state of mind, it has no indication as to anyone else’s state of mind.
1. Pros of Zed & Abel for kidnapping & murder. Wants to give Zed a harsher sentence b/c
he actually killed victim. To prove this, evidence offered that day before killing, Abel
said, “I will stand guard, but I don’t want to have anything to do with the violence.” This
is a statement of Abel’s then-existing state of mind (that she didn’t intent to kill).
However, it is being offered against Zed, not Abel. Also not a co-conspirator statement
b/c not made in furtherance of the conspiracy.
2. Also, the statement must be of the declarant’s state of mind, not someone else’s.
a. Pros for murder. To prove Δ did it, evidence that on the day of killing, victim told a
friend that, “Δ is planning to come over for dinner tonight.” Although the statement is
of state of mind, it is that of Δ, not victim, the declarant. The statement is of another
person’s intentions, not the speaker.
iv. Distinction between hearsay and non-hearsay statements that tend to show the
declarant’s state of mind. A statement that asserts the declarant’s then-existing state of
mind (“I don’t like Tom”) is hearsay. A statement that does not assert the declarant’s state of
mind, but from which her state of mind may be inferred (“Tom is an inconsiderate son-ofa-
…”), is not hearsay.
d. Mutual Life Ins. Co. v. Hillmon – wife sues insurance co to recover for alleged death of her
husband. To prove he was dead, she offered evidence of a body found in Colorado & claimed it
was her husband. Insurance co alleged that it was not her husband, but someone else (Walters)
that husband murdered & brought there to create the impression that husband had died. Ins co
offered evidence letters written by Walters that said, “I intend to go with [husband] to Colorado.”
i. Assuming the letter is hearsay, it would be admissible under 803(3) b/c statement of intent
is a statement of state of mind. However, if Walters had stated directly, “I went to
Colorado,” then no longer a state of mind.
ii. If letter had said, “I am freezing here in Colorado,” this would not be a statement of a then-
existing physical condition, b/c it states an external fact. However, it may qualify as a
present sense impression exception.
e. Why necessary to admit statements of a person’s state of mind?
i. State of mind is not capable of direct proof. Though a person’s actions provide some basis
for assessing her state of mind, the best evidence is what the person has said that either
asserts her state of mind or circumstantially indicates what it is. If such statements were not
admissible, it would be very difficult to determine a person’s state of mind at a relevant time
with any reasonable certainty.
4. RULE 803(4): STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT
a. Rationale: the declarant may be expected to tell the truth when providing information to obtain
medical services.
b. Elements:
i. a statement made for purposes of obtaining a medical diagnosis or treatment;
ii. the statement describes medical history, past or present symptoms, pain, sensation,
causes or source;
iii. the statement is reasonably pertinent to diagnosis or treatment.
c. Examples:
 i. The rule places no limit on who makes the statement or to whom the statement is made.
Thus, while patients can make Rule 803(4) statements, people who are not patients can
also make statements that qualify under that rule.
1. A parent discussing a child’s condition could make a Rule 803(4) statement.
2. The statement could be made to the doctor’s receptionist for the purpose of being relayed
to the doctor.
3. A paramedic relaying to the doctor that patient told him “my hip hurts.”
ii. Statement must be made for purposes of obtaining medical treatment or diagnosis.
1. A doctor’s statement to the patient, “You have the flu,” is not admissible since it is not
made for the purpose of obtaining a diagnosis—it is a diagnosis.
2. Π’s statement, when asked if she was hurt, that “My leg is killing me,” is hearsay. It’s
not made for the purpose of obtaining medical treatment – just to answer witness’s
question. However, it would be admissible under the 803(3) then-existing physical
sensation.
3. If how the accident happened would be reasonably pertinent to medical treatment
or diagnosis, then that statement can also be admissible under 803(4).
a. Kid gets hit by a car. Tells paramedic, “My hip hurts. I fell hard after that car hit
me.” “My hip hurts” would very likely fall under 803(3). However, “I fell hard
after the car hit me,” would only be admissible if relevant for purposes of
treatment. Whether it qualifies will depend on whether this is the kind of
information an emergency room doctor would consider “reasonably pertinent” to
medical diagnosis or treatment.
b. However, if the statement made was “The driver of the car had red hair,” this is
not at all pertinent to medical diagnosis.
5. RULE 803(5): RECORDED RECOLLECTION
a. Recorded recollection vs. refreshing memory
i. Refreshing memory – Anything can be used to refresh a witness’s recollection. the
document is not admitted into evidence; it is given to witness to review, taken away,
and then if/when witness’s memory is refreshed, witness testifies. B/c the witness is not
just telling us what document says (by reading it, which impermissible), no hearsay
problem.
ii. If refreshing memory doesn’t work, you want to bring the document into evidence
via 803(5). If the writing is hearsay, it can be admitted only if it fits within an exception.
b. Rationale: There is a need for the evidence, since the facts cannot be shown by the witness’s
testimony, and the hearsay is probably reliable because the record was made when her
recollection was fresh.
c. Elements:
i. The writing is a record of facts about which the witness once had knowledge;
ii. the witness now has insufficient recollection to testify as to those facts;
iii. the writing was made or adopted by the witness;
iv. at a time when the matter was fresh in her memory; and
v. the record accurately reflects that prior knowledge.
d. Example:
i. Barrom brawl; pros for assault & battery. Δ is Caucasian. Δ offers as evidence testimony
of bartender to describe the person who started it. Witness doesn’t remember. Δ shows
witness a note that witness wrote that the person was an asian male. Δ still doesn’t
remember, so Δ wants to offer into evidence. Δ must establish by asking witness
(establishing a foundation) that (1) the witness once had knowledge of the facts contained
in the note, (2) that witness cannot now remember, (3) that witness wrote the note, (4)
that when she wrote it, the matter was fresh is her memory, and (5) the note was accurate.
 1. Opponent may motion to interrupt to conduct limited cross (voir dire) on the issue of
admitting this document – limited to preliminary facts necessary under 803(5)
elements.
2. If witness says she may have written the note weeks after incident – since proponent
has burden to establish all preliminary facts, as long as it can be established that at the
time witness wrote it, the matter was still fresh in her memory, then it’s fine.
3. If the note said “White Asian Male” (white crossed out) - prosecution may wants
document admitted as an exhibit. Rule 803(5) does not allow the proponent of the
document containing recorded recollection to offer the document into evidence as an
exhibit, but it does allow the opponent to do so. Though the opponent normally will
not want to do this, in this case the pros does.
4. If witness did not actually write the note, an officer did after witness made the
statement that it was an asian male – no 803(5) b/c witness had to have written it. If
officer testifying (since he wrote it), no good either, b/c officer needs to have had
personal knowledge of the matter recorded. However, if witness “adopted” the
officer’s recording of the statement (saw what was written & agreed), then ok under
803(5).
6. RULE 803(6): RECORDS OF REGULARLY CONDUCTED ACTIVITY
a. “A memorandum, report, record, or data compilation, in any form, or acts, events,
conditions, opinions, or diagnosis, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of a regularly conducted
business activity, and if it was the regular practice of that business activity, and if it was
the regular practice of that business activity to make the memorandum, report, record
or data compilation, all as shown by the testimony of the custodian or other qualified
witness, or by certification that complies with Rule 902 (11), Rule 902 (12), or statute
permitting certification, unless the source of information or the method or circumstances
of preparation indicate lack of trustworthiness…
i. Business includes business, institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit.
ii. Note: it may be necessary to call a custodian to lay the foundation – establish the
preliminary facts that the document meets the requirements of 803(6).
b. Rationale: The evidence is reliable enough to be admitted because businesses have an
incentive to create procedures to ensure the accuracy of records kept in the regular course of
business. Because modern business is so large and complex, there also is a need for this type
of hearsay because it is often difficult or impossible to call as a witness all the persons
involved in preparation of business records.
c. Business Record Foundation
i. Is document kept in regular course of business?
ii. Is it the regular course of business to keep such document?
iii. Is the information contained therein placed there at or about the time of action?
iv. Was the provider of information under a legal/business duty to do so?
d. Examples:
i. Writing or records, to be admissible, must be made under duty or on information
imparted by persons under duty to impart information.
1. Johnson v. Lutz - Memorandum of policeman not witnessing automobile accident nor
made in regular course, based upon hearsay statements of third persons present, held
inadmissible.
ii. Auto accident; personal injury. After accident, Π taken to hospital emergency room. To
prove extent of injuries, Π offers into evidence a record of the emergency room, written
by the attending physician, which states “Preliminary diagnosis: Permanent impairment
of anterior keester.” Hearsay b/c being offered to prove Π’s injuries.
1. To demonstrate that this is a business record, Π must show:
 a. The hospital is a business;
b. The record must have been made at or near the time of the exam in the emergency
room;
c. The author, who is described as the attending physician, had knowledge of the
matters described and had a business duty to be accurate;
d. The record must have been kept in the regular course of a regularly conducted
business activity. (Examining and diagnosing patients undoubtedly qualifies);
e. It must be the regular practice to make such records.
iii. A court transcript of a trial is a business record.
1. It may also qualify as a recorded recollection – the court reporter at one point knew
what was said since she recorded it, but most likely no longer remembers.
