EVIDENCE LECTURE OUTLINE

by

Professor Faust F. Rossi

Cornell Law School
e-mail: ffr1@cornell.edu

I. COVERAGE

A. Three Major Areas

1. Relevance

2. Witnesses: Testimonial Evidence including

a. Form of Examination

b. Opinions and Experts

c. Credibility and Impeachment

3. Hearsay

B. Digressions

1. Writings

2. Privileges

II. RELEVANCE

A. Types: 1. Logical Relevance

2. Discretionary, Pragmatic or Policy-Based Relevance

1. Logical Relevance: Evidence that has any tendency to make a

material fact more probable or less probable than it would be
without the evidence (FRE 401).

Copyright © 2012 by BARBRI, Inc.

2. EVIDENCE

a. Warning Signals: Evidence may not be logically relevant

(i.e., may be too remote) if evidence involves some other

1) Time
2) Event
3) Person

than one involved directly in litigation.

2. Discretionary or Policy-Based Relevance: Even relevant

evidence may be excluded if its probative value is substantially
outweighed by the danger of

a. unfair prejudice
b. confusion of issues
c. misleading jury
d. undue delay
e. waste of time
f. cumulative evidence

(FRE 403 - no mention of Aunfair surprise@).

B. Recurring Relevance Patterns

1. Logical Relevance:

Similar Occurrences - (where evidence admissible even though it

does involve some other time, some other event or some other
person not directly involved in litigation.)

a. Causation: To prove cause and effect.

HYPO 1: Pl. eats at Def. restaurant and gets sick. Pl. offers
evidence that others who ate “the same type of food” at
same time at restaurant also got sick. Admissible?

b. Prior Accidents or Claims:

 EVIDENCE 3.

HYPO 2: Pl. drives into bridge abutment and sues City that
built and maintained bridge. Def. City seeks to show Pl. has
on four other occasions driven into stationary objects and
sued. Admissible?

General Rule. Pl.=s prior accidents or claims not admissible.

Exceptions (1)

(2)

HYPO 2B: Pl. seeks to show that in the last year six
other drivers drove into the same bridge abutment
involved in this case. Admissible?

General Rule: Other accidents involving the same

instrumentality which occurred under the same or similar
circumstances are admissible.

To show what?

c. Intent or State of Mind in Issue: To infer intent from prior

conduct.

HYPO 3: Pl. sues claiming pattern of gender discrimination

in hiring. Def. employer denies intent to discriminate and
claims that absence of women employees is because no
women applicants were qualified. Pl. offers to show that
other well-qualified women were denied employment.
Admissible?

d. Rebuttal Evidence: To Rebut Defense of Impossibility

4. EVIDENCE

HYPO 4: Pl. ingests mouse while drinking Cola and sues

Def. Bottler. Bottler defends on ground that it is impossible
for mouse to get into Cola. Pl. offers evidence of another
recent incident in which a mouse was found in Cola.
Admissible?

e. Comparable Sales to Establish Value: Sale price of other

chattels or parcels of real property admissible if

(1)
(2)
(3)

f. Habit Evidence: Habit of person to act in certain way is

relevant to show that person acted in the same way on the
occasion in question.

1) Overlapping rules

! Disposition evidence - not admissible

! Prior act evidence - not admissible

! Habit evidence - admissible

2) What is habit? How different from disposition or prior

act evidence? Key descriptive words are

a)

and
 EVIDENCE 5.

b)

HYPO 5: Intersection accident. - Did Def. stop for the

stop sign? Def. offers witness to testify (i) that Def. is
cautious driver; (ii) that witness has seen Def. stop at
that stop sign on two other occasions; (iii) that witness
has seen Def. stop at that stop sign on 10 or 20 prior
occasions. Which of these is most likely to be
admitted?

3) The language of habit

(always - instinctively - invariably - automatically)

g. Business Routine: The routine practice of an organization is

admissible just like habit.

h. Industrial or Trade Custom is admissible as non-conclusive

evidence of standard of care.

HYPO 6: Madge tries to get off bus but driver closes the
door on Madge=s foot and drags her for several blocks.
Madge sues bus company alleging negligence in failing to
install safety device that would prevent their buses from
moving when passenger door is open. Bus Co. offers to
show that no Bus Co. employs such a device. Admissible?

What if Madge is able to show that 98% of the other bus

companies do have the device. Admissible?

Conclusive on liability issue?

2. Discretionary Policy-Based Relevance

Three areas of importance are 1) liability insurance, 2) subsequent

remedial measures and 3) settlements.

a. Liability Insurance:
6. EVIDENCE

1) General rule: Not admissible to show person acted

negligently or wrongfully or to show ability to pay.

2) Exceptions - admissible when relevant to:

a) show ownership or control.

HYPO 7: Def. denies ownership of building where Pl.

was injured. Pl. offers to show Def. carries liability
insurance on building. Admissible?

b) impeach credibility of witness by showing

interest or bias.

HYPO 8: Witness testifies for Def. to facts of accident.

Pl. offers to show that witness is claims manager of
Def.=s liability insurance co. - the same company that
will have to pay if Def. is found liable. Admissible?

b. Subsequent Remedial Measures: Not admissible to show

negligence, culpable conduct, a defect in a product, a defect
in a product=s design or a need for a warning or instruction.

1) Exceptions - Admissible to show

a) ownership and control.

HYPO 9: Def. denies ownership of building where Pl.

was injured. Pl. offers to show that Def. made repairs
to the building. Admissible?
 EVIDENCE 7.

b) Impeachment - feasibility of
precautionary measures.

HYPO 10: Pl. walks into a glass door that was

practically invisible. Def. contends there was and is
no way to avoid such an accident. Pl. offers to show
that, after the accident, Def. put red stickers on the
door to make them more visible. Admissible?

c. Settlements: Not admissible to prove fault, liability or amount

of damage.

1) A broad rule of exclusion that covers

! actual compromises
! offers to compromise
! offers to plead guilty in a criminal case
! withdrawn pleas of guilty
! pleas of nolo contendere

2) Admissions of fact, liability or damage made in course

of offer to compromise a claim disputed as to liability
or as to amount are not admissible.

3) Limitations:
For rule of exclusion to operate -

! There must be Aa claim.@

HYPO 11: Without prior contact, neighbor approaches Pl.-

to-be and says AAre you the fellow who was bitten by my
dog? Let=s settle.@ In later lawsuit Pl. offers to testify to
neighbor=s admission of dog ownership. Admissible?
8. EVIDENCE

! The claim must be disputed as to either

liability or amount.

HYPO 12: Def. says to Pl. AI admit that I owe you the full
amount of $10,000 on the promissory note, but if you want
your money you=ll have to sue me for it. On the other hand,
if you want to settle now, I=ll pay you $5,000 for a full release.
Can Pl. show that Def. admitted liability on the note?

! An offer to pay medical expenses is not

admissible even though it is not a
settlement offer. But if an admission of
fact accompanies a naked offer to pay
hospital or medical expenses, the
admission may be admitted.

HYPO 13A: Def. says ALet=s settle, I will admit I

was negligent. Let=s agree on the amount of
damage.@ Admissible?

No, because the admission of negligence was made

as part of a settlement discussion of the disputed
damage issue.

HYPO 13B: Def. says AIt was all my fault. Let

me pay your hospital bill.@ Admissible?

Yes, AIt was all my fault@ is admissible because

admission was made as part of a naked offer to pay
medical bill and that is not a settlement offer.

C. Character Evidence

1. Key Factors Affecting Character Evidence Rules and Their

Application:

Four Preliminary Questions: (1) purpose of offer of character

evidence; (2) method of proving character; (3) type of case - civil or
criminal; and (4) what trait of character is involved.
 EVIDENCE 9.

a. What is Purpose of Offer of Character Evidence?

1) Character directly in issue. (Person=s character is a

material element in the case.)

2) Character as circumstantial evidence of person=s

conduct at time of litigated event. (Character
evidence to prove conduct in conformity with
character on occasion in issue.)

3) Character to impeach the credibility of a witness.

(I.e., bad character for truthfulness to impeach the
credibility of a witness who testifies at trial.)

b. What Method or Technique to Prove Character?

Possibilities are:

1) Specific acts of conduct.

2) Opinion.

3) Reputation.

c. What Type of Case?

(civil or criminal?)
10. EVIDENCE

d. What Trait of Character? (It must be the specific trait which

is substantively in issue in the case.)

2. Character in Civil Cases

a. Character evidence is not admissible when offered as

circumstantial evidence to infer conduct at the time of the
litigated event.

HYPO 14A: Pl. sues Dan for personal injury damages

alleging negligence arising out of an automobile
accident. Pl. offers a witness to testify that Dan has a
reputation in the community for recklessness.
Admissible?

