Basics.........................................................................................................................................................

11
Judicial Notice (FRE 201) (1-2 Questions)..................................................................................................11
Facts:.....................................................................................................................................................13
Adjudicative facts with evaluative as sub-part..................................................................................13
Legislative facts..................................................................................................................................13
Judicial Notice of Scientific Principles:...................................................................................................14
Procedural Aspects................................................................................................................................14
Mandatory Judicial Notice.....................................................................................................................14
Presumptions............................................................................................................................................14
(I) Burden of Proof – Plaintiff in a civil case and Prosecutor in a criminal..........................................14
(a) Burden of Producing Evidence...............................................................................................14
(b) Burden of Persuasion/Proof..................................................................................................15
(II) Measure of Proof.......................................................................................................................15
(III) Presumptions in Civil (gimmies like judicial notice) FRE 301......................................................15
(1) Effect......................................................................................................................................15
(2) Rebutting a Presumption:......................................................................................................15
Rebuttable Presumptions..............................................................................................................15
Conclusive Presumptions...............................................................................................................16
(IV) Presumptions—Criminal............................................................................................................16
*** Watch out for Mandatory/Conclusive/Irrebuttable Presumption (except Statutory Rape)........16
(V) Vs. Permissible Inference...........................................................................................................17
Prima Facie Cases (Civil) allows a party to meet burden of production but does not shift burden to
opponent. Examples:.........................................................................................................................17
Best Evidence Rule AKA Original Document Rule (EXAM love to test)......................................................17
The Rule ONLY Applies:.........................................................................................................................18
(1) Where the writing is a legally operative or dispositive instrument (e.g., will, contract, deed)
18
(2) Where the knowledge of a witness concerning a fact results from having read the document
18
When there is no original and you want to admit a secondary source, you go through two steps:......19
(1) FRE 1004: To Admit Secondary Evidence...............................................................................19
 (2) FRE 1008: Function of the Court and Jury..............................................................................19
When there is an original......................................................................................................................19
Authentication (FRE 901) (Low Threshold)................................................................................................20
General provision:.................................................................................................................................20
Illustrations (know the list by heart):.....................................................................................................21
(1) Testimony of witness with knowledge...................................................................................21
(2) Non-expert opinion on handwriting......................................................................................21
(3) Comparison by trier or expert witness (Let’s let the jury decide on authentication).............21
(4) Distinctive characteristics and the like...................................................................................21
(5) Voice identification................................................................................................................22
(6) Telephone conversations.......................................................................................................22
(9) Tape recordings properly authenticated if process is shown:......................................................22
(I) Device capable of making true recording and it works properly............................................22
(II) Operator qualified and worked it properly........................................................................22
(III) No additions/deletions made............................................................................................22
(IV) Speakers can be accurately identified................................................................................22
(V) Tape/recording was properly preserved............................................................................22
Self-Authentication (FRE 902)................................................................................................................23
Relevance is the first question court asks..................................................................................................24
(I) Relevancy.......................................................................................................................................24
(1) What proposition is the evidence being used to prove?........................................................24
(2) Is that a material issue in the case?.......................................................................................24
(3) Is the evidence probative of that proposition (logical relevance)?........................................24
Must Relate to Time, Event, or Person in Controversy..................................................................24
But regardless, Certain Similar Occurrences are Relevant to Establish the following:...................25
(1) Causation.......................................................................................................................25
(2) Prior False Claims or Same Injury...................................................................................25
(3) Similar Accidents/Injuries Caused by Same Event or Condition (or Absence of Similar
Accidents)..................................................................................................................................25
(4) Previous Similar Acts Admissible to Prove Intent...........................................................25
(5) Rebutting Claim of Impossibility.....................................................................................25
(6) Sales of Similar Property................................................................................................25
 (7) Habit..............................................................................................................................25
(8) Business Routine............................................................................................................25
(9) Business Custom as Evidence of Standard of Care.........................................................25
(II) Admissibility...............................................................................................................................25
Is it SUBSTANTIALLY more prejudicial than probative (FRE 403).......................................................26
Liability Insurance (we are not allowed to mention insurance at trial because jury automatically makes
you liable)..............................................................................................................................................27
Inadmissible:......................................................................................................................................27
(1) To show Negligence or.......................................................................................................27
(2) To show Ability to Pay........................................................................................................27
Admissible:........................................................................................................................................27
(1) To Prove Ownership...........................................................................................................27
(2) For Impeachment...............................................................................................................27
(3) As Part of an Admission.....................................................................................................27
Subsequent Remedial Measures – FRE 407...........................................................................................27
Inadmissible: [we don’t punish people for remedying potential dangers; we want to encourage
them to make repairs].......................................................................................................................28
(1) To prove Negligence or......................................................................................................28
(2) Culpable Conduct...............................................................................................................28
Admissible:........................................................................................................................................28
(1) To prove Ownership...........................................................................................................28
(2) To rebut a claim of Precaution Not Feasible......................................................................28
(3) To prove Destruction of Evidence (very weak argument)..................................................28
Inadmissible Generally..........................................................................................................................28
(1) Settlement Offers/Negotiations OR Withdrawn Guilty Pleas/Offers to Plead Guilty.............28
Exception.......................................................................................................................................29
(2) Payment of Medical Expenses...............................................................................................30
Hearsay......................................................................................................................................................30
(I) Statement......................................................................................................................................30
(II) Offered to Prove the Truth of the Matter (why is it being offered?)..........................................31
NOT Hearsay (NOT to prove of matter of truth asserted)......................................................................31
1. Impeach.....................................................................................................................................31
 2. Verbal acts or legally operative facts (e.g., words of contract, defamation, bribery, cancellation,
permission)—the issue is simply whether the statement was made EXAM......................................31
3. Statements offered to show effect on hearer or reader (NOTICE).............................................31
4. Statements offered as circumstantial evidence of declarant’s state of mind (only if state of
mind relevant)...................................................................................................................................32
Non-Hearsay..........................................................................................................................................33
Prior statements by witnesses (can be a party) (FRE 801(d)(1)) Mostly Criminal..............................33
(a) Prior Inconsistent Statement (if under oath—prior proceeding).......................................33
(b) Prior Consistent Statement (to refute a charge of recent fabrication or improper motive)
33
(c) Prior Statement of Identification (no formal proceeding necessity) remember the hockey
clip 34
Admissions by Party Opponents (FRE 801(d)(2))...............................................................................34
Types.............................................................................................................................................35
(A) Individual.......................................................................................................................35
(B) Adopted/believed (includes silence; vicarious admissions)...........................................35
Silence....................................................................................................................................35
(I) Party must have heard and understood the statement.............................................35
(II) Party must have been physically and mentally capable of denying statement.........35
(III) Reasonable person would have denied the statement............................................35
Vicarious Admissions.............................................................................................................36
(C) Authorized.....................................................................................................................36
(D) Agent/employee (mostly civil).......................................................................................36
(E) Co-conspirator during/furtherance of conspiracy (mostly criminal)..............................37
(I) Declarant and defendant conspired...............................................................................37
(II) Statement was made during the course of the venture (not after or before)...........37
(III) Was in furtherance thereof........................................................................................37
Hearsay Exceptions................................................................................................................................38
Availability of Declarant Immaterial (FRE 803)..................................................................................38
(1) Present Sense Impression..................................................................................................38
(2) Excited Utterance (bootstrapping does not apply to startling event)................................38
(I) Startling event required (no need for an independent evidence)......................................38
(II) Statement must be about the startling event................................................................39
 (III) Statement must be made while under the stress of the excitement/startling event and
39
(IV) Before declarant has time to reflect on it or misrepresent............................................39
(3) Then existing mental, physical or emotional condition AKA State of Mind (relevancy is the
issue) 39
(I) Declarant’s state of mind directly in issue (relevant) or....................................................39
(II) Subsequent acts of declarant.........................................................................................40
(4) Statement made for Medical Diagnosis or Physician.........................................................41
(A) Statements to physicians/non-physicians of present condition generally admissible.. .41
(B) Statements to non-physicians of past condition generally inadmissible........................41
(C) Because patient has strong motive to tell truth when seeking medical treatment,
statements of past condition (and cause of condition) made to physicians admissible............41
(I) First, the declarant’s motive in making the statement is consistent with the purposes of
promoting treatment or diagnosis and..................................................................................41
(II) Second, the content of the statement is reasonably relied on by a physician in
treatment or diagnosis...........................................................................................................41
(5) Recorded Recollection AKA Past Recollection Recorded...................................................42
(I) Demonstrate that witness lacks present recollection of the matter..................................42
(II) The statement accurately reflects knowledge he once had...........................................42
(III) He “made or adopted” the statement...........................................................................42
(IV) He did so while the matter was “fresh” in his mind.......................................................42
(6) Business Records................................................................................................................42
(7) And (10) are both about absence Ex: Code Red example in clip........................................43
(8) Public Records (same as (6) BUT NO contemporaneous and NO custodian in CIVIL).........43
Only in criminal cases need authentication...............................................................................44
Declarant [has to be] Unavailable (FRE 804)......................................................................................44
Unavailable....................................................................................................................................44
804 Exceptions...............................................................................................................................45
(1) Former Testimony - FRE 804(b)(1).................................................................................45
(I) 2 proceedings required (1st--where testimony given; 2nd--where former testimony
sought to be introduced) – e.g., criminal/civil, trial/retrial, trial/hearing..............................45
(II) Similarity of parties at prior proceeding.....................................................................45
(III) Issue must be the same..............................................................................................45
 (IV) Opportunity to cross/develop testimony at prior proceeding (no grand jury
testimony!)............................................................................................................................45
(V) Former testimony given under oath..........................................................................45
In Criminal Context: No violation of Confrontation Clause as long as....................................46
804(b)(1) vs. 801(d)(1)...........................................................................................................46
(2) Dying Declarations—FRE 804(b)(2)................................................................................46
(I) Declarant must’ve believed death imminent.................................................................46
(II) Statement must concern the cause or circumstances of the impending death.........46
(III) Declarant need not actually die, but must be unavailable at time statement offered
46
(3) Statement Against Interest - FRE 804(b)(3)....................................................................47
APO 801(d)(2) vs. SAI 804(b)(3).............................................................................................48
Criminal Context....................................................................................................................48
(4) Statements of Personal or Family History - FRE 804(b)(4).............................................48
(5) Forfeiture by Wrongdoing - 804(b)(6)............................................................................48
(I) Defendant engaged or acquiesced in wrongdoing (crime v. morally unethical) that.....49
(II) Was intended to render declarant unavailable and...................................................49
(III) Did render declarant unavailable...............................................................................49
FRE 807—Residual/Catch-All.............................................................................................................49
(1) Trustworthiness factor: where declarant unavailable, statement must be as trustworthy
as under FRE 804; where declarant not unavailable, statement must be as trustworthy as under
FRE 803..........................................................................................................................................49
(2) Necessity factor: statement must be offered on a material fact and be more probative of
that fact than any other evidence available..................................................................................49
Confrontation Clause (Trial right: preliminary hearing doesn’t count)......................................................50
Crawford (replaced the reliability in Roberts).......................................................................................50
Testimonial = (no emergency, statement to police collecting info for prosecution).........................50
(1) Statements by observers or participants in crimes made to law enforcement who are
investigating the crime with an eye to prosecution.......................................................................50
(2) Affidavits............................................................................................................................50
(3) Custodial examinations (e.g., interrogation)......................................................................50
(4) Prior testimony not subject to cross..................................................................................50
 (5) Similar pre-trial statements declarant would reasonably expect to be used in prosecuting
the crime.......................................................................................................................................50
Davis (911 operator is law enforcement)..............................................................................................50
(i) “Emergency” means objective & imminent threat of harm.......................................................51
(ii) State of mind of police and declarant count..........................................................................51
(iii) Emergencies may evolve into investigations and vice versa..................................................51
Bryant....................................................................................................................................................51
Character Evidence: disposition in respect to general traits.....................................................................53
Purposes for Offer of Character Evidence.............................................................................................53
How to Prove Character........................................................................................................................53
Character Evidence ONLY in Civil Cases.................................................................................................53
Character Evidence in Criminal Cases....................................................................................................53
Rebutting Defendant’s Character Evidence.......................................................................................53
Victims in Criminal Cases...................................................................................................................54
Specific Acts of Misconduct (not rebuttal).........................................................................................54
(1) Motive................................................................................................................................54
(2) Intent.................................................................................................................................55
(3) Absence of Mistake or Accident.........................................................................................55
(4) Identity—Signature Crime (modus operandi) on 3 or more occasions..............................55
(5) Common Plan or Scheme—Preparation............................................................................55
(6) Other (opportunity, knowledge, or other relevant fact)....................................................55
Character Evidence in Sex-Offense Cases – FRE 412..............................................................................56
What prosecutor can bring:...............................................................................................................57
Similar crimes in sexual assault cases – FRE 413........................................................................57
Habit and Routine Practice – FRE 406 (knowledge required)................................................................57
Competency of witness (PMCOK)..............................................................................................................58
(1) Ability to observe—perception..................................................................................................58
(2) Ability to remember—memory..................................................................................................58
(3) Ability to relate—communication..............................................................................................58
(4) Appreciation of the oath (any type) of obligation (very important)..........................................58
(5) Personal knowledge...................................................................................................................58
Exception (experts)............................................................................................................................58
 (6) Actually take the oath to testify truthfully.................................................................................58
No Disqualification for...........................................................................................................................59
(1) Lack of religious belief...........................................................................................................59
(2) Infancy...................................................................................................................................59
(3) Insanity..................................................................................................................................59
(4) Conviction of crime................................................................................................................59
(5) Interest..................................................................................................................................59
BUT—neither judges nor jurors may testify..........................................................................................59
At the trial: FRE 606(a).......................................................................................................................59
Post-verdict: FRE 606(b)(1) cannot testify unless (2).........................................................................59
(A) Extraneous prejudicial information was improperly brought to the jury’s attention.........60
(B) An outside influence was improperly brought to bear on any juror..................................60
(C) A mistake was made in entering the verdict on the verdict form......................................60
Defendant not deprived of Sixth Amendment right to trial by competent jury because other
methods to protect that right still exist (EXAM):...............................................................................60
(1) The suitability of an individual for the responsibility of jury service is examined during voir
dire 60
(2) During the trial the jury is observable by the court, by counsel, and by court personnel..60
(3) Jurors are observable by each other, and may report inappropriate juror behavior to the
court before they render a verdict................................................................................................60
(4) After the trial a party may seek to impeach the verdict by non-juror evidence of
misconduct....................................................................................................................................60
Examination of Witnesses.........................................................................................................................61
The rule: either judge or party requests................................................................................................61
Direct.....................................................................................................................................................61
Questions calling for a “yes” or “no ” answer are leading and not permitted on direct examination
unless:................................................................................................................................................61
(1) Preliminary/introductory matter.......................................................................................61
(2) Witness needs aid (memory loss, etc.)..............................................................................61
(3) Hostile witness, adverse party, or person identified with an adverse party......................61
Cross-examination.................................................................................................................................62
(i) Critical in testing perception/memory.......................................................................................62
(ii) Error to deny proper opportunity to cross.............................................................................62
 In criminal cases,............................................................................................................................62
In civil cases,..................................................................................................................................62
(iii) Refreshing Recollection (present recollection) vs. past recollection recorded......................62
Not evidence, but opposing party can see it and admit it as evidence..........................................62
Improper Questions...............................................................................................................................62
(1) Misleading/Compound..........................................................................................................62
(2) Argumentative.......................................................................................................................62
(3) Conclusionary........................................................................................................................62
(4) Assuming Facts Not in Evidence.............................................................................................62
(5) Cumulative.............................................................................................................................62
(6) Harassing/Embarrassing........................................................................................................62
Impeachment (attack credibility) of Witnesses.........................................................................................63
General Rules........................................................................................................................................63
(1) No bolstering of credibility until it’s attacked........................................................................63
Exceptions:....................................................................................................................................63
(a) Evidence of a timely complaint......................................................................................63
(b) Prior statement of identification....................................................................................63
(2) Any party may impeach (party may impeach own witness)..................................................63
Methods to Impeach.............................................................................................................................63
(1) Interest, Bias or Hostility (ex-gf in divorce trial).....................................................................63
(2) Sensory Deficiencies..............................................................................................................63
(3) Opinion/Reputation Evidence of Truthfulness.......................................................................63
(4) Conviction of a Crime (witness vs. defendant).......................................................................64
(a) For a felony........................................................................................................................64
(b) For a other crimes (misdemeanor)....................................................................................64
(5) Bad Acts—Specific Instances of Misconduct re: truthfulness (not admissible in Florida)......65
(6) Prior Inconsistent Statements................................................................................................65
Limitations.....................................................................................................................................66
Contradictions are allowed............................................................................................................66
Repairing credibility...............................................................................................................................67
Evidence of good character...............................................................................................................67
Prior consistent statements...............................................................................................................67
Opinion and Expert Testimony..................................................................................................................67
Lay Witness FRE 701 (personal knowledge)..........................................................................................67
(i) Rationally based on the witness’s perception............................................................................68
(ii) Helpful to clearly understanding the witness’s testimony or to determining a fact in issue. 68
Expert Witness (personal knowledge sometimes not necessary)..........................................................68
(I) Subject matter appropriate for expert testimony (helps understand it better).........................69
(II) Witness qualified as an expert...............................................................................................69
(III) Reasonable probability of the opinion required....................................................................69
Daubert (based on reliable principles) (TEPSS)..............................................................................69
(1) Can theory/technique be tested (E.g., Cheating expert)................................................69
(2) Theory/technique subject to peer review (E.g., Cheaters quarterly journal).................69
(3) Rate of error of theory/technique.................................................................................69
(4) Standards controlling operation of technique (E.g., is it just for cheating in evidence). 69
(5) Test/technique generally accepted in scientific community..........................................69
(IV) Opinion supported by proper factual basis............................................................................70
(1) Personal observation.........................................................................................................70
(2) Facts made known to expert at trial..................................................................................70
(3) Facts made known to expert outside court.......................................................................70
Privileges (to encourage openness)...........................................................................................................70
(1) Attorney-Client..........................................................................................................................70
Work-product is included..................................................................................................................71
Exceptions:........................................................................................................................................71
(1) Future crimes/fraud...........................................................................................................71
(2) If client & attorney litigate vs. each other..........................................................................71
(3) It is a shield, not a sword (if client asserts legal advice from attorney as a defense, no
priv.) 71
(4) No privilege among group clients against each other, but privilege against outsiders......71
Waiver...............................................................................................................................................72
Inadvertent disclosure.......................................................................................................................72
First: producing party shows at least minimal compliance with FRE 502(b) three factors (IRR)....72
(1) Disclosure was inadvertent............................................................................................72
(2) Holder of the privilege took reasonable steps to prevent disclosure.............................72
 (3) Holder of the privilege took reasonable steps to rectify the error FRCP 26(b)(5)..........72
Second: if met, then five factors to consider for inadvertent (RNERJ)...........................................73
(1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view
of the extent of the document production................................................................................73
(2) The number of inadvertent disclosures.........................................................................73
(3) The extent of disclosure.................................................................................................73
(4) Any delay and measures taken to rectify the disclosure................................................73
(5) Whether the overriding interests of justice would or would not be served by releiving
the party of its errors.................................................................................................................73
(2) Physician/Psychotherapist-Patient............................................................................................73
Exceptions:........................................................................................................................................73
(1) Patient puts condition at issue...........................................................................................73
(2) In aid of wrongdoing..........................................................................................................73
(3) Dispute between physician & patient................................................................................73
(4) Agreement to waive privilege............................................................................................73
(5) Some criminal proceedings................................................................................................73
(3) Spousal......................................................................................................................................73
(1) One-way: Spousal testimony (protects spouse from being compelled to testify against other
spouse in criminal cases)...................................................................................................................74
(2) Two-way: Confidential communications (either spouse may refuse to disclose—applies in
both criminal & civil cases)................................................................................................................74
(4) Self-Incrimination (it is about going to jail)................................................................................74
(5) Clergy-Penitent..........................................................................................................................75

Basics
Motion Calendar Hearing (little motions) vs. Special Set Hearing (MSJ)
Sustained – Good objection
Overruled – Bad objection
IF there are more than one parties – just say join to EACH objections. Alternatively, say at the beginning
“objection for one is objection for all”
Inculpatory evidence speaks to Defendant’s guilt.
Exculpatory evidence serves to exonerate the Defendant.