7. RULE 803(8): PUBLIC RECORDS AND REPORTS
a. Many public records are also business records, since government agencies can be businesses.
However, the public records exception can extend to records outside the scope of the
business records exception.
i. Rule 803(8) extends to matters that are not recorded with regularity.
1. Ex: a public official might only once in a career record observations about an accident
at a nuclear power plant, but still could be admissible under Rule 803(8).
b. Rationale:
i. government officials are considered trustworthy,
ii. the legal duty to be accurate is considered an incentive to be careful, and
iii. the exception is considered necessary b/c public officials handle many matters and may
forget facts important to the determination of the suit.
c. Three section of Rule 803(8):
i. Part (A) covers records and reports setting forth the activities of an office or agency.
It applies to both civil and criminal cases. Any party can take advantage of the exception.
1. Ex: payroll documents, personnel records, records of receipts and disbursements, etc.
ii. Part (B) covers matters observed pursuant to a duty imposed by law when there is
also a duty to report.
1. Ex: weather records, maps, and a court reporter’s transcript.
2. Part (B) prohibits the use, in criminal cases, of records prepared by law
enforcement personnel (b/c of Congress’s concern that the public records exception
would be used to substitute police reports for live testimony of police officers in
criminal cases). Courts have interpreted to apply only when offered against the
Δ, not by the Δ.
a. Note: if the business record is, for example, personnel files in HR this falls under
Part (A) and can be used against a Δ in a criminal trial.
iii. Part (C) of the exception covers findings resulting from an investigation made
pursuant to legal authority.
1. Ex: administrative findings about sex discrimination or employment discrimination
and FAA findings about the safety of a crashed plane.
2. Part (C) restricts the use of public records in criminal cases. They may not be
used against the accused in a criminal case, though they may be used in civil cases
and against the prosecution in criminal cases.
8. RULES 803(7) AND 803(10): ABSENCE OF ENTRY IN BUSINESS OR PUBLIC RECORD
a. The rationales for these exceptions similar to Rules 803(6) and (8).
b. When the absence of something in business or public record is at issue.
i. Ex: Pros for possession of an unregistered firearm. Pros calls the custodian of records of
the State Department of Public Safety, who offers to testify that a diligent search of the
records of that public agency reveals the absence of any registration for the firearm found
in Δ’s possession. This exception would apply.
 1. Note: The pros can argue that it is not offering any out-of-court statement. Instead, it
is offering only the in-court testimony of a witness who will state, from personal
knowledge, that she found no firearm registration in Δ’s name.
ii. Exceptions to Hearsay Where Unavailability of Declarant Required
1. RULE 804(A): WHEN THE DECLARANT IS DEEMED UNAVAILABLE - “Unavailability as a
witness” includes situations in which the declarant:
a. (1) is exempted by ruling of the court on the ground of privilege from testifying
concerning the subject matter of the declarant’s statement; or
i. A witness may no longer claim privilege if given immunity. If witness who has been
given immunity refuses to testify, however, she may still be deemed unavailable for
persisted refusal to testify (next provision).
b. (2) persists in refusing to testify concerning the subject matter of the declarant’s
statement despite an order of the court to do so; or
c. (3) testifies to a lack of memory of the subject matter of the declarant’s statement; or
i. Ex: Retrial. At previous trial, witness testified to specific facts she witnessed. But at
second trial, witness testifies that she doesn’t really remember the details anymore.
Witness is prob unavailable because she does not have sufficient recollection of the
subject matter of her prior statement (her testimony at the first trial) to permit meaningful
testimony at the present trial.
d. (4) is unable to be present or to testify at the hearing because of death or then existing
physical or mental illness or infirmity; or
i. Battery (civil) case. Π attacked, names Δ as her attacker, then lapses into a coma. Π (rep)
wants to offer the statement under the dying declaration exception. This exception
requires the declarant to be unavailable. Π is clearly unavailable under this provision.
Even if not comatose, but still in hospital & not well enough to go home, still unavailable
- if Π not well enough to go home, then also prob not well enough to attend trial.
1. Note – prob won’t work to take trial to hospital – then Π can testify. Too costly,
prejudicial seeing Π in hospital, so prob still unavailable.
e. (5) is absent from the hearing and the proponent of a statement has been unable to
procure the declarant’s attendance (or in the case of a hearsay exception under
subdivision (b) (2), (3), or (4), the declarant’s attendance or testimony by process or
other reasonable means…
i. Taking all reasonable means – this would include contacting employer or others that
might know witness’s whereabouts, going to witness’s home, sending notice (by mail),
service of process (subpoena - necessary), etc. Satisfaction of this depends on whether
there were additional reasonable steps that could have been taken.
f. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of
memory, inability, or absence is due to the procurement or wrongdoing of the proponent
of a statement for the purpose of preventing the witness from attending or testifying.
2. RULE 804(B)(1): THE FORMER TESTIMONY EXCEPTION
a. Elements:
i. (1) declarant is unavailable;
ii. (2) declarant testified at a prior hearing or deposition;
1. Grand jury testimony, though typically given under oath subject to penalty of perjury,
is rarely subject to cross-examination b/c the potential targets of the grand jury
investigation are not “parties” to those proceedings. Even the witnesses called to give
testimony before the grand jury usually are not permitted to have their lawyers in the
courtroom during their testimony. Because the grand jury is such a one-sided
proceeding, the requirements of Rule 804(b)(1) are prob not satisfied (but depends –
still do analysis – if opportunity for cross, same situation & motive, then maybe yes).
 iii. (3) the party against whom the statement is now offered, or in a civil action, a
predecessor in interest, had the opportunity to examine declarant at that prior
hearing or deposition; and
1. Must be offered against the same party as previous trial – b/c there must have been an
opportunity to cross-examine. Therefore, if in 1st trial offered against ΔA, but at 2nd
trial both ΔA and ΔB (2 Δs), this wouldn’t apply b/c ΔB never had a chance to cross.
This is in crim trial though – in civ diff b/c it would be same predecessor in interest.
iv. (4) that party also had a motive to examine declarant at that prior hearing or
deposition that is similar to the motive it has at the instant proceeding.
b. Rationale: The hearsay is sufficiently reliable b/c it was given under oath and was subject to
cross-examination with the same vigor (and for the same purpose) as that which would have
been performed in this trial had the declarant been available to testify.
c. Examples:
i. Pros for bank robbery. At an earlier trial, which resulted in a hung jury, Witness testified
for the pros that she saw Δ and Zed point weapons at the bank tellers and demand all the
money. At the new trial, the pros calls Witness to give the same testimony, but Witness
refuses to testify, claiming a non-existent privilege, and continues to refuse even after the
court orders Witness to testify. Pros wishes to offer into evidence the transcript of
Witness’s testimony from the first trial. Hearsay within hearsay – transcript is a business
record, so admissible.
1. (1) Witness is unavailable (refusing to testify), (2) she testified at a prior trial, (3)
being offered against Δ, the same party it was offered against in the first trial, and (4)
Δ had opportunity in previous trial to cross-examine, and Δ had same motive (same
circumstances as would be at this trial).
3. RULE 804(B)(2): THE DYING DECLARATION EXCEPTION
a. Rationale: a declarant is unlikely to lie if she believes her death is imminent.
i. This is based on assumptions about the religious beliefs and psychological state of the
declarant that might not be warranted. For some, the incentive to lie may be the greatest
just before death, since it is the last chance to have some effect here on earth.
ii. The reliability of these statements might also be questioned on the ground that, just
before death, the declarant’s emotional state or even physical condition may compromise
perceptions, recall, and narrative abilities.
b. Elements:
i. this is a homicide prosecution or any type of civil action;
ii. the statement was made while the declarant believed her death was imminent; and
1. Pros of Δ for murder; Δ denies involvement. Pros wishes to offer evidence that before
dying, Victim said, “I don’t expect to make it. I hope Defendant pays for this.”
Although clear victim didn’t think she would survive, it is not clear that she believed
death was imminent when she made the statement. The statement will only be
admissible if the court is persuaded that it is more likely than not Victim believed
death was imminent when she made the statement.
2. The rule requires only that the declarant believe death is imminent at the time
she makes the statement. It does not require that the declarant actually die
shortly after speaking. In fact, if this were a civil case, death itself would not be a
requirement. Possibly, the fact that Victim did not die until much later would lend
some support to the argument that Victim did not believe death was imminent, but in
many cases it will not help the court decide what was in Victim’s mind at the time she
made the statement.
iii. the statement concerns the cause or circumstances of what declarant believes to be
her impending death.
1. Will contest. Testator died from injuries sustained in car crash. Π offers evidence that,
shortly before she died, the testator said, “I’m going fast. My will was the product of
 undue influence!” The statement does not concern the cause or circumstances of
what the testator believed to be her impending death.
4. RULE 804(B)(3): THE DECLARATION AGAINST INTEREST EXCEPTION
a. Rationale: people usually don’t say things against interest unless they believe the statement
to be true.
b. Elements:
i. Declarant is unavailable
1. Note: the declarant does not have to be a party in the case. Party admission rule
804(b)(3) it must have been made or attributed to a party. Also no requirement of
unavailability for party admissions.
ii. Must have been against interest when made.
1. Note that under Party admission rule 804(b)(3), it need not be against interest when
made.
