Evidence Outline

General Rules of Relevance

 Rule 401: Test for Relevant Evidence
o Evidence is relevant if
 It has a tendency to make a fact more or less probable than it would be
without the evidence (Probative Value)
 The fact is of consequence in determining the action (Materiality)
 Materiality is determined by the substantive law of the crime or
cause of action at issue
 Ex. McGreet painting stolen between 12 and 3 pm means that the
crime was not burglary, maybe larceny. Part of the relevance
analysis!
 Witness credibility is a nearly universal materiality ?
o Extremely liberal definition, one brick in a wall is enough
o United States v. James (9th Cir. 1999): Ogden is killed by James’s daughter after
James handed her a gun as Ogden beat her bf (Rule 401)
 James puts forward a self-defense claim to aiding, saying she was afraid of
Ogden given stories he told her about his violence
 Past convictions backed up these stories and were initially barred for being
irrelevant, since James’s state of mind was all at issue
 9th Cir. Allows the convictions, as they went to James’s credibility and
not just her state of mind (unaware of the convictions)
 stories w/”a ring of truth,” credibility her only defense
 Rule 402: General Admissibility of Relevant Evidence
o Relevant evidence is admissible unless the Constitution, a federal statute, these
rules, or other rules from SCOTUS prescribe it
o Irrelevant evidence is never admissible
 Rule 104(b): Relevance that Depends on a Fact
o When the relevance of evidence depends on whether a fact exists, proof must be
introduced sufficient to support a finding that the fact does exist
 Preponderance of the evidence standard
 Need enough evidence that it is more likely than not that the jury could
find that the fact exists
o Cox v. State (IN 1998): Cox charged with shooting into the Leonards’s home after
they accused his friend of molesting their daughter (Rule 104(b))
 Done days after his friend’s bond reduction hearing went poorly
 Cox lived with friend’s mom. Evidence of the hearing was allowed in.
Cox knowing of the hearing is the conditional fact
 Judge must merely determine that a reasonable jury could make the
requisite factual determination as to whether a conditional fact exists
based on the other evidence before it
Probativeness v. Risk of Unfair Prejudice
 Rule 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time
o The court may exclude relevant evidence if its probative value is substantially
outweighed by the danger of
 Unfair Prejudice
 Confusing the issues
 Misleading the jury
 Undue delay
 Needlessly preventing cumulative evidence
 State v. Bocharski (AZ 2001): Bocharski charged with killing 84 yr. old Brown, Sukis
gave him a knife he carried everywhere and she was stabbed
o Fight over 6 gruesome photos, the court keeps out 2 since the issue they spoke to
(angle of stabbing through the skull) was not contested and no other testimony
was given on the issue
o But the issue was found to have no adverse effect on verdict
 Commonwealth v. Serge (PA 2006): Serge shoots his wife and the prosecution wants to
use a CGI recreation of their theory of events
o This is allowed, as it is a fight over mode not meaning
o The Potency of evidence is not a factor in exclusion analyses
o Relative monetary positions of the parties are relevant for the trial court to
consider when ruling on admittance (CGI is pricy)
 United States v. Myers (5th Cir. 1977): Which of two extremely similar looking friends
robbed the bank?
o Myers convicted and had fled from police
o Flight Evidence is an admission of conduct through 4 inferences
 The behavior is flight, the flight is because of guilt, the guilt is guilt of the
crime charged, and the guilt of the crime charged is actual guilt.
 Typically this is only marginally probative, here it was unfairly prejudicial
o Here, Myers was under investigation for many bank robberies, there is no way to
infer he felt guilty of this particular one
o Temporal Proximity is key to flight evidence
 Old Chief v. United States (1997): Old Chief is arrested for assault in a fight where a gun
went off and charged with felon possession of a gun
o Wanted to stipulate that he met the criteria for the gun charge but not reveal that
the underlying felony was also assault (prejudicial)
o Souter maj. Says the name of the prior crime is clearly Rule 401 relevant, as most
propensity evidence is
 Not admissible to prove the character of a person, but can be let in if for
another purpose as long as it passes Rule 403
o Souter says you can discount the probative value of a piece of evidence when a
less risky alternative piece of evidence that goes to the same point exists
  Looking at the marginal probative value of a piece of evidence when
weighing against the prejudicial effect
 Here, the less risky piece is the stipulation
 Picking between two abstract choices (which sheet of paper to read) and
prosecution has control over what’s at issue

Specialized Relevance Rules

 All of these reflect the idea that, as a matter of law, the evidence they govern fails a Rule
403 weighing test, but we want it to come in for other purposes anyway
 Rule 407: Subsequent Remedial Measures
o Measures taken after an injury that would have reduced the chance of injury are
not admissible to prove