HYPO 14B: Pl. seeks to testify that he has been

driving for 40 years without ever being previously
involved in an accident. Admissible?

b. Character evidence is admissible in a civil case when the

character of a person (party) is itself a material issue in the
case. - character directly in issue.

HYPO 15: Grutz calls Yuckl Aa crook.@ Pl. Yuckl sues

Def. Grutz for defamation seeking $1,000,000 for
damages to Yuckl=s reputation. Def. Grutz seeks to
show that Pl. Yuckl has on three prior occasions
stolen money from his employer. Def. Grutz also
seeks to show that, even before the alleged
defamation, Pl. Yuckl had a reputation for being
dishonest. Admissible?
 EVIDENCE 11.

c. Method of Proof. If character is directly in issue and

therefore admissible, it may be proved by any one of the
specific techniques (specific acts, opinion, reputation).

3. Character in Criminal Cases

a. Basic Rules:

$ Basic Rule 1: Bad character, whether in the form of

specific acts of prior misconduct, prior crimes or
convictions, bad opinion or bad reputation, is not
admissible at the initiative of the prosecution if the
sole purpose is to show criminal disposition in order to
infer guilt from disposition;

UNLESS AND UNTIL

$ Basic Rule 2: The accused is permitted to offer

evidence of good character for the pertinent
trait in the form of reputation and opinion to
show disposition in order to infer innocence.
Only then may the prosecution respond by
showing the bad character of the accused.

HYPO 16: Spano is arrested and is on trial for assault

of an elderly woman. In court, he looks like a clean,
upstanding young man. The prosecutor, however,
has his Arap sheet@ which shows 6 prior arrests for
robbery, 3 prior convictions for assault, and 2 prior
convictions for perjury.

1) May the prosecution as part of its case-in-chief

show Spano=s criminal background? No.
12. EVIDENCE

2) May the prosecution show Spano=s criminal

background or any part of it if Spano does not
try to show his good character but only takes
the stand and denies his involvement in the
crime?

a) To show Spano=s disposition to be

violent? No.

b) To impeach credibility? i.e., to show

lack of truthfulness? Yes, part of
criminal background would be
admissible (perjury convictions, for
example) to impeach Spano=s credibility
as a witness (See p. 43-44).

3) May Spano take the initiative to show his good

character? Yes.

4) For what trait may Spano show his good

character?

5) How does Spano show his good character -

what method or technique is permissible?
Specific acts of good conduct? Opinion?
Reputation?

6) Assume Spano calls a witness who testifies

that Spano has a good reputation for
peacefulness and that in the opinion of the
witness Spano is peaceful.
Now, what may prosecutor do?
 EVIDENCE 13.

$ Basic Rule 3: After the accused offers

evidence of good character, the prosecution
may respond by inquiry on cross-examination
of the accused=s good character witness about
any specific acts which would tarnish the
accused=s reputation or which would affect the
opinion of the witness.*

*
Of course, as pointed out later (See pp. 40-45), the credibility of any witness
may be impeached by certain matters. So, the prosecutor could, for example, attack
the credibility of the character witness himself by showing the witness=s own prior
conviction for perjury or bad reputation for truthfulness.
14. EVIDENCE

a) May the prosecutor ask the

witness in cross-examination,
have you heard (or do you know)
that Spano was arrested six
times for robbery? (Yes)

b) May the prosecutor call a witness

to testify that Spano was in fact
arrested six times for robbery?
(No)

$ Basic Rule 4: After the accused

offers evidence of good character
the prosecution may also
respond by calling prosecution
witnesses to testify to bad
opinions or bad reputation in
regard to the character of the
accused.

c) May the prosecutor call a witness

to testify that Spano has a bad
reputation for violence and that in
the opinion of the witness Spano
is a violent person? (Yes)

b. Victim Character - Self-Defense.

The accused may also take the initiative in homicide or

assault cases, as part of a self-defense plea, to show the
character of the victim as circumstantial evidence to infer
that on the occasion in question the alleged victim was the
first aggressor. Again, the permissible method of showing
character would be by reputation or opinion. The prosecutor
could then respond by showing good reputation or opinion
concerning the victim or by showing the bad reputation or a
bad opinion regarding the accused himself.
 EVIDENCE 15.

HYPO 17: Harvey shot and killed Victor during a

tavern brawl. Harvey is charged with murder but
responds with a plea of self-defense. Harvey claims
that Victor attacked him with a broken beer bottle and
that he, Harvey, was in fear for his life and, therefore,
had to shoot Victor.

1) May Harvey call a witness to testify that Victor

had a bad reputation for violence and that in
the opinion of the witness, Victor was a violent
person? (Yes)

2) If Harvey does so attack the character of

Victor, may the prosecution now respond by
calling a witness to testify that Victor had a
good reputation for peacefulness and that, in
the opinion of the witness, Victor is a peaceful
person? (Yes)

3) If Harvey does so attack the character of

Victor, can the prosecutor now call a witness to
testify that Harvey has a bad reputation for
violence and that in the opinion of the witness
Harvey is a violent person? (Yes)

4) Harvey calls witness to testify that witness had

seen Victor use a broken beer bottle to
grievously wound and almost kill three bar
patrons in fights Victor started last year.
Admissible? (No)
16. EVIDENCE

5) What if the witness testifies that witness told

Harvey about Victor=s other acts of brutality
some weeks before Harvey shot Victor?
Admissible? (Yes) Relevant to show what?

a) To show Victor=s violent disposition in

order to suggest that Victor was the
aggressor? (No)

b) To show Harvey=s state of mind (his

reasonable fear of grievous harm)
during the fight with Victor? (Yes)

c. Victim Character - Sexual Misconduct Cases.

In a criminal case alleging sexual misconduct,

defense evidence of the alleged victim=s sexual
history to prove consent is limited as follows: (a) No
opinion or reputation; (b) Specific instances of sexual
behavior of the alleged victim are admissible only (i) if
offered to prove that third party was source of semen,
injury or other physical evidence, (ii) to show prior
acts of consensual intercourse between alleged victim
and the accused or (iii) if exclusion would violate
constitutional rights of the accused.

In civil cases alleging sexual misconduct, evidence of

the sexual disposition or behavior of the alleged victim
is admissible only if probative value substantially
outweighs the danger of harm to the victim and unfair
prejudice to any party.

In addition, in order for the alleged victim=s sexual

behavior to be admissible under these limited
exceptions, the defense must give notice and an in
camera hearing must be held.

d. Specific Instances of Prior Misconduct by the Accused. -

Defendant=s Other Crimes Offered for a Non-character
Purpose.
 EVIDENCE 17.

Other crimes or prior acts of misconduct by the def.

are not admissible during the prosecution=s case in
chief if the only purpose is to prove criminal
disposition, i.e., if offered to show that because of
defendant=s bad character he likely committed the
crime currently charged.

BUT

Prior crimes or prior acts of misconduct may be

admitted at the initiative of the prosecution when the
misconduct is relevant to prove a material fact other
than character or disposition. (i.e., to prove some
relevant issue separate and apart from bad
character.)

Therefore, although prior accused misconduct is not

admissible to show criminal disposition (unless the
accused first offers good character evidence), it would
be admissible if relevant to show motive, opportunity,
intent, preparation, plan, knowledge, identity or
absence of mistake or accident.

HYPO 18: Grutz is the Vice President of Bank. He

gambles illegally and loses $500,000. In order to pay
this debt, he embezzles from his employer, Bank.
Then he falsifies the books to cover up the
embezzlement. He discovers that auditors are
coming to check the books on Monday. Grutz steals
key to get into the bank on Sunday and he burns the
bank in order to destroy the books. Assume Grutz is
charged only with the crime of arson. Assume also
that Grutz offers no good character evidence and that
he does not testify. May the Prosecution, as part of
its case-in-chief, show the illegal gambling, the
embezzlement, the falsification of books, and the theft
of the key? For what purpose?
18. EVIDENCE

1) Examples of issues on which prior

misconduct of the accused may be
relevant independent of character or
disposition. Other crimes or past
misconduct may be shown to prove:

a) Motive:

HYPO 19A: Def. is charged with

murder of Detective. Prosecution
offers evidence that Def. killed
Def.=s wife three years ago.
Admissible?

