Evidence Outline (mine)

Introduction: 606 - 2
Relevance
Basics: 401, 402, 104b, 403:
Evidence of flight, Probability: 403 see above
Stipulations: 407
Specialize Relevance:
Subsequent Remedies: 407
Compromise Offers, Medical Expenses: 408, 409
Liability Insurance, Pleas: 410, 411
Character Evidence:
Propensity: 404
Routes around the box: 404
Huddleston and Propensity in Sexual Assault: 413, 414, 415
D & Vic character: 404a1-2, 405
Habit, truthfulness: 406, 404a3, 608
Truthfulness: 609
Rape Shield Laws
412
Hearsay:
Intro: 412, 081a-c, 802
Exceptions
o Admissions by party opponent: 081d2, 104a
o Past statements: 613, 81d1
o Declarant Unavailable: 804a, 804b1, 804b3, 804b2, 806, 804b6
o Availability of Declarant Immaterial: 803(1-5), 612
o Business and Other records: 803(6), 803(7), 803(8), 803(10)
o Residual Exception: 807
Confrontation Clause: 6th Amend
Bruton Doctrine: 6th amend
Compulsory Process: 6th amend
Lay and Expert Opinion: 701, 702
Expert: 702, 703
Polygraphs: 702, 703
Nonscientific Experts: 702, 703
Authentication and Best Evidence Rule: 901, 902, 1001-1004
Privileges
Professional (non-attorney): 501
Familial: proposed rules

Introduction
606 Tanner v. United States
Jury was drunk/high. Defendant in original case wanted the jury thrown own.
Convicted of mail fraud.
o A juror came up and told Ds attorney about the issue
o Says he is entitled to a fair impartial jury. 6 th amend.
Claims this violates his 6th amend.
o Wants a new trial, or hearing to see if the jury was competent.
Rules of evidence bar the testimony of jury.
o 606b testimony, aff, etc can only be admitted in certain circumstances.
Internal v. external conflict.
o If the evidence were admittable, its certain that there would be a new
trial, but you cant get the evidence in.
What does 606 bar?
o Anything that someone says in the room.
o Comments on mental state of other jury members
o Basically
The jurors cannot testify about himself, or other in the room
No affidavit, and you cant just tell someone else
Exception
o Extraneous prejudicial information
o whether any outside influence was improperly brought to bear upon any
juror
outside v. inside influence
outside: bribe, contact w/ witnesses, newspapers, mistake
Inside: mistake entering verdict on form
Court said:
o drinking too much is voluntary, not an outside influence. Outside the jury
room like deliberations. Not saying this is allowed, or that he got a fair
trial, just that they are not going to attack the verdict on this grounds.
Other remedies.
Could have spoken up in trial.
Voir dire
No juror evidence the waiter at the restaurant etc.
Justification for 606
o Limits harassment of jurors, finality, legitimacy, fairness cant be asked
about it
Relevant Basics
Rule 401. Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact t

of consequence to the determination of the action more probable or less probable than it woul
without the evidence.
Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the Un
States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court
pursuant to statutory authority. Evidence which is not relevant is not admissible.

FRE 401
2 elements
o probative (more or less probable)
o materiality (is it of consequence to the trial)
Fairly relaxed, liberal rule
402
If its relevant it can come in, unless there is a reason why not.
P. 21 Problems
Q1: Show me the body. She knows the body is missing, so the D told her its
missing, more likely he killed the guy. Makes it more likely believable that he
killed the person.
Q2: cell mate says the witness was going to lie on stand. Prosecution, wants to
ask if they are both in the gang that swears to lie for each other. Makes it likely
that he is a liar, and wont be able to impeach the other witness.
Q3: Polygraphs: trial excludes testimony about polygraph. The person testified
that he is happy to take the test. Did he think the test was going to be shown,
reliable, was it attorney client privileged?
Q4 arrested for holding a firearm while felon. Claims didnt know she was
punishable for over 1 yr. No mental state requirement of being a felon or
knowing it exists. This is irrelevant now.
Q5 drunk or high, voluntary intoxication is not admissible so therefore not
relevant.
Q6 officer thought the case concealed a gun. Is his testimony relevant that he
thought it was a gun. No gun. Still relevant to cops mental state. Was the fact
that there is no gun relevant? Reasonable fear is standard. Dont have to
actually be in danger, just believe they are. If there was just cash, not likely he
aimed his case at the officer like a gun.
US v. James
Facts: Accessory to manslaughter. Mom handed gun to daughter who killed her
bf. In the past the bf had robbed people and other violent crimes.

Ds arg: Mom testifies that her daughter needed the gun for self defense. She
wants to put in evidence that he got convicted of the crimes he told her about.
Holding: Trial court said that you cant prove them because you didnt know.
Second court says yes its ok. Adds to her creditability if you can show that her
claims are true.

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste

of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Rule 104. Preliminary Questions

(a) Questions of admissibility generally.
Preliminary questions concerning the qualification of a person to be a witness, the existence
of a privilege, or the admissibility of evidence shall be determined by the court, subject to
the provisions of subdivision (b). In making its determination it is not bound by the rules of
evidence except those with respect to privileges.
b) Relevancy conditioned on fact.

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the
court shall admit it upon, or subject to, the introduction of evidence sufficient to support
a finding of the fulfillment of the condition.

Must show B before you put up A.