2. Ex: in negligence action arising from car accident, Π claims Δ’s car crossed the center
line and struck Π’s car. To prove this, evidence offered that passenger in Δ’s car told
officer that she jokingly grabbed Δ’s steering wheel, causing Δ to cross into center
line. Passenger is unavailable, so officer testifies. The statement would have tended
to subject Zed to liability for negligence. A reasonable person would not have made
such a statement to the police unless she believed it to be true.
iii. Also, a statement tending to inculpate the declarant and offered to exculpate the
criminal defendant is not admissible unless the defendant provides substantial
corroboration for the accuracy of the statement.
1. Pros of Δ for distribution of cocaine. Δ denies involvement, and claims that Zed was
the guilty party. Evidence that Zed said he had “just set up a terrific cocaine
distribution network.” By itself, not enough – need corroboration. However, if a large
amount of cocaine & a list of prospective buyers were found in Zed’s apartment - that
would satisfy the requirement for substantial corroboration.
c. Problem: When a statement that directly the declarant is mixed with statements of fact
and other matters that are not so clearly inculpatory.
i. Williamson v. United States – Cocaine found in trunk of car. Driver admitted knowing
about cocaine and said he was delivering it for Williamson. Driver refused to testify at
trial. Argument that the exception did not apply because the statements were not against
interest, given the context - The declarant was caught with the goods and was just trying
to shift the blame and curry favor. Also, the part of the statement that incriminated
Williamson literally was not against Driver’s own interest. On the other hand, the
statements arguably were against interest in that they show that Driver was privy to
detailed information about the conspiracy and, thus, was a member thereof.
1. Supreme Court held that the rule “does not allow admission of non-self-
inculpatory statements, even if they are made within a broader narrative that is
generally self-inculpatory.” The Court pointed out that the rationale for this rule
does not apply to neutral or self-serving statements, even when they are contained
within statements that are otherwise against-interest.
2. So in analysis, rather than treat a narrative as a single statement and determine
whether, as a whole, the statement is against the declarant’s interest, the Court held
each part of the statement is a statement in itself and must be against interest in
order to be admitted.
a. Pros of Δ for kidnapping. Zed admits involvement, but claimed his only role was
to develop information about the victim’s daily routine and to pass it along to Δ ,
who Zed claimed actually captured and held the victim. Zed then dies. Break the
statement into parts and determine the admissibility of each part.
 i. Zed’s admission to involvement & details of his role in the kidnapping is
against his interest. Even if Zed had a motive to minimize his role, he was still
incriminating himself by admitting to this level of involvement.
ii. Zed’s statement that it was Δ to whom he passed the info is not really against
Zed’s interest. However, if Zed gives specific details about exactly how it
happened, what Δ did specifically, etc., this might be against Zed’s interest b/c
it shows the extent of Zed’s involvement.
iii. Note though – after Crawford v. Washington, Zed’s statement is testimonial in
nature, so if Zed unavailable to testify, Δ never had opportunity to cross, so
the entire statement would be inadmissible.
5. RULE 804(B)(6): THE FORFEITURE BY WRONGDOING EXCEPTION
a. Rationale: The hearsay rule should not be abused by excluding hearsay when the
unavailability of the declarant was procured through the opponent’s wrongdoing.
b. Evidence is admissible over hearsay and Confrontation Clause objections as against a Δ
who engaged in the wrongdoing to procure a witness’s unavailability, as well as against
any party who acquiesced in that wrongdoing.
i. A Δ waives Confrontation Clause rights (and, thus, hearsay objections) if a
preponderance of the evidence establishes either
1. that the Δ participated directly in planning or procuring the declarant’s unavailability
through wrongdoing, or
2. that the wrongful procurement was in furtherance, within the scope, and reasonably
foreseeable as a necessary or natural consequence of an ongoing conspiracy.
ii. United States v. Cherry – 5 Δs charged with involvement in a drug conspiracy. One of
the Δs murdered the main prosecution witness. Pros offered the hearsay statements of the
witness against all the Δs. The court remanded for a determination whether the other Δs
waived their rights under this standard.
c. Examples:
i. Negligence action following car crash. Witness, who Π plans to call to testify, observed
the collision & had told a police officer the day after crash that Δ ran a red light. Δ pays
witness to “disappear for a while,” making Witness unavailable to testify. Although
hearsay, this falls under exception & statement would be admissible.
ii. The rule is intended to admit hearsay only when the party wrongly procured the
witness’s absence for the purpose of preventing the witness from testifying.
1. Pros of Δ for murder. Pros alleges Δ killed victim to prevent her from testifying at Δ’s
racketeering trial. Pros wants to bring evidence in at the murder trial that Victim
accused Δ of being a “big time mobster involved in all kinds of illegal activity.” This
rule would only apply in the racketeering trial.
iii. When the wrongful procurement was in furtherance, within the scope, and
reasonably foreseeable as a necessary or natural consequence of an ongoing
conspiracy.
1. Pros for bank robbery. Few days before trial, Zed, a co-conspirator, killed Witness, a
bank customer, to prevent her from testifying against Δ. Δ knew nothing of Zed’s
plan to kill Witness before Zed carried it out, though Δ did not inform the police of
Zed’s act after Δ learned of what Zed had done. Where Defendant had no advance
knowledge of Zed’s plan to kill Witness, it is not possible to say that Witness
“acquiesced” in Zed’s act. It’s not clear, but probably also not in furtherance of
conspiracy – this would open the door to liability of a co-conspirator to almost any
act taken by another conspirator to impede prosecution, and prob goes beyond scope
of the rule.
a. However, if Δ knew what Zed planned, tried to talk him out of it, but when he
couldn’t, told Zed, “Do what you want, I can’t stop you,” this might be interpreted
to mean that Δ acquiesced to Zed’s plan. But uncertain.
 6. RULE 807: THE RESIDUAL EXCEPTION
a. Rationale: to permit the law the flexibility to admit valuable evidence that appears reliable
even though it is hearsay and does not fit into one of the exceptions in Rules 803 and 804.
i. The residual exception departs from CL, under which hearsay would only be admissible
if it fit within a specific exception. Congress apparently intended the residual exception to
be used sparingly, but not all courts seem to appreciate this.
ii. Elements:
1. Statement is offered as evidence of a material fact
2. the statement is more probative on the point for which it is offered than any
other evidence which the proponent can procure through reasonable efforts; and
a. Ex: product liability action against car manufacturer alleging that the car’s
defectively designed steering mechanism failed, causing Π’s husband to lose
control and crash. Husband died from injuries, but before dying, tape-recorded a
description of what happened. The tape would not be admissible under this
exception unless it was the best evidence they have. For example, the car itself
could be inspected by experts, and that would be the best evidence (most
probative). If, however, car is incinerated, & no witnesses, then it might be, as
long as court finds it trustworthy.
3. the general purposes of these rules and the interests of justice will best be served
by admission of the statement into evidence.
b. New York does not have such a catchall rule. There are indications from scattered cases that,
under the right set of circumstances, the courts would be willing to expand the admissibility
of hearsay.
VII. HEARSAY & THE CONSTITUTION
a. Relationship Between Hearsay and The Confrontation Clause
i. Even if hearsay fits within a hearsay exception, a criminal Δ still can object on the ground that
admitting the hearsay would violate the Confrontation Clause.
1. The Confrontation Clause of the 6th Amendment provides that “In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .”
a. The language of the clause is susceptible to a variety of plausible interpretations.
i. All hearsay declarants whose statements are offered by the prosecution would be
considered “witnesses against” the Δ, and therefore the Constitution would require that
the Δ be entitled to cross-examine them at trial. But this would lead to the exclusion of
virtually all prosecution hearsay.
ii. The amendment requires merely that the Δ be confronted with whatever witnesses the
prosecution chose to produce at trial.
iii. “Witnesses against” the Δ referred only to persons who were available to testify. So, the
prosecution would be required to produce declarants for cross-examination when
possible, but the statements of unavailable declarants could be freely admitted.
2. No clear guidance in choosing among these or other possible interpretations. The Supreme Court
has never established a general principle, but instead decides on an ad hoc basis.
ii. Ohio v. Roberts – (this test no longer applies) established a two-pronged test for satisfying the
Confrontation Clause when hearsay is offered against an accused:
a. Prong 1: The declarant must be unavailable.
b. Prong 2: The statement must bear adequate indicia of reliability, which is the case if the
statement falls within a firmly rooted hearsay exception or there are “particularized
guarantees of trustworthiness” associated with the statement.
iii. Crawford v. Washington (2004) – changed everything, overruled Ohio.
1. The court must decide whether the declarant’s statement is “testimonial” in nature.
a. If it is, it is inadmissible unless
 i. declarant is unavailable and defendant had a prior opportunity to cross-examine
declarant; or
ii. the prosecution produces the declarant at the trial.
b. If the declarant’s statement is not testimonial in nature, the Confrontation Clause does not
pose an obstacle to its admission. The statement is admissible if it satisfies the requirements
of the hearsay rule and other evidence rules.
2. Davis v. Washington - Court defined “testimonial” more clearly, at least in the context of
statements made to law enforcement officers.
a. If the statement is made in the course of an ongoing emergency, it will not be treated as
testimonial.
b. If, however, “the primary purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution,” the statement will be treated
as testimonial.