Judicial Notice (FRE 201) (1-2 Questions)

 Judicial Notice ONLY of Adjudicative Facts
(a) Scope - This rule governs judicial notice of an adjudicative fact only, not a legislative fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not
subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied with the
necessary information.
(d) Timing. The court may take judicial notice at any stage of the proceeding.
(e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of
taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice
before notifying a party, the party, on request, is still entitled to be heard.
(f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as
conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the
noticed fact as conclusive.
 It is all about being lazy
o I don’t want to have to explain that your honor
 Judicial economy and efficiency
 i.e. cannot take the National Weather Report to the trial without the
person who made it (costs money and time)
 11-A (p. 733)
o Plaintiff Paulson is suing Davis. Paulson is asking the court to take judicial notice that it
did not rain on that date and that the pavement at the intersection was dry.
o Court can take judicial notice that it did not rain. Court should decline to take judicial
notice of that fact that pavement was dry because someone could have spilled water
o EXAM - In determining whether to take judicial notice, the judge can consider otherwise
inadmissible evidence including hearsay.
 11-B
o Petitioning party is asking the court to take judicial notice (1) West was served (directing
court’s attention to a properly executed return of service filed by the sheriff and
included as part of the record), (2) West was properly served had been in contempt for
failure to appear at an earlier trial of the same case, and (3) had also been in contempt
for refusing to testify in related cases in two other states.
o Ct will take notice of (1) because sheriff’s word that he was served is enough especially
because it was the same case and same judge. (2) Ct will not take notice that he was
served and was held in contempt for refusing to testify at an earlier trial for same case.
(3) Court will not take notice that he was in contempt for refusing to testify in related
cases in two other states because it’s another court room you would have to prove it.
 The Court can take judicial notice of the Sherriff’s return of service (same as
National Weather Report), but not of previous incidents of being held in
contempt in other courts, even if the same case. Judges cannot take notice if it
did not happen in their court.
 11-C
 o The prosecutor asks the court to take judicial notice (1) that the driving from New
Haven, Connecticut, to Rhode Island is more than 15 minutes and (2) Lauro must have
known Barborian’s call was from out of state.
o Cannot take notice. When dealing with a criminal case, judicial notice cannot be for a
fact that is a part of an element of the crime.
o Because this is criminal case, it is different. The court must instruct the jury that it may
or may not accept facts that are judicially noticed. (FRE 201 (g))
 11-D (p. 734)
o Prosecutor asks the court to take judicial notice that there were no football games of
any type being televised at the time of the robbery.
o Tricky, but if the judge thinks it is good, then it is good.
 11-E
o Air carrier asks the judge to take judicial notice that there was a terrorist attack on NYC
that occurred on Sept 11 and that conditions following the attack made it impossible to
get shipment.
o Ct will take judicial notice of first notice not the second because other things such as
train etc. could have taken the shipment.
o Can take judicial notice of the 9/11, but cannot take the notice that it was impossible to
deliver the goods on time.
 11-F
o Plaintiff asks court to take judicial notice that asbestos causes cancer.
o Ct should deny judicial notice. If the request is granted, then it is conclusiveness and
defendant is barred from arguing to the jury. (civil case)
 Grey area

Facts:
(1) Matters of Common Knowledge (readily acceptable, indisputable facts)
(2) Facts Capable of Certain Verification—Manifest Facts (easily verified)
o 11-H (p. 742)
 Defendant prosecuted for extortion in violation of federal law. At trial,
prosecution offers into evidence a note (vague) from the defendant to the
alleged victim threatening him.
 The judge will not give that instruction because it is an evaluative fact.
 Evaluative facts vs. Adjudicative facts
 The jury has to evaluate the evaluative facts and therefore no notice.
o This is what voir dire is for.

Adjudicative facts with evaluative as sub-part

 Are those that relate to the parties and the case and that normally go to a jury in a case.

Legislative facts
 United States v. Gould
 Defendants claim that it was error for the District Court to take judicial notice of the fact that
cocaine is on the schedule II controlled substance.
 Here, the District Court took judicial notice of a legislative fact and thus was not obligated to
inform the jury that it could disregard the fact based on FRE 201(a) Are established truths that
would not change from case to case.
 o 11-I (p. 751)
 Roost (bookstore owner) is charged with possession of obscene material.
 Whether something is obscene is left to jury to answer, judge can’t take judicial
notice of an element
 Distinguishable from Gould because this is an evaluative fact. The jury has to
determine whether the content is obscene within the meaning of the statute. In
 Reversible error if the judge does that
o 11-J (p. 753)
 A truck driver (Davenport) who was drunk injures defendant Prizi who is a
pedestrian. Prizi sues establishment that served him the liquor for negligence
who should have foreseen that Davenport was going to get in a car. Prizi
requests judicial notice that the employees of the establishment should have
foreseen that Davenport would drive a motor vehicle upon leaving the tavern.
 The court should deny judicial notice because foreseeability is an element of the
crime.
 No notice because that is removing an element even if it is a civil case. Very
hesitant to give gimmies
o 11-K
 Plaintiff sues Inland chemicals (def) for injury when a can of charcoal lighter fluid
manufactured by defendant exploded. Def argues contributory negligence. Def
asks the court to take judicial notice that once combustion occurs in a bed of
charcoal, the addition of flammable fluid is certain to result in instantaneous
flare-up of the volatile liquid coming into contact with the charcoal.
 Can take notice at any time, even summary judgment.

Judicial Notice of Scientific Principles:

(1) Judicial Notice of Scientific Basis of Test Results
(2) Conclusiveness of Test Results

Procedural Aspects
 Requirement of a Request by a Party (where judge does not take judicial notice on own)
 Judicial Notice by Appellate Court (can be taken for the first time at appellate stage, in civil cases
only)
 Conclusiveness of Judicial Notice for trier of fact (civil = “shall” / criminal = “may”)
o 11-G (p. 741)
 Defendant Strimson, a karate expert, is charged with “assault with a deadly
weapon, to wit, his hands,” arising out of an attack on Boyer.
 Under the law of the jurisdiction, whether a weapon is deadly under the statue
is an adjudicative fact for the jury.
 If you take judicial notice in a criminal case even though the judge tells jury you
may or may not accept, you cannot allow rebutting evidence.
 May, but are not required to

Mandatory Judicial Notice

(1) Federal Public Law (U.S. Constitution, federal treaties, public acts of Congress, federal case law)
(2) State Public Law (state constitution, public statutes, state common law)
(3) Official Regulations (codes, rules, regulations of the forum state and federal government)
 Presumptions
(I) Burden of Proof – Plaintiff in a civil case and Prosecutor in a criminal
(a) Burden of Producing Evidence
 Produce Sufficient Evidence to Raise Fact Question for Jury;
o Prima Facie Case May Shift Burden of Production
OR

(b) Burden of Persuasion/Proof

 Determined by Jury After All Evidence Is In;
o Jury Instructed Which Party Has Burden of Persuasion

(II) Measure of Proof

(1) Preponderance of the Evidence (more probably true than not)
(2) Clear and Convincing (high probability)
(3) Beyond a Reasonable Doubt (highest standard)

(III) Presumptions in Civil (gimmies like judicial notice) FRE 301

 In a civil case, unless a federal statute or these rules provide otherwise, the party against whom
a presumption is directed has the burden of producing evidence to rebut the presumption.
 However, this rule does not shift the burden of persuasion, which remains on the party who had
it originally.

(1) Effect
 Shifts Burden of Production: FRE 301 (Civil cases only)

(2) Rebutting a Presumption:

 Presumption Destroyed When Adversary Produces Evidence Contradicting Presumed Fact
o E.g., when someone drives your car presumption is that it is driven with your permission
 However, just because there is presumption it does not mean it is decided (it
can be rebutted).

Rebuttable Presumptions
o Legitimacy, sanity, mail delivery, ownership of car/agent driver EXAM, marriage, bailee’s
negligence, solvency, regularity, chastity, death from absence, against suicide
(accidental death), etc.
 10-A (p. 691) Bailee’s Negligence (very strong)
 This case is about a professional pianist who hired a moving company to
move his valued antique harpsichord and other household furniture.
When the shipment the professional pianist found damage to his
harpsichord. Moving company introduces evidence that pianist’s
harpsichord already had a crack in the casing at the time along with
impaired tonality. Glen requests the court to instruct the jury that if it
finds that the harpsichord was undamaged when the moving company
picked it up, it must find that moving company is responsible for the
damage.
  “Must” is ok. Judge can instruct because it is a civil case
o Negligence presumption is a slam dunk if no rebuttal
 10-B (695) Against Suicide
 Farmer died of head wound by accident discharge of a rifle. Widow sued
the insurance company under an accidental death policy. Widow
introduces evidence that it was an accident, insurance company then
counters with evidence that it was not an accident. Widow requests the
jury to be instructed on the presumption, arising from proof of sudden
violent death that death resulted from accident and not suicide.
 Yes, she should get the instruction. Burden of proof shifts to the
defendant
o She can rely on the presumption. Does not have to provide
evidence and prove (like res ipsa loquitur)
 P. 698, note 5
o Presumption of accidental death was rebutted when cheating
wife testified that she was raped. He was perpetrating assault.

Conclusive Presumptions
o Cannot be rebutted by contrary evidence (e.g., because a minor may not consent to
sexual intercourse, there is a conclusive presumption against consent and defendant
may not present evidence of consent)
 E.g., statutory rape

(IV) Presumptions—Criminal
 Accused Presumptively Innocent
 Judge’s Instructions on Presumed Facts Against Accused
o Jury may regard presumed fact as sufficient evidence of the presumed fact but does not
have to.
 If the presumed fact establishes guilt, is an element of the offense, or negates a defense, its
existence must be found/proven beyond a reasonable doubt.
 P. 704 Winship
o Due process protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime
 P. 706 Mullaney and Patterson
o In Patterson, the defense of “extreme emotional disturbance” could coexist with intent
to kill, and burdening the defendant with proving the defense could not be construed as
burdening the defendant with disproving an element in the prosecutors’ case.
 10-C (p. 709)
o Ms. Marlin is prosecuted for alleged aggravated murder of her husband. At trial, she
claims self-defense. She is found guilty, but argues that requiring her to prove that she
was in imminent danger of death or great bodily harm was unconstitutional because it
relieved the state of its burden to prove that she acted with “prior calculation and
design”
o Trial court was correct because instruction said prosecution must persuade every
element
o In a criminal case, defendant has nothing to prove unless it is an affirmative defense
o If a criminal defendant claims a defense then he or she has to bring evidence
 *** Watch out for Mandatory/Conclusive/Irrebuttable Presumption (except Statutory
Rape)
 Sandstrom v. Montana
 This violates:
o “The law presumes a person intends the ordinary consequences of his voluntary acts”
 The instruction could have been interpreted by the jury as a presumption that shifted the
burden of the criminal offense to the Defendant.

(V) Vs. Permissible Inference

 In criminal cases we allow permissible inference but not conclusive/irrebuttable presumptions
(except statutory rape)
 County of Ulster v. Allen
 Defendants argued that the guns were in actually in the possession of the girl and they did not
have possession of the guns. Defendants challenged the constitutionality of the New York State
statute, which allowed a presumption of illegal possession if a gun was found in a car occupied
by all individuals charged.
 There is a rational connection between the basic facts of the case proved by the prosecution and
the ultimate fact presumed.
o Defendants had possession of the guns: this ultimate fact is more likely than not to flow
from the facts proved.
 The Court ruled that the trial judge had limited the weight of the statute and in effect
interpreted the statute as a permissive inference rather than a mandatory inference.
Defendants were free to rebut the presumption and the jury was free to reject it.
 As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt,
than the above test is the proper analysis.
 It would be different if they were hitchhikers or casual passengers
 The facts strongly suggest that the girl was not the only person able to exercise dominion over
the gun
 10-D (p. 727)
o Burnell picked up picked up his friend Alden (college boy). The two are stopped by
police and it turns out the car matches the description of a getaway car used in nearby
liquor hold ups. The arresting officer finds a sawed off shotgun and three automatic
rifles. Both men are charged with unlawful possession of firearms.
o Permissive inference not proper against Alden but proper against Burnell
 College boy is different because the gun was in the trunk

Prima Facie Cases (Civil) allows a party to meet burden of production but does not
shift burden to opponent. Examples:
(1) Res Ipsa Loquitur
(2) Spoliation/Withholding Evidence
(3) Undue Influence

Best Evidence Rule AKA Original Document Rule (EXAM love to test)
 Remember: other side has to object; otherwise, waived.
o The party invoking the Rule must challenge the accuracy of secondary evidence offered.
 Say it or waive it
 o Also there is no degree of secondary sources (there is no best secondary source)
 Notary document is the same as recollection
 In proving the terms of a writing (recording, photo, etc.,) where the terms are material, the
original must be produced.
 Secondary evidence only permitted after it is shown the original is unavailable (for some reason
other than the offeror’s misconduct).

The Rule ONLY Applies:

(1) Where the writing is a legally operative or dispositive instrument (e.g., will, contract,
deed)
 14-B (p.886)
o Plaintiff Denise arranges for a private adoption of her newborn without her identity as
birth mother ever being known with Defendant Dr. Murphy. Daughter ends up getting
photocopy of adoption records from Dr. Plaintiff sues for outrageous conduct and
breach of promise. P offers the photocopies of the records.
o Twist in the hypo - The copy is the original because that’s what Denise got
o But a copy of a copy is not the same
 Note 2 (p. 887)
o Why is it usually easy to satisfy the Best Evidence Doctrine when it comes to
photographs and stored computer data?
 Because every single printout is an original (you can have 1000 originals)
 Also every printout of a negative

(2) Where the knowledge of a witness concerning a fact results from having read the
document
 14-A (p. 883)
o Plaintiff Paula brings a defamation action against Daniel because of statements in a
letter to her employer. On Appeal, Daniel contends that employer testifying contents of
the letter without producing it was a clear violation of the Best Evidence Rule.
o At trial level, Daniel is overruled. On appellate level, Daniel must test the accuracy of the
secondary evidence, if you do not then that party has waived that issue.
 You have to say witness (secondary evidence) is not accurate
o Important to know- when the original is not available there is no preferred order of
secondary evidence
 Question) Paul brings a defamation action against Danielle based on statements made by
Danielle in a letter she wrote to Paul’s boss. At the defamation trial, the letter is neither
produced nor shown to be unavailable. Over a Best Evidence objection launched by Danielle,
Paul’s boss testifies to the contents of the letter as he remembers them. Danielle does not cross-
examine the boss. The jury awards Paul $3 million.
On appeal, Danielle contends it was a clear violation of the Best Evidence rule to allow the boss
to testify to the contents of the letter without being required to produce it or show it was
unavailable. What is the most likely ruling from the appellate court?
(a) Reversed; the Best Evidence rule dictates the letter should have been produced.
(b) Reversed; the Best Evidence rule dictates Paul must prove the letter is unavailable.
(c) Affirmed; Danielle did not contest the accuracy of the boss’ testimony during the trial.
(d) Affirmed; the Best Evidence Rule is inapplicable to defamation claims.
  The answer is c.

When there is no original and you want to admit a secondary source, you go
through two steps:
(1) FRE 1004: To Admit Secondary Evidence
(I) Loss or Destruction of Original, or,
(II) Original Outside the Jurisdiction, or,
(III) Original in Possession of Adversary Who, After Notice, Fails to Produce

(2) FRE 1008: Function of the Court and Jury

 14-C (p. 888)
o Plaintiff Dan sues Defendant Eva for breach of contract. Plaintiff offers a photocopy of
the original document. However, Defendant denied the photocopy as being the original
document she signed.
o Content as issue- jury decides facts.
o Generally, you must first prove under 1004 that there is no original then under 1008 the
jury will decide the merits

When there is an original

 14-D
o Plaintiff Gretchen sues Defendants St. Anne’s hospital and Dr. Mazo for negligence that
caused Plaintiff to have permanent brain damage. Plaintiff counsel offers a photocopy of
an entry made by a nurse stating that plaintiff ate an hour beforehand
o Rule 1003 Admissibility of duplicates; favor is always to the original photocopy is not
allowed even when the duplicate raises a genuine issue
 14-E (p. 890)
o This is a case about alleged interstate transportation of obscene films. Prosecutor tries
to establish the obscene content from testimony of a police officer who viewed them
o Defendant’s objection sustained. Tapes must be produced whether they are obscene is
a question of fact.
 14-F (p.891)
o This is a case about a bank robbery where a bank security guard who was not present at
the robbery downloaded images off a surveillance camera testifies that the image is the
defendant
o Objection sustained. Photograph must be produced because we need to see content.
Jury needs to see photograph.
 However, there are other ways e.g. witnesses.
o If prosecution is trying to use photograph to prove that defendant robbed the bank,
then photograph must be produced.
 Meyers v. United States
 Crime- perjury (lying to the senate committee), transcript is evidence of the crime here
 Argued that the best evidence rule required that only the transcript of the subcommittee
hearing be used to determine what was said during the hearing. Because the trial court used
witness testimony and shorthand notes from a witness present at the hearing, the defendant
argued his conviction should be overturned.
  Best evidence rule does not include oral statement. Here we are trying to prove what someone
said not a transcript or anything.
 14-G (p.895)
o This case is about a DEA agent would monitors a conversation between two people,
Peter and Quinn, which relate to past and ongoing drug transactions. The two are
arrested. The DEA agent gets Peter to admit his involvement in the scheme and to
implicate Quinn. After getting the story, the DEA has Peter repeat the statement and
sign a hardcopy.
o Without transcripts, witnesses could still testify
 Two secondary sources
 There is no original of a conversation
 14-K (p. 896)
o Plaintiff Sid Landon sues defendant Leigh Mills after a two-car collision. Dr. Nash testifies
on behalf of the plaintiff that X-ray of his leg showed fractured femur. Plaintiff does not
offer the X-ray, defendant objects. The court should overrule the objection.
o We are not trying to prove the contents of the X-ray
o Production is not required, looking at the X-ray is just going to be interpreting the X-ray,
Jurors cannot understand it
o We have an expert testimony
 14-L (p. 900)
o Plaintiff Corrigan sues Defendant Gregor for breach of contract. Plaintiff claims that the
original contract was destroyed in a fire through no fault of his own. He has a photocopy
of the original but at trial he proves the terms of the contract through testimony.
o No degrees of secondary evidence***EXAM
 14-M
o Defendant Trimble is prosecuted for alleged tax evasion. Prosecution offers IRS
accountant (expert) testimony and chart prepared by accountant.
o FRE 1006, chart is allowed.
o Jury can’t be tasked to do 1000 of pages (too voluminous/cannot conveniently examine)