Fitzhugh
o Facts: guy kills his wife because she was going to tell her son he wasnt
the father. Another guy was the biological father and the DNA test proves
it.
o Ps arg: object to the DNA because the D didnt know about the DNA test
so not relevant to his motive
o Issue: Must prove parentage of the child is relevant if the guy knew, or
that he knew she was going to tell her son.
o Court: You can put A in now, but must show b eventually. Then you have
to tell jury to disregard the evidence, but that doesnt always work.
D can bring a motion e liminae before trial, so he knows how to
proceed.
o Hudleston standard, judge should let in fact if a reasonable jury could find
B to be true by the preponderance of the evidence.

Cox v. State
o Facts: James leonards daughter was molested by Ds friend. Jamie
Hammer, who is on bail. Man went to go shoot them so they couldnt
testify on the bail hearing.
o P wants to produce evidence of all the bad things he said to keep the bail
high. It would show motive.
o Issue: D says it shouldnt come in unless Cox knows the actions at the
hearing. If he didnt know about it, it couldnt have been his motives.
Cox and hammer are good friends and they always spent time
together at the house. Mom was at the house, told who was at the
hearing.
Probative v. Unfair prejudice. May is key. Lots of discretion. Has to be substantially
outweighed or unfairly prejudicial.
State v. Bocharski
Facts: Burglary and murder of an elderly woman. P wants to put into evidence
pictures of the dead body after it had been out for a month. Very gruesome.
Ds arg: Said that they shouldnt come in because everyone knew how she died
and this is just unfair. No justification was given on the record for using the
pictures. No new trial was given, harmless error ruling.
o Meaning without that evidence they would have still gotten convicted.
Said jury didnt react to the pictures.
o You can mitigate, by asking to limit the amount of time its on the screen
or to crop the photos
Problem 1.8
Shooting more than one round per trigger pull. Maybe the gun was dirty was the
theory. They had a picture of the gun that looks clean. Just the outside of the
gun, surrounded by other weapons.
o Argument for letting it in: trying to show that its clean.
o Defense: there has to be other pictures. also, there is no direct evidence
of cleanliness inside
o Relevance: can put on limiting instructions to get it in.
Commonwealth v. Serge
Man shot wife, retired cop. D claims self-defense. Guy convicted.
Computer generated animation used to show Ps case, D wants it thrown out.
o Money issues.
Flight, Probabilty

Conditional relevance 104b applied when a party wants to admit a, and

the relevance of b exists only if b is true
o To get a admitted, you must offer evidence of fact b that a jury could find
it to be true by a preponderance of the evidence

403 may be excluded, if there is a danger of unfair prejudice that far

outweighed by its value. Hard to challenge after the fact. If acquitted, no appeal
on prosecution.

US v. Myers
Facts: bank robbery in florida. Issue at trial is identity of defendant. D says it was
his friend who looks a lot like him. Friend has also pleaded guilty of another
robbery. Evidence at issued. Prosecution wants to introduce two evidences of
flight
o First: in florida, fbi follows gf to a mall and see him, then run after him in
plain clothes and he takes off
o Cali, on motorcycle, fbi agent crosses over into their lane head on and
they allegedly try to flee.
Prosecution: implies consciousness of guilt.
Defense: long time, unmarked police, impeached witness, could be running from
Florida offense (not the one he is charged with), prejudice is high. He stuck
around the city for 3 6 weeks.
o #2 is being challenged. Fleeing, but not consciously from the law.
o He can always get on stand and testify
o Probative value week, but highly prejudicial
Tough sell when the person has done another offense between the time of being
chased. Highly prejudicial. Probably wont come in.
Problem 1.9 p 59
Guy ran because he had priors, he found a dead body
o Most normal people wouldnt run
o Unfair prejudice? he would have to admit prior convictions of other
crimes.
o Different type of crime
o Trial court is your only shot, this isnt going to get turned over on appeal
1.11
Evidence of non-flight generally doesnt get in.
4 things implied by flight
1) From defs behavior to flight
2) From flight to conscious guilt
3) From conscious guilt to conscious guilt of charged offense
4) From consciousness of guilt to actual guilt of crime charged.
People v. Collins
Found guilty of robbery of a woman who was shopping, when she was pushed to
the ground and a blonde woman was seen running from the scene. Bass, a
neighbor sees the woman hop into a yellow car with a black man with a beard.
Prosecution has a tough time establishing identity. Prosecution, brings in a
mathematician to run the probability on made up numbers.
o The factors were completely made up.
6

o Even if true, it only proves that they match the description.

o Intruding on the jury.
o Could challenge the expert witness
Extremely prejudicial
Test for 403, if unduly prejudicial does it prevent D from getting on stand and
rebutting the evidence

Stipulations & Compromise Offers, Medical Expenses

407
US. V. Jackson
If you stipulate to this thing, ill give you what you want.
Limits certain evidence
When someone is willing to stipulate something it limits its probative value
Old Chief v. US.
It was an abuse of discretion to let in the evidence

Background info:
o Facts: D was arrested for assault with deadly weapon and charged with a federal
crime which prohibits possession of a firearm by someone who has previously been
convicted of a felony. D had previous conviction of assault with a gun for which he
was sentenced for 5 years. During trial, D argued that the prosecution shouldn't be
allowed to introduce evidence regarding the nature of his previous felony under FRE
403 because probative value substantially outweighed by prejudice. D willing to
stipulate that he had a prior felony. Prosecution argued that it should be left alone to
present its case.
o Procedure: Trial court admitted evidence and 9th Cir. affirmed.
o Issue: Was the evidence of the nature of D's prior felony admissible?
o Holding: No
o Rationale: The D was willing to stipulate that had prior felony and this would meet
the element of the federal crime he is being charged with. The prosecution's
argument that it should be allowed to present evidence of choice strong but not
persuasive here. Showing the nature of D's last felony has very little probative value,
because needed only show that D had prior conviction which can be done by
stipulation. But the danger of prejudicial effects is very high. Therefore, the district
court abused it's discretion by overriding D's stipulation and allowing the prosecution
present the evidence.