HYPO 19B: What if Detective,

the victim of the murder charged,
was killed because Detective was
about to arrest Def. for the
murder of wife?

b) Intent:

HYPO 20: Def., who is charged

with receiving stolen goods,
claims he was unaware the
goods were stolen. Prosecutor
offers evidence that Def. has
received stolen goods on 5 prior
occasions from the same thief
involved in this case.
Admissible?
 EVIDENCE 19.

c) Identity:

HYPO 21: Murdered Victim is

found with .45 caliber pistol, the
murder weapon, next to the body.
The pistol was owned by Mayor
but was stolen in a burglary three
years ago. May the prosecution
show that Def. who is charged
with murder of Victim burglarized
Mayor=s house three years ago
and stole the gun?

d) Modus Operandi: another way to

prove identity.

HYPO 22A: Def. is charged with

forging a doctor=s name to a
prescription in order to illegally
obtain drugs from a pharmacy.
Def. denies he did it. May
Prosecution show that Def.
forged a prescription three years
ago to illegally obtain drugs?

HYPO 22B: What if the fictitious

doctor=s name used on both
occasions was AAlloysius
Kevorkian Peabody@?
20. EVIDENCE

e) Common Plan or Scheme:

HYPO 23: Def. is charged with

bank robbery. May the
Prosecution show that Def. stole
a truck the day before the bank
robbery? What if the truck was
used in the bank robbery?

2) Commentators sometimes refer to the

above-described doctrine as the MIMIC
Rule.

M - Motive
I - Intent
M - Mistake, absence of
I - Identity
C - Common Plan or Scheme**

3) MIMIC Rule is subject to FRE 403, i.e.,

evidence relevant to show motive,
intent, identity and common scheme
may be excluded if the trial judge
believes that probative value is
substantially outweighed by the danger
of unfair prejudice.

**
Note that this is not an exclusive list. One could add, for example,
"opportunity" or "preparation" or any other relevant purpose except the impermissible
purpose of showing "character for the purpose of proving action in conformity
therewith."
 EVIDENCE 21.

HYPO 24: Pat is charged with

bank robbery. Prosecution offers
to show motive by evidence that
Def. "was recently released from
prison for sexual abuse of a child
and needed money to support his
heroin addiction.@ Admissible?

4) MIMIC Rule also applies to civil as well

as criminal cases.

e) Special Rule for Cases Involving Sexual

Assault and Child Molestation - Prior Similar
Acts Allowed to Show Propensity.

In civil or criminal cases charging Def. with

sexual assault or child molestation, the Def.=s
prior acts of sexual assault or child molestation
may be shown by prosecution or plaintiff.

III. WRITINGS

A. General Rule of Authentication

A writing is not admissible until it has been authenticated. A foundation

must be laid showing that the writing is what it purports to be, i.e., that it is
genuine. Writings are not self-authenticating. A testimonial foundation is
required.

HYPO 25: Pl. Yuckl sues Def. Grutz for breach of a written contract.
Def. Grutz denies he ever executed the contract. Pl. Yuckl offers
the original contract in evidence arguing that Grutz signature on it is
plainly visible to the court. Admissible?
22. EVIDENCE

B. Methods of Authentication

1. Direct Evidence in the Form of:

a. Admission

b. Eyewitness Testimony

c. Handwriting Proof

1) Lay witness

2) Expert witness

3) Jury comparison

a) Impermissible techniques by lay witness

2. Circumstantial Evidence in the Form of:

a. Ancient Document Rule: (1) 20 or more years, (2) regular on

its face, (3) found in a place of natural custody.

b. Solicited Reply Doctrine: Proof that disputed document came

in response to prior communication.
 EVIDENCE 23.

HYPO 26: Yuckl mails offer to Grutz and receives back

by return mail what purports to be an acceptance
signed by Grutz. Sufficient authentication if Yuckl
does not recognize Grutz=s signature?

3. Quantum of Proof

How much evidence is necessary to lay a proper foundation?

Sufficient evidence to justify a jury finding of genuineness.

HYPO 27: Pl. Yuckl testifies he saw Def. Grutz sign the
contract. Def. Grutz testifies that he did not sign. Is contract
admissible if evidence is contradictory? Must the judge be
convinced by a preponderance of the evidence that Grutz
signed before the contract is admitted into evidence?

4. Self-Authenticating Documents

The general rule is that documents are not self-authenticating. But

there are exceptions. Certain writings may be admitted without a
foundation or testimonial sponsorship. Self-authenticating
documents are:

a. Certified Copies of Public or Business Records

(E.g., certified copy of mortgage)

b. Official Publications
(E.g., a pamphlet of the State Motor Vehicle Dept. which
reflects on its face that it is from the Dept.)

c. Newspapers and Periodicals

(E.g., a copy of the National Inquirer offered by Pl. in a
defamation action to prove publication of the defamatory
article.)
24. EVIDENCE

d. Trade Inscriptions or Labels

(E.g., Pl. offers label on can of peas to show that deleterious
substances ingested by Pl. came from AGreen Giant
Company.@)

e. Acknowledged Documents

f. Signatures on Certain Commercial Documents as provided

by U.C.C.

5. Authentication of Photographs

How do you authenticate a photo? Must you call the photographer?

HYPO 28: Mrs. Grutz witnesses an intersection accident on

Main and State on Jan. 2nd. Litigation ensues. Pl.=s attorney
wants to get into evidence a photograph of the intersection.
But Pl.=s attorney has no idea who took the photograph or
when it was taken. How can the photograph be
authenticated?

HYPO 29: Harvey breaks into a grocery store after hours and
steals money and goods. No one saw Harvey do it. But the
store surveillance camera provides a clear picture of Harvey
burglarizing the store. At Harvey=s trial, the prosecution offers
the picture. How can it be authenticated?
 EVIDENCE 25.

C. Best Evidence Rule:

Requires that a party seeking to prove the content of a writing

(includes films, photos, X-rays and recordings) must either (1)
produce the original document or (2) account for the absence of the
original. If the explanation for absence of the original is reasonable,
then a foundation has been laid for secondary evidence. Then, either
a copy or oral testimony may be admitted to prove the content of the
original.

1. Best Evidence Rule Applies to:

a) Legally operative documents - documents that by their

existence create or destroy a legal relationship that is in
dispute. (E.g., deed, divorce decree, will, written
contract.)

b) Witness=s sole knowledge comes from a document.

Witness wants to recite orally what he read.

HYPO 30: Harvey is charged with murder of wife,

Madge. At the time of his arrest, officer found in
Harvey=s possession an anonymous letter. It said
ADear Harvey, Your wife Madge has been having
sexual relations with Mr. Gigilo.@ In order to prove that
Harvey had a motive for killing Madge, the prosecution
wants to get the content of this letter into evidence.
Officer takes the stand and testifies to finding the letter
in Harvey=s possession. Then, instead of producing the
letter, officer seeks to testify orally about what it said.
What ruling on the following defense objections?

1) Improper authentication
26. EVIDENCE

2) Hearsay

3) Best Evidence Rule

2. Best Evidence Does Not Apply to

a) Facts independent of the writing, i.e., witness has

personal knowledge of a fact that just happens to be
described in a writing. No need to produce the writing
or explain its absence.

HYPO 31A: Issue is - Did Spano make

payment? Witness testifies that Witness saw
Spano pay $10,000 and get back a receipt.
Does the receipt have to be produced?

HYPO 31B: What if Witness says AI know

Spano paid because I read it in the receipt@?
Does receipt have to be produced?
 EVIDENCE 27.

b) Collateral Documents
The best evidence rule does not apply to writings of
minor importance. (Madge happens to testify that she
is divorced in a personal injury damage claim. Her
treating physician testifies he is licensed to practice
medicine preliminary to giving his opinion. No need to
produce divorce decree or license.)

3. Modifications to Best Evidence Rule

a) Public Records - certified copies admissible in place of

originals

b) Voluminous documents - If originals are too voluminous

to be produced in court, summaries, charts or
calculations are admissible in place of originals as long
as (a) originals would be admissible if offered and (b)
originals are made accessible to opposing party.

HYPO 32: Age discrimination suit. Pl. reviews

ten years of personnel records of Def. company
and finds that every employee over 50 has been
fired for Ainsufficient initiative.@ Through a
personnel expert, plaintiff offers a summary of
these findings. Admissible?

c) Duplicates - In place of originals. A Aduplicate@ is a

copy produced by any technique which avoids casual
errors and Aaccurately reproduces the original.@
Carbons, photographic copies, xeroxes, faxes are all
duplicates. A duplicate is admissible to the same
extent as the original (i.e., no need to explain absence
of the original) unless:
28. EVIDENCE

1) a genuine question is raised about authenticity of

the original

or

2) It would be unfair to admit the duplicate in lieu of

the original.