Authentication (FRE 901) (Low Threshold)

 Helps prevent fraud
 Exhibits cannot be questioned by anyone

General provision:
(a) The requirement of authentication/identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in question is what its
proponent claims. (low threshold)
 United States v. Johnson
 Defendant Johnson was convicted of assault resulting in serious bodily injury for an attack with
an ax on a victim Papse. An ax seized at the defendant’s house is offered into evidence during
the victim’s testimony. Defendant argues that ax was admitted into evidence without being
properly authenticated and was not authenticated because the victim fails to state specifically
that he could distinguish that ax from another or specify details as to how he knew that ax was
used in the incident
 In a criminal case, element has to be proven beyond a reasonable doubt, NOT the evidence
 o Victim said that was the ax, enough for admissibility – categorical certainty is never
required even in a criminal case
 Victim said almost positive the ax is what Johnson used to hit him
 Authentication is some reasonable evidence to prove (sufficient to support)
 13-A (p. 857)
o Defendant is arrested while carrying three bags of a white substance. The officer gives
the substance to state lab technician, who then turns it over to a chemist who
determines its cocaine.
o To introduce the baggies, you don’t have to call all three (chain of custody) up to the
stand
 United States v. Howard
 Defendant was charged with possessing marijuana with intent to distribute after a large amount
of marijuana was recovered from Defendant’s sunken ship. The marijuana was then turned into
the coast guard and DEA investigators. Defendant claims government failed to establish a
continuous “chain of custody” for the marijuana from the time of its seizure until trial because
the special agent who received the marijuana from the coast guard did not testify.
 901(a) is a liberal standard and can tolerate an incomplete chain of custody
o Don’t need complete chain of custody
o Trial judge has wide discretion on authentication

Illustrations (know the list by heart):

 By way of illustration only, and not by way of limitation, the following are examples of
authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge

 13-C (p. 861)
o This case is about a 14 year old girl (Tiffany) goes missing after having chat conversations
online with the defendant. After being found in a hotel with the defendant, defendant is
charged with inducing a minor to cross state lines for immoral purposes and with sexual
assault against a minor. Prosecutor offers emails from Tiffany’s computer to show
defendant persuaded Tiffany to meet him.
o How to authenticate that Tate is the wizard:
 IP addresses that Tate has an email account in the name is the Wizard
 Tiffany authenticates her own emails and the reply doctrine Note 2 (p. 860)
shows that Tate was responding to Tiffany

(2) Non-expert opinion on handwriting

(3) Comparison by trier or expert witness (Let’s let the jury decide on authentication)
 13-B (p. 860)
o Plaintiff offers a land sale contract as evidence with defendant Higgins for quiet title.
The original contract was obtained from property records office.
o Another way is Distinctive characteristics

(4) Distinctive characteristics and the like

 United States v. Bagaric
  Six defendants were charged for violating a Racketeer Act. One of the defendants challenges
evidence linking him to a co-racketeer. Letter, which had incriminating evidence, was found in
his home, which was addressed to him and signed by the co-racketeer.
 Low standard; authentication is satisfied as long as there is sufficient evidence to show what
proponent claims 901(b)(4)
 Notes (p. 860)
o Letterhead and unusual misspellings can suffice as authentication

(5) Voice identification

(6) Telephone conversations

o United States v. Pool
o Agent trying to connect defendant to the phone conversation
 Not enough to authenticate because agent has never talked to the defendant or
never had a prior recording of his voice
o ONLY if there was prior conversation or voice print there will be a liberal authentication
...

(9) Tape recordings properly authenticated if process is shown:

(I) Device capable of making true recording and it works properly

(II) Operator qualified and worked it properly

(III) No additions/deletions made

(IV) Speakers can be accurately identified

o Clip of the person stealing the car and killed the car owner. Left with a tape of his voice
 Not enough because only first name and the part of the city he lives in
 The owner of the car was dead otherwise she could verify

(V) Tape/recording was properly preserved

o 13-D (p. 863)
 Defendant is charged with selling heroin to an undercover agent. Where the
exchange took place there was a microphone picked up and transmitted to a
nearby recording device. Another officer operated that device but did not listen
to the conversation.
 Get a participant of the conversation to testify that he listened to the tape and
identify (how the recording was made)
 Either can testify but do not need both
o United States v. Oslund (IMPORTANT)
o Defendant Oslund was convicted of robbery and murder of a bank security guard. A tip
came in from a person named Koehker who were prison inmates in the past. Defendant
explained the robbery to him. Also FBI agent got one of defendant’s friends to help
o ** Gaps affect the weight of evidence NOT the admissibility
o Reasons why court affirmed admission of recording **Exam about who has to testify.
 Testimony of person, who made the recording is not essential but preferable
 Participant testimony is not necessary to authenticate
  Testimony of agent is sufficient to authenticate recording
 Gaps affect the weight not the admissibility
o 13-E (p. 868)
 Photograph can be authenticated easily. Any person (preferably parties) can
identify the scene. Very low standard
o 13-F
 Person who took X-ray not needed. You can authenticate by someone saying
practice of hospital is done this way.
 X-ray tech can authenticate and tell how it was made
o 13-G (p. 869)
 Computer printouts are the same standard/steps as the tape recording. “this is
the way accounts are kept” or “I’m the only one in charge of it” or “I printed the
document by clicking on this”

Self-Authentication (FRE 902)

 13-I (p. 871)
o Plaintiff Bryon sues defendant Casey for trespass, however defendant claims that she
has an easement. Defendant offers a public record document, which shows a grant of an
easement by Arthur. Defendant seeks a direct verdict in her favor.
o The Court should have granted the defendant an instruction--the document is self-
authenticated. Most likely, here defendant is going to get a direct verdict because
plaintiff did not offer any evidence.
o Split Court – under majority view jury must accept if no contrary evidence
 13-K (p. 873)
o Plaintiff Mayor is suing defendants Post, Bellamy (storywriter), and Ramsey (editor) for
libel. Bellamy defends on the ground that the published version of the story was not the
same as the version he submitted to the editor and Ramsey defends on the ground that
he never wrote the letter in question. Both Bellamy and Ramsey object on grounds of
lack of authentication.
o The letter is not self-authenticated. Letters by readers to the editors is not, but an
employee or someone contracted, as editors/writers are self-authenticated.
 13-L (p. 879)
o Defendant Sayles is charged with involuntary manslaughter. The victim was the
daughter of his girlfriend and the Dr. concluded that her injuries resulted from “Shaken
Baby Syndrome.” Defendant claims that victim fell down the stairs and shook her
because he panicked. At trial, prosecutor offers a computer animation, which would
help the testimony of the doctor.
o Defendant objects to animation because of lack of authentication and unfair prejudice.
o This is not a question about authenticity. The question is whether it is unfair prejudice.
Demonstrative evidence is admissible if the judge gives an instruction letting jury know
that it is just the prosecutor’s version of what possibly happened. Prosecutor has to
make it clear that it is just a recreation of our theory.
 Question) Plaintiff Polly Purebread sues Defendant Donald Dastard for injuries resulting from an
automobile accident. Polly Purebread asks the Court to take judicial notice of the fact that it did
not snow on the day of the accident and that the intersection was dry, clear visible and
otherwise safe. In support of her request, Polly Purebread provides the Court a copy of the
National Weather Service’s weather report for the day of the accident, which clearly indicates
 no snow, fell on that day at the scene of the accident. Donald Dastard’s attorney objects that
that the National Weather Service is hearsay and has not been properly authenticated. How
should the Court rule and why?
a. Sustained; the weather report is hearsay and thus inadmissible
b. Sustained; Polly Purebread’s attorney cannot lay a proper foundation to have the report
admitted into evidence
c. Overruled; the National Weather Service is a federal government agency and such
reports are admissible
d. Overruled; the report is being provided as a basis to request judicial notice be taken
 The correct answer is d.
 No authentication is necessary for judicial notice
o Same also for reflection recollection where you are shown
anything to refresh your memory and then you talk based on
memory
 Answer c is wrong because we are not trying to admit the report

Relevance is the first question court asks

 the tendency of evidence to prove or disprove a material issue, to render it more probably true,
or untrue, than it would have been without the particular evidence
 concerns the substance/content of the evidence, not the form or manner in which it is offered

(I) Relevancy
Need to ask three questions:

(1) What proposition is the evidence being used to prove?

(2) Is that a material issue in the case?

(3) Is the evidence probative of that proposition (logical relevance)?

Must Relate to Time, Event, or Person in Controversy

 Old Chief v. United States (I)
 Defendant Old Chief was charged with violation of statue that prohibited the possession of
firearms by anyone convicted of a crime punishable by imprisonment exceeding 1 year.
Defendant wanted to stipulate prior conviction to keep the facts of the incident away from the
jury by excluding the name and nature of his conviction and just saying that D was convicted of a
crime punishable by imprisonment exceeding one year. Prosecutor refused and defendant was
convicted.
o Stipulation: like a judicial notice coming from a party.
 E.g., you do not have to prove, I will stipulate.
o The Court held that the defendant’s prior felony status is of consequence to the current
charges and increases probability of finding that the crime occurred, thus relevant.
 2-A (p. 60)
o Jay’s car collided with Roy’s car where both were killed. In a wrongful death action,
Roy’s widow offers testimony by another driver (Hill) who was the first to come upon
the accident, that 30 miles west of the collision that Jay had overtaken him going at
least 80 mph. Defense argues that the testimony was irrelevant.
 o Probably relevant but is not admissible because it is unfair prejudice.
 2-B
o Plaintiff Arthur is injured by a chunk of concrete, which crashed through this windshield
while driving under an overpass. At trial plaintiff, Arthur shows that defendant put up a
bulkhead to confine the fall of debris. No direct evidence shows what caused the piece
that struck Arthur to fall from the overpass, but the Defendant Buildright offers
testimony that witness saw 4 or 5 boys running in a direction away from the scene.
o Relevant. Defendants get more leeway in civil cases because they are defense
o Judge has a lot of discretion
 2-C (p. 63)
o Two independent police officers doing investigations identified the guy. They went to his
home and he hid in the closet
o It is generally relevant
o Flight  guilt  commission of crime  flight because of crime

But regardless, Certain Similar Occurrences are Relevant to Establish the following:

(1) Causation
 2-D (p. 68)
o Trying to prove that there was too much wax on the grocery store’s floor. An adverse
witness testimony from store’s manager saying he had fallen and received complaints
from other customers that fell because of over waxing. beneficial to the witness
o It is relevant. Not related to time, event, or person in controversy but
 Similar occurrences are admissible if they can establish causation

(2) Prior False Claims or Same Injury

(3) Similar Accidents/Injuries Caused by Same Event or Condition (or Absence of Similar
Accidents)
 2-E (p. 79)
o Defendant Donald is charged with killing his ex-wife. He calls sheriff’s office at 2am
claiming he stabbed his wife was accident. During the case in rebuttal, the state offers
testimony by a counselor at a shelter for Battered and abused women that two years
ago the victim sought refuge there during which the time she divorced Donald.
o Relevant
o What if he said I found her dead
 Still relevant but inadmissible because prejudicial
 (4) Previous Similar Acts Admissible to Prove Intent

(5) Rebutting Claim of Impossibility

(6) Sales of Similar Property

(7) Habit

(8) Business Routine

(9) Business Custom as Evidence of Standard of Care

(II) Admissibility
 Relevant evidence admissible unless provided otherwise by:
(1) The Constitution
(2) A federal statute
(3) FRE
(4) Other rules by the Supreme Court

Is it SUBSTANTIALLY more prejudicial than probative (FRE 403)

o If probative value of evidence is substantially outweighed by danger of unfair prejudice,
confusion of the issues, or misleading the jury, or may cause undue delay, waste of time,
or cumulative evidence, the trial judge has broad discretion to exclude it. (a lot of
discretion)
o State v. Chapple
o Defendant Dolan was charged with first-degree murder. Defendant claims to be in
another state. Witnesses involved in the transaction did not see the killing but place a
witness named “Dee” at the scene of the crime. Both witnesses identified defendant as
Dee by picking out his picture from a photographic display
o Hurts defendant’s case. Shocks the jury
o Old Chief v. United States (II)
o Relevant but not admissible
o Prejudices outweigh the probative value
o Telling the jury he is convicted of assault serves no purpose because of the stipulation
o 2-F (p. 79)
 Victim that was passenger in a car when a vehicle struck the car while exceeding
the speed limit. Victim dies and the widow of the victim sues the automaker
alleging that negligent design of the fuel tank. The automaker introduces a
certified copy of a guilty plea by the driver of the impacting vehicle for
involuntary manslaughter. Widow appeals saying it should have been excluded
under 403
 Relevant
 But inadmissible because confuses the issue, and is misleading
o 2-H (p. 80)
 Nave flight instructor dying in a training aircraft that crashed. The navy
instructor’s surviving husband sues the manufacturer because he thinks the
crash was due to engine failure. At trial, the husband presents his letter expert
 testimony to evidence the power roll back. Defense calls plaintiff as an adverse
witness questioning his letter.
 Can’t generally bring the letter but here the airline asked questions about the
letter
 This opens the door (admissible) because we need to have a complete version
not to confuse the jury
o 2-J (p. 102)
 Plaintiff Herb installs tires for the Auto service center. During one installation,
one of the tires explodes sending the plaintiff to the hospital. Len Small who is
the manager of the service center gathers the tire and sends it to failsafe
automotive lab. Plaintiff sues Grater Tire saying it made the tire and its defective
and he tries to use testimony that tire was defective. No one noted the
markings on the tire.
 Inadmissible because naked statistical analysis are usually inadmissible
 The testimony was saying that x percentage of the shop’s tires were from the
company

Liability Insurance (we are not allowed to mention insurance at trial because
jury automatically makes you liable)
Inadmissible:

(1) To show Negligence or

(2) To show Ability to Pay

Admissible:

(1) To Prove Ownership

o E.g. when you say that is not my car.
 Really? Your name is on the insurance. Admissible

(2) For Impeachment

(3) As Part of an Admission

o Redacting
 I will pay because I have insurance and I was at fault
 If you cannot redact all goes in
o 2-G (p. 80)
 This case is about two women getting into an accident. When they pull over
they exchange addresses and one of the women says “Whoever screws up her
insurance pays I’m sure my insurance will cover it. They’ll pay for whatever
happened to your Porsche” Myra proposes to testify what Linda said because
she says it proves she was negligent.
 Admissible, cannot take any part of the admission out. All sentences are related,
so all is admitted.
 Subsequent Remedial Measures – FRE 407
 Note 5 (p. 460) EXAM pay attention to the details of the question
o Is the remedial measure subsequent or is it before?
o If remedial beforehand then admissible.
 In 2011 P injured in a car accident resulting from steering defect in his 2008 car.
Manufacturer aware of the defect corrects this defect in 2009 model by design
change.
 The accident occurred in 2011. They sue in 2012 and want to admit the
remedial measure
o This is not a subsequent remedial measure
 Remedial measure that takes place before the accident
is not covered under FRE 407

Inadmissible: [we don’t punish people for remedying potential dangers; we want to
encourage them to make repairs]

(1) To prove Negligence or

(2) Culpable Conduct

Admissible:

(1) To prove Ownership

 Question) Peter Plaintiff sued the Jax Junior College after falling on the steps of a building near
the Jax Junior College. The Jax Junior College denied it owned or controlled the building. Peter
Plaintiff proffered evidence that the Jax Junior College installed a handrail on the steps of the
building two weeks after Peter Plaintiff fell. The Jax Junior College objects to this evidence. How
should the Court rule and why?
a. Overruled; admit the proffered evidence as substantive proof of the Jax Junior College’s
negligence.
b. Sustained; admitting this proffered evidence would discourage building owners from
making safety improvements.
c. Overruled; admit the proffered evidence to show that the Jax Junior College controlled
the building.
d. Sustained; evidence of a subsequent remedial measure is inadmissible to prove
negligence.
 The answer is c.
 When they said they didn’t own or control the building, the door opens
 Answer d is correct; however, we are not proving negligence. We are
trying to show they owned the building.