Prosecution: wants it in because its an element of a crime, and its probative

value outweighs the prejudicial nature. In reality they just want to get the story
in, vs just saying he was convicted.

What the probative value: goes to a central element of the crime,

descriptive richness, its 5 years old dont need the story. Moral
underpinning.
Can ask for limiting instruction

Big stuff:
Stipulations can reduce the marginal probative value
There is a contextual view of the probative value
A stipulation will usually not keep one side from trying the case they want to.
Specialized relevance rules
Instances in which 403 rule analysis is predetermined:
407 411 eliminated 493 analysis in these instances.
o On p 91
o 408 and 409 tomorrow
407
o If its covered in strict language of rule
o Flow chart on 93
Problem 2. 1
3 yr old attacked by a wolf. Wolf attached to a 5 foot fence by a six foot chain.
The wolf was chained up because she jumped the fence and attacked a beagle.
o 407 is going to know you out for this, remedial measure being shown.
o Shows some knowledge of the danger of this animal.
Tuer v. McDonald
Facts: t dies of heart attack waiting for surgery. Guy was taking heprin. Given to
stabilize his heart. Take off the drug before surgery. The docs arrival was delay
and surgery post poned. Decide not to put him back on heparin. He then dies.
Not going to cease heparin till after the patient gets to the operation. New
protocol now.
Feasibility is not controverted. Doc said it would have been unsafe. It could
have been dangerous.
The patient wouldnt have been removed from heparin at all under the new
protocol. So the new protocol doesnt speak to feasibility. But now we have a
better idea.
Specialized Relevance
Liability Insurance, Pleas
Old Chief impact- if a def stipulates as to similar matters (status) it will be accepted, but in
most situations a stipulation will lower the probative value of the alternative evidence, but
does not mandate taking the stipulation over the prosecutions preferred evidence.
Under 407- it can include like firing an employee (who you are liable for through respondiat
superior)

2.2- Guy dies as a result of wood chipper accident, sues, later company extended the chute
(to make it more safe)
Should that info be let in- certainly not at the beginning of trial
Def attorney then asks several people if they still use the woodchipper, they say yes, but
does not comment on the change in design.
Should it be let in? It seems it should, because the def attorney is misinforming the jury by
making it appear that those parties are buying the exact same model. In this sense the def
attorney is turning a shield into a sword, using the evidence rule which is supposed to assist
public policy goals as an offensive weapon against an opponent.
408- Compromise offers
(a)- can't use evidence of compromise offers, or compromises, or statements made in a
compromise negotiations. This includes facts, not just statements of opinion or judgment
Exceptions- In a criminal case, statements made to a public authority, can be used. However
this does not include actual offers of settlement
Evidence is inadmissible for proving liability, or validity of a claim, or for impeachment.
Evidence is admissible for proving a witnesses bias or prejudice (like putting in evidence that
a current witness was paid some amount by the other party to show up in a settlement
agreement)
Justifications for this rule- public policy- we wish to encourage people to settle cases, and if
they cannot speak freely it will hamper negotiations.
Bankcard America, Inc. v. Universal Bancard Systems, Inc.
Contract dispute between Bankcard and Universal, Universal gets clients for Bankcardcontract says that 1 year after contract termination Universal can't transfer clients from
Bankcard. After termination, in settlement negotiations, Bankcard gives Universal the
impression that they can violate that provision, and president goes ahead and does,
settlement negotiations break down, they stop poaching clients, When Bankcard sues it uses
as evidence of breach the poaching, but tries to not allow in the evidence from the
negotiations, trial judge allows it in, Posner overturns the verdict and gives a new trial, runs
the new trial and then throws out the verdict.
This evidence is clearly within the scope of the rule, however the court finds that this is
Bankcard turning 408 into sword from a shield. Even if it cannot be shown that Bankcard
intentionally did that
408 is a limited exclusion- it only excludes evidence to prove or disprove the validity of a
claim.
2.4- Ramada builds hotel for someone, Def is unwilling to pay final payment, in settlement
negotiations Ramada had an architectural report showing problems with the building, def
wants to bring that report in, can it be brought in?
On the face, no, its stuff from negotiations, and going further it seems it should be
inadmissible for the public policy goals of this rule, because we want people to come to the
table with real information.
Rule 409
Inadmissible- Evidence of someone furnishing or offering to pay medical expenses.

Other statements such as- I'm sorry, or I should have payed more attention, etc. those are
not covered, only the offer to pay the medical bills.
Probative value of this evidence- spontaneous statements that someone will pay medical
expenses are not very probative.
Public Policy argument- trying to encourage people to pay medical expenses. Also this
covers less because those people who would be protected by this rule don't know of their
protection, so protecting their statements is just a windfall.
Apology statutes- statutes that make inadmissible apologies made by doctors, however they
are weak because they don't protect statements of fault. So the statutes have little actual
effect.

Character Evidence Propensity

410, 411

Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal
proceeding, admissible against the defendant who made the plea or was a participant in the
plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules
of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority

However, such a statement is admissible (i) in any proceeding wherein another statement made
in the course of the same plea or plea discussions has been introduced and the statement ought
in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury
or false statement if the statement was made by the defendant under oath, on the record and in
the presence of counsel.