 Negligence
 Culpability
 Defect in design
 Need for warning
o But can come in if this is disputed, in other words it can be a shield but not a
sword, and is allowable for other purposes like impeachment
 Rule 408: Compromise Offers and Negotiations
o Evidence of settlement negotiations is not admissible to prove the validity or the
amount of a disputed claim or to impeach a witness
 Can come in to prove bias, prejudice, dispute the charge of undue delay or
to prove obstruction, ot other reasons
o Includes all conduct or statements made in negotiations
o Bankcard America, Inc. v. Universal Bancard Systems, Inc. (7th Cir 2000)
 Multitrial litigation over contract breach between two companies where
Universal thought they had reached a settlement allowing them to do some
contract rollovers after terminating relationship with Bankcard (in
violation of original contract)
 Court says Rule 408 allows evidence of negotiations to establish things
other than liability
 Abuse of the Rule to allow one party to lead his opponent into a
trap and then object when the opponent attempts to establish that
the trap was laid
 Should not use it block evidence of an invited violation
 Rubin seemed skeptical of this, called it a “spirit of the law” call
 Rule 409: Offers to Pay Medical and Similar Expenses
o Evidence of furnishing, promising to pay, or offering to pay medical expenses
from injury is not admissible to prove liability
 Rule 410: Pleas, Plea Discussions, and Related Statements
o Evidence of plea deals, statements during plea negotiations, etc. are not
admissible against the defendant who made the plea or negotiation (need atty)
 o This rule bars all instances of this except the enumerated exceptions, much stricter
o Exceptions include
 Some statements made under oath can be introduced in later perjury
actions
 If one statement made during the same discussions is admitted, another
may be as well if they should be considered together in fairness
o Rule 411: Liability Insurance
 Evidence of liability insurance, on either side, is not admissible to prove
negligence (this is supposed to protect insured defendants)

Character and Propensity Evidence

 People v. Zackowitz (NY 1930): Zackowitz shoots Coppola after he catcalls his wife
o Prosecution wanted to introduce evidence of how many guns Zackowitz owned
o Cardozo says no, this is only meant to show him as “a person criminally inclined”
o Common law standard that character is never an issue in a criminal prosecution
unless the defendant makes it one
 Rule 404: Character Evidence; Crimes or Other Acts
o 404(a): Evidence of a person’s character is not admissible to prove that on a
particular occasion the person acted in accordance with the character or trait
 Is admissible for any other purpose
 Exceptions in Criminal Cases
 404(a)(2)(A): If the defendant offers character evidence of
themselves first
o Under Rule 405(a), it is limited merely to reputation or
opinion, not instances of good conduct
 404(a)(2)(B): If the defendant offers character evidence of the
victim and the trait is pertinent
o Most often happens in self-defense cases
o Prosecutors can then rebut this or offer evidence of the
defendant’s same trait
 404(a)(2)(C): In homicide cases, prosecutors can offer evidence of
the victim’s trait of peacefulness to rebut evidence that the victim
was the aggressor (no need for defendant to introduce first)
 Rules 607, 608, and 609 have Witness Character Exceptions
o 404(b): Evidence of crimes, wrongs and other acts are not admissible to prove the
character of a person or to show that on a particular occasion the person acted in
accordance with that character
 Any Purpose not related to propensity is fine though, allowed in
 An unnecessary list illustrating other purposes that move around the
propensity box (motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake)
 Prosecutors must provide notice when using this
  State v. Kirsch (NH 1995): Kirsch charged with sexual assault on 3 young
girls and state wants to bring in other women to testify, all similar stories
of being church group lead
 Evidence is kept out under 404(b)
 Motive is “the reason that nudges the will to indulge the criminal
intent”
o Argument here was just a propensity argument (motive of
wanting sex w/girls)
 Intent requires evidence of other acts to support an inference that
the defendant had the same intent on the occasions of the charged
and uncharged acts, but the inference cannot be based on
propensity or character
 Scheme/Plan requires that the other bad acts be constituent parts of
some overall scheme, not that the crimes just be planned in the
same way
 United States v. Trenkler (1st Cir. 1995): Trenkler is charged with
building a bomb to kill Shay’s dad, Gov’t offers evidence that Trenkler
built a different bomb years ago
 Rule 404(b) two-part test used
o Does the evidence have “special relevance” independent of
its tendency to show propensity?
 For “special relevance” to identity of perpetrator,
need a showing of a high degree of similarity
between the other act and the charged crime (a
modus operandi test)
 Need Sufficiently idiosyncratic
characteristics
 Need several identifying characteristics or
the presence of some highly disjunctive
quality
o If so, does the evidence pass a Rule 403 prejudice analysis?