3. Melendez-Diaz v. Massachusetts (2009) – at state court drug trial, prosecution introduced
certificates of state laboratory analysts setting forth that material seized by police and connected
to petitioner was a specific quantity of cocaine. Pursuant to Massachusetts law, the certificates
were sworn to before a notary public and were offered into evidence by the prosecution as prima
facie evidence of what they asserted. Melendez argued that this violated the confrontation clause.
The certificates here are affidavits, which fall within the “core class of testimonial
statements covered by the confrontation clause.” They stated that the substance found in
petitioner’s possession was, as the prosecution claimed, cocaine of a specific weight and this was
the precise testimony that the analyst would be expected to provide at trial. Petitioner was
entitled to be confronted with persons giving this testimony at trial.
4. Example:
a. Pros for the shooting murder of Victim on a street corner. Δ claims he didn’t do it, just wrong
place wrong time. Witness arrived at the street corner moments after the shooting and saw
Walker kneeling next to Victim, sobbing. If permitted, Witness will testify that Walker
suddenly pointed to Δ and screamed, “You did it!” Walker dies.
i. This is hearsay, but prob falls under the excited utterance exception.
ii. The statement is probably non-testimonial (b/c no structured police questioning), and
Davis appears to hold that non-testimonial statements are not protected by the
confrontation clause.
b. Constitutional Limits on the Exclusion Of Hearsay
i. Issue is whether Δ’s rights are violated if a rule of evidence is used to exclude Δ’s evidence.
1. Chambers v. Mississippi - Δ was convicted of murdering a policeman. Δ called Witness to
testify & introduced Witness’s written confession to the murder. Witness then repudiated the
confession during cross by pros. When Δ tried to attack Witness’s credibility, trial court didn’t
allow b/c of voucher law that you can’t impeach own witness (under fed rule 607, you can do
this). Δ then sought to introduce Witness’s out-of-court statements confessing to the murder.
Trial court excluded this evidence on the ground it was hearsay.
a. The Supreme Court overturned the conviction on the theory that, because defendant had
been unable to present the evidence in his favor, he had been denied due process.
2. There is no constitutional right to present any and all evidence – only a constitutional right
to present reliable evidence.
a. Pros for murder. Crime witnessed by several people who all properly ID’d Δ in lineup. Δ
wants to call Witness to testify that Zed confessed to the murder. Zed is unavailable. Δ is
unable to present any evidence corroborating the trustworthiness of Zed’s statement to
Witness.
i. This case is not like Chambers because there is little to suggest that the evidence is
reliable, and the testimony of several eyewitnesses that Δ committed the crime render Δ’s
guilt not nearly as questionable as that of Chambers.Admission of the evidence would not
violate Δ’s constitutional rights.
 EVIDENCE OF CHARACTER, UNCHARGED MISCONDUCT &
SIMILAR EVENTS

I. CHARACTER EVIDENCE
a. Introduction
i. Although character evidence is relevant, because a person with a propensity to do something is more
likely to do it, we limit its admissibility because there are at least two ways it might cause unfair
prejudice.
1. The evidence might divert jurors from the question of whether Δ committed the crime charged
b/c, once having heard Δ’s character, jurors may be willing to find him guilty simply because he
is a bad person.
2. Even if jurors remain focused on the question of whether Δ committed the crime, they might give
too much weight to the character evidence.
ii. Character Evidence is evidence that says something general about a person and carries with it
an ethical or moral judgment.
1. Type of propensity evidence – b/c the evidence makes a general statement about a person, it
invites jurors to draw inferences about how the person acted in connection with the events in
question. And because the evidence conveys a moral or ethical judgment, jurors are more likely
to be diverted from the issues and focus on whether the person in question is “good” or “bad.”
iii. The first key to determining admissibility is ascertaining what the character evidence is
offered to prove.
1. A party might seek to use character evidence to prove
a. character itself because character is an issue in the case (Rule 405);
b. character of a witness for lying or truth-telling (Rules 608, 609); or
c. character of a party or other person as circumstantial evidence of her conduct (Rule 404(a)).
iv. Reputation is admissible hearsay. Reputation is hearsay if offered to prove the truth of the matter
asserted because it is an out-of-court statement by the community. Though the evidence is hearsay, it
is admissible under Rule 803(21), which provides an exception for “[r]eputation of a person’s
character among associates or in the community.”
b. The Rules
i. Rule 404 (a) - Evidence of a person’s character or a trait of character is not admissible for the
purpose of proving action in conformity therewith on a particular occasion, except:
1. (1) In a criminal, a Δ’s character is never in evidence, unless the Δ put his character at issue
(then pros can rebut only).
a. Note: Only applies to criminal cases. Character evidence offered to circumstantially prove
conduct is inadmissible in civil cases, with the exception of sexual abuse and child
molestation cases (Rule 415). Reason is constitutionality – must allow Δ to present a case.
2. (2) Evidence of victim’s character can be offered by Δ, and Pros can rebut it. Or, if Δ says
victim was 1st aggressor, pros can bring evidence victim’s character in (peacefulness).
3. Character of witness - Rules 607, 608, and 609.
ii. Rule 404 (b) - Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.
1. However, may admit this evidence for other purposes – to prove motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.
 iii. 405(a) – when character evidence is admissible, proof may be made by testimony as to either
reputation or in the form of an opinion. On cross, however, you may only inquire into relevant
specific instances of conduct.
iv. 405(b) – when character/trait is an essential element of a charge, claim, or defense, proof may
also be made of specific instances of that person’s conduct.
c. Evidence of a Criminal Defendant’s Character
i. Two main restrictions on Δ’s right to prove innocence with character evidence:
1. The evidence must concern a “pertinent trait” of defendant’s character.
a. Defendant’s possession of the particular character trait must make it less likely that defendant
would commit the charged crime.
2. The evidence may only take the form of reputation and opinion
a. In addition, the witness testifying in either form must possess the necessary knowledge to
support the testimony.
i. In the case of reputation, the witness must have sufficient familiarity with defendant’s
reputation in the relevant community.
ii. In the case of opinion, the witness must know defendant personally, and that knowledge
must be based on a sufficient amount of contact to form a reliable opinion.
ii. Once the Δ offers character evidence to prove her innocence:
1. The prosecution may present character evidence to “rebut” the Δ’s evidence.
a. To rebut, the prosecution’s evidence must concern either the same character trait or one
closely enough related to that trait to undercut the effect of the defendant’s evidence.
2. If the prosecution wishes to present its own witnesses, it will be bound by the same restrictions
that apply to Δ’s witnesses: the evidence may only take the form of reputation or opinion. The Δ
can rebut this using specific instances as well.
3. If the prosecution wishes to cross-examine Δ’s character witnesses, the evidence may include
reputation or opinion, and may also include references to specific instances of conduct.
4. If the prosecution’s question on cross-examination mentions a specific instance of conduct, the
prosecution must satisfy the court that it has a good faith reason to believe the conduct actually
occurred.
a. Rumors that defendant was arrested may be false. Don’t want to prejudice jury.
b. NOTE: Court may still forbid the prosecution from asking about specific instances of
conduct during cross, under rule 403, if it finds probative value of the evidence is
substantially outweighed by the danger of unfair prejudice.
iii. Exception - Rule 413: Sex Crimes - In a criminal case of rape, the prosecution is permitted to bring
evidence of specific instances of rape committed by Δ in the past, to prove Δ committed the crime.
Rule 413 only admits evidence of other specific instances of conduct, not of reputation or opinion
concerning the defendant’s character for this type of misconduct (for ex, reputation for being a
sexual predator). To bring in past specific instances, it must be the same type of crime; thus, history
of child molestation cannot be brought in in a rape case.
d. Evidence of an Alleged Crime Victim’s Character
i. General Principles:
1. The defense is permitted to be the first to offer the evidence, after which the prosecution may
rebut.
2. On direct, only reputation and opinion evidence are permitted while specific instances evidence
is permitted on cross.
3. And, of course, everyone is limited to offering evidence of pertinent character traits.
ii. Special rule for rape victims
1. Rule 412 is a special exception to Rule 404(a)(2).
a. Rule 404(a)(2) permits Δs to present evidence of the victim’s character to prove action in
conformity, while Rule 412 restricts this in a sexual assault case.
 b. Rule 412(a)(1) excludes evidence of victim’s other sexual behavior and subsection (2)
excludes evidence of a victim’s sexual predispositions.
2. Olden v. Kentucky – Δ convicted of rape. The alleged victim, Matthews, testified that Δ raped
her. She said that, after the rape, she asked to be dropped off at the home of a man named
Russell. She then told Russell Δ had raped her. Δ wished to cross-examine Matthews about her
intimate relationship with Russell. The purpose of the evidence would have been to show that
she had a motive to lie about being raped – to conceal from her boyfriend her consensual sexual
activity with Δ.
a. The evidence does have high probative value, but the court still excluded the evidence out of
concern for its potential prejudicial impact. Specifically, the court was concerned that a jury
might be prejudiced against Matthews for being involved in an inter-racial relationship.
b. But this has to be balanced against the Δ’s 6th amendment right to put on a defense. Our
system relies on the trial judge to make a careful, case-by-case determination of the probative
value of the evidence and its potential prejudicial impact.