10

411 INSURANCE
o INSURANCE AGAINST LIABILITY
o Inadmissible to show someone acted negligently or wrongfully
o Other purposes
To prove Agency, ownership, control
o Why have the rule?
Deep pockets problem
High danger of unfair prejudice
Might find against you simply because you have a big
insurance co and feel bad for the plaintiff.
Low probative value because you have insurance doesnt
mean your going to be more dangerous.
o Public policy reasons
Encourage people to buy insurance - useless
We all benefit from insurance cos not having to pay big claims
when its bogus

Wiliams v. McCoy
P in accident with D. P wants to show insurance adjuster came and talked to her
at her house, and he was sketchy. She wants to show this because the D counsel
is trying to prove she is litigious and just in this for money. Wants to prove why
she sued, and thats because of mistreatment by insurance co. D trying to say
she went to the doc after she had already gotten a lawyer.
o Insurance adjuster wanted to settle the claim, so she thinks I probably
need a lawyer
Is it cover by 411: this is evidence of insurance.
o Is it being introduced to show they acted wrongfully or negligently: NO
D says she wants to use it for a separate purpose.
o D uses 403 argument: if P is allowed to explain, it will have some
prejudicial affect on D.
o Unlikely to be unfairly prejudicial.
o Is her probative value: explains her rational for the suit, prevents Defense
from presenting an inaccurate portrayal of her character.
Court lets it in.
Problem 2.5
Lady at friends house looking for the bathroom and falls down a dark flight of
stairs. She sues.
Insurance adjuster goes to hospital and takes a videotaped statement of what
happens
o The P wants to put in who the adjuster works for, after the d used the tape
recording to impeach her at trial.
Rule 411 application
o Using it to show a bias, so this doesnt keep it out
So you do a 403 analysis: shows guy holding tape is bias, does it
matter who is holding the tape recording. Low probative value.
11

Danger is that they will know D has home insurance. Low

prejudicial value. Could go any way.
2.6 malpractice insurer
doc sued for malpractice, expert witnesses are also cover by same insurance co.
P trying to prevent a depo by one of the expert and are trying to show bias.
o Covered by 411?
Liability insurance, can say they have the same insurer w/o letting
them know they have insurance
Is it admitted to show they acted wrongfully: not really, trying to
destroy the expert witness credibility, bias argument. Maybe its
not implemented at all.
o Is the policy for having 411, present here? No.
o Probative value: showing bias, I want to show these witnesses are closely
linked to the real party here, insurance co
o Prejudice: shows they do have insurance, but everyone knows docs have
insurance
Exclusion upheld, evidence didnt come in
2.7 failure to report
day care provider being prosecuted for failure to report child abuse that comes
to their attention.
o Since they had liability coverage, so there is no reason why she wouldnt
report it.
o She says she didnt know about it.
411: yes this does fall under this rule: Wants to use her evidence of insurance, to
rebut the argument of her acting wrongfully.
o Does it make sense? No, this isnt designed to protect in this instance
o Probative: absolutely
o Prejudice: no one is getting prejudiced. No one is going to dislike the
insurance. She on a criminal trial, no insurance needed and it doesnt
matter.
Hypo:
Lady takes out huge insurance co for her pizza shop and Two weeks later it goes
up in flames
Should it be used to determine wrongdoing?
o Violates rule 411.
o Very probative: speaks to motive.
o Unfair prejudice: there is prejudice but its not unfair
o This is no liability insurance, its fire insurance
410
Covers withdrawn guilty plea
Plea of nolo contender
Statements of rule 11, stuff said to judge at hearing
12

During course of plea discussions, with an attorney, one that doesnt work out.
o Cant use it to prove anything against the D in any proceeding (civil or
criminal) unless you make false statements.
Exclusionary rule, you cant use it at all except for small window
o One for fairness
o Perjury if statement is under oath
Other rules are opposite: you can use unless this happens
Why have it:
o increases pleas.
o Tremendous unfair prejudice.
Special reasons for bright line rule: people need to know what the rules are in
this situation.

Problem 2.8 Prosecutors offer

Prosecutor made plea offer to D. First degree murder is charge. Plea was 2 nd
degree. D wants to show the plea so the prosecutor knows his case is weak and
the fact that I left it on the table shows im not guilty.
o Evidence on behalf of defendant
o 410 doesnt cover not used against D
o If this comes in the government will be less likely to offer pleas, bad policy
o Probative value: cognizance innocence
US v. Biaggi
Similar to situation above, rejecting plea
o He rejected immunity altogether for not ratting out his friends.
Due process reasons
o He has a need.
o He has right to show his defense.
Character Evidence Rules around the Box
404
Character Evidence
401/402
You need to check 403:
o Probative value
o Unfair prejudice
404 is next in the cycle, you do 404, then 403
Zacowitz case
Ds wife was walking down the street and a guy alledgedly said something
insulting. BF goes and talks to them then goes and gets a gun an come back
and shoots one of them. He has 4 other guns at his home. P tries to
introduce the four other guns to illustrate he is of bad character and lives a
life of crime to impeach his character.
Evidence of character generally is excluded

13

You can describe the narrative, not making him out to be a crazy gunman,
but you still have to come back to 403, which would have ruled it out

Aftermath: pleads guilty to manslaughter in 1st degree

Argument against 404, we already have enough rules, we need them to give
an accurate description of the person and situation, and this doesnt need to
be in here
Are intrusions
More routes around the Box
Problems:
Evidence 9 8
Problem 3.1 p155
Two separate order to fake addresses for computers. Caught the guy at the
second one and want to bring up the first one like he did it.
Unfairly prejudicial. 404b doesnt cover, and 403 unfairly prejudicial.
3.2

B & O rail road, worker has a propensity for being drunk on the job. Guy was
dismissed for negligence and being drunk.
o You cannot use that he was drunk all the time to prove he was drunk at
the time of the accident.
o Negligent hiring and supervision issue, can use it to show he wasnt
reliable to be rehired.