 Here, court said the evidence of the other bomb could come in
based on similarities in the bomb’s construction (Rubin expressed
skepticism)
o This evidence, even where it may be admitted, must still pass a Rule 403 test
o Functionally, the rule creates a propensity box that cannot be passed through. It is
a forbidden inference to say the defendant acted in accordance with a propensity
o Rule 105 requires limiting instructions when requested if this comes in
o Wigmore believed people give too much weight to character evidence and there is
a fear of convicting people for who they are rather than what they have done
o Rex v. Smith (KB 1915) (classic) 3rd dead wife in bathtub case
  Evidence of the previous wives’ deaths is submitted to help the jury decide
if the death was accidental or designed
 To support an inference of design, the doctrine of chances purports to
simply not be propensity evidence but is more like an exception for
extreme circumstances
 Rule 405: Methods of Proving Character
o When evidence of character is admissible, it may be proved by testimony about
the person’s reputation or testimony in the form of an opinion
o On cross-examination, the court may allow inquiries into past specific instances
of the person’s conduct
o Where the character trait is an essential element of a charge, claim, or defense, the
character or trait may be proved by relevant specific instances of conduct
o Michelson v. United States (1948): Michelson is convicted of bribing a tax agent,
on direct exam he mentions a 1927 conviction due to impeachment on a 1930
form he filled out that failed to list it
 Character witnesses are offered, they are split on hearing about this but
have not heard of any prior convictions, but evidence of a prior arrest for
cross examination is allowed
 Positive character evidence must be based exclusively on hearsay to
establish a general repute, and the price defendant’s pay is allowing the
prosecution to pry into the entire subject
 Character witnesses can be crossed as to an arrest no matter whether it led
to a conviction, even though witnesses may not be asked about their own
arrests (can be asked about their own convictions)
 Just need a good faith basis to ask the question
 Rule 406: Habit; Routine Practice
o Evidence of a person’s habit or an organization’s routine practice may be
admitted to prove that on a particular occasion the person or organization acted in
accordance with the habit or routine practice
o Habit: regular response to a repeated specific situation
o Halloran v. Virginia Chemicals, Inc. (NY 1977): heating water with an immersion
coil case where can explodes
 To introduce habits, a party must be able to show that he expects to prove
a sufficient # of instances
 Rules 413, 414, 415: true exceptions to the past crimes bar in sexual assault and child
molestation cases, whether criminal or civil
o These have been extremely controversial (United States v. Mound dissent)
o Permit evidence of a defendant’s other acts of sexual assault or child molestation
on “any matter to which it is relevant” (i.e. still must pass Rule 401 and 403 test)
o United States v. Guardia (10th Cir. 1998): gynecologist at Kirkland AFB charged
with sexual abuse and gov’t wanted 4 other women to testify
 Rule 413 analysis requires 3 threshold requirements
  Offense of Sexual Assault
 Evidence to be offered is of another offense of sexual assault
 Evidence must be relevant (typically, 404(b) keeps out evidence in
spite of its relevance, since propensity is almost always relevant)
 After the threshold requirements, the Rule 413 evidence must be subjected
to a Rule 403 test
 Probative value of the propensity evidence will depend upon the
similarity of prior acts to charged ones, frequency, intervening
events and need for evidence beyond that of the victim/defendant
 Here, evidence was likely to confuse the issues given the expert
testimony needed to define “medical propriety” of the conduct
 Rules 607, 608, 609
o Go to Impeaching Witnesses, including based on their character (Rule 403(a)(3))
 Impeachment: reducing the impact of the witness’s testimony
 No Rule bars calling a witness mistaken through questioning their
perception, memory, or narrative accuracy
 Non-Character Impeachment is that which does not rely on a witness
being a liar generally
 Contradiction by confliction evidence, past inconsistent statements,
bias, etc
o Rule 607: Either party may attack a witness’s credibility
o Rule 608: A Witness’s Character for Truthfulness or Untruthfulness
 608(a): Either party may offer evidence of character of untruthfulness (i.e.
that the witness is a liar) but this allows rebuttal evidence of truthfulness
 Limited to reputation or opinion (i.e. incorporates Rule 405)
 608(b): cross-examination can ask about specific instances of conduct if
they are probative of truthful/untruthful character, but this cannot be
supported with any extrinsic evidence used solely to get at character for
truthfulness
 Character can be either that of the witness or another witness
whose character the witness being crossed has testified about
 United States v. Whitmore (D.C. Cir. 2004): Whitmore is chased down by
cops and charged with possession of a firearm (gun was found along chase
path)
 Whitmore alleges the cop planted the gun and calls reporter, public
defenders, and a friend of the cop to testify to his untruthfulness
 Court rejects, saying Rule 608(a) requires evidence to come from
one with acquaintance in the same community
o Here, witnesses were either too removed temporally (2
years), the community alleged was questionable (court
community) and seemed biased
  However, 608(b) allowed Whitmore to cross examine witnesses
about the cop’s failure to pay child support and how he drove on
an expired license
o Only need a reasonable, good faith basis for asking about
these, or have some facts to support a genuine belief
o Rule 609: Impeachment by Evidence of a Criminal Conviction
 609(a)(1): Convictions of crimes punishable by more than a year in prison
 (A): must be admitted subject to Rule 403 in a civil case or
criminal case in which the witness is not a defendant
 (B): Must be admitted in a criminal case in which the witness is a
defendant as long as the probative value of the evidence outweighs
its prejudicial effect (notice, no “substantially” requirement)
 609(a)(2): no matter the punishment, past convictions that required the
witness admitting/proving a dishonest act or false statement as an element
of the crime must come in (i.e. fraud or similar cases)
 609(b): past convictions over 10 years old must pass a Rule 403 balancing
test and those seeking to introduce must give fair notice of intent to use
 609(d): Juvenile adjudications are only allowed in against non-defendant
witnesses where admitting the evidence is necessary to fairly determine
guilt or innocence (almost never come in)
 United States v. Brewer (E.D. Tenn. 1978): Brewer is charged with
kidnapping and taking a stolen vehicle across state lines, gov’t wants to
put some past convictions into evidence
 All met the (a)(1) requirement, only question is Rule 403
 Use a 5-factor test to assess the probative value
o Nature of the crime (honesty crimes are more probative)
o Time of the Conviction and Subsequent History