IV. WITNESSES AND TESTIMONIAL EVIDENCE

A. Competency

1. Personal Knowledge and Oath

a. Perception

b. Memory

c. Communication

d. Sincerity (Oath or affirmation)

2. Common Law Disqualifications Abandoned

a. Lack of Religious Belief

 EVIDENCE 29.

b. Infancy

c. Mental Incompetency

d. Prior Convictions

e. Interest

3. Dead Man Acts

a. Typical Statute: An interested survivor cannot testify for his

interest against the decedent or decedent=s representatives
about communications or transactions with the decedent in a
civil case unless there is a waiver.

b. Elements of Statute

1)

2)

3)

4)

5)

6)
30. EVIDENCE

c. State Dead Man Statute can apply in Federal Court if State

whose substantive law applies has such a statute

HYPO 33: Diversity Action in Federal Court. Yuckl

sues Grutz for breach of oral contract. Def. Grutz
admits he received an offer but denies he ever
accepted it. Def. Grutz dies before trial. The state
whose contract law applies has a Dead Man Statute.
At trial, Pl. Yuckl testifies that AGrutz said to me, >I
accept your offer.=@ The most likely ground to exclude
Yuckl=s testimony is

Hearsay? No.

Best evidence rule? No.

Parol evidence rule? No.

Dead man statute? Yes.

B. Form of Examination of Witnesses

1. Objectionable Questions

a. Narrative. (AQ. Tell us everything relevant that happened on

that day.@)

b. Leading. (AQ. Isn=t it true that the sound you heard was like a
pistol shot or was it otherwise?@)
 EVIDENCE 31.

c. Leading permitted in certain situations.

1)

2)

3)

4)

d. Misleading or Compound or Argumentative. (Q. AHave you

stopped beating your spouse?@)

2. Witness Use of Writings in Aid of Testimony

a. Basic Rule: Witness usually cannot read testimony from

previously prepared document but may use a writing in aid of
oral testimony in two situations when the witness can=t
remember. Two situations are 1) refreshing recollection and
2) recorded recollection.

1) Refreshing recollection: When witness memory fails,

anything can be used to jog the memory of the witness.

HYPO 34: Mrs. Garibaldi=s house was

burglarized. Def. is charged. Prosecutor calls
Mrs. Garibaldi to testify to the things that were
taken from her house by the burglar. She cannot
remember some of the items. The prosecutor
has a copy of a tabloid newspaper that reports
details of the burglary. What can the prosecution
do to get Mrs. Garibaldi to remember? Leading
question? Show her the article to refresh her
recollection?
32. EVIDENCE

What ruling if Def. objects to use of the article to refresh

on grounds of improper authentication? Not the best
evidence? Hearsay?

Is the article admissible in evidence at the request of

the prosecution?

If the tabloid article is used to refresh, may defense

counsel see it? Use it in cross-examination? and,
introduce the article into evidence?

2) Recorded recollection: If witness is unable to remember

all or part of the details of a transaction about which she
once had personal knowledge, her own writing shown
to be reliable may be admitted in place of her
testimony.

a) Foundation for recorded recollection requires a

showing that

(1)

(2)

(3)
 EVIDENCE 33.

(4)

(5)

b) Writing is admitted by being read into evidence.

c) Is Recorded Recollection hearsay? If so, how

can it be admitted?

C. Opinion Testimony

1. Lay Opinion

Admissible if

a. Rationally based on the perception of the witness

(AI saw the automobile and it was going about 25 m.p.h@. -
admissible)

b. Helpful to the trier of fact (AIn my opinion the driver was

grossly negligent@ - not admissible even if rationally based
upon perception)
34. EVIDENCE

2. Expert Opinion

a. Four basic requirements for expert testimony:

1)

2)

3)

4)

b. Appropriate subject matter - means the opinion must Aassist@

the trier of fact. Subdivides into requirement that the
methodology must be reliable and the opinion must be
relevant (Afit@ the facts of the case). Reliability and relevance
(fit) are conditions to admissibility. That means that the
proponent must convince the trial judge by a preponderance of
the evidence that these conditions have been met.

c. Qualifications - need not be formal or academic.

d. Expert must possess reasonable certainty or probability

regarding the opinion.

e. Opinion must be supported by a proper factual basis. Facts

supporting the opinion must be either

1)
 EVIDENCE 35.

or

2)

or

3)

HYPO 35: Doctor hired to testify for plaintiff in a

personal injury action bases his opinion in part on a
radiologist=s report of what plaintiff=s X-rays reveal. The
witness doctor had never seen the X-rays. Neither the
X-Rays nor the radiologist=s report are in evidence.
May the doctor give his opinion?

f. Learned Treatise:

1) HYPO 36: Pl. sues Def. for damages claiming serious

injury resulting from negligence of Def. Injury is that Pl.
has extra hole in his head. AGray=s Anatomy@ on page
22 states that such a hole is bad news.

May Pl. start out by reading text to jury?

May text be used to impeach contrary opinion by

defense expert?

How can treatise be established as authoritative?

36. EVIDENCE

(i)

(ii)

(iii)

(iv)

Under Federal Rules, may treatise be used to support

your own expert=s opinion?

May text be offered for its truth? (Yes. Under Federal

Rules it is admissible for its truth as an exception to the
rule against hearsay.)

2) Basic Rule: A learned text, treatise or article concerning

a relevant discipline is admissible as an exception to
the rule against hearsay if established as reliable by (a)
reliance by your expert on direct examination, (b)
admission on cross-examination of your opposing
expert, (c) testimony of any expert or (d) judicial notice.

3) Limitations

a) Expert must testify (at trial or deposition) unless

judge takes judicial notice.

b) Treatise is admitted by being read to the jury.

Text itself is not received as evidence.
 EVIDENCE 37.

D. Credibility and Impeachment

1. Cross-Examination

a. Party has absolute right to cross-examine a witness who

testifies live. (Witness refuses to answer any cross-
examination questions after testifying on direct. Direct must
be stricken.)

b. Cross-examination should not exceed the scope of direct. I.e.,

one may cross-examine on any issues that were raised
impliedly or expressly on direct examination.

c. Collateral Matters Doctrine: Impeachment by contradiction of

the witness is limited. Cross-examiner is bound by the
answers given by the witness as to collateral matters. No
extrinsic evidence is allowed to contradict a witness as to a
collateral matter.

Extrinsic evidence means

What is a collateral matter?

38. EVIDENCE

HYPO 37: Eyewitness testifies for Plaintiff and describes an

accident which occurred at Main and State at 2 AM. There is
no question that the witness was present at the scene and
was in a position to observe the accident. On cross-
examination, the witness says that he was present at Main
and State at 2 AM because he was coming from his sick
grandmother=s house. In fact, he was coming from a house of
ill repute. May defendant call witnesses to show that the
witness lied about where he was coming from?

2. Credibility and Impeachment Rules: Focus is on only one issue -

the credibility of the witness.

3. Accrediting Your Own Witness

a. No bolstering own witness unless there has first been an

appropriate impeachment.

HYPO 38A: Yuckl testifies to material facts. There is

no impeachment. Grutz then takes stand to tell jury
that Yuckl, the first witness, has an excellent reputation
for truth. Admissible?

HYPO 38B: Yuckl testifies to material facts. There is

no impeachment. Grutz takes the stand to testify that
Yuckl told him the same thing some months earlier. Is
Yuckl=s prior consistent statement admissible to bolster
Yuckl=s testimony?
 EVIDENCE 39.

b. Prior consistent statement would be admissible if the

statement is one of identification. A prior out-of-court
statement of identification that was made by a witness who
testifies at trial is excluded from the definition of hearsay and,
therefore, may be admitted.

HYPO 39A: Victor Victim is mugged. Shortly thereafter,

Victor, in the presence of Cop, picks Def. out of a
properly conducted lineup and identifies Def. as the
mugger. Six months later at the trial of Def., Victor
makes an in-court identification of Def. as the mugger.
May Victor also testify that Victor picked Def. out of a
properly conducted lineup shortly after the mugging?
(Yes)

HYPO 39B: Same case but instead of Victor testifying

to the lineup identification, Cop who was present at the
lineup testifies that Victor picked out Def. as the
mugger. Admissible? (Yes)

HYPO 39C: Same case except Victor is confused at

trial and testifies that he does not recognize Def. as the
mugger. May Cop now testify that Victor picked out
Def. at the time of the lineup? (Yes)

HYPO 39D: Same case except that Victor does not

testify as a witness at trial. Now may Cop testify to
Victor=s lineup identification? No! Why not?
40. EVIDENCE

If a prior statement of identification is properly admitted, does

it come in for its truth? (Yes. A prior out-of-court statement of
identification made by a witness is not hearsay and, therefore,
is admissible for its truth).

4. Impeaching Your Own Witness.

A party may impeach its own witness.