3.3 US v. Peltier
2 officers gunned down in an unmarked car by a guy in a van. They want to
show he had jumped bail a year ago and was aware of the pending warrant.
o Used to show motive, not propensity
o Prejudice v. probative value.
o Prejudicial because he tried to kill once, so he could do it again, bail
jumping attempted murderer.
o The government is going to be able to tell the story without the
background
3.5 streetcar mishap
lady on streetcar in stl. Fell and got hurt when getting off because the driver
didnt stop long enough. She wants to show he didnt stop at 20 th and 19th
street. Or is it improper propensity evidence. Not trying to show propensity,
just showing they were driving erratically on that day and time.
3.7

14

Search warrant for apartment, find cocaine, baggies, and illegal gambling
lists. D disputes whether this is the Ds apartment. Government wants to show
the lottery stuff and conviction of unlawful gambling. Argues not putting it in

to show hes a gambler, Im doing it to show its him. Not on trial for gambling,
but still a propensity argument. Propensity doesnt have to be for the crime
charged.
US v. Trenkler
Just how weird or distinctive is the MO, then there is a good excuse your not
using it for propensity evidence, but showing there is no way it would be
anyone else. Like his signature.
Dissent says these bombs arent so similar, but the P says they are so similar.
o First bomb flash bang, second bomb had dynamite.
o Both had duct tape, aa batteries, toggle switches, and round
magnents.
o Question: is it really that hard to believe that anyone other than this
guy built this bomb?
The first bomb wasnt in the data base until the P had it entered.
And then he searches a database, with the same search terms.
Operator bias.
What is the reference class?
o What are you searching against?
US v. Stevens
Reverse 404b
2 air force officers mugged and woman sexually assaulted. Black guy uses
small gun. The two id D in a line up. 3 days later a crime was committed in
the same place, same time, similar gun, similar victim, and same race.
Ds argument is that this is probably the same guy. So it makes logical sense
it wasnt the guy on trial.
o Why keep it out? Dont want a trial within a trial, trying the other guy.
o Others might be different crimes, different signatures.
Problem 3. 10
Guy play Russian roulette with his gf. Court wont let her call it Russian
roulette in court.
o The fact that you once had the gun in your hand makes it more likely
that you own it than it would if you have never seen it.
o Its going to be hard for the jury to believe her that she knows the gun
for certain, she cant say the gun was pointed at me. Would obviously
make you focus more on the gun.
Judge says: allowed to describe gun, but cant talk about the gun being
pointed at her head or playing Russian roulette. Impact testimony but rules
out some of the prejudicial value.
US v. DeGeorge
Creates plan to collect insurance money. Sells the yacht in a bunch of sham
transactions, and insures it for high sales price. Tries to sink the boat but fails.
The Italian coast guard sees him trying to destroy the boat.
15

Tries to put in evidence that this guy had 3 previous boats that sank and he
collected the insurance money.
Claims prejudicial.
o Governments argument for letting it in: trying to show why he kept
selling the boats because he cant get boat insurance anymore.
o Without this info, the whole story would be muddled up and confusing.
Court says, you can tell jury that he previously had 3 boats go down. You
cant talk about him getting boat insurance pay outs.
o Doctrine of chances: how is it possible that this guy had four boats go
down unsuspiciously?

3.11 cleaning his gun

guy says he was cleaning his gun and it accidentally fired and killed his wife.
o It happened to his previous wife
This is prejudicial
o Propensity argument. He shot his first wife, so he shot his second.
Pure propensity.
o Can claim, your way around a propensity. We will stipulate the first
was an accident. Dont want to show propensity, it just doesnt
happen twice. Not a character trait, hes just not intentionally going to
get in a gun cleaning accident.
The Brides Case
Rex v. Smith (rex means the king)
Not a MO case, no one is denying that smith was around when his wife
drown in the bath. He is just saying its a bad accident.
The doctrine of chances v. Thought experiment
o Governments arg: its tragic that your wife drown in the bathroom, but
its almost impossible this happened 3 times. Not possible. (had 3
previous wives drown in the bath)
o Propensity mean rex and his lawyer says he keeps drowning his
wives so he drown this one
How do you get around the box?
Not character, improbability of circumstances.
o If he is innocent, then letting the evidence in is getting this guy
sentenced to death. If he is guilty, its just propensity.
Character Evidence: Huddleston and Propensity in Sexual Assault
Evidence 9 15
Quasi and actual exceptions to 404
M.O. 2 similar bomb
Res jeste boat insurance
Absence of mistake gun cleaning

16

Doctrine of chances drowning wife, little more controversial, unless you

believe the first two brides were drown, its not relevant. Not anymore unlikely
to happen regardless of previous stuff.