(2) To rebut a claim of Precaution Not Feasible

 E.g., if they say there is no way that that sidewalk could have been made safer

(3) To prove Destruction of Evidence (very weak argument)

Inadmissible Generally
(1) Settlement Offers/Negotiations OR Withdrawn Guilty Pleas/Offers to Plead Guilty
 offer to settle civil claim/plead guilty in criminal case inadmissible
 admissions of fact accompanying such offers similarly inadmissible (with an exception)
o e.g., doctor or lawyer saying I’m so sorry that we left a sponge in your stomach
 5-R (p. 462)
o Frauds investors to raise money for his company. Commits both securities fraud under
State Blue Sky laws and Federal mail fraud. He negotiates with State attorney to stop
working in Indiana and pays a fine of $250k. Then Feds go after him and want to use the
evidence of fine to show he is guilty of mail fraud. They also want to use the statements
made during the negotiation to the State.
 The fine evidence is excluded – 408(a)(1)
 Furnishing, promising, or offering a valuable consideration to
compromise a claim (or attempting) or accepting them is inadmissible
 He furnished consideration for the claim
 Transcript of negotiations are Admissible – 408(a)(2)
 Statements made are in general inadmissible but when offered in a
criminal case AND negotiations related to a claim by a public office in
the exercise of its regulatory, or enforcement authority
o Here the feds are the public office in the exercise
 there must be an actual claim/lawsuit existing
o e.g., at scene of accident, no claim/lawsuit yet you say I’m sorry (this is admissible –
don’t say anything)
 5-Q (p. 461)
o This is a case about a farmer Perrin who buys herbicide from salesperson Sosbee. The
herbicide is made by Chevron. Sosbee told Perrin that Chevron would back up its
recommendation of the product. Another time he told Perrin “You tell us the damages
you’re claiming, and we’ll bill Chevron.” Chevron does not pay so Perrin sues
o Agent admission under 801 offering to pay
o Admissible because it’s a pre-controversy (pre-lawsuit - before any dispute) statement

Exception
 Admissible to show bias that this witness is up testifying when he just took the money
 Note 2 (p. 463) EXAM exception FRE 408(b)
o The court may admit this evidence for another purpose, such as proving a witness’s bias
or prejudice, negating a contention of undue delay, or proving an effort to obstruct a
criminal investigation or prosecution
o While going somewhere in a car, driver Mason and her passenger Newell are struck by a
car driven by Oscar, causing injuries all around. Mason and Newell come forward with
claims against Oscar, but Newell settles his claim while Mason presses hers.
 Can Mason show that Oscar was negligent by bringing out that he paid Newell
money to settle his claim? No
 If Oscar calls Newell as a witness, can Mason cross-examine Newell on the
settlement?
 If Newell takes stand against Mason then exception applies.
 5-S (p. 465)
 o Defendant Rackly is charged with passing counterfeit bills. His lawyer sets up an
appointment with assistant U.S. attorney. Lawyer meets with U.S. attorney and two
secret service agents where U.S. attorney says I am not ready to enter a plea bargain
and lawyer responds that Rackly’s involvement is marginal and that Rackly can give
information about the person they really want. The second meeting the lawyer Rackly
and two secret service agents attend but nobody from the U.S. attorney’s office. Rackly
then gives information about his accomplice.
o The statements are admissible because there was no attorney. The statements were
made to a police officer. 410 applies if the agent had actual authority or bargaining
power or the defendant thinks bargaining is occurring and his belief is reasonable.
 Sometimes law enforcement has the actual authority from the attorney to
bargain or defendant has reason to know that bargaining is occurring
 The Miranda warnings are given here. This signals to bargaining
 5-T
o This is a case about four people who were arrested after DEA agents seized chemicals
used to manufacture methamphetamine in the home of Bill Bragen. They arrested his
wife and Al Roberts and his female friend Stall. The lawyer for the two males tells U.S.
law enforcement that their clients want to get the women out of this thing because they
are not involved. After making incriminating statements they also say “Just keep them
out of it, they had nothing to do with this whole business.
o I’ll plead guilty if you keep my wife out of it
o This is a bargain for a confession therefore it’s not excludable
 Bargain for confession is not plea bargain

(2) Payment of Medical Expenses

 offer to pay medical bills always inadmissible vs. admissions of fact accompanying offer to pay
medical bills admissible
o e.g., at the scene you say I’ll pay your medical bills (not admissible)
 but if you say it’s my fault and I’ll pay your bills

Hearsay
 a statement, other than one made by the declarant while testifying at trial or hearing, offered
into evidence to prove the truth of the matter asserted
 We Exclude Hearsay Because adverse party denied opportunity to cross-examine declarant (at
time statement made) as to
o perception
o memory
o sincerity
o ability to relate

(I) Statement
 an oral statement
 a writing
 assertive conduct
 o Nonassertive conduct (not trying to say anything about what you are doing) is NOT
hearsay- “Anyone over 6ft walk through the door, Professor Williams who does not hear
the directions happens to walk through the door”
o Cain v. George
o Wrongful death case. Plaintiffs are parents of a son who died of carbon monoxide while
a guest in appellees motel. Plaintiffs allege that the gas heater was defective and
improperly installed. Plaintiff’s appeal and say that court erred in allowing motel owners
to testify that no other guests made any complaints
o Ruled that lack of complaints was non-assertive conduct and thus NOT hearsay
o Other guests not complaining is non-assertive
o United States v. Singer
o Issue is whether Carlos lives at a certain address; prosecution introduces evidence that
landlord sent eviction notice to Carlos at that address
o Evidence that l/l thought he lived there
o Not hearsay; non-assertive conduct

(II) Offered to Prove the Truth of the Matter (why is it being offered?)
 if out-of-court statement offered for any purpose other than to prove the truth of the matter
asserted, no need to cross-examine declarant, and so statement NOT hearsay
 United States v. Check - Example of triple hearsay EXAM
 Cannot testify to your own otherwise hearsay statement
 Jury was able to infer from only a one-way testimony (intended meaning satisfies)
 Criminal defendant’s get the highest degree of protection
 3-A (p. 108)
o Defendant Higgins is charged with armed robbery. State calls listener, who entered bank
and conversed with three people who saw the robbery”
o Declarant said “Higgins is the one who did it”- Direct Hearsay
o Declarant said, “That fellow Higgins went out of here carrying money bags.” – Hearsay,
relevant and offered to prove that Higgins robbed the bank
o Declarant said, “They ought to put Higgins in jail for this, and throw away the key.” -
Hearsay, not classic but is an indirect statement to prove the matter asserted;
 intended meaning is enough
 3-C (p. 124)
o Plaintiff Abby sues Defendant Burton for damages arising out of a collision. Plaintiff uses
bystander to say who ran the red light. Defendant asks bystander about conversation
with insurance adjuster 3 days after the accident.
o Not being offered to prove the matter asserted
 offered to prove that bystander said something else to insurance adjuster
 offered to Impeach

NOT Hearsay (NOT to prove of matter of truth asserted)

1. Impeach

2. Verbal acts or legally operative facts (e.g., words of contract, defamation, bribery,
cancellation, permission)—the issue is simply whether the statement was made
EXAM
 o Just to show that the words left your mouth. Not their truth
o e.g., prostitution, pimp, book keep, drugs
o 3-D (p. 124)
 Defendant Ratliff is charged with operating a massage parlor for the purposes of
soliciting prostitution. The prosecution calls an undercover agent to testify that
while act as a patron the masseuse asked whether patron was looking to have a
good time and also said “the cost depends on what you want, but I’m real
versatile like, and you can have it any way you like”
 We are not going after the prostitute
 Not hearsay, words are not used to prove the matter asserted
 Only that it was said, thus are admissible.

3. Statements offered to show effect on hearer or reader (NOTICE)

o Directed towards the hearer
o EXAM: things can talk
 Clip of matches with something written on it
o 3-F (p. 126)
 Plaintiff Alfred sues defendant interstate gas for injuries when a worker for the
gas company came and lit a cigarette that started an explosion. Forrestor comes
by, says, “I’m from the gas co., can you show me where the pipeline is, so I can
check it out?” He then lights a cigarette, everything explodes, and Alfred is
injured. Defendant wants to argue that Alfred is contributory negligent but
Alfred wants to offer Forrestor’s statement to prove that Alfred’s behavior was
reasonable
 Not hearsay, being offered to prove that Alfred was reasonable
 Think 3 or 4 steps ahead, only reason statement is coming in is because the
other side brought up contributory negligence
 It opened the door to reasonableness argument

4. Statements offered as circumstantial evidence of declarant’s state of mind (only if

state of mind relevant)
o directed towards the declarant
o 3-J (p. 139)
 Eyewitnesses testify that Greg robbed a bank, when they get an arrest warrant
and come to Greg house; wife lies and says he is out of town. Prosecutors want
to use testimony by agents describing what wife said/ lied about.
 Not hearsay, not offered to prove the truth of the matter asserted, offered to
show that she lied.
 Prove wife’s state of mind
o 3-K (p. 141)
 Plane that was used to import drugs into country illegally landed on defendant’s
property. Defendant claims that he was an innocent bystander and just helped
people with aircraft trouble. Defendant wants to introduce Kay Dixon as a
witness to offer her testimony that defendant told me in front of six other
people that he was storing a King Air at his airstrip.
 Defense thinks this statement is exculpatory (gets you out of trouble),
prosecutions objects on hearsay grounds
  Fails third criteria of hearsay- not being offered to prove the matter asserted
 Defense wants to dispute intent. If the guy was a criminal he wouldn’t tell
others
o Betts v. Betts
 First argument is that it’s non-assertive
 We tend to trust children
 Father seeks statements to come in to show daughter’s state of mind
 QUESTION) Mickey Getz is charged with felony theft after selling two horses that belonged to
Shirley Griffen. On the witness stand, Mickey Getz’s attorney seeks to elicit testimony from
Mickey Getz that Mickey Getz believed the horses belonged to Amber Cook because Ms. Cook
allegedly told Getz the horses were hers. The prosecutor objects to the proposed testimony.
How should the court rule and why?
a. Sustained; Getz would be testifying to hearsay, which under these circumstances, is
inadmissible
b. Overruled; Getz is testifying to statements allegedly uttered by Amber Cook, which
under the circumstances are not hearsay
c. Sustained; Amber Cook’s state of mind is at issue here and her own testimony is the
only permitted manner through which to elicit this evidence
d. Overruled; although hearsay, the statements are admissible as a prior inconsistent
statement
 The correct answer is b.
 This question has to do with effect on the listener

Non-Hearsay
Prior statements by witnesses (can be a party) (FRE 801(d)(1)) Mostly Criminal

(a) Prior Inconsistent Statement (if under oath—prior proceeding)

 declarant must testify at the trial and be subject to cross-examination
 EXAM statement is admissible as substantive evidence (not just as impeachment) if given under
oath at another trial, proceeding, or deposition
o e.g. “I don’t remember what I said earlier”
o only impeachment when it’s not under oath in a proceeding
 because declarant is in court and subject to cross-examination, the danger of unreliable hearsay
testimony is minimized
 grand jury testimony = “other proceeding”
 whether the Prior Inconsistent Statement is actually inconsistent with the trial testimony of the
witness is a question to be resolved by trial judge
 stated goal of rule is to protect against the “turncoat” witness—so, if the trial court determines
a lack of memory is feigned, that would generally be considered a denial of the prior statement
and would make the Prior Inconsistent Statement admissible
 State v. Smith
 Station house statement does not satisfy 801(d)(a)- THINK GRAND JURY
 If you see grand jury or preliminary hearing on EXAM- satisfies under oath condition
 4-A (p. 164)
 o Defendant Barlow is charged with racketeering and disrupting interstate commerce.
Peter Green testifies at a grand jury proceeding about the details of the robbery. At trial,
Green claims that he has amnesia.
o Not technically inconsistent statement, but because he’s not giving one statement then
it constitutes as inconsistent
o No requirement that the witness be cross examinable about the incident or statement,
just must be cross examinable (low threshold)
 Memory loss will not keep statement out as long as witness is cross examinable

(b) Prior Consistent Statement (to refute a charge of recent fabrication or improper
motive)
 Prior Consistent Statement inadmissible to bolster credibility of witness unless admissible under
an exception to hearsay,
 PCS only admissible when offered to rebut attacks on the credibility of the witness (for an
express or implied charge of recent fabrication, or improper influence/motive)
 No need for prior proceeding or under Oath
 Prior consistent statements are NOT substantive evidence IMPORTANT
 to rebut, PCS must be made before charged recent fabrication/motive/influence
o E.g. in class: Girl telling roommate, a guy she knows raped her. Statement is not
admissible until charge of fabrication improper motive (e.g. your honor she is charging
him because he black balled her admittance). At this point the door opens for her to
bring PCS
o Rape  tells roommate  black balled fraternity  trial
o Tome v. United States
o It’s all about before and after
o The court sent the case back to lower court to figure out whether PCS came before
motive. If so then can use the rule to resolve credibility

(c) Prior Statement of Identification (no formal proceeding necessity) remember the
hockey clip
 out-of-court statement of I.D. is admissible as substantive evidence that the person ID’d is the
person who committed the act (proving the truth of the matter asserted)=Non-hearsay
 Evidence of the I.D. not admissible unless witness testifies (e.g., cop cannot testify that witness
ID’d the defendant unless witness also testifies to the I.D.)
 State v. Motta
 Iwashita was robbed at gunpoint. She gives a description and a composite sketch is drawn of the
suspect. Afterwards Iwashita picked Motta’s photograph from a photograph array of pictures. At
trial, Iwashita confirmed her prior identifications and pointed out that Motta was the person
who robbed her.

Admissions by Party Opponents (FRE 801(d)(2))

 Admission is not always, “I did it.” Anything that the opposing party wants to say he admitted.
o E.g. children are better off not seeing the day light
o This is not state of mind because not right now
 EXAM Personal Knowledge Not Required (an admission may be predicated on hearsay)
o 4-B (p.183)
  M left his truck at Carters Repair shop. C was out of town at the time that truck
was being repaired. An employee of D worked on the car and suddenly a fire
breaks out destroying the premise and M’s truck. M sues C. As proof of Carters
negligence (respondent superior), M calls insurance adjuster because
apparently Carter spoke to insurance adjuster in the course of his insurance
claim saying “the fire started in the paint shed when C put a flaming welding
torch on the ground too close to fumes”
 Statement will be admitted as an admission under 801(d)(2)(a) – admission by
the owner of the company
 Personal knowledge is not required
 Formal Judicial Admissions = Conclusive
 Informal Judicial Admissions = Not Conclusive.
 Extrajudicial Admissions = Not Conclusive
 guilty plea in criminal case, in general, admissible as 801(d)(2) in civil cases
o 4-C (p. 187)
 While on a skiing trip, Defendant Brixton meets plaintiff waitress. The two end
up in his hotel room and according to her she was sexually assaulted inside the
room. Criminal charges are brought against the defendant as well as a civil suit.
 When criminal pleads guilty he will have to explain (called allocution)
 If the civil suit follows the criminal case was about then it is an admission if
guilty, unless:
 Alford Plea - Admitting we did something wrong, pleading guilty, but still
asserting innocence. Judge and Prosecutor have to allow you to do it; you
cannot just do it on your own. If you do an Alfred plea, then it cannot be used as
an admission in the civil case.
 Difference between Alford and Nolo Contrendere is in Nolo there is no
contest (you are not saying anything)
 In criminal cases only we cannot use because of the confrontation clause
o Bruton v. United States
o Defendant Bruton and Evans were convicted of armed postal robbery. A postal
inspector testified that Evans made an oral confession saying in effect that “Burton and I
committed the robbery” Judge made instruction that confession by one defendant may
not be considered as evidence against another who was not present and in no way a
party to it
o EXAM Spillover effect - from the confessing defendant to the non-confessing defendant
o We are concerned about the spillover effect of a confession because
(1) Confessions are unique in their devastating impact
(2) A bright line rule is more easily understood
(3) Prosecution has the option to try the codefendant separate (not in civil)
 admissible as substantive evidence
 does not have to be against a party’s interest when made

Types

(A) Individual
 E.g. “I robbed the bank”
 (B) Adopted/believed (includes silence; vicarious admissions)
 E.g. “Come on we all know Ms. Asfaw you are the one that robbed the FCSL vending machines”

Silence
 United States v. Hoosier (Adoptive Admission)
 Defendant Hoosier is convicted of armed robbery of a federally insured bank. Four witnesses
identified him as the perpetrator.
 Girlfriend says to a witness in the defendant’s presence, “That isn’t anything, you should have
seen the money in the hotel room” and that she spoke of “sacks of money.” Defendant does not
say anything.
 This would be an adoptive admission under FRE 801(d)(2)(B)
 Normal behavior is to deny the wrongful accusation

(I) Party must have heard and understood the statement

(II) Party must have been physically and mentally capable of denying statement

(III) Reasonable person would have denied the statement

 4-E (p. 200)
o Defendant Ivers is charged with armed bank robbery. At trial, prosecutor offers
testimony by the defendants friend J that after the crime J heard Ivers and Kerwin say:
 Kerwin: “Are you the one who stuck up First Seacoast Bank the other day?
 Ivers: “Will you please leave me alone”
 Judge acts as gatekeeper, what jury should and should not hear
 Here there is an open question. It is not accusatory. Under 104(b) court
will let the jury decide
 Kerwin: “You’re the one who robbed First Seacoast Bank, aren’t you? It just so
happened that I was in the bank when the fellow came in, and it was you,
wasn’t it?”
 Ivers: “Will you please leave me alone?”
 This is a grey area. It is a closed question. It is accusatory. The judge
might say under 104(a) it is not admitted.
 But failure to reply to accusation/statement by police not admissible as an admission
o Doyle v. Ohio
o This case talks about the constitutional question regarding post arrest post Miranda
silence. Defendant invoking his right to silence
o A defendants silence to a police officer subsequent to Miranda cannot be admitted
against him

Vicarious Admissions
 statements by agent re: matter within his agency made during agency relationship
 statement by partner within scope of partnership binds other partners
 co-conspirator statements in furtherance of a conspiracy to commit crime/civil wrong
o BUT NOT admission by co-party not receivable against co-plaintiff or co-defendant

(C) Authorized
 E.g. John’s lawyer saying “John robbed the bank”
 4-F (p.202)
 o Albert is run over by a school bus after the driver fails to notice him crossing in front of
the bus. The parents file a wrongful death action against the bus driver as well as a strict
liability claim against Standard Bus Sales for the way the mirrors on the bus were
positioned. The parents name the wrong company and Standard wins on summary
judgment. The case against the bus driver goes to trial and the defendant’s attorney
reads the allegation on the dismissed charge.
o Parents said bus maker was negligent
o The prior pleading was an admission by the lawyer under FRE 801(d)(2)(c)
o The statement here is not admissible, even though it is an admission. It is not admissible
because in the previous civil case he was not found liable. Thus, it does not mean
someone else cannot be liable. **Pleadings are excluded when we are talking about
admissions. Pleadings are not excluded when its only one plaintiff and one defendant.

(D) Agent/employee (mostly civil)

 14-D (p. 192)
o Napton works as deliveryman for Ace. While working, Napton negligently runs over
O’Brien. A month later Napton loses his job for unrelated reasons. Six months later,
Napton tells O’Brien “the breaks just failed” and “I was speeding” at the time of the
accident. O’Brien sues both Napton and Ace for personal injuries.
o FRE 801(d)(2)(d) does not apply - Napton does not make the statement while he is an
employee. Former agents do not get this exception
o “The breaks just failed” if its sought be admitted in the trial against Ace, is it going to be
admissible? NO. The statement that Napton makes is not admissible against Ace. The
statement is admissible only against Napton.
o In a civil case, you cannot try them separately. Remember Spillover effect.
 Mahlandt v. Wild Canid Survival & Research Center
 Civil action for damages arising out of an alleged attack by a wolf on a child. No one saw the
incident. Two defendants Poo (employee), and Research Center. Evidence that the wolf did not
assault the boy, and that the boy’s injuries happened, when the boy crawled under the fence.
On appeal plaintiff argues that judge should have admitted the statements
 Poo: “Call me at home, Sophie bit a child that came into our backyard” –Admissible against both
 Third statement: Notes of Minutes of meeting of the center that reflected a great deal of
discussion about the legal aspects of the incident of Sophie biting the child – Not admissible
because of spillover effect. Poo was not there.
 Note 4 (p. 209)
o Independent contractor’s statement can be admitted if the principle adopts the
statements (insurance company example)
o Independent contractor = agent; unless company distances itself with devices such as an
employment agreement
 Look at totality of circumstances
 4-G (p. 210)
o Defendant Rogers is driving a truck bearing the legend “Farmright Produce Corp” when
he collides with an automobile driven by Story. 30 minutes after the accident Rodgers
says to Story “I’m sorry this happened, I was making a delivery for Farmright, and got
distracted for a moment trying to read the purchase order of my clipboard.” Story sues
Farmright Corp, which answers in the complaint that Rogers was not acting within the
 scope of his employment at the time of the alleged accident. At trial Story offers to
testify to what Rogers said, invoking FRE 801(d)(2)(D).
o Argument for defendant – Bootstrapping: statement made by Rogers attempting to
establish that he is an agent for Farmright. Statement NOT enough you need
independent evidence to establish relationship.
o Statement itself can be used if there is also an independent evidence based on
preponderance of evidence
 Judge decides under 104(a)

(E) Co-conspirator during/furtherance of conspiracy (mostly criminal)

 When you get someone that is part of the crime sell out his associates
o E.g. Lookout guy for robbery

(I) Declarant and defendant conspired

(II) Statement was made during the course of the venture (not after or before)

(III) Was in furtherance thereof

 4-H (p. 216)
o Arlen and Bud decide to import cocaine from Columbia. They agree that Bud will fly
there with his friend Carol and acquire the stiff and Arlen will line up customers. Bud
recruits Carol to the conspiracy. Carol’s friend Connie drives them to the airport.
o EXAM Difference between mere narrative and in furtherance of (planning) - mere
narrative is just recapping vs. in furtherance is future
o “Arlen fronted us the buy money” – not admissible (mere narrative)
o “Buds going South to make the buy” – admissible
o After she got caught she said “Bud made the buy” - Not Admissible against Bud because
conspiracy is over
 Admissible under 801(d)(2)(A) as an admission by Carol.