5. Impeaching Your Adversary=s Witness.

a. The basic five impeachment techniques are

1)

2)

3)

4)

5)

b. Questions relevant to each impeachment technique are two:

1)

2)

c. Prior Inconsistent Statement

The credibility of a witness may be impeached by showing that on

some prior occasion the witness made a statement different from and
inconsistent with a material portion of the witness=s present in-court
testimony.
 EVIDENCE 41.

1) Generally admissible only to impeach - not for its truth -

not affirmative or substantive evidence

2) But if the prior inconsistent statement was given under

oath AND at a trial, hearing or other proceeding or in a
deposition, such a statement is admissible for its truth.

HYPO 40: Prosecutor calls witness to implicate Def. in

the crime. Witness, however, exonerates the Def. May
prosecutor use a prior inconsistent written signed
statement of the witness to impeach?

Does such a statement come in for its truth?

Any difference if the prior inconsistent statement of the

witness was given under oath before the grand jury that
indicted Def.?***

3) Extrinsic evidence is admissible to prove the prior

inconsistent statement.

***
Note: Don=t confuse this with the fact that the grand jury testimony of an
unavailable witness is not usually admissible against the accused under the former
testimony exception (See pp. 60 infra). Here, in the case of a prior inconsistent
statement of a witness, the declarant is available and is able to be cross-examined at
the time of trial.
42. EVIDENCE

4) Foundation: What foundation is necessary before using

extrinsic evidence? (AWitness should be afforded an
opportunity to explain or deny the making of the
inconsistent statement.@)

5) Prior Inconsistent Statement of a party qualifies as an

admission.

HYPO 41: Pl. sues Def. Dan for damages alleging

that Dan was speeding at the time of the
accident. At trial, Dan testifies that at the time of
the collision he was only going 15 mph. Pl., in
rebuttal, then calls the investigating officer who
testifies that Dan told the officer at the scene that
he, Dan, was going 70 mph at the time of the
collision. Is the officer=s testimony admissible? If
so, does it come in for its truth or only to
impeach?

d. Bias, Interest, Motive:

May be shown by extrinsic evidence after a foundation is laid

by inquiry on cross-examination of the target witness.

HYPO 42A: A witness testifies against you and for your

opponent. May you show that this witness received $50,000 in
settlement from your opponent?

HYPO 42B: A witness testifies for the prosecutor against your

client who is on trial for robbery. May you show that this
witness was arrested for drug dealing and is awaiting trial?
 EVIDENCE 43.

e. Prior Convictions are usable to impeach if the conviction is for

the proper kind of crime.

1) Convictions usable to impeach:

a) Any crime (felony or misdemeanor) if it involves

dishonesty (meaning "deceit") or false statement.
E.g., fraud, larceny by trick, embezzlement,
perjury but not robbery or ordinary larceny
because no deceit or false statement. No
discretion to exclude it.

or

b) A felony (i.e., a crime punishable by more than

one year) not involving dishonesty (i.e., deceit) or
false statement is admissible to impeach in the
discretion of the Court. E.g., robbery, ordinary
larceny, felony assault. Misdemeanors are not
admissible to impeach if they do not involve
deceit or false statement.

c) Convictions can=t be too remote - general

guideline is 10 years. If more than 10 years have
elapsed from later of date of conviction or date of
release from confinement, the conviction is
generally inadmissible - even if it is a crime of
dishonesty (deceit) or false statement.

2) Extrinsic Evidence of Conviction admissible (certificate

of conviction and no foundation necessary).
44. EVIDENCE

f. Specific acts of deceit or lying may be asked about in cross-

examination

1) Technique: How do you use this impeachment

technique?

2) Good faith required.

3) Act inquired about must involve deceit or lying.

4) No extrinsic evidence permitted. Limited to cross-

examination.

g. Bad reputation or opinion for truth and veracity.

 EVIDENCE 45.

6. Rehabilitation After Impeachment

a. Good Reputation (opinion) for truth may be shown if

impeachment involved a character attack (prior conviction; act
of deceit or lying; bad reputation/opinion for truth).

b. Prior Consistent Statement to rebut an express or implied

charge of recent fabrication or improper influence or motive.

1) Not usually to rebut charge of prior inconsistent

statement.

2) To rebut charge of recent fabrication or improper

influence or motive.

HYPO 43: You call a witness who testifies for

your client. On cross-examination, opposing
counsel implies that you unduly influenced the
trial testimony of this witness when you spent four
days with him in May. You now offer to show that
in January, four months before you met this
witness, the witness gave a statement to the
police which was perfectly consistent with his
present in-court testimony. Admissible?

3) Must be pre-motive statement.

4) Admissible for its truth.

46. EVIDENCE

V. PRIVILEGES

A. Attorney-Client

1. Definition:

Confidential communications between attorney and client made

during professional legal consultation are privileged from disclosure
unless waived by the client or the representative of the deceased
client. (Privilege survives death of client.)

2. Elements

a. The right parties

b. AConfidential communication@ (not physical evidence or pre-

existing documents)

c. AProfessional legal relationship@ which means

1) intent by client to establish a professional legal

relationship (retainer negotiations are covered).

2) predominantly legal advice must be sought.

 EVIDENCE 47.

3. Exceptions: Situations where privilege does not apply:

a. Future crime or fraud

These 3 exceptions
(a., b., and c.,)

b. At issue exception - when client or patient affirmatively puts

apply to negate all communication in issue professional
privileges

c. Disputes between the parties to the professional relationship

(Actions for fee or malpractice)

d. Joint client exception - where 2 or more parties communicate

with attorney about a matter of common interest. No privilege
between them.

B. The Physician/Psychiatrist Patient Privilege

1. Definition.

The patient has a privilege against disclosure of confidential

information acquired by the physician/psychiatrist in a professional
relationship entered into for the purpose of obtaining treatment.

2. Key Elements

a. Patient must be seeking treatment.

48. EVIDENCE

b. Information acquired must be confidential and necessary to

facilitate professional treatment.

3. Waiver

Waiver of the physician patient privilege is common especially

because of the Patient Litigant Exception. Privilege is waived if
patient sues or defends by putting physical or mental condition in
issue.

C. The Husband-Wife Spousal Privileges

1. Dual Privileges: There are two spousal privileges with different

rationales. They are:

a. Spousal Immunity Privilege

b. Confidential Marital Communications Privilege

2. Neither applies to intra-family injury case (assault of spouse or

child, incest, child abuse).
 EVIDENCE 49.

3. Spousal Immunity Privilege

a. Definition. One spouse can=t be forced to give adverse

testimony against the other in a criminal case.

HYPO 44: Harvey kills Victor in public in front of

hundreds. Included among eyewitnesses is wife Madge.
Can Madge be forced to testify against Harvey when he
is charged with murder?

b. Requirements

1) Valid marriage at time of trial.

2) Protects against any and all testimony.

HYPO 45A: Cagney, a notorious gangster, is indicted by

the grand jury. His moll, Wanda, knows all about his
nefarious activities. Cagney and Wanda get married
before the criminal trial. Wanda is called to testify
against Cagney. Can Wanda be forced to testify to pre-
marriage facts?

3) Holder of Privilege is witness spouse, not party spouse.

HYPO 45B: Wanda, wife of Cagney, wants to testify
against Cagney. Can she?

4) Applies only in a criminal case.

50. EVIDENCE

4. Confidential Marital Communications Privilege

a. Definition: A husband or a wife shall not be required or, without

the consent of the other, shall not be allowed to disclose a
confidential communication made by one to the other during
the marriage.

b. Requirements (and differences from spousal immunity).

1) Married not necessarily at time of trial but at time of

protected communication (this privilege outlasts the
marriage).

2) Protects only confidences, not all testimony.

3) Holder of privilege is either spouse, not just witness

spouse.

HYPO 46: Wife Madge wants to testify against husband

Harvey in his murder trial. Can he keep her off the
stand?

Can he keep her from revealing confidences made

during their marriage?

Can he make her reveal during marriage confidences if

she objects?
 EVIDENCE 51.

4) Privilege applies to all cases, civil as well as criminal.

D. Applicability of State Law in Federal Court

1. Three situations in which state evidence law will apply in federal

court IF state substantive law applies (as in the typical diversity
jurisdiction case).

AIn civil actions or proceedings with respect to an element of a claim

or defense as to which state law applies the rule of decision@ (i.e.,
state substantive law applies), state law will apply regarding

a. Presumptions and burdens of proof

b. Competency of witnesses

c. Privileges

2. Federal privilege law in federal question or in federal criminal

cases Ashall 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.@

HYPO 47: Pl. sues Def. in Federal Court for breach of a

contract made and to be performed in New York. Federal
subject matter jurisdiction is founded on diversity. Pl. raises a
presumption or a rule of competency (like the state Dead Man
Statute) or one of the privileges. As to the presumption or rule
of competency or privilege, what law applies? Traditional
common law? Federal common law? State law? (Answer:
State law applies)
52. EVIDENCE

What if the action in federal court is a suit under the federal social
security act? (Answer: Federal law applies. If a privilege is involved,
Federal common law (decisional law) would be the correct.)