Huddleston v. US
Facts guys sells a lot of stolen item. First he sells black and white tvs. Then
he sells 5k Memorex tapes, finally he sells appliances. All were stolen. Its not
disputed that the Memorex tapes were stolen. Claim is that he didnt know
they were stolen.
o He is trying to keep out the TVs from entering evidence. Says the
government cannot prove the tvs were stolen. So they shouldnt be let
in to show he deals in stolen merch. Its not a crime to sell tvs.
Wants the government to prove by a preponderance of the evidence that the
tvs were stolen if they want them to come into the trial.
Court goes back to rule 404, b is relevant only if A is true. A (the evidence) as
admissable if there is sufficient evidence that a jury might believe it.
3.13
Use of acquitted conduct
Guy robs bank with a small pistol and wears a mask. Prosecution calls
witness, about a guy with a mask and coconspirator with masks who enters
her home and she rips his mask off and IDs him.
D was acquitted in the robbery.
o This ladies testimony, is only relevant if its true. But the jury said no it
was not.
o Rebuttal jury standard is beyond a reasonable doubt, but the
standard here is preponderance of the evidence.
No preclusion here, the standard is that a reasonable juror could believe that
he robbed the lady. Therefore it can come in based on that standard.
Judge still has to find with respect to 403. Probative value v. prejudice.
o Here probative value is strong
Rules 413, 414, 415 true exceptions. You can show propensity for sexual assault
and child molestation.
You can claim that the D has done previous sexual assaults and you can
admit it for any reason.
Can allegations, not adjudicated come in?
o Yes it looks like it. The witness or victim can come in and testify.
o Evidence of sexual assault A is only relevant to B if A actually
happened.
State v. Kirsch
Guy tried for child molestation. He was a youth minister. Lead preteen church
groups and had sleep overs at his house etc. Only one girls allegations are
left at the end of the trial. The prosecution uses other girls that claim similar
situations to prove their case.
17

The Prosecution says they are throwing these in to show a similar plan in all
these cases. Also, to show motive.
o These werent really plans in the typical sense. You can describe this as
descrite events, but its not like they were using the same bomb
materials etc.
Huge 403 problem, really prejudicial. This is basically a propensity argument.
o You have to really stretch the typical exceptions to get this in. without
413, there are a lot of shenanigans trying to get this stuff in.

OJ propensity video
Shows that by beating the wife he controls her and this is part of the story. It
was let in under a motive theory.
If you are saying there is something signature about domestic abuse, then it
makes more sense than just a propensity argument.
Lannan p 198
Convicted of molesting a little girl. Used other little girls testimony, for which
he wasnt convicted, against him. Used depraved sexual instinct as excuse to
get it in. People believe there is a propensity for recidivism. Other rational,
The private nature of the crime requires better corroboration. Indiana court,
not impressed by recidivism.
Indianna supreme court throws out the exception. Goes down a 404 analysis.
More:

413 in a criminal sexual assault case, it lets in prior sexual assaults.

414 child molestation
415 for civil cases, must be a similar offense

Interactions bw these 3, and 403

US v. Guardia
Dr. G is a gynecologist. He is charged with inappropriate conduct during his
examinations of women at the air force base. 2 women bring charges, and
they want to show 4 other women who have had similar experiences
Dr. G, says rule 403, this is very prejudicial. The government says this doesnt
count for these rules. They were inacted later as exceptions. They say 403 is
out the window on these cases, because it goes along with what the congress
meant to do.
413: Is admissible, evidence of other offenses is admissible, and may be
considered.
o 413 is modifying 404, including the quasi exceptions. In 404, it says
may be admissible.
o 404 was already on the books, they knew about, and they used 403 all
the time in relation to 404
o Since 413 etc modifies 404a, 404b is a non exclusive list.

18

404b, it may be admissible for other purposes. 413, it is admissible for this
purpose.
o Everything in 413, its sole purpose, is how do we deal with 404. You
can argue that it turns off 404. 403 isnt a problem. 404 is about this
kind of evidence.
o 413 is admissible over 404. They should have written shall be admitted
like 609 that was already on the books.
Bottom line, its not clear in the text whether 403/404 prevents certain 413415 arg.
403: about prejudice, the prejudice for 413-415 is off the charts. So to some
justices it will become a nullity, and then 413 is useless.
Cant interpret a fed enactment in a way that would offend the constitution.
o Due process problem.

US v. Mound
Because of guardia, because 403 still apllies to 413, there is no due process
problem with it.
Because of 403, 413 doesnt violate the constitution and due process right to
fair trial
Defendants and Victims Character
404, 405
404a1&2
Whatkinds of evidence is covered
o A1 Covers character of accused, the D
o A2 is character of victim
What purpose
o To go through the propensity box, looks at prior act of accused or
victim.
Not cover
o Use of prior bad act for purposes other than to prove propensity
You dont need it, you can bring these in anyway w/o the rule
o Cant do character assassination, need to be pertinent to case at issue
Who can use it?
o Accused D is allowed to offer character evidence on his behalf and
against victim.
o Prosecution cant do anything, unless D opens the door, or brings in
character witnesses. They can cross examine. It can also bring in its
own witnesses to go against you.
o P is allowed to bring in witnesses against victim if he bring in character
witnesses.
One exception: self defense
o If you say I killed him in self-defense. The Prosecution can talk about
the persons character for peacefulness.
For d:
19

Can put in character of her own character, then the prosecution can
put in evidence of ds character against her
o Same for victim
o Also for self D, only for peacefulness
Restrictions, rule 405:
o Restrictions on the form of proving it
o Restricted on direct exam to reputation and opinion
o Can ask specific questions about specific incidences by which good
character was actually displayed.
o On cross, they can ask too
Reputation v. opinion
o Rep what the person has heard.
o Opinion what the witness believes about the person
In fed rules you can use both, previously just the reputation
o