Hearsay Exceptions
Availability of Declarant Immaterial (FRE 803)
 Doesn’t matter if the declarant is testifying or not

(1) Present Sense Impression

 Literally a narration – narrating it while it is happening (present)
 statement made currently with sense impression (no time lapse between event and statement)
o E.g. “taken” movie clip
 safeguards regarding reliability = memory, no time for calculation, witnesses to statement may
also be witnesses to event
 NO safeguard regarding reliability = impulse, emotion, excitement
 Florida = “spontaneous statement”
 Nuttall v. Reading Co.
 Wife sued Reading Railroad claiming that Reading required her husband to report to work
despite his objection that he was ill. Phone call between husband and boss, and conversation
between husband and coworker. Wife only overheard the husband side of the phone call.
  Court says phone conversation where she only hears husband side, is admissible because when
you hear one side of the phone conversation, you can know what the other person is saying.
Admissible as Present sense impression and how the husband was feeling
 Note 6 (p. 222) EXAM
o Examples, describing situations to friends, and 911
o Also when mother of killer described over the phone she found the purse of the victim

(2) Excited Utterance (bootstrapping does not apply to startling event)

 Difference between (2) and (1)
o In (2) statement merely have to relate to the event (broader)
o In (1) while or immediately after within seconds not minutes (narrow)

(I) Startling event required (no need for an independent evidence)

 anything can go for startling event
o eggshell doctrine
 United States v. Arnold
 Tamika Gordon (daughter of defendant’s girlfriend) told a 911 operator that previously
convicted murderer Arnold had pulled a handgun on her, cocked it, and threatened to kill her.
Officers responded to the call and Arnold returned to the house shortly. At the point, Gordon
again became excited, repeatedly identifying Arnold as the guy that pulled the gun on me.
Search of the car found gun in Arnold’s possession.
 Not present sense impression the 911 call happened after the event happened
o Statement 1- 911 call – Satisfy criteria
o Statement 2- Gordon’s statements to officers upon their arrival at the scene –Satisfy
criteria
o Startling event? Is it bootstrapping?
 The statement regarding the startling event can be the only evidence – no
requirement of independent evidence
 4-I (p. 231)
o Sanders suffered a heart attack while on the job. Wife sues seeking benefits as a
surviving widow. The day of the attack Sander complained to his wife of chest pains.
Wife offers to testify what Sanders said to her.
o The excited utterance here is the only proof of the excited event. Under FRE, there is NO
requirement of independent evidence of an exciting event. Statement proves the event.
o If it doesn’t come in as excited utterance, it can come in under FRE 803(3) Present State
of mind physical condition

(II) Statement must be about the startling event

(III) Statement must be made while under the stress of the excitement/startling event and

(IV) Before declarant has time to reflect on it or misrepresent

 consider age, condition, event, subject matter to see how long after
 No requirement declarant testifies (or even be identified!)

(3) Then existing mental, physical or emotional condition AKA State of Mind (relevancy is
the issue)
 then existing mental, emotional, or physical condition of declarant, admissible to show:
(I) Declarant’s state of mind directly in issue (relevant) or
 4-J (p. 238)
o Defendant Neff was charged with shaking down Quade. Prosecutor gets Quade’s friend
to go testify that defendant was after Quade and threatened to kill his family.
o In the trial of Neff for extortion, statements will be admissible because they show a
present fear. This is important because an element of the crime extortion is fear, which
makes it relevant.
o But if Neff was on trial for the murder of Quade, the statements are inadmissible
because Q’s state of mind is irrelevant
 But, statements would be admissible if defendant claims accident, self-defense,
or suicide (opens the door)
 statement of memory generally not admissible to prove the truth of the fact remembered, but
exception for declarant’s Will
o his belief with respect to the execution, revocation, identification, or terms of his will
o e.g., admissible - told golfing partner “I recently changed my will to leave the car to
Oscar”
 4-K (p. 250)
o Defendant Donald is tried for murder of Virginia who is found in the living room. Kitchen
knife is found on the floor close to her body. There is testimony from neighbors that
Donald and Virginia relationship was stormy. Other circumstantial evidence against
Donald is present. The prosecutor wants to offer the following:
o Statement 1: Several weeks before her death Virginia told her neighbor, “I’m afraid
Donald is going to kill me” - Inadmissible because fear is not an element. If the defense
claimed self-defense etcetera then it would be admissible.
o Statement 2: Days before her death Virginia told her neighbor, “I’m going to take the
train to Denver to stay with Mother for a while” - Inadmissible because it is irrelevant. If
she said because “I know he will kill me,” then admissible.
 What if a train ticket is found on her dead body, will the train ticket be
admissible? Admissible, non-assertive conduct
o Statement 3: “A few months before her death Virginia left home temporarily and took
refuge in a shelter for battered women – admissible because it is non-assertive conduct

(II) Subsequent acts of declarant

 Mutual Life Insurance Co. v. Hillmon (EXAM doing what you said you were going to do)
 Hillmon (p) sued to collect the proceeds of three separate life insurance policies. She contended
that her husband, a cowboy and adventurer, had died when his companion, Brown, accidentally
shot him. The insurance companies rejected the claim based upon declarations made by Brown
that Hillmon and he in fact murdered a Mr. Walters who they attempted to pass off as Hillmon
in an attempt to defraud the insurance companies
 ** IMPORTANT Rule - Prior or contemporaneous statements of intent are admissible to prove
the person did the act they said they were going to do.
 In this case, the evidence of the statements that he went to Colorado should have been
admitted. Hillmon stands for the proposition that out of court statements are admissible under
the state of mind exception if it goes to show subsequent acts of the declarant.
o Jury infers
 United States v. Pheaster (EXAM one step further from Hillmon in special cases)
 Pheaster stands for the proposition that one person’s statement of intent can be admissible to
prove another person’s action (in limited circumstances)
 However, only in special occasions:
o Kidnapping, Missing persons, homicide ONLY.
 Question) Sixteen-year-old Hannah Stevens and her friends—Amy and Martha—were at Denny’s
one night when Hannah told Amy and Martha, “I’m going out to the parking lot to meet Ace to
pick up some Ecstasy so we can party tonight. I’ll be right back.” Hannah never returned. Her
body was never found.
One year later, the State charged Thomas “Ace” Adams, a local Ecstasy dealer, with the murder
of Hannah Stevens. At Adams’s trial, the State seeks to have Amy and Martha testify to
Hannah’s statements at Denny’s. The defense objects. How should the Court rule and why?
a. Sustained; the testimony would be hearsay and no exception exists allowing the
admission of Hannah’s statements.
b. Overruled; the testimony does not constitute hearsay.
c. Overruled; the testimony constitutes hearsay but fits within the statement of then
existing mental, physical or emotional condition exception.
d. Overruled, the testimony constitutes hearsay but fits within the present sense
impression exception.
 The answer is c.
 Pheaster case

(4) Statement made for Medical Diagnosis or Physician

 Both (3) & (4)

(A) Statements to physicians/non-physicians of present condition generally admissible

(B) Statements to non-physicians of past condition generally inadmissible

(C) Because patient has strong motive to tell truth when seeking medical treatment, statements
of past condition (and cause of condition) made to physicians admissible
o E.g. “My leg was crushed in a car accident.” statement to a doctor - Admissible under
803(4). It is important to a doctor to know how you were injured. If Dr. asks what kind of
car, then can answer. Answer is admissible. Remember if the doctor says it is important
then it is important (deference to Dr.) *** IMPORTANT
o E.g. “The Ford ran the red light and hit my car” - Completely inadmissible because the
declarant is trying to give fault. Unless, you can prove excited utterance
o There are exceptions for children abuse and sexual abuse.
 Victim: I was raped. Doc: Who raped you? Victim: Boyfriend. Admissible. Who
her perpetrator is extremely important for her treatment.
o Blake v. State
o An investigator from Department of Family services and an officer from the sheriff’s
office interviewed the victim, a 16-year-old girl, at a high school in response to report of
sexual abuse. After the interview, she was rushed into an emergency room, where she
told doctors she had been forcibly subjected to sexual intercourse by her stepfather,
Blake (D), several times. State relied on Blake’s typed confession, testimony of the
doctor, DFS investigator, and officer.
o Two part test:
 (I) First, the declarant’s motive in making the statement is consistent with the purposes of
promoting treatment or diagnosis and

(II) Second, the content of the statement is reasonably relied on by a physician in treatment or
diagnosis
 Typically doctors and police testify under 803(6) and (8) because they don’t deal with patients or
public directly or they deal with so many that they can’t remember all
 Question) When she returned home from work, Monica Moncarz found her husband Jim sick in
bed. Jim said to Monica, “I’ve been laying here for hours in misery; I think I ate some bad meat”
and pointed to an empty takeout carton from the Downtown Deli. “You better get me to a
doctor.”
Jim died two days later from arsenic poisoning. Monica sued the Downtown Deli, alleging
negligence in hiring/supervising a mentally ill employee who poisoned Jim’s food. At trial,
Monica seeks to admit the following evidence:
Monica’s own testimony recounting Jim’s statements and his pointing to the takeout cartons,
offered to prove Jim ate food from the Downtown Deli. The defense objects. How should the
Court rule and why?
a. Sustained; Jim’s statements are hearsay and thus inadmissible, but his gesture of
pointing at the takeout carton is admissible.
b. Overruled; Jim’s statements and gesture of pointing at the takeout carton are
admissible as statements made for purposes of medical diagnosis or treatment.
c. Sustained; Jim’s statements fit neither the dying declaration exception to the rule
against hearsay nor any other exception.
d. Overruled; Jim’s statements and gesture of pointing at the takeout carton are
admissible as excited utterances.
 The best answer is b.
 Answer d is not the best because of “for hours”

(5) Recorded Recollection AKA Past Recollection Recorded

 although memory can be refreshed with almost anything, either before or while testifying
(=“present recollection”), if that fails, a memorandum (generally a writing) witness made at or
near time of event may be admissible if proper foundation laid b/c a memo made when facts
fresh in mind is probably more reliable than trial testimony (but cross-examination certainly
affected/curtailed)
o requirements

(I) Demonstrate that witness lacks present recollection of the matter

(II) The statement accurately reflects knowledge he once had

(III) He “made or adopted” the statement

(IV) He did so while the matter was “fresh” in his mind

 past recollection recorded vs. refreshing recollection
o past recollection
 witness’s present recollection is incomplete, but testifies that his recollection
was complete at the time the memorandum was written and that such
recollection was accurately recorded therein
 o refreshing recollection
 witness looks at the document, then flips it, and uses memory to answer
questions

(6) Business Records

 Entrant must have duty to record (no hobbies)
 Kept in regular business records
 Entry made at or near time of event (contemporaneous)
 Authentication required (live or by affidavit)
o Must have custodian of the record testify (doctor can be record custodian)
 Entrant need not be unavailable
 Personal knowledge not required
o need personal knowledge of the source not personal knowledge of what’s occurring
 No hearsay statements by third persons (i.e., police report admissible—in civil
cases—but witness statements within it not admissible (redacted out))
 Petrocelli v. Gallison
 Gallison (D) operated on Petrocelli (P) for a hernia. P was afforded no pain relief
and several months later Dr. Swartz performed a second procedure, which was
also unsuccessful. P sued D for malpractice. At trial P attempted to introduce a
passage from the operative report related to the second procedure that
indicated that the nerve had been severed in the original procedure.
 Business record was not admissible because of uncertainty as to whether it was
Dr.’s opinion or patient’s narrative
 What we take away from this case: The source of the information matters! Here
source = what the patient said
o EXAM always look at where the information is coming from
 E.g., you return a TV saying the power is malfunctioning. The clerk writes the
same and takes it. Inadmissible
o Note 4 (p. 271)
 What if Petrocelli said I didn’t have pain until I started weightlifting
 Admissible under admission (801) and business records (803)
 What if Dr. Swartz phoned Dr. Gallison and then wrote nerve was damaged
 Admissible under admission (801) and business records (803)
 What if Dr. Gallison forwarded Petrocelli’s patient file and Dr. Swartz copied into
his
 Admissible
 What if Dr. Swartz wrote in his report, “examined patient—left ilio-inguinal
nerve severed or damaged, apparently in an earlier surgical procedure”
 Admissible as expert opinion
o Norcon v. Kotowski
o Exon  VECO  Percel (Security) + NORCON (cleaning)
o Kotowski is working for NORCON and brings charges of sexual abuse
o Ford works for Percel and is investigating the abuse and making a report
 Has a couple of supervisor’s statements for Kotowski
o Report is admissible because Percel has the responsibility of security and any record is
business record
 o Content of report are admissible because the supervisors are authorized to speak for
NORTON 801(d)(2)(C)
 As supervisors and safety employees, alcohol use and sexual harassment are
apparently matters which their jobs required them to report, especially in
response to an employer-initiated investigation

(7) And (10) are both about absence Ex: Code Red example in clip
 Must show that there are no records

(8) Public Records (same as (6) BUT NO contemporaneous and NO custodian in CIVIL)
 Public employee duty to record
 Entry near time of event (not contemporaneous)
 What may be admitted: records, reports, statements, data compilations
 Admissibility easier than under the Business Records Exception of FRE 803(6):
o NO contemporaneous requirement or to have custodian testify
o Also copies are acceptable
o Baker v. Elcona Homes Corp
o Records of accident by police officer are admissible
 But the witness statements are not

Only in criminal cases need authentication

o Oates and Melendez-Diaz v. Massachusetts
o EXAM whether work for the government or contracted to by the government, you are
considered “law enforcement personnel”
 Three findings
(1) Technicians working for government crime laboratories count as law
enforcement personnel, so their reports inadmissible against the
accused without authentication
(2) Crime lab report might also qualify as “factual findings” that are
inadmissible against the accused without authentication
(3) (8) is different from other exceptions because it has an exclusionary
provision
o “a matter observed while under a legal duty to report, but not
including in a criminal case, a matter observed by law
enforcement personnel”
 Confrontation clause
 To authenticate prosecutors must call a knowledgeable
witness who understands the process of the conclusion.
Does not have to be the lab technician. Someone
knowledgeable
o Notice and demand approach. If the prosecutor wants to submit the report, it has to
give notice to the defense so that prosecutor can produce lab tech.

Declarant [has to be] Unavailable (FRE 804)

Unavailable
o If exempted from testifying by the court on the grounds of privilege (must assert on the
stand)
  e.g., once Miranda right are read to him, he is unavailable
o If witness persists—despite a court order—to refuse to testify regarding the statement
o If witness testifies to lack of memory of the subject matter of the statement
o Death or physical/mental illness
o If absent (beyond reach of trial court subpoena) and statement’s proponent unable to
procure witness’ attendance/testimony by process
 4-L (p. 307)
o Defendant Masters is convicted for importing cocaine along with Jane Shell. U.S.
attorney sought permission to depose Shell where she gave a statement that led to the
indictment of the defendant. There was indication that Shell was leaving for Australia.
Government let her go. Shell refused to come back and testify at trial. Defense argues
that government should not have let her go and government argues that they could not
keep her locked up.
o Judge would not admit deposition because government’s motives are questioned.
 What about 804(a)(5)? Bad faith. Does not apply if the statement’s proponent
procured or wrongfully caused the declarant’s unavailability as a witness in
order to prevent the declarant from attending or testifying
 Even though defense was at deposition and did not ask any questions, cross
examination is a TRIAL right
 Barber v. Page
 Jack Barber and Charles Woods were tried for armed robbery in Oklahoma state court. A lawyer
named Park represented both Defendants during a preliminary hearing. Defendant Woods
waived his privilege against self-incrimination during the hearing. Parks withdrew as his attorney
but continued to represent Defendant Barber. Woods incriminated Barber but Parks did not
cross-examine him, but a lawyer for a different defendant did. Barber was tried seven months
later while Woods was in a Texas federal prison 225 miles away. The state introduced a
transcript of the Woods testimony at the preliminary hearing over Barber’s objection.
 Holding that the Defendant Barber did not waive his right to confront Woods by not cross
examining him during the preliminary hearing.
 Prosecution must make a good-faith effort to obtain his presence at trial.
 Unavailability is always required for 804
 The right to confrontation is a trial right, and examining a witness during a preliminary hearing
does not cause one to lose that right. The right to confront at trial, not only is an opportunity to
cross examine, but is also an opportunity for the jury to see and hear the witness and weigh
their testimony accordingly.
 804 Exceptions

(1) Former Testimony - FRE 804(b)(1)

(I) 2 proceedings required (1st--where testimony given; 2nd--where former testimony sought to
be introduced) – e.g., criminal/civil, trial/retrial, trial/hearing

(II) Similarity of parties at prior proceeding

(III) Issue must be the same

(IV) Opportunity to cross/develop testimony at prior proceeding (no grand jury testimony!)
o What about ineffective counsel? Then appeal

(V) Former testimony given under oath

 Question) Roger Crewing was a trucker transporting cargo. While in downtown Washington,
D.C., Roger’s truck collided with a Ford driven by Sarah Morgan. A police officer at the scene
charged Roger with driving under the influence of alcohol. At Roger’s criminal trial for DUI, Sarah
Morgan testified about the accident and was cross-examined by Roger’s lawyer. Roger was
convicted of DUI and sentenced to six months in jail. While Roger was in jail, Sarah Morgan died
in a plane crash.
Upon his release from jail, Roger tried to resume working as a trucker but his trucking license
was suspended pending a hearing before the federal regulatory agency responsible for
distributing trucking permits. At the hearing to permanently deprive Roger of a trucking license
due to his DUI, the agency’s prosecuting attorney sought to introduce a transcript of Sarah
Morgan’s testimony from Roger’s DUI trial. Roger’s defense attorney objects. How should the
Court rule and why?
a. Sustained; the transcript is inadmissible hearsay.
b. Sustained; the transcript is not the best evidence of Sarah Morgan’s testimony.
c. Overruled; the transcript represents Sarah Morgan’s present sense impression.
d. Overruled; the transcript is admissible as former testimony.
 The answer is d.