3. In rape case, evidence of victim’s prior consensual sex/relationship with the Δ probably will
be admitted to prove Δ’s defense that the sex was consensual.
a. This is unless the circumstances indicate that the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice. If, for example, the two
consensual episodes occurred long before the alleged sexual assault, or the evidence strongly
suggests that the relationship had ended some time before the alleged sexual assault, the
court might exclude the evidence. Also if physical evidence suggests that the event at issue
involved violence.
iii. Special rule for homicide prosecutions
1. Rule 404(a)(2) contains another exception to the general rule that evidence of the victim’s
character is inadmissible to prove the victim’s conduct.
a. The rule states that evidence of the character trait of peacefulness of the alleged victim
can be offered by the prosecution in a homicide case to rebut evidence that the alleged
victim was the first aggressor.
i. This part of the rule applies even if the defense has not offered evidence of the victim’s
character. The Δ need only have offered some evidence, in any form, that the victim was
the first aggressor.
b. If the defense offers evidence that the alleged victim had a particular character trait
(which we know the defense is permitted to do), then the prosecution may offer
evidence that defendant had the same character trait.
e. Other Crimes, Wrongs, or Acts
i. Although evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity, you may admit this evidence for other purposes – to
prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. The factfinder is offered evidence that Δ committed another act (the
“uncharged misconduct”) that permits the inference that the Δ committed the charged act or had the
mental state required to convict.
1. MIMIC (motive, identity, mistake/accident or absence thereof, intent, common plan or scheme).
2. Ex: Δ charged with selling drugs to an undercover officer on a certain street corner. Δ admits
selling the drugs, but claims entrapment. To prove a preexisting intent to sell the drugs, and thus
rebut the claim of entrapment, the prosecution offers evidence that on anotheroccasion on the
same corner, Δ sold the same type of drug to another individual (not an undercover officer). The
evidence of the prior sale (the uncharged misconduct) is the predicate for an inference that Δ
possessed the required intent on the charged occasion.
3. Robbins v. State – Δ was charged with killing the 17-mo. old daughter of his girlfriend. Victim
found with bruises on body; Δ said caused by incorrectly performed CPR efforts rather than from
any intentional act by Δ. Δ testified that he loved the victim and would not have harmed her.
Court permitted pros to present evidence that, on 4 other instances within a 6 mo. period when
 the victim was left in Δ’s care, she suffered various physical injuries. The evidence was
admissible under Rule 404 to prove a fact other than Δ’s character, namely, that his relationship
with the victim was not a loving one, as he alleged.
a. “The doctrine of chances” - evidence is not admitted to show Δ is violent or murderous or
has some other pertinent character trait. Rather, the evidence that the victim repeatedly
suffered physical injuries when in Δ’s care is just too unusual to be attributable to
coincidence or accident. Thus, the evidence increases the probability that her fatal injuries
were caused by an act of Δ.
i. Sometimes difficult to draw lines in some cases – when are prior incidents too unusual?
1. What if victim injured only once before? What if injured 4 times, but Δ took care of
victim hundreds of times?
ii. What is a “crime, wrong, or act”?
1. When the evidence does not concern an act of misconduct, it is unlikely the jury will draw a
character inference. Thus, Rule 404 might be inapplicable.
2. Examples:
a. Pros for theft of valuable jewelry from a neighbor’s home. Δ denies involvement. To prove Δ
did it, the pros wishes to present evidence that Δ had a key to the neighbor’s home. This is
not inadmissible character evidence – nothing suggests that Δ came into the possession of the
key unlawfully, so no chance of prejudice; & not a crime, wrong, or act. The evidence is
simply relevant to show that Δ had access to the home.
3. Timing of uncharged misconduct
a. A common misconception is that MIMIC evidence always deals with conduct that preceded
the events at issue. But while most evidence raising an issue under Rule 404 involves
conduct of a party prior to the events at issue, the rule can also apply to evidence of conduct
after those events.
i. Ex: Bank robbery; perp used a very rare type of explosive to get into safe. To prove Δ
committed the crime, pros wants to bring evidence that 2 weeks after that robbery, Δ
robbed another bank using the same type of explosive. The sequence of the robberies is
not important. The evidence of the later robbery shows that Δ had access to that type of
explosive. If she had access to the explosive shortly after the charged robbery, it is
reasonable to infer she might have had access at the time of the charged robbery. If so,
the evidence puts her in a small group of people who had the opportunity to commit the
crime.
1. What if the robberies were 3 years apart? – not clear. The more time passes, the lower
the probative value. To decide whether 3 yrs is too long depends on the context of
case & other evidence.
4. Degree of required similarity between charged and uncharged conduct
a. Prosecution for murder. The murderer waited outside Victim’s home, accosted him when he
got out of his car, forced him into the house, took all the money and jewelry from the house,
and shot him. To prove Δ was the killer, pros wishes to present evidence that several weeks
earlier, Δ had committed a murder in a nearby town using the same method. Although
similar, the details are not unique. In all likelihood, this is a common method used by
murderers who seek to rob and then kill their victims.
5. Judge/jury functions: required quantum of proof of uncharged misconduct
a. Evidence under Rule 404(b) always involves some bad act. The rule does not say that the bad
act had to result in a conviction but, if it did, that should be sufficient evidence that the act
took place since it is based on proof beyond a reasonable doubt.
i. Note that Rule 803(22) makes conviction evidence admissible over a hearsay objection.
ii. If no conviction – preliminary question of fact
1. Huddleston v. United States – Δ accused of knowingly possessing and selling stolen
merchandise. He denied knowledge that the items were stolen. Pros offered evidence
that two mos. before the attempted sale of the tapes, Δ had obtained a large number of
 televisions from the same source who supplied the videotapes, and that Δ had offered
to sell the televisions for $28 each.
a. The evidence is permissibly offered to prove Δ knew his source supplied stolen
goods in the past and therefore he knew the tapes were stolen (but not permissible
to offer this to show his bad character).
b. But – Pros must show that the TVs were stolen and that Δ knew it.
2. Prior to this case, this was usually a 104(a) analysis, but here says its 104(b) – b/c
conditional relevancy. The preliminary question of fact is whether the person
engaged in the uncharged misconduct. If the preliminary fact is not true, the evidence
would be irrelevant.
II. HABIT EVIDENCE
a. Rule 406
i. Habit evidence is generally admissible to prove conduct while the rules regulating character, such
as Rule 404, place significant limits on admissibility.
ii. How, then, do we know when evidence goes to prove habit or character?
1. Habit evidence shows a regular practice of meeting a specific kind of situation with a certain
kind of conduct. Often, it is reflex or automatic behavior and, thus, says nothing about the
morals or ethics of the actor.
2. On the other hand, character evidence says something general about a person and carries with it a
moral or ethical judgment. Obviously, the concepts are related and sometimes are hard to tell
apart.
iii. Examples:
1. Negligence action arising from an intersection collision. To prove that Δ ran the stop sign, Π
calls Witness to testify that for the past year, she has ridden with Δ almost every day to school,
that they always cross the intersection in question, and that Δ almost always fails to stop at the
stop sign.
a. Witness’s testimony establishes an adequate foundation for habit.
i. The stimulus (the stop sign) is specific, and Δ’s response (failing to stop) is also specific.
ii. The number of instances is sufficient as well.
III. EVIDENCE OF SIMILAR EVENTS
a. This evidence concerns a person, place or event other than that directly at issue in the case.
i. Normally evidence must be about the people, places, and events at issue to be relevant. But similar
events evidence is relevant because, as the name suggests, it has some similarity to the persons,
place or event at issue and, thus, tells us something about those matters.
b. No specific rule governs this type of evidence. Rules 401 and 403 control the analysis.
i. The degree of similarity between the similar events evidence and the matters at issue is often
the key to that analysis.
ii. Examples:
1. Negligence action against Δ, a railroad company, following a collision between Π’s vehicle and
Δ’s train. Π was driving her vehicle when she approached a railroad crossing, and claims that the
gate was not down and the light was not flashing, so she started to cross the tracks. Δ denies that
the gate and signal were not working.
a. To prove that the gate and signal were not working, Π wishes to present evidence that on two
occasions in the year before her accident, drivers narrowly avoided collisions at the same
crossing because the gate and signal were not operating. Allowed - As long as the
conditions of the prior accidents were sufficiently similar to those encountered by Π,
the evidence carries sufficient probative value to overcome any dangers of unfair
prejudice, distraction of the jury, or undue consumption of time.
 WITNESSES
I. ATTACKING AND SUPPORTING THE CREDIBILITY OF WITNESSES
a. Rule 611: Mode and Order of Interrogation and Presentation
i. (a) The court shall exercise reasonable control over the mode and order of interrogating witnesses
and presenting evidence so as to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.
ii. (b) Cross-examination should be limited to the subject matter of the direct examination and
matters affecting the credibility of the witness. The court may, in the exercise of discretion,
permit inquiry into additional matters as if on direct examination.
1. Ex: Pros for bank robbery; Δ denies any involvement. On cross, pros asks Δ to admit that she
owed thousands of dollars in gambling debts at the time of the robbery. The evidence that Δ had
gambling debts tend to show motive to commit robbery, which undercuts Δ’s claim she was no
involved.