o Similarity between past and charged crimes
 Past same crimes should be admitted more
sparingly, since they are more prejudicial
o Importance of the defendant’s testimony (more important =
less likely to let in)
o Centrality of the credibility issue (likely offsets the
importance of the testimony)
 Important to note Loose and Aller
 Loose: unfavorable decisions regarding admissibility of past
convictions cannot be appealed unless the defendant testifies, and
the conviction is used against them
 Aller: if the defense brings up the past convictions on direct, you
cannot appeal an unfavorable decision at all, no matter if the
prosecution intended to raise it or not
  Rule 609 contains 5 different standards, listed here from most permissive
to most restrictive
 609(a)(2): crimes with dishonesty as element are very probative
 609(a)(1)(A): implicit assumption that serious crimes lead to a
readiness to lie under oath
 609(a)(1)(B): layered a reduced quasi 403 test to protect defendant
 609(b): old crimes are less probative than new ones
 609(d): juvenile crimes are seen as not very probative at all
 Rule 610: bars religious beliefs or opinions from use to attack or support credibility
 Character/Propensity evidence is generally barred with 7 exceptions
o Rules 413, 414, 415: sex crimes exceptions
o Rule 404
 (a)(2)(A): character of a criminal defendant offered by the defendant
 (a)(2)(B): character of the victim offered by the criminal defendant
 (a)(2)(C): rebuttal of a victim’s aggressive character in response to (a)(2)
(B) or a general claim of self defense
 (a)(3): Character of a Witness, applied by 607, 608 and 609
o Even if it falls under the exceptions, character evidence must always bear on a
pertinent trait, which for witnesses is always credibility
o Evidence supporting a character of credibility is only allowed after attacks on
credibility

The Rape Shield Law

 Rule 412: Sex Offense Cases: The Victim’s Sexual Behavior or Predisposition
o More strictly exclusionary than 404(b), this rule has defined exceptions to a
general ban as opposed to a few banned uses of a generally acceptable type of
evidence
o Cannot introduce evidence in a civil or criminal proceeding involving alleged
sexual misconduct that is offered to prove that a victim engaged in other sexual
behavior or to prove their sexual predisposition
o 412(b)(1): Court may admit the following evidence in criminal cases:
 Evidence of specific instances of sexual behavior to dispute physical
evidence (i.e. where did semen etc. come from)
 Establish of specific instances of sexual behavior with respect to person
accused (i.e. to show relationship between the victim and defendant)
 If offered by the defendant to prove consent or if offered by the
prosecutor to establish a pattern of ignoring consent
 Where exclusion would violate constitutional rights
 NOTE: no sexual reputation evidence in criminal cases
o 412(b)(2): In civil cases, evidence of past behavior or sexual predisposition may
be admitted only where its probative value substantially outweighs the danger of
harm to any victim and of unfair prejudice to any party
  Reputation testimony only comes in if the victim has placed it at issue
o 412(c): contains 14 day notice and motion requirement
 Look back on incredibly sexist cases like People v. Abbot (NY 1838), which functionally
put the victim’s scienter at issue to determine their sexual proclivities and willingness to
consent
o Unchaste thought of as psychologically different, more likely to make things up
o Estrich notes the law’s underlying theme of distrusting women, allowing men to
hide behind the reputation of a victim they often did not even know
o Historically, Rule 404(a)(2)(B) pertinent trait exception would allow in evidence
of promiscuity as relevant to the question of consent and was intentionally written
to make sure it could come in
 That’s why the Rule explicitly mentions 412 now
 Pre 412, defense counsel would often bring in outside witnesses to opine
on a victim’s sexual reputation
 Olden v. Kentucky (1988): evidence of victim’s relationship with only witness to see her
leave the car with the two defendants she claims raped her is kept out by trial judge
o Upper court says this was wrong, Olden had a 6th Amendment right to confront
the potential bias here
 Stephens v. Miller (7th Cir. 1994): Stephens says Miller’s accusation against him is false,
she made it up after he said that she “liked it doggy” while they were having sex, learned
this according to a past partner
o Miller claims he came in and tried to have sex with her and she refused
o Court allows Stephens to testify that he “said something that angered her”, Appeal
says this was enough and that exact words were barred by Rule 412
o Dissent said the exact words were essentially to allow the jury to decide how
angry she realistically could have been
 United States v. Knox (1995): Theresa wakes up to her BF and his friend having sex with
her, they claim she initiated (lots of alcohol, seems Theresa blacks out)
o Knox wanted to offer proof she was promiscuous, but the issue is whether she
was awake or not, and past behavior/reputation evidence does not resolve that
factual dispute
o Knox wanted to argue that he reputation makes it more reasonable that he
believed she was consenting, but no courts have ever found that this justifies
displacing rape shield laws
Probabilistic Evidence
 People v. Collins (CA 1968): case of the interracial couple purse snatchers based entirely
on absurd calculations and probabilities of how many couples in LA share their
characteristics
o 2 main prejudicial errors were
 Testimony lacked an adequate foundation in the evidence and statistics
 No evidence was given to support the underling probabilities, so
you have a garbage in garbage out problem
  Any probability evidence needs to demonstrate the validity of the
evidence and estimates
 No proof of the statistical independence of the factors means an
exaggerated result
 Testimony and the manner it was used distracted the jury from weighing
the actual evidence
 Probability theory cannot help one choose from the few valid
options that remain
 It assumes that the couple actually possessed the characteristics
 The calculations actually just listed the “odds” that a random
couple would possess these traits, not the probability that this
particular couple was guilty
o Probability evidence is always judged under Rule 403
 DNA evidence is always probability evidence
 There is a powerful limitation of the human mind that resists solely probabilistic cases
o E.g. The Blue Bus hypo
 Trial courts tend to aim for a determination of what happened, which is undermined by
starkly showing the chance that something did not happen

Hearsay
 The rule against hearsay is largely about controlling the reliability of the evidence the
jury hears
o Testimonial capacities of perception, memory, narration and sincerity matter, but
ultimately getting at sincerity (shipwreck example)
 Common non-hearsay reasons parties offer out of court statements
o To prove the statement’s impact on someone who heard it
o To prove a legal right or duty triggered by, or an offense caused by, uttering the
statement
 Making a contract, threats, slandering, etc.