VI. HEARSAY

A. Definition of Hearsay

1. Hearsay is an out-of-court statement offered for the purpose of

establishing the truth of the matter asserted in the statement.

2. Application of Definition:

Three questions:

a. Is it an out-of-court statement?

b. What precisely is the out-of-court statement?

c. Is it being offered for the purpose of establishing its truth?

3. Cast of Characters

a. One scenario

1) Declarant (makes the out-of-court statement)

 EVIDENCE 53.

2) Witness (reports the statement in court)

b. Alternative scenario

1) Declarant (writes the out-of-court statement)

2) Writing (produced in court)

4. Rationale for General Rule Excluding Hearsay

It denies the opponent the opportunity to cross-exam the person

whose perception, memory and sincerity are in issue.

5. Specific Non-Hearsay Situations (i.e., situations where the out-of-

court statement is not being offered for its truth).

a. Verbal Acts or Legally Operative Facts - where the words

spoken or written have relevant legal significance in the case
by virtue of being spoken or written. (Words of offer,
acceptance, defamation, conspiracy, bribery, cancellation,
misrepresentation, waiver, permission.)

HYPO 48A: Witness seeks to testify that Decla (the

declarant) said AI accept your offer.@ Evidence is offered
to prove an oral contract. Hearsay?

HYPO 48B: Witness seeks to testify that Decla said to

insurance agent ACancel my insurance@in order to prove
policy cancellation. Hearsay?
54. EVIDENCE

HYPO 48C: Witness seeks to testify that Decla said

ATake my car, go with it to Miami@ in order to prove
Decla gave permission to use his car. Hearsay?

b. Out-of-Court Statement offered not for its truth but to show its
effect on the person who heard or read the statement. (E.g., to
show notice to, or the good faith of, or reason for action or
inaction by the person who heard or read the out-of-court
statement.)

HYPO 49A: Police officer testifies that Victim told officer

that ASpano mugged me.@ Offered to show that officer
had probable cause to make the arrest. Hearsay?

HYPO 49B: Pl. sues for injuries caused by fall on stairs

of store. Pl. calls witness who testifies that two days
before Pl.=s fall, witness heard Decla tell store manager
AYour stairs are defective, someone is bound to fall
there.@ Offered to show notice to store. Hearsay?

HYPO 49C: Pl. sues for wrongful discharge by employer

and claims that discharge was motivated by
discrimination. Employer offers in evidence hundreds of
letters written by customers complaining about Pl.
Offered to show mental state of employer (i.e., to show a
non-discriminatory reason for the discharge). Hearsay?
 EVIDENCE 55.

c. Out-of-Court Statement offered not for its truth but as

circumstantial evidence of declarant=s relevant state of mind.

HYPO 50: Spano is charged with murder. Defense is

insanity. Defense witness testifies that on the day
before the killing, he heard Spano say AI am the Pope.@
Hearsay?

6. Prior Statements of the Witness

Can a witness=s own prior statement be hearsay?

HYPO 51: Def. in a criminal case takes the stand to testify.

Def=s lawyer asks on direct examination AWhen you were
arrested, what did you tell the police?@ Def. answers AI told
them the truth; that I was innocent.@ Hearsay? Is it an
admission?

7. Prior Statements of a Witness Which Are Not Hearsay (These

statements are in fact being offered for their truth and would be
hearsay under the common law. But the Federal Rules exclude them
from the definition of hearsay by express rule provisions. Therefore
they are admissible non-hearsay.)

a. Prior Inconsistent Statements given under oath at a trial,

hearing, other proceeding or deposition.

b. Prior Consistent Statements to rebut charge of recent

fabrication or improper influence or motive.

c. Prior Statement of Identification made by a witness.

56. EVIDENCE

B. The Exceptions to the Rule Against Hearsay

1. Listing of Major Exceptions/Exclusions

a. admission of party

b. former testimony

c. statement against interest

d. dying declaration

e. spontaneous statements

1) Present state of mind in issue

2) Statement of existing intent to prove intended act

3) Excited utterance

4) Present sense impression

5) Declaration of present physical condition

6) Declaration of past physical condition

f. business records

2. Admission of a Party

a. Definition: Declaration of a party offered against the party

b. Rationale: Estoppel. No special reliability since:

1) Need not be against interest at time of making

statement.
(Def. brags to neighbor that he made 2 million in 1999.
Admissible in tax fraud prosecution.)
 EVIDENCE 57.

2) Need not be based on personal knowledge.

(When informed that neighbor was bitten by a dog, Def.
states AIt must have been my dog that did it.@)

3) Can be in form of legal conclusion.

(AI was negligent.@)

c. Party Admission is Considered Non-Hearsay under Federal

Rules of Evidence.

d. Vicarious Admission: A statement by the party=s agent or

servant concerning a matter within the scope of the agency or
employment, made during existence of the relationship.

HYPO 52: Negligence action against Trucking Co.

Truck Driver crashed through Pl.=s living room window -
and states AMy brakes failed again; they failed three
times last week. I told my boss about it but he does
nothing. Now I am going to miss my last delivery for my
employer.@ Does this statement come in against the
Trucking Co.?

3. Former Testimony

a. Definition. Testimony given in earlier proceeding by person

now unavailable is admissible if (1) party against whom
testimony is offered had, during earlier proceeding, an
opportunity to examine that person and motive to conduct
exam was similar to the motive it has now, or (2) in civil case,
party against whom testimony is offered was in privity (a
predecessor in interest) with a party to earlier proceeding who
had opportunity and similar motive to examine.
58. EVIDENCE

b. Requirements (1) meaningful opportunity for cross; and 2)

unavailability of the declarant.

1) Meaningful opportunity to develop or cross-examine in

the prior proceeding when the witness gave live
testimony.****

a) same issue and motive

b) some identity of party. Party against whom

offered must have been a party in first proceeding
or, in civil case, at least in privity with party in first
proceeding.

HYPO 53: In a one vehicle accident, a bus

leaves the highway and crashes injuring
passengers A and B. In Action 1, A sues
the Bus Co. and W testifies live. In Action
2, B sues the Bus. Co. but W is no longer
available.

May passenger B use W=s former

testimony against Bus Co.?

****
The grand jury testimony of an unavailable declarant that is offered against
the accused in a criminal case would not qualify because the accused does not have an
opportunity to cross-examine grand jury witnesses.
 EVIDENCE 59.

May Bus Co. use W=s former testimony

against passenger B?

2) Unavailability: Declarant is unavailable if court exempts

declarant from testifying due to privilege, declarant
refuses to testify because of privilege or other reason,
declarant=s memory fails, declarant is dead or sick, or
proponent of statement cannot procure declarant=s
attendance by process or other reasonable means.

4. Statement Against Interest

a. Definition. Declaration of a person, now unavailable as a

witness, against that person’s pecuniary, proprietary or penal
interest (or statement which would expose declarant to civil
liability or which would tend to defeat a civil claim by declarant)
at the time the statement was made.

b. Limitation. A statement that (1) tends to expose declarant to

criminal liability and (2) is offered in a criminal case by either
the prosecution or the defense, must be supported by
“corroborating circumstances that clearly indicate its
trustworthiness.”
60. EVIDENCE

HYPO 54: State v. Spano for murder of Victor Victim. W

testifies for the defense that W heard Garibaldi say "I,
not Spano, killed Victor." Is Garibaldi=s out-of-court
statement admissible as a statement against penal
interest? (No, not unless there is also evidence of
"corroborating circumstances" clearly indicating the
trustworthiness of the content of the statement.)

c. Distinguish statement against interest from admission of party.

1) Statement against interest must be against interest at

time statement made.

2) Statement against interest may be made by any person,

not necessarily by a party.

HYPO 55: Harvey and Dan collide. Harvey

confides to Neighbor that AIt was all my fault.@
Harvey dies as a result of his injuries. Harvey=s
next of kin bring a wrongful death action against
Dan. Dan calls Neighbor to testify that Harvey
said AAll my fault.@ Admissible? As an
admission? As a statement against interest?

3) Statement against interest requires personal knowledge.

4) Statement against interest requires unavailability.

Is it accurate to say that a party admission always also

qualifies as a statement against interest? No! Why not?
 EVIDENCE 61.