2. Ex: Negligence action arising for skating collision. Π testifies she was skating carefully when Δ
got into her path & hit her head on. On cross, Δ asks Π to admit this was Π’s first time skating.
Even though Π said nothing about her experience as a skateboarder, her testimony that she was
skating “carefully” leaves the impression that she knew how to skate. Evidence that she was
skateboarding for the first time puts Π’s story in context and undercuts this implication.
iii. (c) Leading questions should not be used on 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.
b. Introduction to Impeachment
i. Checklist of issues with which to analyze impeachment problems:
1. What is the evidence?
2. Is it offered to support the credibility of a witness?
a. If so, has credibility been attacked?
3. Is it offered to impeach the credibility of a witness?
a. If so, determine the method of impeachment and ask, is the evidence relevant and admissible
under the law governing this method? To determine its relevance, apply principle of Rule
401.
4. To determine admissibility, ask: Does the law for the method in question require that proof of the
impeaching facts be elicited during cross-examination of the witness being impeached, or does
that law permit proof from other sources? (extrinsic evidence) Are all other foundational
requirements for this method of impeachment satisfied?
5. Would admission of the evidence violate any other rules, such as Rule 403?
6. Also determine if extrinsic evidence is being offered to impeach.
a. Extrinsic Evidence is evidence from any source other than the testimony of the witness to be
impeached while she is testifying in this case.
c. Who May Impeach
i. Rule 607 states that a witness may be impeached by any party, including the party calling that
witness.
1. The rule abolishes the common law “voucher rule,” which did not permit a party to impeach her
own witness unless the witness was “hostile” or was the opposing party or a person identified
with that party.
ii. United States v. Hogan – Δs prosecuted for drug smuggling. Carpenter was arrested in Mexico,
confessed to the smuggling, and implicated Δs in his out of court statement. Subsequently, Carpenter
claimed his statement was obtained through torture and he recanted it, including twice while under
 oath in other proceedings. The prosecutor called Carpenter to testify, knowing that he would deny
the smuggling and deny that defendants were involved. Carpenter did exactly that. For the stated
purpose of impeaching Carpenter, the prosecutor then offered Carpenter’s out-of-court statement
implicating defendants.
1. This is impeachment through prior inconsistent statement. Such evidence undermines
credibility in that it shows the witness has changed his story, thereby permitting the
inference that the witness is unreliable.
2. If the statement is used to prove the smuggling, it is hearsay. If the statement is just used to prove
the inconsistency, it is not hearsay because it is offered just to prove the statement is made, not
that it is true. The prosecutor’s purpose must have been to concoct a pretense for impeachment
with Carpenter’s prior inconsistent statement in the hope that the jury would use it for its
hearsay purpose. No other reason they would want the exculpatory testimony in.
a. A rule 403 objection can be raised because the probative value for impeachment purposes
must be balanced by the unfair prejudice caused by the danger that the jury might improperly
use the evidence for its inadmissible hearsay purpose. Objection would probably be
sustained - Since the prosecution is not surprised by the testimony, the impeachment appears
to be a pretense. Thus, the probative value for impeachment purposes is low while the danger
that the jury will use the statement for its hearsay purpose is high.
d. Methods Not Governed by Specific Common Law or Statutory Rules
i. There are several ways to attack the credibility of a witness that are not regulated by any specific law
but, rather, by common sense.
1. Impeachment by challenging the witness’s opportunity to observe. Rules forbidding use of
extrinsic evidence don’t apply.
a. Ex: Witness 1 testifies that Δ was the shooter & had an unobstructed view. Δ offers
testimony of Witness 2 that they were standing together, and were 50 feet away from shooter
& many people between them and shooter (so can’t really see). Or that Witness 1 was not
wearing her glasses that day.
b. However, if Witness 1 says she was at bank to make a deposit, but Witness 2 says Witness 1
was making a withdrawal. Doesn’t affect Witness’s opportunity to or capacity to observe.
But this has no bearing on the outcome of the case – only trying to show that Witness 1 has a
bad memory.
i. If evidence offered that Witness 1 has a reputation for having a bad memory – this is
inadmissible hearsay, b/c it is offered to prove to reputation is accurate. Rule 803(21)
only apply to reputation for character, & having a bad memory is not a character trait.
ii. If Witness 2 testifies that in her opinion, Witness 1 has a bad memory - the evidence is
being offered to impeach the accuracy of Witness 1’s testimony. As long as Witness 2’s
opinion testimony is rationally based on her perceptions, and would assist the trier of fact
to determine a fact in issue, it is admissible. Opinion is not hearsay like reputation.
e. Witness Character
i. The first step in analyzing the admissibility of character evidence is to determine the purpose for
which the character evidence is offered. Three possibilities:
1. Character evidence might be offered to prove conduct (Rule 404).
2. Character evidence might be offered to prove character itself because it is an issue in the case
(Rule 405).
3. Character evidence might be offered to prove the character of a witness for truthfulness or
untruthfulness.
ii. Rule 608(a): Reputation or Opinion Concerning Truthfulness
1. Regulates evidence in the form of reputation or opinion (treating them the same). It
permits the admission of opinion evidence concerning truthfulness only if truthfulness has
been attacked.
1. Example:
 a. Δ calls a witness who testifies that he has lived next door to Plaintiff for years and that, in his
opinion, Π is a liar. On cross Π asks, “Isn’t it true that everyone else in the neighborhood
says Π is truthful?” The witness answers, “Yes.”
i. The cross-examination testimony is admissible under Rule 608(a). This reputation
evidence comes from people in Π’s neighborhood and relates to the pertinent character
trait—truthfulness.
ii. The reputation evidence is hearsay, however, because it is a collection of out of court
statements offered to prove the truth of the matter asserted. But an exception to the
hearsay rule applies here - Rule 803(21).
ii. Rule 608(b): Conduct Probative of Truthfulness
1. Regulates specific instances of a witness’s conduct, other than conduct that resulted in a
criminal conviction.
a. Rule 608(b) places significant limits of the admissibility of evidence concerning specific
instances of the conduct of a witness when offered to prove the witness’s character for
truthfulness or untruthfulness.
i. Extrinsic evidence is rarely admissible for this purpose. Every witness has engaged in
thousands of specific instances of conduct that bear on truthfulness. The trial could go on
endlessly unless there is some significant limit on this evidence.
2. Examples:
a. Rule 608 only applies to character evidence offered to prove witness credibility.
i. Ex: Pros for drug dealing. Δ testifies and denies committing the crime. On cross, the pros
asks Δ if he lied on a job application about a misdemeanor conviction for marijuana
possession.
1. Evidence of marijuana conviction – evidence of this prior bad act is being offered
here to show conduct in conformity therewith, so not admissible under rule 608.
2. However, the act of lying on the job application is a specific instance of conduct &
might be admissible under rule 608.
a. Rule 608(b) states that admissibility is a matter of judicial discretion, which
is guided by Rule 403 concerns as well as by the trial court’s authority,
conferred by Rule 611, to control the mode of interrogation. Court might still
exclude it though b/c unfairly prejudicial outweighs probative value.
iii. Rule 609: Impeachment of Witnesses Conviction of Crime
1. This rule deals with evidence that the witness has been convicted of a crime.
a. Rule 609 assumes that a prior conviction for other crimes tells us that the witness may
not be a law abiding person and, thus, may be willing to commit perjury in this case.
i. These assumptions can be challenged both generally and specifically.
1. A general challenge is based on the notion embodied in Rules 404(a) and 405 that
inferences about a person’s character and corresponding conduct may be unreliable
when based on a limited number of events in that person’s life.
2. A specific challenge asserts that the commission of a crime, especially one that does
not involve lying, says little or nothing about whether the witness would be willing to
lie under oath.
a. If a prior conviction is relevant – still may have little probative value where the
witness is the accused, b/c it is safe to assume that, if the accused is so wanton as
to commit the crime with which is he now charged, then he probably also would
be willing to lie about it from the witness stand. Thus, a prior conviction on an
unrelated offense tells us no more than we already know about the reliability of
the accused’s testimony.
b. A prior conviction must be based either on a guilty plea or on a finding that guilt was
proven beyond a reasonable doubt.
i. Either way, the conviction is powerful evidence that the crime was committed.
 ii. Also, the fact of the conviction can be proven easily, whether by the witness’s own
acknowledgment or by a document adjudging the witness guilty of the crime.
iii. Examples:
1. Pros for perjury. Δ testifies that, while he made false statements, he did not know they
were false at the time. On cross, pros asks “Isn’t it true that last year you were
convicted of a misdemeanor for lying on your driver’s license application?” Δ
answers yes.
a. Rule 609(a)(2) makes admissible a conviction for a crime of lying, whether
felony or misdemeanor. There is no discretion to exclude under Rule 403. If
the conviction is more than ten years old, then Rule 609(b) permits balancing.
i. If more than 10 yrs old, court will balance against prejudicial effect.
b. Rule 609 places no limits on the admissibility of extrinsic evidence. So if Δ
denies lying on application, pros can submit a certified copy of the judgment of
conviction.
c. Rule 609 only admits evidence of a conviction. So testimony of arresting officer
is not admissible.
d. The prior crime must have been one of lying, or where one of its elements
was lying. This isn’t necessary to impeach a witness who is not the Δ.
i. Though the matter is not entirely settled, most courts probably will construe
the phrase to refer just to crimes involving lying, like perjury or fraud, as they
had under the previous language of the rule.
ii. If evidence of petty theft – prob not b/c dishonesty is not one of elements to
convict someone for it. Same if it were robbery, a felony. But you could use
this if it was to impeach Δ’s alibi witness, for example.
e. Rule only requires that the crime be punishable by imprisonement in excess
of 1 year, not that actual jail time was served.