In Criminal Context: No violation of Confrontation Clause as long as

(1) accused or attorney was present and had opportunity to cross-examine at time
testimony given, and,
(2) witness whose reported testimony is sought to be introduced is truly unavailable and
the prosecution makes a bona fide effort to produce him

804(b)(1) vs. 801(d)(1)

 804(b)(1) exception: declarant unavailable at current trial
 801(d)(1) non-hearsay: declarant must testify and be subject to cross-exam at the current trial
 804(b)(1) exception: sufficient similarity of parties and issues such that party against whom it is
offered in current trial had meaningful opportunity to develop testimony at prior hearing
(usually means the opportunity to cross-examine)
 801(d)(1) non-hearsay: prior statement was under oath at a trial/hearing but no need for
meaningful opportunity to develop testimony
 (2) Dying Declarations—FRE 804(b)(2)
 only in homicide case or civil action

(I) Declarant must’ve believed death imminent

(II) Statement must concern the cause or circumstances of the impending death

(III) Declarant need not actually die, but must be unavailable at time statement offered
 judge makes preliminary ruling if declarant unavailable and if thought dying (may consider
hearsay in making those determinations)
 Question) Randolph Wayne laid in bed, the town doctor attending to a single gunshot wound in
his stomach. Mrs. Kitty Carlisle visited him the day after he was shot. Dr. Millard stood in the
back of the room cleaning his instruments while Randolph Wayne and Kitty Carlisle talked.
Mrs. Carlisle: Oh, Mr. Wayne. I’m so sorry you’re such a mess. Is there anything I can do?
Wayne: I know why you’re here, Miss Kitty. You think your boy the Carlisle Kid did this while
trying to rob me. But it wasn’t him. I saw the varmint that did this, and my brother is gonna fix
that yellow-belly.
Mrs. Carlisle: Are you sure you don’t hold this against my Carlisle, Mr. Wayne?
Wayne: No, Ma’am. Carlisle didn’t do this. Knowing that, I can peaceably meet my Maker since
Doc says I’m a goner.
Later that day, Randolph Wayne slipped into a coma. At the Carlisle Kid’s trial for the armed
robbery of Randolph Wayne, to prove he did not shoot Randolph Wayne the Carlisle Kid calls
both Dr. Millard and Mrs. Kitty Carlisle to testify to Randolph Wayne’s statement that the
Carlisle Kid did not shoot him. The prosecutor objects. How should the Court rule and why?
a. Overruled; the statement fits within the dying declaration exception to the rule against
hearsay.
b. Overruled; the statement fits within the statement of then existing mental, physical or
emotional condition exception to the rule against hearsay.
c. Sustained; the statement is inadmissible hearsay.
d. Overruled; the statement fits within the statement made for purposes of medical
treatment or diagnosis exception to the rule against hearsay.
 The answer is c.
 charge is armed robbery
 Answer d is wrong because nothing he says is important for dr.’s
diagnosis
 Question) Randolph Wayne laid in bed, the town doctor attending to a single gunshot wound in
his thigh. Mrs. Kitty Carlisle visited him the day after he was shot. Dr. Millard stood in the back of
the room cleaning his instruments while Randolph Wayne and Kitty talked
Mrs. Carlisle: Oh Mr. Wayne. I’m so sorry you’re such a mess. Is there anything I can do?
Wayne: I know why you’re here, Miss Kitty. You think your boy the Carlisle kid did this to me.
But it wasn’t him. I saw the varmint that did this, and when I get out of this bed I’m gonna fix
that yellow-belly.
Mrs. Carlisle: Are you sure you don’t hold this against my Carlisle?
Wayne: No Ma’am. Carlisle didn’t do this.
One week later, Randolph Wayne died of lead poisoning from the bullet wound. At the Carlisle
kid’s trial for the murder of Randolph Wayne, the Carlisle kid calls both Dr. Millard and Mrs. Kitty
Carlisle to testify to Randolph Wayne’s statements that the Carlisle kid did not shoot him. The
prosecutor objects. How should the court rule?
 a. Overruled; the statements fit within the “statement of then existing condition”
exception to the rule against hearsay
b. Overruled; the statements fit within the “dying declaration” exception to the rule
against hearsay
c. Sustained; the statements are inadmissible hearsay
d. Overruled; the statements fit within the “statements made for purposes of medical
treatment or diagnosis” exception to the rule against hearsay.
 Answer c is correct because he didn’t believe he was going to die under the
exception

(3) Statement Against Interest - FRE 804(b)(3)

 declarant does not have to be a party—it can be anyone
o but statements made to police is most scrutinized
 statement must be against interest when made
 against pecuniary (your money), proprietary (what you own) or penal interest (going to jail)
 declarant must have personal knowledge
o compared to 801(d)(2) where knowledge is irrelevant
 declarant aware statement is against her interest and no motive to misrepresent
 reasonable person would not have made the statement unless believed it to be true
 collateral facts also admissible
 In criminal cases only: must also be supported by corroborating circumstances that clearly
indicate its trustworthiness
 4-M (p. 333)
o Gavin is driving a truck when he is stopped by a cop. Cop smells marijuana then finds
marijuana in the truck along with Toren. Toren tells officer that the marijuana belongs to
him and not Gavin and that he had nothing to do with it. Trial court refuses to allow the
testimony.
 Statements exonerating the accused
 Hearsay? Yes, 804(a)? Yes, 804(b)(3)(B)? Yes, corroborating evidence
 It will be admissible because there is corroborating evidence.
 Parties not friends
 First time together
 Voluntary statement after Miranda
 Note 4 (p.334)
o Really suspicious when declarant is already in jail

APO 801(d)(2) vs. SAI 804(b)(3)

 SAI must be against interest when made; APO need not be against interest when made
 SAI admissible against non-party; APO only admissible against the party
 SAI requires personal knowledge; APO does not require personal knowledge;

Criminal Context
 is the statement sufficiently against declarant’s penal interest that reasonable person in
declarant’s position would not have made it unless thought it was true
 when declarant confesses to the crime and the statement is offered to prove the defendant is
not guilty, the Rules require corroborating circumstances to indicate trustworthiness of the
statement
 Williams v. United States
 After Harris was pulled over for driving erratically, he consented to a search of his car. Police
uncovered several kilos of cocaine. During his first interview with the police, Harris indicated
that he had received the drugs from a Cuban in Fort Lauderdale, that they belonged to
Williamson, and that he was to deliver them later that evening to a particular dumpster.
However, when agents sought to arrange a controlled delivery of the cocaine, Harris changed his
story, indicating instead that Williamson had been driving ahead of him in another rented car,
had witnessed the search, and knew the drugs had been uncovered. Harris refused to testify at
trial, despite a grant of immunity, and he was eventually held in contempt by the court for his
refusal.
 Harris unavailable because after Miranda rights (fifth amendment)
 The Supreme Court defines “statement” in this case narrowly, and would exclude all statements
in a larger contextual narrative that are not explicitly self-inculpatory.
 Curry favor: EXAM
o Self-serving: Saying it because he want lesser sentence
o Trustworthiness is at issue because criminals have reason to lie
o Not everything that Harris said is admissible under

(4) Statements of Personal or Family History - FRE 804(b)(4)

 statement need not have been made before the controversy arose
 declarant must be family member (usually)
 personal knowledge required
 self-serving statements may be ruled inadmissible (court refuses to apply the exception)

(5) Forfeiture by Wrongdoing - 804(b)(6)

 A statement offered against a party that wrongfully caused or acquiesced in wrongfully causing
the declarant’s unavailability as a witness, and did so intending that result
o Acquiesced: does not need to be active. Defendant does not have to actually seek.
 If had some knowledge but did not stop it then satisfies
 court (judge) must find:

(I) Defendant engaged or acquiesced in wrongdoing (crime v. morally unethical) that

(II) Was intended to render declarant unavailable and

(III) Did render declarant unavailable

 no requirement defendant intended declarant unavailable for a particular trial
 applies to potential witnesses, too
 applies to any defendant who participated in a conspiracy to silence declarant even if he did not
himself engage in witness intimidation
 4-N (p. 337)
o Defendant Keeton is charged with armed robbery. Spreigel makes a statement that
Keeton is responsible for the shooting. Spreigel refuses to testify at Keeton’s trial
because a letter was sent by Keeton to Spreigel threatened his and his girlfriend’s life.
Spreigel’s lawyer tells the judge that Keeton made oral threats.
 Ex-parte meeting - talking to the judge in a meeting without the other party
 Defendant here forfeited his confrontation rights by intimidating a witness.
 o If defendant engaged in wrongdoing or acquiesced (or defendants intent) to stop
witness from testifying is enough for the courts to take away confrontation rights.
o Standard: judge will decide - Preponderance of evidence standard (low threshold)
o Defendant does not have to make witness scared just to testify at this trial, forfeiture
applies when they make the person fearful NOT sympathy
 Giles v. California
 At petitioner Giles’ murder trial, the court allowed prosecutors to introduce statements that the
murder victim had made to a police officer responding to a domestic violence call.
 Held statements inadmissible because defendant didn’t have the intent to silence the witness in
order to not testify at trial

FRE 807—Residual/Catch-All

(1) Trustworthiness factor: where declarant unavailable, statement must be as

trustworthy as under FRE 804; where declarant not unavailable, statement must be as
trustworthy as under FRE 803

(2) Necessity factor: statement must be offered on a material fact and be more probative of
that fact than any other evidence available
 Also remember notice to adversary
 Dallas County case
 Why would the old newspaper lie about the fire, 58 years earlier
 State v. Weaver
 Mary Weaver, Defendant, picked up 11-month old Melissa Mathes at the Mathes home at 10:20
AM on January 22, 1993. Defendant called 911 at 11:14 AM and reported that Melissa was not
breathing. Melissa died the following day. Melissa had old and new injuries consistent with
shaken baby syndrome. Defendant was charged with first-degree murder and child
endangerment. Her first trial resulted in a hung jury, but she was convicted after she requested
a court trial. After her conviction, she moved for a new trial based on affidavits by Robin McElroy
and Misty Lovig. Both affidavits said that Melissa’s mother had said that the Defendant did not
hurt Melissa, but Melissa had hit her head on a coffee table at the Mathes home on the morning
in question.
 There is no reason that the customers would lie
 Note 2 (p. 360)
o Why did the defense want the catchall instead of 801(d)(1)(A)?
 Because the customers did not hear mom’s statements under oath
 Can only impeach a witness if not under oath
 If you want substantive then defense chose to use catchall

Confrontation Clause (Trial right: preliminary hearing doesn’t count)

Even though it passes hearsay, there is another roadblock in criminal cases
In general, we are worried about the law enforcement v. doctors
Started with Roberts: indicia of reliability

Crawford (replaced the reliability in Roberts)

 Defendant stabs the victim because he was going to rape his wife
 o Wife said to police victim didn’t have any weapon or didn’t make any threatening
gesture
o Wife is not available to testify
 redefined central focus of CC away from Roberts’ “reliability” and toward the manner or
procedure by which the statement was gathered with an eye towards prosecution

Testimonial = (no emergency, statement to police collecting info for prosecution)

(1) Statements by observers or participants in crimes made to law enforcement who are
investigating the crime with an eye to prosecution

(2) Affidavits

(3) Custodial examinations (e.g., interrogation)

(4) Prior testimony not subject to cross

(5) Similar pre-trial statements declarant would reasonably expect to be used in

prosecuting the crime
 testimonial statements against accused not admissible except those by a witness who appears
for cross-examination at trial, or, if witness does not appear for trial, accused had prior
opportunity to cross-examine witness
 prosecutors didn’t like this

Davis (911 operator is law enforcement)

 started as an emergency but when 911 started asking “shut up and answer my question” it’s
testimonial (then back and forth)

(i) “Emergency” means objective & imminent threat of harm

(ii) State of mind of police and declarant count

(iii) Emergencies may evolve into investigations and vice versa

 Statements are non-testimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency
 Statements are testimonial when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal proceedings (with an eye towards prosecution)

Bryant
 Police responded to a call that a guy was shot and bleeding in a parking lot
o Found in place other than where the shooting occurred
o He tells them (excited utterance)
 Broadens Davis (more statements will be considered as within the Emergency Doctrine)
 Creates an objective two-sided inquiry (considers statements and actions by police and
witnesses: what would a reasonable victim understand?)
o Police is trying to investigate the risks involved and capture the defendant
  Versus when filling out a form (not an emergency)
 Emergency Doctrine is now just one of many exceptions to the “testimonial” category
 Question) Hysterical Jenny Jones appears at the hospital, clothes torn, cuts on her face and
neck, tears streaming down her cheeks. She shrieks at a security guard in the ER lobby, “oh,
please, help me! Bobby is still after me! He raped me and now is trying to kill me! Help me,
please!”
The security guard rushes to Jenny and wraps his arms around her. “There, there,” he says. “No
one’s after you. You’re safe now.”
The security guard escorts Jenny to an examining room, where a physician and nurse calm jenny
down and begin to treating her. While standing behind a curtain in the examining room, the
security guard asks Jenny question from a pre-printed police form as she is being examined and
treated.
Security Guard: Can you describe your attacker?
Jenny: He’s six feet tall, pale skin with freckles, red hair.
Security Guard: And you said his name was Bobby?
Jenny: Yeah, Bobby Travis.
Security Guard: Do you know his address?
Jenny: 1199 Mockingbird Lane.
Physician: Mr. Security Guard, will you excuse us, please. You can ask her all this later
(Security Guard Leaves the examining room)
Physician: Jenny, did your attacker wear a condom?
Jenny: No
Physician: Have you previously had unprotected sex with your attacker?
Jenny: Why does that matter? He raped me now.
Physician: I’m just trying to determine if you might be at risk for an STD. It may help me
treat you.
Jenny: Bobby Travis raped me tonight, Doctor. That’s all I’m saying right now.
At the trial of Bobby Travis for the sexual assault of Jenny Jones, Jenny refuses to testify and the
judge can do nothing to change her mind. The prosecutor then seeks to introduce Jenny’s
statements at the hospital as evidence Bobby Travis is guilty of the sexual assault of Jenny.
Bobby Travis’s attorney objects. How should the Court rule?
a. Sustained; admission of any of Jenny’s statements would violate the rule against
hearsay
b. Overrule; the statements Jenny made to the security guard in the emergency room
lobby are admissible.
c. Sustained; admission of any of Jenny’s statements would violate the Confrontation
Clause
d. Overruled; all Jenny’s statements are admissible.
 The answer is b.
 Statements to the physician might be admissible but the trick part is
that it says ALL statements
 Remember after Bryant we are back to reliability
 Question) Hysterical Jenny Jones appears at the hospital, clothes torn, cuts on her face and
neck, tears streaming down her cheeks. She shrieks at a security guard in the ER lobby, “Oh,
please, help me! Bobby is still after me! He raped me and now is trying to kill me! Help me
please! The security guard rushes to Jenny and wraps his arms around her. “There, there,” he
says. No one’s after you. You’re safe now.” The security guard escorts Jenny to an examining
room, where a physician and nurse calm Jenny down and begin treating her. While standing
 behind a curtain in the examining room, the security guard asks Jenny questions from a pre-
printed form as she is being examined and treated.
Security Guard: Can you describe your attacker?
Jenny: He’s six feet tall, pale skin with freckles, red hair.
Security Guard: And you said his name was Bobby?
Jenny: Yea, Bobby Travis.
Security Guard: Do you know his address?
Jenny: 1199 Mockingbird Lane
Physician: Mr. Security Guard, will you excuse us, please. You can ask her all this later.
At the trial of Bobby Travis for the sexual assault of Jenny Jones, jenny refuses to testify and the
judge can do nothing to change her mind. The prosecutor then seeks to introduce Jenny’s
statements at the hospital as evidence Bobby Travis is guilty of the sexual assault of Jenny.
Bobby Travis’s attorney objects. How should the Court rule and why?
a. Sustained; admission of any of the statements would violate the rule against hearsay as
they do not fall within a recognized hearsay exception
b. Overruled; the statements Jenny made to the security guard in the emergency room
lobby are admissible and the answers Jenny gave in response to the physician’s
questions are admissible
c. Overruled; only the answers Jenny gave to the physician’s questions are admissible
d. Overruled; all Jenny’s statements are admissible.
 Answer b is correct. Statement to security guard would be admissible as excited
utterance, statement to the doctor would be statement for medical treatment

Character Evidence: disposition in respect to general traits

Purposes for Offer of Character Evidence
(1) to prove character where character itself is an ultimate issue in the case (civil only, and rare)
(2) to serve as circumstantial evidence of how a person likely acted (relevancy problems raised,
especially in criminal cases)
(3) to impeach the credibility of a witness

How to Prove Character

 evidence of specific acts (only allowed when character an ultimate issue in the case: rare)
 Opinion testimony (not allowed in Fla)
 testimony as to a person’s general reputation in the community (most common way)

Character Evidence ONLY in Civil Cases

 Evidence of a person’s character or character trait is not admissible to prove that on a particular
occasion the person acted in accordance with the character or trait
 evidence of specific acts (only allowed when character an ultimate issue in the case: rare)

Character Evidence in Criminal Cases

 in general, Prosecution cannot initiate
o defense starts it; prosecution cannot but get to rebut
 when Defendant initiates, does so through opinion and/or reputation testimony
  when Defendant testifies, he puts his credibility (not character) at issue and thus is subject to
impeachment ONLY
 5-A (p. 418)
o Don charged with assault and battery because of fight with Vince. Don pleads self-
defense. Prosecution calls Coach Jones who says Don is aggressive and has a temper.
Don objects that testimony is irrelevant and barred by the character evidence. Defense
calls Reverend Gram who says Don is gentle peaceful guy. Prosecutor objects that the
proffered testimony is irrelevant and barred by the character rule.
o RULE- Prosecution cannot initiate character in criminal case. Prosecution first motion
denied here. For second motion, judge would probably allow defense testimony and
then allow prosecution testimony to refute that.
 5-B (p. 419)
o In the trial above, Don calls Ernie offering his testimony that Vince is belligerent, fight
picking and aggressive.
o Testimony allowed under 404(a)(2)

Rebutting Defendant’s Character Evidence

 during cross-examination, FRE 405(a) allows prosecution
o to inquire if witness has heard or knows of specific acts of misconduct by defendant (but
cannot offer proof; must accept as is) (AS LONG AS RELEVANT)
o offer testimony of other witnesses as to defendant’s reputation or witnesses’ opinions
regarding that particular character trait of defendant
 5-D (p. 421)
o On cross can prosecutor ask
 Did you know he beat up his girlfriend? Can
 Did you know he embezzled? Cannot
 Did you know convicted of tax evasion? Cannot
 Did you know arrested for brawling after a football game? Can
o FRE 405(a) On cross examination, questions allowed into relevant specific instances of
conduct
o But under FRE 405(a) cannot bring outside evidence to refute the witness EXAM

Victims in Criminal Cases

 defendant may introduce evidence of victim’s character to prove defendant’s innocence (i.e., in
a claim of self-defense), but not in rape cases
 prosecution may rebut with evidence of victim’s good character
 5-C (p. 420)
o In Don’s trial, if the judge lets Ernie testify about the Vince character what kind of
testimony is that?
 Opinion or reputation testimony
 However, need a foundation beforehand. How do you know him?
 Ernie can testify to this as long as attorney can show that Ernie has
knowledge or that he knows him
 admissible if independently relevant (i.e., to rebut defense claim of suicide or self-defense)

Specific Acts of Misconduct (not rebuttal)

 inadmissible to show criminal character of defendant
 5-E (p. 425)
o Gretta is charged with shoplifting. Helen, security guard stopped her and found a blouse
and skirt that seemed new without any tags. Prosecutor offered as character evidence in
its case in chief:
 Helen: “I watched Gretta closely that day because I had learned by watching
video tapes that Gretta stole other clothing items from the department in
recent weeks.” Not admissible
 Also “Gretta had a reputation among security guards as a shoplifter of small
items from many departments, from electronics to home wares to cosmetics
and jewelry” Not admissible
 Prosecutor: “Gretta had been convicted of shoplifting at other stores four times
in the last five years” Not admissible - not even character and also prejudicial
o She is in for shoplifting not being a habitual shoplifter
o Inadmissible against 405(a) - this is a specific act presented by prosecution on direct
 admissible to show motive, intent, absence of mistake, identity (modus oprendi), Common plan,
opportunity, knowledge, or other relevant fact
o But Remember: FRE 403
 the court always has the option to exclude this type of evidence if the court
determines the danger of unfair prejudice outweighs the evidence’s probative
o Also notification is required

(1) Motive
 5-F (p. 429)
o Rhonda Smith sets up Ronald Moore by telling police he deals a large quantity of
cocaine so she arranges for undercover officer Hardy to buy cocaine from Moore. After
arranging a sale in Smith’s hotel room, Smith introduces both of them and then Moore
offers Hardy a small amount of hashish for $100, which Hardy buys. Moore then agrees
to sell Hardy the 4oz but then inspects the cash and decline because the money is too
rusty. Police intercept Moore and recover a small amount of cocaine. At trial, Moore
argues that he never planned to give the cocaine and was only going to take the money.
Prosecutor offers testimony by Smith who says Moore has numerous cocaine sells
during the 18 months they lived together.
o Admitted, under 404(b) to show absence of mistake, intent, and motive; defense
opened the door when said he was only trying to rip him off. If the defense never
opened the door, the prosecution could not give prior drug sales.