5. Dying Declaration - statement made under a sense of impending

death.

a. Definition. In a prosecution for homicide or in a civil action or

proceeding, a statement made by a declarant while believing
that the declarant=s death was imminent, concerning the cause
or circumstances of the impending death.

b. Requirements

1) State of Mind - made under a sense of impending death.

HYPO 56: Victor is stabbed and is lying in a gutter.

Victor looks up at police officer and says ASpano did it.@
Victor promptly dies. A dying declaration?

2) Declarant need not die but must be unavailable at time

of trial.

3) Kind of case in which admissible: homicide or civil case.

4) Content Limitation: Must concern cause or

circumstances of impending death.
62. EVIDENCE

HYPO 57: Grutz is shot 12 times and is lying in the

gutter. Grutz looks up at police officer and says AI=m
dying, I know I=m dying. Too bad for me. By the way,
my will was the product of undue influence. Don=t let it
be probated.@ Admissible as a dying declaration in the
will probate proceeding?

6. Spontaneous Statements

A group of six exceptions for which unavailability is not required

because the law regards prior statement as being at least as reliable
as present in-court testimony.

a) Declaration of existing state of mind in issue.

HYPO 58: Spano is on trial for murder. Defense

Insanity. Defense Witness testifies that on the
eve of the killing, witness heard Spano say AI
believe I am the Pope.@ Admissible?

b) Declaration of existing intent to do something in the

future offered to infer that the intended future act was
done.

HYPO 59: Decla announces AOn Monday of next

week I am going to meet with Spano@ offered to
prove that Decla did meet Spano on Monday.
Admissible?

c) Excited utterance

1) Definition. Statement relating to startling event or

condition is admissible when made while
declarant was still under stress of excitement
caused by event or condition.
 EVIDENCE 63.

2) Requirements

! Startling event

! Made under stress of excitement

! Concerns the facts of the startling event

3) Considerations: Things to look for.

! Nature of event

! Time lapse and what is going on during

time lapse

! Language of excitement

d) Present Sense Impression

1) Definition. A statement describing or explaining

an event or condition made while declarant was
perceiving the event or condition or immediately
thereafter.

2) Distinguish from Excited Utterance

! Unnecessary to have startling event or

excitement

! But must have almost precise

contemporaneousness - no appreciable
time lapse
64. EVIDENCE

HYPO 60: Victor is killed in his apartment

on Sunday night. Spano is charged with
his murder. Prosecution witness testifies
that on Sunday night Witness called Victor
and Victor said ASpano is here.@ Offered to
show that Spano was present at about the
time of the killing. Admissible? Dying
declaration? Excited utterance? Present
sense impression?

e) Declaration of Present Pain, Suffering or Physical

Condition.

1) Definition. A declaration of then existing physical

(or mental) condition is admissible to show the
condition. (AIt hurts!@)

f) Declaration of Past Physical Condition

1) Definition. Statement made for purposes of

diagnosis or treatment and describing medical
history or past symptoms or the general character
of the cause or external source of the symptoms
insofar as reasonably pertinent to diagnosis or
treatment.

2) Requirements

! made to medical personnel

 EVIDENCE 65.

! pertinent to either diagnosis or treatment

(even if diagnosis is only for the purpose of
giving testimony)

HYPO 61: Pl. in personal injury case hires doctor

to diagnose solely for the purpose of giving
testimony. Doctor testifies and gives his opinion.
Part of the basis of his opinion is the medical
history given to him by Pl. May Doctor recite the
medical history given him by Pl.? Is it admissible
for its truth?

7. A Digression to Explore Recurring Test Issues and Hypos

a. Preliminary questions of fact upon which admissibility depends.

1) Rule: Preliminary questions concerning the qualification

of a person to be a witness, the existence of a privilege,
or the admissibility of evidence shall be determined by
the court. But in making its determination it is not bound
by the rules of evidence.

2) HYPO 62: You offer the declarant=s transcript into

evidence as former testimony. Unavailability of the
declarant is a fact question upon which admissibility
depends. There is a dispute between you and your
opponent over this fact question. You hand the judge a
signed unauthenticated letter purporting to be from the
declarant which states AI am unavailable.@ Who decides
the question of unavailability, judge or jury? May
whoever decides take account of the hearsay letter?

Answer: The judge decides and she may take

account of the hearsay letter in making her
decision.
66. EVIDENCE

HYPO 63: In a homicide case, officer attempts to testify

to Victim=s dying declaration. At issue is the Victim
declarant=s state of mind. Was he speaking under a
sense of impending death? The prosecutor offers a
doctor=s hearsay affidavit which states that, given
Victim=s medical condition, he must
have known he was dying. Can the affidavit be used to
determine Victim=s state of mind? Used by whom?
Judge or jury?

Answer: Same analysis as previous hypo. Yes,

the affidavit, although it is hearsay, may be used
by the Judge who is the one who determines the
preliminary fact question of whether Victor was
speaking under a sense of impending death.

b. Impeaching the hearsay declarant

1) Rule. When a hearsay statement has been admitted in

evidence, the credibility of the declarant may be
attacked by any evidence which would be admissible for
that purpose if declarant had testified as a live witness.

2) HYPO 64: Victor is stabbed, goes to hospital and tells

police officer AI am dying, Spano did it.@ Two days later,
Victor is feeling much better and he tells Nurse AGrutz
stabbed me. Now it looks like I will survive.@ Alas,
Victor dies a week later. Spano is prosecuted for the
murder of Victor. Officer is allowed to testify to Victor=s
dying declaration which implicates Spano. In rebuttal,
the defense calls Nurse. May she testify to Victor=s
statement to her that AGrutz stabbed me@? Why or why
not? If your answer is yes, what happens to the
foundation requirement? Isn=t the declarant, Victor,
supposed to be given an opportunity to deny or explain
the inconsistent statement?
 EVIDENCE 67.

Answer: Victor=s statement to the Nurse is not a

dying declaration because Victor thought he
would live when he made the statement. But it is
admissible as a prior inconsistent statement to
impeach Victor=s credibility. Admissibility of the
inconsistent statement is not subject to the usual
foundation requirement.

c. Mixing hearsay and writings

1) HYPO 65: Victor is found shot dead in his business

office with a dictaphone in his hand. He was apparently
dictating business correspondence when an intruder
entered and shot him. Police officer at the scene
rewinds and plays back the dictaphone tape. Officer
hears Victor dictating business letters but then hears
Victor say ASpano, what are you doing here?@ There is
then the sound of a shot and the tape is silent. At
Spano=s trial, Officer is called by the prosecution.
Officer seeks to testify to what he heard on the
dictaphone tape. Admissible? Why or why not? Is it
hearsay? Is it admissible because it qualifies as a
present sense impression? Any other problem beyond
hearsay?

Answer: The officer=s testimony is hearsay but

qualifies under the present sense impression
exception to the rule against hearsay. So hearsay is
not the problem. But the best evidence rule applies.
The officer=s testimony is not admissible unless the
absence of the recording is explained.

8. Business Records

a. Definition. Records made at or near the time by, or from

information transmitted by, a person with knowledge are admissible
if kept in the regular course of business and if it was the regular
course of that business to make the record unless the source of
information or circumstances of preparation indicate a lack of
trustworthiness.
68. EVIDENCE

b. Rationale for Reliability. Employees are under a business duty to

be accurate in observing, reporting and recording business facts.

c. Function of the Exception. Allows the record to substitute for the in-
court testimony of the employees.

d. Typical Problem Areas

1) Does the exception apply? Usually turns on whether entry is

germane to the business.

HYPO 66: Grutz is involved in an automobile accident and is

taken to the hospital emergency room where he tells Nurse
AThis accident was all my fault. I was grossly negligent.@
Nurse records Grutz=s words in the hospital record. Plaintiff
who was also injured sues Grutz for negligence. At trial, can
Nurse testify to Grutz=s statements if called to the stand by
Plaintiff?

May the hospital record be admitted if offered by Plaintiff to

prove Grutz=s statement?

2) The Multiple Hearsay Problem

 EVIDENCE 69.

Assume the entry is germane to the business so that the

business records exception ordinarily applies. But suppose
the record contains within it a statement made by someone
outside the business. Reconsider the rationale and purpose
of the exception.

HYPO 67: X, an outsider, not under a business duty

to observe or report, perceives an event and reports it
to the ABC Company. Company realizes that X=s
statement is germane to its business and includes X=s
statement in its record. Is the entry admissible under
the business record exception to prove the truth of X=s
statement?