o To impeach the declarant’s later, in-court testimony
o Commonality here: non rely on the declarant’s belief about the statement, just the
simple fact that it was said
 Rule 801(a)-(c) lists definitions that apply
o Hearsay is an out of court statement offered by a litigant to prove the truth
of what the declarant asserted in the statement
o Requires asking
 Whether the party is offering the statement to prove the truth of what it
says or was meant to say
 Did the declarant actually mean to communicate that fact
 Hearsay requires an element of intent (“asserted”)
 Implied assertions are fine
  Indirect assertions only work if the ultimate assertion is not
dependent on the truth of the immediate assertion
o Wright v. Tatham (1837) said letters indirectly proving
belief in someone’s competence could come in since they
did not intend to communicate that belief
 Out of court statements will not be hearsay unless
their evidentiary force depends on the sincerity of
the declarant
 If yes to both, then it’s hearsay
o This means that you can introduce out of court statements to prove only that
they were spoken, mere recitation is fine
 Rule 801(d) lists statements that are not considered hearsay despite technically meeting
the definition
 801(d)(1): Declarant-Witness’s Prior Statements
o (d)(1)(A): Inconsistent statements can come in if made under oath
 Rule 613 allows in ones not made under oath but for impeachment
purposes only
o (d)(1)(B): Consistent statements can come in only to (i) rebut charges of
recent fabrication or (ii) to rehabilitate credibility if previously hit
 Tome v. United States (1995) saw Tome charged with felony sex abuse of
his own daughter, and the defense says they were fabricated by the mother
 Child’s testimony goes poorly so the prosecution seeks to
introduce 7 out of court statements from others describing what she
told others, but all were made after she arrived to stay with her
mother (defense theory was fabrication to stay with mother longer)
 Court holds that prior consistent statements can only be introduced
to rebut charges of recent fabrication if they are made before the
alleged motive to fabricate arose, thus denying these statements
o (d)(1)(C): Statements that identify a person as someone the defendant
perceived at an earlier time are good (IDs)
 801(d)(2): Opposing Party’s Prior Statements
o (d)(2)(A): A party’s own prior statements can come in, no qualifications
 This allows in free confessions, for example
o (d)(2)(B): Adopted statements or those attested as true can come in
 This includes statements adopted through silence
 Where a party hears and understands, is at liberty to respond, and
circumstances naturally call for a response
o (d)(2)(C): Statements made by authorized spokespeople
o (d)(2)(D): Statements made by agents of the party
o (d)(2)(E): Statements made by co-conspirators of a party during and in
furtherance of the conspiracy
  Rule 104(a) controls this, a conspiracy must exist at the time the statement
is made, include both the declarant and the party against whom the
statement is offered, and be spoken during the course of and to further it
 Rule 802 generally bars hearsay unless otherwise provided
 Rule 803 lists 23 defined exceptions to the general ban in Rule 802 that apply regardless
of whether the declarant is available as a witness
o Rubin says these exists because some of it is actually better than live testimony
o (2): Excited Utterances
 Allows a statement relating to startling events while under the stress of
those events
 Often important in domestic violence cases and was dealt with in
Crawford v. Washington (2004) (discussed below), which barred hearsay
within this exception if the victim does not testify
o (3): Declarant’s Then Existing Mental, Emotional, or Physical Condition
 “a statement of the declarant’s then existing state of mind (such as motive,
intent, or plan) or emotional, sensory, or physical condition, but not
including a statement of memory or belief to prove the fact remembered or
believed unless it relates to a will”
 Mutual Life Insurance Co. v. Hillmon (1892) is a classic case involving
insurance claims around the alleged death of Hillmon
 Ins. Co.s all argue it was actual Walters who died, and seek to
introduce some of Walters’ letters to his fiancée and sister that
indicated he planned to go out to the country with Hillmon
 The court says that this spoke to Walters then existing mental state
of wanting to go out to the country with Hillmon, not that he did in
fact go
 Rubin (and I) think this clearly violates the requirement that these
statements not attempt to prove the fact remembered or believed
o (4): Statement Made for Medical Diagnosis or Treatment
 United States v. Iron Shell (1981) dealt with the claimed sexual assault of
a 9-year-old girl
 Doctor’s statements regarding what the girl told him regarding if
Defendant tried to remove her clothes
 Court says that statements regarding
o medical history
o past or present sensations and
o the inception or general cause of disease or injury are
allowed in when relevant
 Girl’s statements here were in #3
o Needed to ask if her motive in speaking was consistent with
the rule’s rationale and if it was reasonable for the doctor to
rely on it in diagnosing
 o Purpose is to encourage honest recitation to receive best
possible treatment
 Statements here were consistent with this purpose, allowed
 This rule applies for physicians that both diagnose and treat, Rubin seems
to think it should only be for those that treat
o (5): Recorded Recollections
 Records must be on a matter the witness once knew about but now cannot
recall, that is made or adopted when the matter is fresh, and accurately
reflects witness knowledge
 Johnson v. State (TX Crim. App. 1998) dealt with the application of the
rule where a witness refuses to acknowledge their prior statements
 Accurately reflects knowledge prong is often satisfied by having
the witness say they remember recording the fact correctly or
signing the statement and later testifying they believe it is right
 Here, the witness refused to guarantee his memory of a shooting in
a car was correct, his prior statement outlining who did it kept out
o (6) and (7): Records of a Regularly Conducted Activity and Absence of a Record
of a Regularly Conducted Activity
 Lets in ordinary business records as long as they do not relate to litigation
 Paul Newman movie example “I ate an hour ago”
 803(4) lets it in, if there was only the written statement probably
would come in under 803(6) but is hearsay within hearsay, so
803(4) plays a role (each piece of hearsay must be admissible)
 Rule 804(b) lists 5 defined exceptions to the general ban in Rule 802 that apply only
where the declarant is unavailable as a witness, a status defined in 804(a)
o (a): Unavailability is broad
 Includes those that are privileged against testify, who refuse to testify
despite an order to do so, who testify to not remembering the subject
matter, who are physically unavailable because of illness, death, cannot
find them, etc.