(2) Intent

(3) Absence of Mistake or Accident

(4) Identity—Signature Crime (modus operandi) on 3 or more occasions

 5-G (p. 431)
o Danzey and Gore charged with bank robbery. Witness saw assailants came in hunched
over. Another witness saw assailants in ski masks. Another witness saw them get into
white and brown car. As proof that Gore did it, government introduces his confession of
involvement in eight similar robberies where he wore ski masks and always runs away
hunched over and used stolen cars that were dark and light colors.
 Saying this is the way this criminal operates
  Another example this criminal on three different occasions vacuumed
and put thumb prints after murder
o It’s ok – if the criminal doesn’t like it, he can use another way

(5) Common Plan or Scheme—Preparation

 5-H (p. 432)
o Judge is indicted on 27 counts of accepting bribes. Every count is based on Hobbs Act,
which prohibits extortion affecting interstate commerce. The other count was based on
the Racketeer Influenced and Corrupt Organizations Act which prohibited operating an”
enterprise” in interstate commerce through a pattern of racketeering. Prosecutor offers
testimony from a former court employee who said judge received envelopes full of cash
on a monthly basis for the last 8 years, but could not link it to judge’s rulings. Prosecutor
also offers testimony from a local lawyer who paid the bribes to fix criminal cases. On
cross, defense asked lawyer to name just one of the cases and he could not.
 Admissible (ONLY FEDERAL CASES)
 RICO – running a criminal enterprise
 Not saying on 9 different occasions; but saying you are operating an
organization
 Another example is clinics milking MediCare

(6) Other (opportunity, knowledge, or other relevant fact)

 5-I (p. 434)
o Mother indicted for manslaughter after she brought her 3-year-old son into emergency
room because of head injuries, claimed he fell down the stairs, but doctors suspecting
abuse. Prosecution wants to show injury was not accidental so prosecutor offers
evidence of two incidents in the last year where he was brought to hospital.
 Admissible in general
 Also she is saying accident and that opens the door specially if children

Character Evidence in Sex-Offense Cases – FRE 412

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding
involving alleged sexual misconduct:
(1) Evidence offered to prove that a victim engaged in other sexual behavior; or
(2) Evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove
that someone other than the defendant was the source of semen, injury, or
other physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with respect to the
person accused of the sexual misconduct, if offered by the defendant to prove
consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
 5-K (p. 439) EXAM (defense wants to bring)
o After leaving a sorority party, Leslie goes home and tells her roommate that she met
someone named Fred whom she met last summer, gave her a ride home that night, and
raped her. Fred is charged with rape. Prosecution objects.
  At trial Fred claims Leslie consented and had sex during the previous summer -
Admissible under 412(b)(1)(B)
 Testimony by Greg that “Leslie is sexually very active- Inadmissible 412(a)(1)
 Testimony by Greg that Leslie known as easy mark” – Inadmissible 412(a)(2)
 Testimony by Thomas that he had sex with Leslie earlier in the same night –
might be admissible because under 412(b)(1)(A) there is a narrow exception to
refute physical evidence (e.g., semen) if the prosecutor decides to admit as
evidence
(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s
sexual behavior or sexual predisposition if its probative value substantially outweighs
the danger of harm to any victim and of unfair prejudice to any party. The court may
admit evidence of a victim’s reputation only if the victim has placed it in controversy.
 5-L (p. 442) EXAM
o Rita works with men and sues for sexual harassment. Her complaint alleges that she was
forced to endure unwanted sexual innuendo directed at her personally and that she had
to listen to stories about sexual encounters and that pornography occasionally appeared
in the lunchroom. Defendant offers at trial
 On Weekends Rita works occasionally as an exotic dancer in a local club -
Relevant but not admissible because prejudicial
 She sometimes works in a mini-skirt and tight blouse - Irrelevant and
Inadmissible because before work
 She told at least one sexually explicit story in the lunchroom that apparently
rested on some kind of personal experience - Admissible
 Rita made sexually suggestive remarks on several occasions to two of the men
on the line - Admissible under 412

What prosecutor can bring:

Similar crimes in sexual assault cases – FRE 413

 5-M (p. 444)
o This is a rape case. Defendant Craig claims Karin consented. Counsel for Craig gets Karin
to admit that at first, they were kissing and she was laughing but she denies helping take
off her skirt or anything. Prosecution calls Laura an ex of Craig to (1) testify that Craig
tried to rape her. The second evidence the prosecution tries to bring in is a (2) certified
copy of a judgment of conviction for sexual assault on a minor.
 First testimony will be admitted under 413; Laura’s incident mirrors Carren’s
incident – also remember there is a notification requirement
 Second evidence is inadmissible- Not similar under 413 victim and molestation
are very different
 Compare with FRE 415 in civil cases – can same

Habit and Routine Practice – FRE 406 (knowledge required)

 Court may admit this evidence regardless of whether it is corroborated or whether there was an
eyewitness
 Habit describes one’s regular response to a specific set of circumstances (“she always backs her
car out by sticking her head out the window and looking back”)
 Character describes one’s disposition in respect to general traits (“she’s always careful”)
 5-N (p. 448)
 o This is a case about a car collision between two cars (Teels and Finelys). The Teel estate
sues for wrongful death. Because the accident looked like it was both of their faults and
there was no direct proof, Teel wants to call witnesses Budge and Frese to testify that
Teel is a good careful driver.
 Classic case of character NOT habit; Being a careful driver is not a habit
 Habit e.g., every time you drive you don’t signal
 5-0 (p. 449)
o This case is about a fire that occurred in the house of Girard and Rollins. Rollins died and
Girard sues Rollins estate for lost possessions. Girard thinks Rollins smoked and fell
asleep. Autopsy showed that Rollins had .15-blood alcohol content. Girard wants to
testify that Rollins drinking and smoking behavior was consistent to the point that he
burned holes in the rug or scarred furniture at times.
 Admissible because this is a habit, a specific circumstance where he had been
drinking and smoking and would fall asleep and burn something. Admissible
especially because its civil; might turn out different if its criminal
 5-P (p. 451)
o This is a case about a man being charged with illegal entry after he was already
deported. The government must prove that he was served a warrant of deportation a
letter in his language warning him of penalties if he tried to re-enter. Government calls
INS agent who did not serve the defendant himself but explained the procedure of
service. INS agent never served anyone himself either he just knew the procedure from
what he has been told from detention officers and from knowing normal rules.
 The court should sustain the objection because INS agent never served himself
or saw it done. Not a habit for the INS agent here. He is not qualified either.
 You must have knowledge to testify of the habit or routine
 Bring in the server not the supervisor
o Can also bring someone who trains the server

Competency of witness (PMCOK)

 FRE 601: Every person is competent to be a witness unless these rules provide otherwise
 To Testify, a Witness Must Have (trial judge determines)

(1) Ability to observe—perception

(2) Ability to remember—memory

 Rock v. Arkansas
 The petitioner, Rock (the “petitioner”), was charged with manslaughter for shooting her
husband, and sought to introduce her own testimony that had been refreshed by hypnosis. An
expert witness corroborated the petitioner’s refreshed testimony that the gun was defective.
 Ruling: Precluding post-hypnosis testimony without a determination of whether testimony is
reliable, violates defense’s right (EXAM)
 Traditional means of assessing information--such as cross-examination--are effective tools for
revealing inconsistencies. A state’s legitimate interest in barring unreliable evidence does not
extend to per se exclusions that may be unreliable in the individual case.
 (3) Ability to relate—communication

(4) Appreciation of the oath (any type) of obligation (very important)

(5) Personal knowledge

Exception (experts)
 6-F (p. 497)
o Defendant Brown is charged with fraudulent income tax returns on behalf of his client.
Government calls IRS agent who audited 160 returns prepared by defendant and 90-
95% were overstated. She bases her conclusion on information she received from the
tax payers for whom the returns were prepared.
o If she qualifies to testify as an exper,t she doesn’t need personal knowledge

(6) Actually take the oath to testify truthfully

 United States v. Fowler
 Fowler, Appellant, was convicted of failure to file tax returns for the years 1971-1975. He had
not filed a tax return since 1953. He represented himself at trial and appealed the conviction
because the trial court did not let him testify because he would not swear or affirm to tell the
truth.
 FRE 603: before testifying witness must give an oath or affirmation to testify truthfully

No Disqualification for
(1) Lack of religious belief

(2) Infancy
 Ricketts v. Delaware
 Darrell Ricketts, Defendant, was convicted of raping the five-year old daughter of the woman he
was dating. The victim was able to testify at trial using dolls and drawings.
 The Court notes that the presumption that witnesses are presumed competent to testify is not
different when a child witness is involved. The victim demonstrated that she knew the
difference between the truth and lie and she testified that she promised to tell the truth. Thus,
this was sufficient to establish competency to testify

(3) Insanity
 Terrance McKinley, an inmate in Virginia, was stabbed during an assault in his cell. Fellow
inmates Randy Lightly, Defendant, and Clifton McDuffie were investigated. Defendant was the
only one formally charged. McDuffie was found incompetent to stand trial by a court appointed
psychiatrist. Defendant was convicted of assault with intent to commit murder and sentenced to
ten years in prison. Defendant claimed that he observed McKinley and McDuffie fighting and he
tried to stop it. He was corroborated by three other inmates. Defendant sought McDuffie’s
testimony but the court ruled that he was incompetent to testify.
 Court held goes to the weight of evidence not admissibility
o Admissible because he is competent as witness
o Very liberal standard
 (4) Conviction of crime

(5) Interest

BUT—neither judges nor jurors may testify

At the trial: FRE 606(a)
 A juror may not testify as a witness before the other jurors.
 6-A (p. 490)
o Jurors given instructions not to read newspapers or discuss the case with anyone which
one juror does. Judge also hears that a juror talked to defendant associate maybe for a
bribe.
o Question the juror first in judge’s chambers. 606(a) does not bar judge from asking
questions from one juror in the absence of others during trial

Post-verdict: FRE 606(b)(1) cannot testify unless (2)

 6-B (p. 495)
o After conviction of the defendant judge receives a letter from a juror, expressing
concern that jury violated the judge’s instructions because it considered the defendants
refusal to take the stand as a sign of guilt.
o 606(b)(1) excludes testimony evidence that juror misunderstood. Neither the letter nor
testimony will be considered

(A) Extraneous prejudicial information was improperly brought to the jury’s attention
 Tanner v. U.S.
 After the verdict the losing party is trying to question the jury
 testimony by jurors regarding alcohol/drugs is an “internal” matter and barred by FRE 606(b)
 alcohol/drug use no more an outside influence on jurors than a virus, lack of sleep, or bad food
 6-E
o Defendant Jones is convicted of detonating an explosive device in a public building. One
juror is willing to testify that someone told the jury that the bomb the defendant had
used was powerful enough to kill anyone within 20 ft. because that juror was an a
demolition expert in the army
o Under 606(b)(2)(A) (Extraneous prejudicial information was improperly brought to the
jury’s attention) this would be allowed.
o If you’re a “highly specialized expert” at something that’s not common sense. (too much
expertise)
o Compare
 I was trained by US army
 When I was a kid people used these knives
o Also, doesn’t matter if it wasn’t resolved in voir dire

(B) An outside influence was improperly brought to bear on any juror

(C) A mistake was made in entering the verdict on the verdict form
 6-C
o This was a malpractice suit, jury returns a verdict of negligence for the defendant and
miscalculated the verdict ($890k instead of $90k)
 o Jury miscalculation is inadmissible; not covered under 606(b)(2)(C) exception (A mistake
was made in entering the verdict on the verdict form)
 If they said we came up with 90 but accidentally wrote 890, then it’s covered
under the exception
o So instead of seeking juror testimony you alternatively argue the verdict is not
supported by any record evidence

Defendant not deprived of Sixth Amendment right to trial by competent jury because other
methods to protect that right still exist (EXAM):

(1) The suitability of an individual for the responsibility of jury service is examined during
voir dire

(2) During the trial the jury is observable by the court, by counsel, and by court personnel

(3) Jurors are observable by each other, and may report inappropriate juror behavior to
the court before they render a verdict

(4) After the trial a party may seek to impeach the verdict by non-juror evidence of
misconduct
 6-D (p. 496)
o This is about an automobile accident case. After trial counsel for defendant receives
information that two jurors went to the accident scene one evening during the period of
deliberations on a fact finding mission.
o Would allow questions under 606(b)(2)(A) (Extraneous prejudicial information was
improperly brought to the jury’s attention)
 Not under (2)(B) (An outside influence was improperly brought to bear on any
juror)
 Because it’s not “we have your son

Examination of Witnesses
The rule: either judge or party requests
 7-A (p. 515)
o Plaintiff Excel is suing defendant Mentor for patent infringement. Plaintiff obtains a
court order excluding all witnesses. Just before defense calls Novick (expert witness for
defense) to testify, plaintiff learns that counsel for Mentor purchased daily transcripts of
the trial and Novick might have been prepared by defense according to those
transcripts. Defense says no.
o FRE 615 or “the Rule”: after a party’s request, the court must order witnesses excluded
so that they cannot hear other witnesses’ testimony
o Here we have the word of the counsel saying she did not share the info with expert;
therefore no concern (low threshold)
 7-B (p. 519)
 o Defendant Salmon is charged with murder of his wife. Defendant asked the court to
exclude the victim’s daughters from the courtroom. Daughters not excluded, Salmon
convicted.
o FRE 615(d) exception of person authorized by statute to be present
 Here victims are authorized.
 Statutes usually include children or parents

Direct
Questions calling for a “yes” or “no ” answer are leading and not permitted on direct
examination unless:

(1) Preliminary/introductory matter

(2) Witness needs aid (memory loss, etc.)

(3) Hostile witness, adverse party, or person identified with an adverse party

Cross-examination
(i) Critical in testing perception/memory

(ii) Error to deny proper opportunity to cross

In criminal cases,
o no showing of prejudice required; reversal in favor of defendant almost automatic

In civil cases,
o denial of proper cross-examination not automatic reversal but scrutinized

(iii) Refreshing Recollection (present recollection) vs. past recollection recorded

 if witness does not remember, anything may be used to refresh recollection: but it may not be
introduced into evidence by that party (opposing party may introduce it into evidence)
 Baker v. State
 The defendant was convicted of murder and burglary. The defendant appealed based on an
evidentiary ruling at trial in which the trial justice refused to allow the key prosecution witness
(a police officer) to refresh his recollection with a police report prepared by other officers, and in
which his name was mentioned.
 A document or other piece of evidence does not have to be prepared by the witness, or pass any
other test of reliability when it is being used solely to refresh recollection.
 More demanding standard is only required when the evidence in question is sought to be
admitted as past recollection recorded (hearsay)
 You can refresh w/ anything!

Not evidence, but opposing party can see it and admit it as evidence.
 Testimony comes from recollection not the evidence
Improper Questions
(1) Misleading/Compound

(2) Argumentative

(3) Conclusionary

(4) Assuming Facts Not in Evidence

(5) Cumulative

(6) Harassing/Embarrassing

Impeachment (attack credibility) of Witnesses

General Rules
(1) No bolstering of credibility until it’s attacked

Exceptions:

(a) Evidence of a timely complaint

o E.g., Date Rape case, Mary reporting it the next day

(b) Prior statement of identification

o E.g., Isn’t it true Mary when you went to campus police you went through Facebook and
pointed out the defendant

(2) Any party may impeach (party may impeach own witness)

Methods to Impeach
(1) Interest, Bias or Hostility (ex-gf in divorce trial)
 Can introduce extrinsic evidence to prove bias
 Best Way to impeach (wide attitude v. narrow for truthfulness)
o Clip: going into the history of family and childhood - dad left
 United States v. Abel
 Impeach for bias – members of Arian group in prison
o But not for truthfulness
o Just because evidence shows untruthfulness it doesn’t mean that we can impeach based
on truthfulness
 United States v. Manske
 Criminal defendants get the most protection
 Manske was prevented from crossing witness (b)
 8-A (p. 530)
 o Product liability suit, Plaintiff wants to question defense expert witness about how much
he was paid in the past from Defense.
o Sustained, because it is to show bias

(2) Sensory Deficiencies

 “You couldn’t see or hear” Clip example of old lady in court room with thick glasses lol

(3) Opinion/Reputation Evidence of Truthfulness

 FRE 608 (truthfulness – asking witness b to testify against witness a)
(a) Only after it’s been attacked
(b) You cannot use extrinsic evidence to prove truthfulness
 have to accept the answer you get
 There are no “truth experts” (e.g., lie to me)
o That is why we need to set a foundation for each witness (e.g., how do you know? Do
you live nearby . . . )

(4) Conviction of a Crime (witness vs. defendant)

 FRE 609 allows extrinsic evidence
 Attacking a witness’s character for truthfulness by evidence of a criminal conviction

(a) For a felony

o FRE 403 (substantial) applies when anyone except for CRIMINAL defendant
 If CRIMINAL defendant then admitted if probative outweighs prejudicial (NOT
substantial)
 Factors in Probative vs. Prejudicial Analysis:
 nature of the prior crime
 recency/remoteness of the crime
 degree of similarity
 nature of full criminal record (age, situation)
 importance of Δ’s testimony in prior case
 importance of Δ’s testimony in present case
 conviction or guilty plea in prior case
 importance of credibility issues in present case
 United States v. Lipscomb (EXAM)
 If it is a criminal defendant as a witness, he puts his credibility at issue and is
allowed to be attacked.
 Court may hold hearing probative v. prejudice of presenting conviction.
 The prosecution has the burden of proving “probative of x”
 8-B (p. 552)
 Someone robs a bank. Star witness, Elmo, says that Defendant Dennet
admitted to the robbery to him. Dennet said he was with Farr who
corroborates his story. Dennet, Elmo, and Farr each have a prior
conviction for bank robbery arising out of independent incidents
occurring within the last 5 years.
 Defense wins all three of these
(A) Dennet’s prior conviction- prejudicial value is greater than
probative 609(a)(1) (SPILL OVER EFFECT – same crime)
 (B) Elmo conviction (prosecution witness)- admissible under 609(a)
(1)
(C) Farr’s conviction (defense witness)- prejudicial value (SPILL
OVER EFFECT – friends with defendant)

(b) For a other crimes (misdemeanor)

o Admitted if shows dishonest act or false statement
o 8C (p. 555) Spill over always applies even to misdemeanors
 Criminal case against Dewald for embezzlement
 #1 → Picket testifying for prosecutor that she saw envelopes of cash coming in
 Her misdemeanor conviction of displaying handicap symbol in a parking
lot is coming in because an element of the crime required proof or
admission of an act of dishonesty or false statement by a witness.
 #2 → Picket
 Her shoplifting misdemeanor conviction does not come in because FRE
does not consider shoplifting to be a crime of dishonesty or falsity so it
is not coming in.
 #3 → Dewald taking the stand
 His felony conviction of Forgery (felony) comes in because not
prejudicial
 It is within 10 years.
 #4 → Dewald
 It was petty theft, but involved tampering with an electrical meter.
 It is coming in because the tampering shows an act of dishonesty,
similar to putting a handicapped sticker in your car
o In federal system if the facts show dishonesty then it comes in
unless shoplifting
o Luce v. United States
o Prior to trial defendant told attorney that he wants to take the stand
o After denial of motion in limine regarding prosecutor can’t ask about prior convictions
defendant chose not to take the stand
o Court said can only appeal if defendant takes stand and cross examined with that
conviction

(5) Bad Acts—Specific Instances of Misconduct re: truthfulness (not admissible in

Florida)
 No extrinsic evidence
 On cross, can inquire about prior bad acts that indicate lack of truthfulness
 8-D (p. 558)
o If there is a conviction then FRE 609
 Cannot use the facts underlying the conviction based on because 609 was
specifically designed for convictions

(6) Prior Inconsistent Statements

 FRE 613(b)
 Extrinsic evidence of a witness’s prior inconsistent statements is admissible only if the witness is
given an opportunity to explain or deny the statement and an adverse party is given an
opportunity to examine the witness (before or after his testimony)
 8-E (p. 567)
o Counsel cross examined Welch but did not ask whether he made any prior statements.
Then counsel calls Murphy, the police officer who investigated the incident and got a
statement from Welch
o Because at that time Welch was gone then cannot use the prior inconsistent statement
o There is obligation to cross with specific questions, but does not have to be detailed
“are you sure you didn’t tell anyone otherwise?” is ok v. “are you sure you didn’t’ tell
police officer x?”
 United States v. Webster
 Prosecutor’s witness was a turn coat
 Any party can impeach
o But cannot put a witness just to impeach and admit evidence in
 Here the court was satisfied that the prosecutor did not have bad faith
 Note 5 (p. 572) (EXAM)
o Good faith principle: if witness offered corroborating testimony for several points of the
prosecutor and then had to be impeached for some inconsistencies then that’s fine.