HYPO 68: Accident at a traffic light controlled

intersection. Investigating officer arrives at the scene
30 minutes later. He measures the skidmarks leading
to Dan=s car. He speaks to Schultz, an eyewitness,
and also talks to Dan. He promptly prepares a police
report which contains three entries as follows: (1)
“Observations - 150' of skidmarks leading to Dan=s
car,” (2) AStatement of witness: Schultz, an
eyewitness, reports that Dan had the red light,” (3)
AStatement of Driver. Dan states that he, Dan, ran the
red light.@ Plaintiff sues Dan for personal injuries
resulting from the accident. At trial, Plaintiff offers the
three entries as business records. Admissible?

Entry (1)

Entry (2)

Entry (3)
70. EVIDENCE

9. The Sixth Amendment Right of Confrontation

a. The Rule. Even though an out-of-court statement qualifies as

an exception to the rule against hearsay, the accused's Sixth
Amendment right of confrontation may render the statement
inadmissible when it is offered against the accused in a
criminal case. The Supreme Court in Crawford v.
Washington recently held that out-of-court statements, even
if they fit a hearsay exception, will not be admitted if

(1) the out-of court-statement is offered against the accused

in a criminal case
-and

(2) the declarant is unavailable at the trial

-and

(3) the out-of-court statement was "testimonial"

-and

(4) the accused had no opportunity to cross-examine the

declarant's "testimonial" statement when it was made;

-unless

(5) the prosecution demonstrates that the defendant has

forfeited his Confrontation Clause objection by
wrongdoing that prevented the declarant from testifying
at trial.

b. Definition of "Testimonial." A hearsay statement is

testimonial if declarant makes a statement that he or she
anticipates will be used in the prosecution or investigation of
the crime. (This would include witness statements made to
police or other law enforcement officials in response to
police questioning; any testimony given at a formal
proceeding -preliminary hearing, grand jury, or motion to
suppress; guilty plea allocutions of coconspirators to prove
that a conspiracy existed; forensic lab reports revealing
drugs, fingerprints, firearms evidence, blood, DNA, etc.)
 EVIDENCE 71.

HYPO 69 Spano and Grutz are charged with the

murder of Victor. Grutz tells the police "Spano and I
did the murder." Grutz later pleads guilty but refuses
to testify against Spano. In the prosecution of Spano,
Cop seeks to testify that Grutz, the declarant, told
Cop that "Spano and I did it." The out-of-court
statement of Grutz is offered under the statement
against interest exception to the rule against hearsay.
The trial judge finds that the statement fits the
exception and that it is reliable and has special
guarantees of trustworthiness. Is it admissible?

Answer: No. It would violate the confrontation

clause.

HYPO 70 Wife Madge makes a 911 call and tells the

police responder that husband Harvey is jumping on
her, threatening her and that Harvey is now driving
off. In this call Madge identified Harvey as her
attacker in response to questions from the responder.
Madge did not show up and did not testify at Harvey's
trial at which he was charged with domestic abuse
and assault. Is the 911 call admissible?

Answer: Yes. It was held admissible as a

present sense impression and excited
utterance and on similar facts the U.S.
Supreme Court held in 2006 that Madge's
statements were non-testimonial. Davis v.
Washington.

HYPO 71 Police were called to investigate a domestic

disturbance. Wife Madge first told the police that
everything was fine and invited them into the house.
Husband Harvey was questioned separately by one
officer and he reported that he and Madge had
argued, but all was OK now. Under questioning by
the other officer, Madge described how Harvey had
assaulted her and she signed a police statement to
that effect. At Harvey's trial for assault, Madge did not
testify. May the officer testify to what Madge told him?
72. EVIDENCE

Answer: No. On similar facts, the U.S.

Supreme Court held in 2006 that even if
Madge's statements qualified as an exception
to the rule against hearsay (unlikely),
nevertheless the statements were testimonial
and rendered inadmissible by the confrontation
clause, Hammon v. Indiana.

c. The difference between Hypo 70 and Hypo 71 was

explained by the Supreme Court in these words:

(1) Statements taken by police officers in the course of

an investigation are "non-testimonial" and not
subject to the confrontation clause when they are
made under circumstances objectively indicating
that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing
emergency (i.e., to secure the scene, to preserve
the safety of the declarant, to answer the question
"what is happening") (e.g., Hypo 70).

(2) Statements taken by police officers in the course of

interrogation are testimonial and subject to the
confrontation clause when the circumstances
objectively indicate that there is no ongoing
emergency and that the primary purpose of the
interrogation is to establish or prove events
potentially relevant to later criminal prosecution
(i.e., the emergency is over; the scene is secured;
now we gather evidence; now we find out "what
happened") (i.e., Hypo 71).

d. Thus, the decision as to whether the out of court

statement is testimonial or not is very case specific.

For example, in Michigan v. Bryant, the Supreme Court

held that statements to police by a shooting victim as he
lay bleeding in a gas station were admissible over a
confrontation objection. They concluded that the police
questioned the victim and elicited the details of the
shooting and the identity and location of the armed
gunman who had fled the scene, not for use at a later trial.
Instead the Court held by a 6 to 2 vote that the information
was elicited because the police were investigating what
they believed was an on-going emergency because an
 EVIDENCE 73.

armed killer was loose in the streets of Detroit.

e. Considerations in determining whether statements are

testimonial. The issue is very case specific but factors
frequently considered are:

(1) Likely motivation and intent of the declarant making

the statement (to get help or provide evidence?).
(2) Likely motivation and intent of interrogator (to
safeguard the victim or secure the scene or to get
evidence").
(3) The temporal element (ongoing emergency or
description of past events?).

(4) Identity of person eliciting the statement (law

enforcement connected or acquaintance/relative of
the declarant?).
(5) Degree, amount, circumstances and location of police
interrogation (preliminary on-scene questions or
sustained, structured questioning?).

f. Lab Analysts Certificates: Records prepared by laboratory

technicians indicating blood, alcohol, DNA or drug test
results.

Such analyst reports have often in the past been admitted as

business or public records against the accused without the
presence in court of the lab technician who prepared it. Is
this practice violative of the Confrontation Clause? Yes.

HYPO 72: The accused is charged with possession

of cocaine with intent to distribute. The prosecution
offers in evidence an affidavit reporting the results of
the forensic analysis which showed that the
substance seized by the police and connected to the
defendant was cocaine. The technician who tested
the substance and who signed the certificate did not
testify. The certificate was found by the state court to
be not testimonial because it was akin to a routine
business or official record. The United States
Supreme Court reversed the conviction and held that
such reports were “testimonial.” They were made
“under circumstances which would lead an objective
witness reasonably to believe that the statement
would be available for use at a later criminal trial.”
74. EVIDENCE

Therefore absent a showing that the analysts were

unavailable to testify at trial AND that petitioner had a
prior opportunity to cross-examine them, petitioner
was entitled to be confronted with the analysts at trial.
Melendez-Diaz v. Massachusetts. (More recently, in
Bullcoming v. New Mexico, the Supreme Court
elaborated. It held that the Confrontation Clause
does not permit the prosecution to introduce a
forensic lab report containing a testimonial
certification through the in-court testimony of an
analyst who did not sign the document or personally
observe the test.)

g. The “Forfeiture by Wrongdoing” exception to the

Confrontation Requirement.

Even if an out-of-court statement would violate the

Confrontation Clause, the out-of-court statement can be
admitted in evidence against the accused if the prosecution
can show that defendant forfeited his Confrontation Clause
objection by wrongdoing that prevented the declarant from
testifying at trial. This “forfeiture by wrongdoing exception”
applies only when the defendant procured the unavailability
of the declarant by wrongdoing that was done with the intent
(motive) of keeping the witness from testifying.

HYPO 73: Harvey in a fit of anger killed wife, Madge.

Three weeks before the killing, Madge gave a
statement to the police in which she stated “Harvey
accused me of having an affair. He held a knife to my
throat and threatened to kill me if he ever found me
cheating on him.” At his trial for murder, Harvey
claimed self-defense. In rebuttal the police officer
seeks to testify to what Madge told the officer three
weeks before she was killed. The out-of-court
statement by Madge is testimonial. It is being offered
against the accused in a criminal case. There was no
opportunity for Harvey to cross-examine when the
statement was made and no opportunity for cross-
examination at trial. The prosecution argued that
“when a defendant has murdered the witness, he may
not still insist on his right to cross-examine because
he has caused her unavailability at trial.” In other
words, it makes no difference whether his motive for
killing her was to make her unavailable to testify in
court. Is Madge’s out-of-court statement admissible
 EVIDENCE 75.

over a Confrontation objection?

Answer: No. On similar facts, the United

States Supreme Court held that the
Confrontation Clause exception applies “only
when the defendant engaged in conduct
designed to prevent the witness from testifying.
Giles v. California.

_________________

BUONA FORTUNA AVVOCATI

(or as Uncle Guido would say)

"In Bocca al lupo"

(Good Luck)

B/B/B