o (b)(2): Dying declarations (statements made under belief of imminent death)
 Shepard v. United States (1933) clarified that this requires no hope of
recovery, a shadow of certain death (here, bad condition for over a month,
wife accuses husband of poisoning her around 2 days in)
 Rubin noted a potential Rule 602 personal knowledge problem too
o (b)(3): Statements Against (Financial or Legal) Interest
 Rule 807 contains a Residual Exception
o Allows statements with sufficient guarantees of trustworthiness and that is more
probative for the point for which it is offered than any other evidence
o Dallas County v. Commercial Union Assurance Co. (5th Cir. 1961) is a classic
example of this, where Judge Wisdom allows in a newspaper article documenting
a fire to help clear up where char came from in a roof collapse insurance case
  Declines to use the Rule 803(16) Ancient Documents exception and
instead rests on common sense reliability of newspaper articles

The Confrontation Clause

 Crawford v. Washington (2004) set an entire new regime for the interaction of Hearsay
and the Constitution on its course
o Before, Ohio v. Roberts (1989) had controlled, with a test of unavailability and
reliability, with reliability inferred from fitting in a hearsay exception, cross
examination, or other feature
o Here, Lee was stabbed by Crawford after a prior incident where Lee tried to rape
Crawford’s wife. Crawford’s statement mentions that he thought Lee was going
for a weapon but Sylvia Crawford’s statement does not. Crawford pleads self-
defense and the state wants to introduce Sylvia’s statement
o Initially, it came in under 804(b)(3) as a statement against interest (implicated
Sylvia in another charge) and Crawford argues this violated the 6th Amendment’s
Confrontation Clause
o Scalia cobbled a majority together which agreed, drawing a new line between
testimonial and nontestimonial types of evidence
 Testimonial evidence: statements made under circumstances which would
lead an objective witness reasonably to believe that the statement would
be available for use at a later trial
 Interrogations by Officers were deemed testimonial
o Admissibility of absent witness testimony is conditioned on unavailability and a
prior opportunity to cross examine
 Michigan v. Bryant (2011) loosened Crawford and held that the Confrontation Clause
does not bar statements made to resolve an ongoing emergency, with that purpose
determined through an objective analysis of circumstances and statements
o Covington tells officers that Bryant shot him through his back door as he lies in a
parking lot, dies hours later. Cops find Bryant based on this
o Ongoing emergency here was that cops did not know where Bryant’s shooter was,
could have been roaming around with a gun, looking for others
o Purpose inquiry is emphasized heavily, since Bryant and the cops’ purpose was
not to create an out-of-court substitute for trial testimony. Where this is true, the
Rules of Evidence govern rather than the Confrontation Clause
 Analyze the circumstances in which the statement/interrogation occurred
and what the declarant said and meant purposively
 Ongoing emergency exception is similar to the excited utterances
exception contained at 803(2)
o Scalia thought that it was the declarant’s intent that mattered and that Covington’s
intent was clearly to get Bryant arrested. Thought that this was reliability analysis
sneaking back in
  Bullcoming v. New Mexico (2011) held that surrogate testimony for forensic evidence
was not allowed under the Confrontation Clause, the actual technician that performed the
particular test at issue must testify
o Bullcoming was arrested on a DWI charge and his lab toxicology report was a big
piece of evidence, but the technician who did the test was unavailable so they had
a different technician familiar with the procedures do the testimony
o Melendez-Diaz later expanded this and barred the introduction of forensic analysis
certificates in lieu of any testimony at all
o This case “endorses” an interesting definition of “testimonial”
 Testimonial: statement must have a primary purpose of establishing or
proving past events potentially relevant to later criminal prosecution (4
Justices)
 Thomas signed onto the opinion in full except for this definition, he
believes that testimony must be formalized or solemnized in some way,
and arguably, his definition controls under Marks
Lay Opinions and Expert Testimony
 Rule 701: Opinion Testimony by Lay Witnesses
o Lay witness opinions are limited to what is
 Rationally based on the witness’s perception (to conform with Rule 602
Personal knowledge requirement)
 Helpful to clearly understand the witness’s testimony or to determine a
fact in issue, and
 Jury cannot judge the matter themselves and it adds info over and
above what would be gained from recitation of facts
 Not based on specialized, Rule 702 knowledge
o Previous standard was much stricter, was limited to inferences that could not be
reduced to their fundamental facts (ex. “how bright was it?”)