Why can we talk about character in general, but not in specific incidences?
It tricky to prove you didnt do it, dont want to have a mini trial on each
instance
Also quick
Michelson v. US
On trial for bribing an IRs agent
Brings in character witness
o Opposing counsel says have you heard he previously had an arrest
o Can bring it in, to question how good of a witness he is
If he didnt know he was arrested once, he may not be the best
witness
Guy appealed to say op counsel couldnt do this, court says he could
Guy can bring in character evidence, when character is essential in case, ie
libel cases the proof against it is truth. You can show individual incidents as
they relate. If you say she sleeps with everyone in town, and you can prove it,
its not a crime.
Prob 3.15
Girls shot a gun on a drive by. Says she only did it because the guy driving
told her to. Can prosecution now bring in evidence that D has shot people in
the past.
o If she is specifically talking about the situation, no
o If not, then yes, testimony about her own character
Character Evidence Habit, Truthfulness
406, 608
Evidence 9 22
Your witness must just testify on his character or truthfulness
The rule is not limited in civil cases
Not limited to a parties character, witnesses only
Can introduce any rep, must be to their veracity and truthfulness
20

Allowed to use evidence to say someone lied about this case

Rule 609: Governing past convictions
Generally - 609 overrides 608 for purpose of past convictions.
o Second most commonly used character rule
o Actual propensity
Crimes in video: arson, assault, larceny, indicent exposure, peeping, purgery,
disorderly conduct
609a1 evidence of witness other than accused shall be admitted if longer
than 1 year
o Arson probably coming in
o Probative value must be more than the prejudicial value
609b not admissible if crime was finish more than ten years ago
o 609a2 evidence that a witness shall be admitted regardless of punish
if the crime convicted included dishonesty or false statements
US v. Brewer
Showing prior conviction with 10 years and balancing test on whether its too
prejudicial
o Guy had kid napping conviction, and rape, agg assault etc.
What date do you measure from date of conviction or release
o Date you finished serving your time and got out
o If youve been release on parole or probation and you get put back, its
the day you get out finally.
Balancing test 609a1
o Does it mean they are automatically admissible: no. the probative
value must outweigh the prejudice.
o 5 factors discussed in this case, nature of crime, time frame longer
time is less probative, similarity w/ present crime, importance of Ds
testimony, centrality of the creditable issue.
609b
o Only comes in if probative value susbstantially outweighs the unfair
prejudice.
609 D juvenile not coming in unless nec., not against d himself or in civil
cases
4.9

conspiracy to run a drug lab, shiner is going to testify the D let her run the
drug lab in his house
promised probation for testifying
Shriner, says D falsly accused her of meth to divert them away from himself
o You cant ask them about the specific instances on direct, D should
have asked parker on cross.

Rape Shield Laws

Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Se
21

(a) Evidence generally inadmissible.

The following evidence is not admissible in any civil or criminal proceeding involving alleged
sexual misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim's sexual predisposition.
(b) Exceptions.
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under
these rules:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove
that a person other than the accused was the source of semen, injury, or other physical
evidence;
(B) evidence of specific instances of sexual behavior by the alleged victim with respect to
the person accused of the sexual misconduct offered by the accused to prove consent or by
the prosecution; and
(C) evidence the exclusion of which would violate the constitutional rights of the defendant.
(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of
any alleged victim is admissible if it is otherwise admissible under these rules and its
probative value substantially outweighs the danger of harm to any victim and of unfair
prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has
been placed in controversy by the alleged victim.
(c) Procedure to determine admissibility.
(1) A party intending to offer evidence under subdivision (b) must -(A) file a written motion at least 14 days before trial specifically describing the evidence and
stating the purpose for which it is offered unless the court, for good cause requires a
different time for filing or permits filing during trial; and
(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the
alleged victim's guardian or representative.
(2) Before admitting evidence under this rule the court must conduct a hearing in camera
and afford the victim and parties a right to attend and be heard. The motion, related
papers, and the record of the hearing must be sealed and remain under seal unless the
court orders otherwise.

General truthfulness
Around or through the box

22

Around the box: ex bias, contradiction by prior statement or other

evidence, not character evidence, show they are lying in this instance,
not generally
o 608 009 dont apply to this type of evidence
o Through the box: propensity, liars,
When open once you testify, you rcharacter for truthfulness is
at issue, to support your credibility, you open the door for the
other side to bring in evidence to support their credibility
If you want to use specific acts, you can do it on cross
examination
o 609: past convictions overrides 608, ev. Of prior criminal convictions
to suggest untruthfulness, is it a crime involving deceit, or is it 10+
years ago, is it a felony, is it the defendant?
Nature of crime? Probative value lower, timeframe,
Has the door been open
Is the form of evidence appropriate
o

Rape Shield Laws

Rule 412
Constitutional limits
Before rape shield
Straight forward look at 412
World before 412
Character of victim, consent is likely if she was promiscuous.
404a2 and 608 allow question of the witness on cross.
412

Previous sexual conduct and Sexual behavior is prohibited

Applies in any civil or criminal trial where sexual misconduct is alledged
This evidence is expressly prohibited, unless something allows it to come in
o German rule like 410

Exceptions
If used to prove semen was from someone else
Previous sexual contact with D, to prove consent
Things required by the constitution
o In civil if probative value outweighs the prejudice
o Reputation can only come in only to prove a certain facts
Problem 5.1
D went to dinner with vic after talking online
o J excludes email from vic saying her bf was into S&M and she enjoyed
it
o Evidence of her previous admissions that she liked S&M
Is 412 admissable?
o Yes, sexual predisposition
23

o
o
o

Normally, bar previous sex acts

This is not about actual sex, just the email and talking. Recounting of
sexual behavior not actual sex
The telling of sexual stuff to a potential suitor, this can may be
considered previous sexual activity
Then go to 403, not probative but prejudicial
Under 403 it probably comes in

5.2

D is vics accountant, he showed up at 8pm and raped her.