2. Luce v. United States - Δ was prosecuted for drug crimes. He made a pretrial motion requesting
a ruling that, in the event he testified in his own defense, evidence of his prior conviction for a
drug offense would not be admissible to impeach. Δ didn’t testify & was convicted. Δ appealed.
Supreme Court held that a Δ must testify and be impeached to preserve for appeal the issue
under Rule 609(a). Unless the Δ actually testified, the trial court could not properly balance
unfair prejudice against probative value, because striking that balance required hearing the
testimony to be impeached and considering the impeaching evidence in context.
a. This is only an issue when the court has to balance with prejudicial effect. If purely a legal
issue, issue will be preserved for appeal & court doesn’t have to weight factors in context..
For example, if prior conviction was for a misdemeanor of a crime of violence, then would
not be admissible anyway.
iv. Rule 610: Religious Beliefs or Opinions
1. Rationale: to protect First Amendment values by excluding evidence of a witness’s religious
beliefs, or lack thereof, for the purpose of inducing the jury to draw some inference about the
witness’s character.
2. Examples:
a. Pros for tax fraud. Δ’s accountant is a witness & testifies Δ followed the IRS code. Pros
offers evidence that witness accountant is a member of a religious organization that believes
in animal sacrifice and worships a golden calf. Clearly not admissible. The evidence in
question is likely to offend the sensibilities of mainstream religious believers on the jury and,
thus, cause unfair prejudice.
i. However, if evidence is that the accountant is a member of a religious organization that
believes Δ is the messiah, this relates to credibility in that it reveals the witness has a bias
in favor of Δ. Rule 610 is not aimed at excluding evidence of a witness religious
belief when it is probative of bias. Still might be prejudicial, so court has discretion
 under Rule 403 to exclude the evidence if its probative value for purposes of bias is
substantially outweighed by these aspects of unfair prejudice.
v. Bias, Motive, And Interest
1. No specific rule governs this method of impeachment; but CL principles are applicable.
2. United States v. Abel - Δ charged with bank robbery. An alleged accomplice testified for the
prosecution. Δ then called a witness to impeach the accomplice. That witness testified that the
accomplice said he would falsely implicate the Δ to gain favor with the prosecutors. The pros
then recalled the accomplice to impeach the defense witness. The accomplice testified that they
were all members of a secret society that required its members to lie, cheat, and steal to protect
each other. The relevant fact here is that the defense witness is biased in favor of Δ because they
belong to the same gang. The Supreme Court says that the evidence is admissible to prove this
b/c no rule limits the admissibility of extrinsic evidence to impeach for bias.
b. Impeachment By Contradiction
i. A witness’s credibility is called into question by evidence that shows something the witness testified
to is not correct. This permits the inference that the witness either was mistaken or lied. And if the
witness was mistaken or lied about that matter, it is possible that the witness was mistaken or lied
about other matters. Either way, the witness’s credibility is undermined.
ii. There is no rule governing this method of impeachment. The common law provides that
extrinsic evidence is inadmissible to contradict a witness on a collateral matter.
1. Evidence goes to a collateral matter if it tells us nothing about the issues in the case and says
nothing about the credibility of the witness beyond showing the contradiction.
2. Fed courts tend to reach the same result by applying Rule 403.
a. Extrinsic evidence that tends to impeach a witness by contradiction on a collateral
matter is of very little value and consumes too much time
3. Notes:
a. Impeaching the witness’s opportunity to observe is not collateral.
b. CL - the impeaching party was required to inform the witness of the time, place, and people
present when the prior statement was made before offering extrinsic evidence of the
statement. Rule 613 merely requires that the witness be given a chance to explain or deny
the statement. The rule does not establish an order in which this must be done.
iii. Prior Inconsistent Statements of Witnesses
1. This is impeachment through self-contradiction. The evidence undermines credibility
because it suggests the witness is either confused or has lied in one of her statements. If she
has done so, she might have been confused or have lied about other matters.
a. This can raise a hearsay issue if offered not just to impeach but also to prove the truth of
what is asserted.
b. When offered solely to impeach, the evidence is not being offered to prove the truth of
what is asserted but, rather, only to show that the inconsistent statement was made. But
because the jury might still use the evidence to draw inferences about the facts asserted, the
evidence raises an issue under Rule 403:
c. If it is offered for substantive purposes, Rule 801(d)(1)(A) makes a prior inconsistent
statement not hearsay if it was given under oath at a trial,
d. Rule 613 establishes foundational requirements for impeachment by prior inconsistent
statement.
2. Prior inconsistent statements are admissible either substantively or to impeach the
witness’s credibility as long as the procedural requirements of §770 are followed.
a. Section 770 states that “[u]nless the interests of justice otherwise require, extrinsic evidence
of [a witness’s prior inconsistent statement] shall be excluded unless:
i. (a) The witness was so examined while testifying as to give him an opportunity to
explain or to deny the statement; or
ii. (b) The witness has not been excused from giving further testimony in the action.”
 3. Prior consistent statements that do not satisfy the requirements of Rule 801(d)(1)(B) (to
rebut) are almost certainly not admissible solely to support credibility. They carry little
value for that purpose, and the chance that the jury will consider the prior statement only for its
bearing on Witness’s credibility is very slim.
II. LAY & EXPERT OPINION EVIDENCE
a. Introduction
i. It is the jury’s job to decide what the evidence means by drawing inferences from the evidence. This
suggests that it is usually improper for a witness to draw inferences from the facts because such
testimony usurps the role of the jury. But we make exceptions when witness opinion would help the
jury draw its own conclusions.
ii. The most obvious example occurs when the witness has some special experience or knowledge that
permits her to draw inferences that jurors lacking such background might not be able to infer.
b. Rule 701: Lay Opinion
i. Elements:
1. Lay opinion must be rationally based on the witness’s perception.
a. A witness’s opinion that Δ uses drugs b/c she has tattoos & piercings is not rationally based
on her perception.
2. The lay opinion must be helpful to the trier of fact.
a. A bare opinion is not helpful; jury must also hear the basis for a witness’s opinion. So, a
witness who says, “in my opinion, she is not a good mother,” this is not helpful.
ii. Traditionally, lay opinion has been admissible on a number of subjects including:
1. the speed of a vehicle,
2. sanity (“he was acting crazy”),
3. intoxication (“I think he was drunk”),
4. emotions (“he looked angry”),
5. and the value of the witness’s property.
iii. Examples:
1. Car accident. A witness who is not an expert testifies, “The car went by me at about 80 miles per
hour. I got a good look at it.” This lay opinion is based on the witness’s perception b/c the
witness saw the car. It is rationally based because the witness says she had sufficient perception
(“a good look”) to justify the opinion. This opinion is helpful to the jury because this is the sort
of perception that the witness could not describe adequately if she were required to limit her
testimony to the matters she perceived.
a. If she was so limited, her testimony would sound something like the following: “I saw a
cloud of dust. There was a whooshing sound as the car went by. It was a blur. I smelled
exhaust.”
2. Divorce action; father wants custody. Neighbor offers to testify that, in her opinion, the mother
frequently had many male guests stay overnight. The opinion is based on the fact that the
neighbor saw cars other than those owned by the mother parked in the mother’s driveway at
night when the neighbor went to bed and would see the same cars in the driveway in the
morning. The opinion is not helpful b/c it adds nothing to that factual basis that the jury
could not infer for itself. Also, maybe not rationally based on perception – witness doesn’t
claim to have seem men in the cars.
c. Rule 702: Expert Opinion
i. Diff from lay opinions - experts can base an opinion on matters other than those they perceive with
their senses.
ii. Elements:
1. EXPERT OPINION MUST ASSIST THE JURY,
a. Assisting the jury means using their expert knowledge that jury doesn’t possess to make
an opinion; an expert does not assist a jury by telling them something that the jury
could infer themselves.
 i. Ex: expert testifies that b/c bloody footprints led from murder scene to Δ’s apt, then Δ
must be guilty – not helpful. If the expert was analyzing footprints & found same show
size as Δ, then helpful, /c jury prob doesn’t have the knowledge to know how to analyze
footprints.
b. Expert does not assist the jury by merely telling them what to believe; an expert must
give information derived from expert’s knowledge for jury to make determinations.
i. Ex: expert, a psychiatrist, testifies, based on his observations, victim is suffering from
psychosis & is not telling the truth – not helpful. Testifying that she suffers from
psychosis & that people who have this condition often cannot distinguish between fantasy
and reality – this is helpful.