Limitations
 Harris v. New York
 Miranda case holding: statements by defendants, made during custodial interrogation, are
excludable from trial under the Fifth Amendment
o Exception – if you walk in off the street (i.e., if you are not a suspect)
 Harris modified this holding: such statements are admissible to impeach the defendant at trial
when the defendant testifies to a contrary version of the events
 Also, statements gathered from defendant by law enforcement officers after defendant is
represented by counsel are excludable from trial under the Sixth Amendment
o But, such statements are admissible to impeach the defendant at trial when he testifies
to a contrary version of the events
 Jenkins v. Anderson (EXAM)
 Killed somebody then after two days went to his probation officer, not the cops
 Claimed self-defense
 Took the stand at trial
o Prosecution:
 Why did you stay silent for a long time
 Why did you not go to the police
 Holding: this is not the silence protected by the Constitution
o This is inaction
 Fifth Amendment only protects silence where the accused is pressured to speak
 United States v. Havens
 Two attorneys brought cocaine to U.S.
 Shirt was seized illegally from the suitcase of Havens because the other attorney told the law
enforcement that Havens was involved when he got caught
 Havens took the stand
o Tell the truth or face the consequences
 o Evidence seized in violation of the Fourth Amendment “Search and Seizure” is
excludable from trial
 But such evidence is admissible to contradict the defendant at trial when he
testifies to a version of events that is contradicted by the illegally seized
evidence
o Evidence then can be used for impeachment NOT substantive
o Depends on the question and how it is answered

Contradictions are allowed

 Extrinsic evidence allowed for major points
o but not for collateral matters
o 8-F (p. 588)
 Charged with robbery in Seattle on July 14 at 7 am
 Defendant’s witness (owner of restaurant in Portland) said defendant is a
regular customer and he was there on the 14 th for the evening
 He said he was there every day during weeks prior to the 14 th
 Prosecutor’s witnesses
 Detective Kinney of Seattle said defendant was in Seattle in June 27 th
and that defendant was in Seattle for days prior to 27 th
 Samuel a waiter in the restaurant who says he never saw defendant
during the period his boss says
o These are witnesses to impeach the restaurant owner
o Detective is not relevant because it does not really contradicts
“weeks prior”
o Waiter can testify but only to the 14 th
 8-G (p. 595)
o Charged with selling narcotics, he testifies in direct that he did not commit the offense
because he was elsewhere
o On cross he is asked have you ever sold narcotics?
 Improper impeach or improper character evidence
 Irrelevant or prejudicial
 You can do this though: 608(b) example “asking witness b, isn’t it true that
defendant was fired because of embezzlement”

Repairing credibility
Evidence of good character
o United States v. Medical Therapy
o Prosecutor brought up the witness’s prior embezzlement conviction on direct
o Defense used sharp questions again regarding the conviction
o Prosecutor rehabilitated
o Defense objected
o The court said because defense asked sharp question on cross then prosecutor can
rehabilitate

Prior consistent statements

o 8-H (p. 609) not on exam
  Two women went to bathroom and once back one handed the drugs to the
undercover agent
 He sought to charge both
 One that didn’t hand the drug pleaded guilty. At the trial for the other when
cross brought in question of motive of the agent to hit two birds with one stone,
the prosecutor sought to repair by a tape which the agent described the
defendant as the one who gave him the drugs
 Rehabilitation v. 801(d)(1)(B)
 You don’t need charge of fabrication in rehabilitation
 As long as it is relevant you can repair credibility

Opinion and Expert Testimony

Lay Witness FRE 701 (personal knowledge)
 If not an expert opinion then limited to one that is

(i) Rationally based on the witness’s perception

(ii) Helpful to clearly understanding the witness’s testimony or to determining a fact in

issue
 Not based on scientific, technical, or other specialized knowledge within the scope of expert
witness
 9-A (p. 616)
o Trial of Cox for unlawful detonation of explosives. On direct, his girlfriend testified that
he told her twice that he knows who bombed the cars and that the person does it for
$50. She said it was her understanding that he was involved
o Objection sustained that the testimony is opinion and speculations and nothing she says
can be helpful in understanding the facts at issue
 she cannot give her impression: “improper lay opinion testimony”
 need less speculation and more facts
 9-B
o Neighbor (Hanson) watched the accident as it happened. Defendant Davis collided with
Pinkston, seriously injuring her daughter Amy in the right front seat
o Direct
 She was backing out and he plowed right into her right side of the car? Yes
 I would guess defendant was him? No
 He was going 35mil/hr.? Yes
 He was going 35 and speed limit is 20 and? Yes, but cannot say going 80 in 60
zone
 Smell of pot? No, unless familiar with it
 Guilty look on his face? Yes
 Like he was afraid of losing license or getting sued? No
 Upset about her little girl? Yes
 Injuries were broken back and dislocated shoulder? No
 Car totaled and damages were approximately $5k? No
o Cross
  He did all he could to avoid? Yes
 Most careful driver or a perfect driver could not avoid? No speculation

Expert Witness (personal knowledge sometimes not necessary)

 Expert’s opinion may embrace the ultimate issue in the case
o Exception: FRE 704(b) prohibits expert testimony regarding whether the accused in a
criminal case had the requisite mental state at issue
 9-E (p. 670)
o Donald charged with first degree murder of Kim
o Prosecutor wants to offer evidence of a match between DNA isolated from semen found
on the clothing and body of Kim and DNA isolated from Donald’s blood sample. Calls Dr.
Mullens from Lifemark that would say that we found a match. DNA did not match Kim’s
husband and only 1 in 187000 Hispanic person would produce such a match
o Defense objections
 The theory behind DNA is new and untested? Over-ruled, Moore
 How do we know what Lifemark does is reliable? Over-ruled, goes to the weight
 Prosecutor did not produce all the records of this test with competent
testimony by the chemists who did the work and how do we know they mixed
the samples? Over-ruled, protocol and goes to the weight
 There are problems with the stats? Over-ruled, as long as match and a stat
 The statistics sample focuses only on the Hispanic population and it must be a
comparison of all sub-groups? Sustained, need a full picture
 Prejudicial and misleading? Over-ruled, statistics
 But can’t assign a probability of guilt
o E.g., there is 1 in 1 mil chance that someone other than P did it
o But you can say 1 in 1 mil chance that it came from P

(I) Subject matter appropriate for expert testimony (helps understand it better)

(II) Witness qualified as an expert

 EXAM cannot go further than your expertise

(III) Reasonable probability of the opinion required

Daubert (based on reliable principles) (TEPSS)

 Trial judge must assess reason/methodology (do not need all the factors but memorize verbatim
all for the EXAM):

(1) Can theory/technique be tested (E.g., Cheating expert)

(2) Theory/technique subject to peer review (E.g., Cheaters quarterly journal)

(3) Rate of error of theory/technique

(4) Standards controlling operation of technique (E.g., is it just for cheating in evidence)

(5) Test/technique generally accepted in scientific community

 Kumho Tire
  Extends Daubert to all products liability design defect cases - Daubert’s reliability requirement
applies to non-scientific expertise, too. Broadens the application to all cases
 Kumho Tire moves away from global assessment of reliability to case-specific assessment of
reliability of the expert’s analysis given the available data
 9-D (p. 663) EXAM
o Charged with sexual assault of his 14 year old daughter
o Defense attacked daughter for lying on several occasions and retrieving her previous
statement
o Prosecutor brings an expert witness for sexually abused children syndrome
o Defense objects and says prosecutor should ask specific questions
o Expert testimony is allowed because the defense opened the door by attacking and
defense can use witness if Daubert conditions are met (remember rehabilitation)
 You have to tie the syndrome to the victim
 State v. Moore
 DNA expert testimony satisfies Daubert
 DNA should be presented with statistics
 Problems of lab protocol and integrity go to the weight of the evidence

(IV) Opinion supported by proper factual basis

(1) Personal observation

(2) Facts made known to expert at trial

(3) Facts made known to expert outside court

o Similarity with Judicial Notice – They both can rely on otherwise inadmissible evidence
including double/triple/quadruple hearsay
 But an Expert cannot disclose the inadmissible evidence in the court; only her
opinion and NOT the basis (cannot be the microphone or conduit of
inadmissible evidence)
 But then attorneys can attack and that opens the door
 9-C (p. 624)
 Defendant’s expert witness is testifying that she consulted with eleven
colleagues in urology department and they all see it the same way that I
do
 It is hearsay because although she can rely on the otherwise
inadmissible testimony, she cannot explain the basis

Privileges (to encourage openness)

Evidentiary standpoint vs. ethical standpoint (PR)
Judge determines whether privilege applies

(1) Attorney-Client
 Confidential communications between client and attorney (includes all personnel assisting
attorney plus his experts and investigators) made during professional legal consultation are
privileged from disclosure unless waived by the client or pierced by judge
 12-A (p. 759)
 o Dr. McNary is convicted of slaying his wife and two children.
o The night after his death sentence his lawyer (Ashbrooke) receives a call from another
attorney (Barton)
o Barton is Gallo’s court appointed attorney charged with robbery.
o Gallo told Barton that he didn’t commit robbery of liquor store and was actually
committing burglary and murder at McNary’s
o If Ashbrooke asks for a new trial for his client on the basis of new evidence the judge can
pierce the Gallo’s privilege
 804(b)(3) statement against interest
 Client is protected by an interlocutory appeal
 12-B (p. 761)
o Government asks attorney before a grand jury whether he told client the time and place
of the trial and attorney declined saying privileged communication
o It has to be confidential
o Here it is administrative communication and is not covered
 Client must intend to establish professional legal relationship
 12-C (p.763)
o Client arrived late to a meeting with attorney. Said he was drinking and lost track of
time. Attorney ended the meeting early because of the client’s belligerence. Client
insisted on driving. He hit another car on the way
o Attorney can testify to what client said and his condition because his communication
was not confidential and his condition was not a communication

Work-product is included
o When we write or think about a case whether written or not
 Physical evidence and pre-existing documents are not privileged
 People v. Meredith
 Defendant killed someone and stole wallet and threw it behind his house
 Investigator hired by his attorney found it
 Cannot control, move, or conceal evidence or cause to control, move, or conceal evidence
o If you remove or alter evidence, privilege does not bar questions about the original
location or condition of evidence
o If you leave the evidence where discovered, his observations derived from privileged
communications are insulated from questioning
 In re Osterhoudt
 The government issued a grand jury subpoena to Appellant’s attorney, who had represented
Appellant. The subpoena was issued in connection with the government’s investigation of
Appellant’s involvement with possible income tax and controlled substance violations.
 The subpoena sought information regarding the amount, form, and date of Appellant’s payment
to his attorney of legal fees.
 If the knowledge of payment will help identify the identity then privileged per Baird
o In Baird anonymous client who changed his name and residence paid his previous
name’s overdue taxes via his lawyer
o He was wanted by police
o Privilege covers because disclosing his identity by attorney is sufficient for conviction
 Here identity is already known so no privilege
 12-E (p. 804)
 o Obligation to say no after a court order? No
o Remedy for client? Interlocutory appeal
 Survives death of client

Exceptions:

(1) Future crimes/fraud

(2) If client & attorney litigate vs. each other

(3) It is a shield, not a sword (if client asserts legal advice from attorney as a defense, no
priv.)

(4) No privilege among group clients against each other, but privilege against outsiders
 12-D (p. 772)
o Samuel and Thomas consult with lawyer (Ullman) and form a partnership to import
computer chips from Asia
o Samuel has contacts overseas
o Thomas knows about the customs and provides most of the money
 The government brings charges against partnership for conspiracy to violate
customs and import tariffs. Thomas stays with Ullman and Samuel retains
Wilson. Samuel wants to testify about what Thomas said. Ullmans raises
privilege objection on behalf of Thomas? Yes, privilege applies in joint counsel or
joint defense counsel
 In a civil suit, a dissatisfied customer deposes Ullman and he raises the privilege
on behalf of the clients? Yes, privilege applies because talking in general about
legal aspects of the representation. In preparing defense anything is covered by
privilege
 Samuel retains a lawyer and files suit against Thomas. Samuel wants to take a
stand and talk about what Thomas said. Ullman raises privilege for Thomas? No
privilege because partners against each other.

Waiver
 The privilege belongs to the client, not the attorney. If client waives, attorney must disclose.
o Facts v. strategy
 Can tell I talked to my lawyer about [a fact] but cannot be forced to talk strategy
unless waives or chooses to talk about strategy (even a little bit)
 If waived to chooses to talk (intentional disclosure), then either client or
lawyer has to talk about everything

Inadvertent disclosure
 12-F (p. 802) EXAM
o Plaintiff went through all electronic documents with a help of a program and disclosed
the documents but was notified that 82 were privileged
 First: producing party shows at least minimal compliance with FRE 502(b) three
factors (IRR)

(1) Disclosure was inadvertent

(2) Holder of the privilege took reasonable steps to prevent disclosure

(3) Holder of the privilege took reasonable steps to rectify the error FRCP 26(b)(5)
 Plaintiff met these three

Second: if met, then five factors to consider for inadvertent (RNERJ)

(1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of
the extent of the document production

(2) The number of inadvertent disclosures

(3) The extent of disclosure

(4) Any delay and measures taken to rectify the disclosure

(5) Whether the overriding interests of justice would or would not be served by releiving the
party of its errors
o Plaintiff met only the last one, but the last one is the most important
o Ruled in favor of plaintiff because of prejudicial effect of inadvertent disclosure

(2) Physician/Psychotherapist-Patient
 Key issue: Whether the patient reasonably believes what he is saying is to secure relationship or
under relationship
o If in front of third-party then not reasonable
 But if police is there then not waived
 Patient has privilege against disclosure of confidential information acquired by
physician/psychotherapist as part of the professional relationship entered into for treatment
(must be a treating physician or psychotherapist)
o Also for the poor: licensed clinical social worker, mental health counselor, ambulance,
and staff of all eligible professions
o Does not matter if you paid or not
o But not high school counselors

Exceptions:

(1) Patient puts condition at issue

(2) In aid of wrongdoing

(3) Dispute between physician & patient

(4) Agreement to waive privilege

 (5) Some criminal proceedings

(3) Spousal
 Must have valid marriage
 The privileges do not apply to disputes within the family (e.g., incest, child abuse, etc.)
 Types:

(1) One-way: Spousal testimony (protects spouse from being compelled to testify against
other spouse in criminal cases)
o Testify not to what the spouse said but to what you saw
o Does not survive death or divorce
o Trammel v. United States
o Testifying spouse owns the privilege
o Prosecutor loves this because they can cut a deal and encourage
o As long as the testimony is voluntarily the privilege does not trump
o 12-G (p. 825)
 Babysitter is testifying to what wife told her happened when she was with
husband driving and they hit someone
 Wife is unavailable because of privilege 804(b)(3) statement against interest
 Third-party - Privilege does not trump because this is spousal testimony
privilege (it trumps only if confidential communications)

(2) Two-way: Confidential communications (either spouse may refuse to disclose—

applies in both criminal & civil cases)
o Survives death or divorce
o United States v. Montgomery
o Wife left him a letter on the kitchen counter stating that Mary was stealing and running
a “dishonest operation” that was cheating its customers.
o This is confidential information
 Letter, email, texts are confidential as long as they are intended for the other
spouse to read

(4) Self-Incrimination (it is about going to jail)

 As long as there is a chance of (reasonable possibility that) a criminal proceeding this privilege
exists
 But let’s say someone is already convicted and now there is a civil for the same action then no
privilege
 If you are compelled then you can raise self-incrimination privilege if there is chance of going to
jail (impermissible coercion)
o Finger-printing after trial is not incriminating
o Leaving name and number on a car is not incriminating
 12-H (p. 835)
o Refused to take a breathalyzer test at the station
o The penalty was suspension of license for 90 days according to statute
o This is not compelled; therefore, statute does not violate his privilege
o Also not going to jail
 Griffin v. California
 Judge’s instructions about not taking the stand
o “you MAY hold against criminal defendant”
o Violates the privilege
 But then criminal defendant can always open the door
 E.g., if criminal defendant’s lawyer at the closing argument said, “you
did not hear the whole story.” Then judge can instruct that jury may
consider his not taking the stand.
 12-I (p. 841)
o City sued its contractor collecting meter money saying they lost most of the money
o City used the supervisor’s decline to answer questions raising the 5 th amendment
o You can ask defendant in Civil case knowing that it will lead to him raising the 5th amend
o But you cannot do it in Criminal case against a Criminal defendant
 12-J (p. 842)
o FBI raided a house on a warrant and seized a diary that inculpates the defendant as a
ringleader and other accomplices
o Defendant raises the privilege
o Writing a diary is not compelled therefor not covered
o 801(d)(2)(A) admission because it was legally seized

(5) Clergy-Penitent
 Same as psychotherapy