 The law requires that experts
o Have proper qualifications (Rule 702)
o Speak on a proper topic (Rule 702(a) and Rule 704)
o Have a Sufficient Basis for their opinion (Rule 702(b) and Rule 703)
o Use Relevant and Reliable Methods (Rule 702(c), (d), and Daubert)
o Not intrude on the judge’s role as a legal expert (Rule 702(a) and Rule 704)
 Note: Foreign law is sometimes treated as an issue of fact
o Not tell the jury what result to reach (Rule 702(a) and Rule 704)
o Give evidence that survives a Rule 403 test
 Rule 702: Testimony by Expert Witnesses
o Requires experts to be qualified by knowledge, skill, experience training, or
education, and allows the experts to testify in the form of an opinion if
 The scientific, technical, or other specialized knowledge will help the trier
of fact understand evidence or determine a fact at issue
 The testimony is based on sufficient facts
  The testimony is the product of reliable principles and methods (added
after Daubert)
 The expert has reliably applied the principles to the facts
o Jinro America, Inc. v. Secure Investments, Inc. (9th Cir. 2001) dealt with what is a
legitimate expert qualification in a complex international contract case
 Pelham, head of Pinkerton Korea with Korean wife and experience in
business investigation in Korea, testifies that Koreans don’t honor oral
contracts, based on newspapers and his own experience
 Court said Pelham was not an expert, since being qualified is not a general
test but instead specific. It means being qualified to give the opinion
rendered
 Pelham may be an expert on Korean business structure but he is
not an expert on Korean culture
 Court also said his testimony failed a Rule 403 test due to the
intense cultural stereotyping it carried
o State v. Batangan (HI 1990) dealt with the line between opinion and factual
determination by expert witnesses in the context of psych exams of alleged
victims of sexual abuse
 Batangan was accused of molesting his daughter, but she did not provide
many details and both recanted and unrecanted
 Bond, a child psychologist, testified about sessions he did with the
daughter, the methods he uses to discern truth, and implicitly said she was
believable and had been abused
 Typically, expert testimony regarding credibility is inadmissible since the
common experience of the jury is enough
 However, in abused child context, the indicators of credibility
often change and these changes may be explained to the jury
 The explanation though must not feature conclusions about what
actually happened
o Frye v. United States (D.C. Cir. 1923) used to govern what qualified as scientific
knowledge, saying that the methods or science must be sufficiently established
and gained general acceptance in the particular field where it belongs
o Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) did away with Frye’s
“general acceptance test” and instead embraced a grounding in reliable scientific
methods that are relevant to the case at hand
 A new screening role for judges to assess the reliability of evidence
 Announced guiding principles in dicta that have been taken seriously
 Look at if evidence can be tested or falsified
 Presence of peer review or publication
 Potential rate of error
 Standards that control the technique’s operation
 General acceptance in the scientific community
  Supposed to be a flexible, adaptive inquiry
 Kuhmo Tire Company v. Carmichael (1999) clarified that the Daubert test
applies to all of Rule 702 expert testimony, not just scientific knowledge
 District Courts get abuse of discretion review on their decisions
 Rubin notes that despite Daubert seeming to hint that it will let in more
types of evidence than Frye did, it seemed to send the opposite message,
and judges have embraced a harsh gatekeeper role
 Rule 703: Bases of an Expert’s Opinion Testimony
o Allows expert opinions that rely on
 Facts or data that they personally observed
 Facts or data that they were made aware of at the hearing
 Facts or data that they were made aware of before the hearing
 Before the hearing facts may not be admissible even though an
expert’s opinion about them is (can rely on hearsay as long as
doing so is within standard methods)
o They can come in if the court determines that their
probative value substantially outweighs their prejudicial
effect (a reverse Rule 403 test with the default being no
admittance)
o Further, if admitted, can only come in for the jury to assess
the reliability of the opinion, not for their truth
o Ex. Would be experts who examine autopsy reports without
doing the autopsy
 Rule 704: Opinion on an Ultimate Issue
o An opinion is not objectionable just because it embraces an ultimate issue, but
there is an exception for criminal cases where experts state opinions about a mens
rea that constitutes an element of the charged crime
o Hygh v. Jacobs (2nd Cir. 1992) dealt with how this rule interacts with Rules 701,
702 and 403 to bar opinions that would merely tell the jury what result to reach
 Here, a defense law enforcement expert testified that the force an officer
used in an arrest was not justified, done without legitimate reason, and was
“deadly physical force” under assault definition
 This was no good, he provided a legal definition and the not justified
language told the jury what conclusion to reach

Authentication, Identification, and the Best Evidence Rule

 Rule 901 requires proponents to produce evidence sufficient to support a finding that a
piece of evidence is what the proponent claims it is
o 901(b) provides a ton of non-exhaustive authentication methods
o Echoes of Rule 104(b), in that the relevance of an item turns on a conditional
fact. Here, the condition is that the item is what the proponent says it is
o This is judged under a preponderance of the evidence standard (Huddleston)
  Meeting this standard does not ensure admittance
o A common method for satisfying these rules is establishing a particular item’s
chain of custody
 Breaks are not fatal, the “same item” just must be in “substantially the
same condition”
 United States v. Stelmokas (3d. Cir. 1996) dealt partly with this when
trying an alleged Lithuanian Nazi collaborator 50 years after the facts
 Much evidence came from Soviet held documents initially kept by
the Lithuanian and German governments, so the chain of custody
was not perfect
 Stelmokas also alleged that 901(b)(8)(B) created an issue, since the
documents were found in a place they were not “likely” to be (i.e.