2. EXPERT WITNESS MUST BE QUALIFIED,
a. Foundation:
i. Proponent will normally tender evidence concerning the qualifications of the expert
witness, but don’t have to if opponent doesn’t object. Prob want to though to impress the
jury.
ii. Then counsel either asks for opinion, or waits for court to rule admission of evidence.
Opponent may be allowed to conduct voir dire to poke holes in expert’s qualifications.
iii. If issue of qualification, court decides under 104(a) whether the expert is qualified.
b. A witness can be qualified by experience alone to testify as an expert even where the
witness has no formal training or academic credentials.
i. So, a plumber who only finished the 6th grade, but has 20yrs experience in plumbing, is
qualified on matters re: plumbing.
c. The opinion has is limited to the area of witness’s expertise.
i. Thus, an experienced cosmetic surgeon is not qualified to testify that med mal caused Π
to suffer $100k lost income from bad procedure.
d. An interpreter is subject to the same requirements of qualification as an expert.
i. So when a witness does not speak English, an officer cannot just interpret there, but must
first be established that officer is an expert.
3. THE EXPERT OPINION MUST BE SUPPORTED BY A PROPER FACTUAL BASIS; and
4. THE EXPERT OPINION MUST BE BASED ON RELIABLE PRINCIPLES THAT WERE RELIABLY
APPLIED TO THE FACTS.
a. Ex: murder pros. Δ call expert witness, an astrologer, to testify that based on the alignment of
the stars, Δ couldn’t have done it. This opinion is based on an invalid/unproven assumption.
b. Frye Standard (1926) – to be admissible, scientific evidence must be based on principles
that had achieved general acceptance in the relevant field.
i. Important b/c you can find experts to opine on just about anything. This leads to
admissibility of “junk science” which is not reliable.
ii. NY courts still use the Frye standard. Why not using Daubert? B/c not Court’s role to
determine the reliability of new, complex, scientific techniques.
iii. Burden is on the proponent to demonstrate the generally accepted reliability of the
proffered testimony.
c. Daubert Standard - abolished the Frye standard, using a more flexible, but complex,
standard.
i. Daubert v. Merrell Dow Pharmaceuticals, Inc., - Πs were children born with birth
defects. During pregnancy, their mothers had taken a certain drug, manufactured by Δ. Πs
offered expert testimony that the drug could cause birth defects. This testimony was
based on laboratory studies and on evidence that the drug caused birth defects in animals,
and re-analyzing published studies, finding a link. Δs objected to the admissibility of the
expert evidence, noting that the vast majority of tests on humans demonstrated no causal
connection to birth defects.
 1. STANDARD: While trial courts have flexibility in determining whether such
evidence is reliable, at least four questions are pertinent to making that
determination:
2. Is the evidence the product of a theory or technique that has been tested?
3. Has the theory or technique been subjected to peer review and publication?
4. Is evidence produced by this theory or technique subject to a known rate of
error and other standards of reliability?
5. Does the theory or technique enjoy a reasonable level of acceptance within
the relevant field?
d. Kumho Tire – 6 yrs after Daubert, Supreme Court decided that the general requirement of
reliability applies to all expert testimony, not just expert scientific evidence.
e. Problems applying the Daubert/Kumho Standard
i. United States v. Llera Plaza – Δs were indicted on drug and murder charges. They
moved to suppress the testimony of FBI fingerprint experts linking them to the crimes,
arguing that such evidence failed to satisfy the requirements of Daubert/Kumho.
1. Problem was that in applying the Daubert/Kumho standard, this evidence was
excluded, but it was especially compelling, had been offered in many cases, and had
been admitted almost as a matter of course in thousands of cases. Court ending up
admitting the evidence.
ii. One of the biggest problems in applying Daubert/Kumho is determining how to evaluate
the reliability of the expert evidence in question. This is a problem because the judges
who must make the reliability determinations are trained in the law, not in the subjects to
which the evidence relates. Frye avoided this problem by permitting courts to rely on
what experts in the field think is reliable.
III. WITNESS PRIVILEGES
a. Rule 501: General Rule - the privilege of a witness, person, etc., shall be governed by the principles
of the common law as they may be interpreted by the courts of the United States in the light of
reason and experience.
i. Purpose: Desire to protect an interest or relationship.
ii. Since the effect of a privilege is to suppress the truth, a privilege should be recognized only if:
1. the interest or relationship is of outstanding importance, and
2. would undoubtedly be harmed by denying the protection of privilege.
iii. A communication made in confidence has been recognized as privileged only if fostering of the
relationship is considered important to society. The injury to such relationship that would result
from disclosure exceeds the benefit gained from a fully informed determination of litigation.
iv. Privileges – Federal Courts
1. Lawyer/Client
2. Spousal testimonial
3. Spousal confidential communication
4. Psychotherapist/Patient
a. Note that Physician/Patient & Accountant/Client not recognized.
5. Clergyman/Penitent
6. Journalists
a. Journalists possess qualified privilege to refuse to testify about their news sources, or to
produce their unpublished work product.
b. Reason: society’s interest in a free and accurate flow of information.
c. Factors for court to weigh:
i. The materiality or necessity to the case of the information allegedly privileged.
ii. The attempts of the side seeking the information to obtain it from sources orther than the
journalist.
iii. Whether the information sought is in fact available from other sources.
d. Qualified Privileges
 i. Trade Secrets
ii. Secrets of State
iii. Informer’s Identity
v. Who Owns The Privilege
1. Privileges are invoked or waived by their owners, who may or may not be parties to the
litigation.
2. The party asserting the privilege has burden of showing facts which give rise to privilege. Mere
assertion of privilege is not enough.
vi. Attorney/Client Privilege
1. A client has a privilege to refuse to disclose and to prevent any other person from disclosing
confidential communications made for the purpose of facilitating the rendition of professional
legal services to the client.
2. Two part analysis:
a. Was there an attorney client relationship?
i. Communication made to atty’s friend relating to business w/o contemplation of legal
advice does not create the relationship.
b. Was communication confidential?
i. A communication is confidential if not intended to be disclosed to third persons other
than representatives of the lawyers to whom disclosure is in furtherance of the rendition
of professional legal services to the client or to those reasonably necessary for the
transmission of the communication.
ii. The privilege also includes communications by the lawyer or the lawyer’s representatives
to the client if the communication constitutes legal advice, or tends directly or indirectly
to reveal the substance of a clients confidence. Reps are secretaries, file clerks, etc., and
can also include experts employed to assist atty’s rendering legal services. Does not
include experts hired to give expert testimony as witnesses.
iii. If the communication is made in the presence of a third person who is neither agent of
attorney nor the client, or where presence is not reasonably necessary for the
communication, or if the client intends that the attorney disclose the information to a
third party, the privilege does not apply.
1. Disclosure of the communication is permitted, not because the privilege has been
waived, but because the communication, not having been made in confidence, was
not privileged.
2. If two or more persons consult an attorney in regard to a matter of common interest to
them, nothing said by the parties or the attorney is deemed confidential in a later
lawsuit between the parties or their personal representatives.
3. Consultation for unlawful purpose is not privileged. Attorney may not legitimately give
advice that will assist a client to commit a crime.
4. Confidential communications extends to documents exchanged between lawyer and client.
a. Created for purpose of facilitating the rendition of professional legal services, such as a letter,
is privileged in the hands of attorney.
b. Pre-existing, the document by virtue of being forwarded to lawyer, does not acquire
privileged status.
vii. Husband/Wife Privilege
1. In the interests of marital harmony the testifying spouse has a privilege, in criminal not civil
cases, to refuse to testify against the other.
2. The holder of the privilege is solely the testifying spouse. The non-testifying spouse may
not assert the privilege. So if wife wants to testify against husband, husband cant stop her on
basis of privilege – only wife can refuse b/c of the privilege.
3. Scope of privilege extends only to the right to refuse to answer questions which tend to
incriminate non-testifying spouse. Questions which do not, do not jeopardize the marriage.
 4. Privilege bars testimony concerning intra-spousal confidential expressions made during the
marital relationship.
a. Must be a valid marriage. Ceases to exist if parties do not remain married. No privilege if no
marriage. Does not apply between permanently separated spouses.
i. Note: Confidential communications made during the marriage survives termination of
marriage by, annulment, divorce or death.
viii. Waiver of Privileges
1. Holder of confidential communication privilege waives the privilege if he or his predecessor
while holder of the privilege voluntarily discloses or consents to disclosure of any
significant part of matter or communication.
a. Voluntary Disclosure includes:
i. Written consent to psychiatrist to release records.
ii. Calling and eliciting testimony of lawyer at trial.
iii. Repeating to third party the content of privileged communication by the holder.
iv. Failure to assert privilege at trial
b. Once confidentiality is destroyed through voluntary disclosure, it cannot be restored by
subsequent claim of privilege.
c. Voluntary disclosure waives the privilege with respect to all other communications on the
same subject matter. Waiver does not occur if voluntary disclosure is itself a privileged
communication.
d. No waiver where disclosure of privileged confidential communication was either erroneously
compelled or made without opportunity to claim privilege.
i. If wrongfully judicially compelled, no waiver occurs.
e. A third person may not testify against an accused in a criminal case to confidential
communication disclosed to him by a spouse of accused.
i. Same rule if lawyer, psychiatrist or clergyman makes unauthorized disclosure.