not in Lithuania)
 Court found the corroborating expert testimony, wide geographic
range of the documents, and lack of plausibly alleged conspiracy to
overcome any doubts and pass the preponderance test
o State v. Small (OH 2007) dealt with the often invoked “distinctive characteristics”
authentication method at Rule 901(b)(4)
 After Medhin was shot, his friend calls a # that Medhin had called to tell
he did not have “the money.” The voice on the other end identifies itself as
“Dominique,” speaks with a Jamaican accent and seems to know of what
happened. Smalls fit all of these characteristics according to a statement
his wife gave (not hearsay since it was an opposing party statement that
would have implicated his wife in some things)
 Distinctive characteristics includes identification from being the only one
who could utter the speech under the circumstances. Here, there were
enough things peculiarly known to a particular person to authenticate
 Rule 902 provides a list of “self-authenticating documents”
 Rules 1001, 1002, 1003 and 1004 deal with the “Best Evidence Rule” or the
Requirement of the Original as it is known now
o Rule 1001 provides a list of definitions
 Original: the writing or recording itself or any counterpart intended to
have the same effect by the person who executed or issued it. Original
includes printouts, photo negatives, photo prints, etc.
 Duplicate: counterpart produced by a mechanical, photographic, chemical,
electronic, or other equivalent process or technique that accurately
reproduces the original
 Essentially just preventing manual reproductions from coming in
o Rule 1002: Applies only to writings, recordings, or photographs, but requires the
original of these things to prove their contents
o Rule 1003: In most cases, a duplicate is admissible to the same extent as the
original
  Exception where genuine questions are raised about the original’s
authenticity or the circumstances make it unfair to admit
o These rules are meant to prevent human recollections of the content of these types
off documents from coming in
o An original or duplicate is only required if you desire to “prove the content”
contained within it
 This phrase does not relate to corroborating, illustrating or supplementing
testimony
 Simms v. Dixon (D.C. 1972) shows this, where photos of the
aftermath of a car collision were let in even though the
photographer could not be located, because they were merely
meant to illustrate the testimony of one of the drivers
 Applies in 2 contexts
 Where the writing, recording, or photo is itself at issue in the
litigation (think a contract, copyrighted work, libel, etc.)
 Where you try to prove an event solely with the recording’s
independent probative value
o Wagner v. State (FL 1998) illustrates this with video of a
drug deal where no witness could testify
 Silent witness theory says that proof of the
reliability of the process which produced the
recording can substitute and help authenticate
 Judge must consider
 Evidence establishing date and time
 Evidence of tampering or editing
 Condition of equipment
 Procedure of preparation and operation
 Identification of those depicted
 Were trying to prove the content
 Rule 901(b)(9) deals with these situations as well
o Ex. No living witnesses to a bank robbery but there is a
tape of the incident (Thelma and Louise example)
o Rule 1004 is an exception to the whole Best Evidence Rule where
 All originals are lost without bad faith by the proponent
 Originals cannot be obtained by any judicial process
 Originals will not be turned over a party even after judicial notice

Privileges
 Proposed Rules 501-514 failed to pass, and were meant to codify privilege law that had
largely developed through the common law method
 Instead, only Rule 501 and 502 passed, and committed development of privilege law to
courts through common law
 Federal privilege law controls in federal criminal actions and civil actions in federal court
as long as federal law provides the rule of decision
o State privilege law applies in
 Diversity actions
 Wherever state law provides the rule of decision
o Three federal privileges recognized
 Attorney-Client
 Clergy-Penitent
 Psychotherapist-Patient (created in Jaffree v. Redmond (1996))
 Privileges generally have four features
o The Privilege is the Client’s and can only be asserted by or waived by them
o Privilege protects only Confidential Communications
 Those made in confidence
 Only the communication itself, not the underlying fact
 Ex. “Gun is buried at X” does not privilege the fact that you know
where the gun is buried, it privileges that your client told you that
o Privilege protects only those confidential communications made to facilitate
professional services
 Privileges can be waived (by action or default) under Rule 502(b)
o Williams v. District of Columbia (D.D.C. 2011) dealt with this where an allegedly
privileged document was accidentally disclosed
 District sent it in a production, sent a letter of notice under Rule 26(b)(5)
(B), but then let 2 ½ years pass without following up
 Court said the privilege had been waived, using Rule 502(b)’s standards
around inadvertent disclosures
 To prevent waiver
 Disclosure must be truly inadvertent
 Reasonable steps must have been taken to prevent the disclosure
 Reasonable steps must be taken to rectify the error
 District failed on 2 and 3 of the above test
 Swidler & Berlin v. United States (1998) held that Attorney-Client Privilege applies
posthumously
 United States v. Zolin (1989) dealt with the Crime-Fraud Exception to privileges and
allowed in camera review of allegedly privileged documents to determine if the
exception applies
o Exception requires that the client have asked for advice with respect to future
wrongdoings
o Here, Church of Scientology tax returns, IRS had an informant that said some
docs contained crime-fraud material
o Moving party asserting the exception must show a factual basis adequate to
support a good faith belief by a reasonable person that in camera review of the
material may reveal evidence to establish the exception
 Trammel v. United States (1980) ditched an absolute version of the adverse spousal
testimony privilege in favor of one that may only be asserted by the witness spouse in
criminal cases
o Did not deal with the still relatively universal confidential marital
communications privilege
o Instead, ditched rule that allowed a charged person to bar adverse testimony by
their spouse, even where the spouse wanted to testify (old traditions of women
without legal personhood underlay)
o Had been upheld in Hawkins (1958) but finally ditched here
o Some states still have this! (was at issue in Crawford v. Washington)