Ds finger prints were in her apt
o This guy says he was there a month before and they had sex
o But wasnt even there on the night he is accused
Evidence exception that could let this in?
o No consent defense, 412b1b if I say they had sex with voluntarily
once
o It doesnt look good based on the rule

State

v. Smith
403 like rule
D is convicted of molesting his step granddaughter
Court excluded evidence that the girl previously accused another cousin and
then recounted
D wants to get in that evidence
o Does 412 apply?
No really, they are talking about allegations, not previous sex
acts
Not previous sexual conduct, its about her lying
Cannot do specific acts on direct
o How do we get it in?
Cross exam with the victim?
Does it matter if allegations are actually false?
o Hddleston 104b standard jury could believe the evidence
o Wittmore case do you have a good faith basis for asking your
question

5.4

Olden
24

D accuses a guy of rape. Girl falsely accused a guy of rape like 10 years ago.
D wants to put a witness on stand who saw this take place
o Can he come in?
o Specific instance on direct no bueno, you can ask about this on direct
o Cross examine witness?
Here there is actually a sex act, past sexual conduct
o Exceptions: 412b
o Finally constitution arg

Perp rapes vic and drops her off at her bfs house, but her and bf were both
married to others
Witness will testify to this
Wants to tell the story
Cant come in because cohabitation is sexual conduct
o Violated Ds right 6th amend, you can confront your accuser
o Can look witness in eye, abaility to have lawyer ask questions

Rape Shield & Hearsay

412, 801a-c, 802
Before rape shields:
404a2 character evidence of the victim
Broad coverage of terms and civil, criminal,
o Exceptions
Criminal trial other sexual acts to prove someone else was
source of semen or other physical evidence
Other specific sexual acts with him to prove consent
o Civili trial
If vic buts her rep into controversy thenit can come in if they can
show higher probative value
Kobe Bryant
Want to put in evidence that she had sex with two other guys that are
prosecution witnesses.
Paula Jones p346
They wanted to show that bill Clinton was talking to all these girls, Bennett
responds by saying he will show her sexual rep.
He couldnt do this.
o Can only do this if she opened up her reputation
o Why do we keep 413, when 412 is there
The vic sexual history is less probative, offenders sexual history
is more probative
Hearsay & reliability
When is it sufficiently solid that a jury could hear it?
o If someone telling you a story is it useful to you, how do you tell
o Her perception, memory, narration, sincerity
o Dangers:
The person telling the story may be inarticulate and give
inaccurate info
She could be lying
How to get around:
o We make people swear to tell the truth
Solemnity of trial
o Demeanor is evident at trial
25

o
What

Cross examination allows the lawyers to flush out this information

Cant determine his precise facts

is hearsay:
When someone else is testifying other than the person who was the declarant
You want to prove that what they said is true.
People can say something they heard out of court for other reasons:
o Not for the truth of the matter asserted, ie you heard a guy say
something that altered your state of mind at the time, ie im going to
kill you.

4 elements of hearsay
Must be a statement
Out of court, Cant be made by declarant while at trial
Must be offered for truth of the matter
Must be asserted
Problems:
7.1 p 370
Is her sworn aff. hearsay?
o Yes, This is hearsay
o No normal second witness problems, because in this case its her
words, but still hearsay
7.3

Boyfriend says this, (altered)

Yes this is hearsay

7.4 blood test

Guy gets dui, prosecutor brings in the print out in to show his level of
intoxication
o Not a statement, not made by a person
o The print out has a time stamp, which was set by a person. Also
someone programmed the computer to test for alcohol, etc. absent
declarence
o There is a hearsay rule for records. Admissible.
o Maybe its still not even hearsay because the role of the notice is too
remote
7.5
* you can put in crazy statements to prove he is crazy
7.6
She thought she had permission to sell the horses. Admissible for her mental
state. No intent.
Hearsay Introduction
801a-c, 802
26

Laurence Tribe's claim- if you can avoid having concern for what the
declarant believed, it won't be hearsay. Someone who claims they
can't talk says something, what they said can be offered into
evidence and isn't hearsay, because it is irrelevant what the speaker
believed, only that they spoke.
What if a statement is susceptible to two interpretations, one is
hearsay the other not? It comes in with a limiting instruction.
7.7- two police officers beat a man in a police station bathroom,
Volpe pleads guilty, Schwartz fights it,
Scwartz's counsel is being claimed incompetent, Volpe's lawyer is
testifying that he told Schwartz's that his client could exculpate
Schwartz. Can Volpe's lawyer testify, or is his statement hearsay?
No because the statement is being offered not to prove that Volpe's
lawyer was telling the truth but rather that Schwartz's lawyer had
been offered exculpatory evidence, and didn't. So not hearsay.
7.8 def is clearing customs, lies about what he has, stuff is found,
wants to bring in friends testimony that def had said I have more to
declare.
When the customs official testifies that def said I have nothing else,
not hearsay, not to prove the truth (that he had nothing) His friends
testimony is also not hearsay, because it is not being brought to
prove the truth of the matter asserted, just that he said it.
Assertions
A statement (or declaration of some description) that is attempting
to communicate something.
7.9- Captain inspects his ship and then takes his family on board.
The ship sank. Is the evidence of his inspection and taking his family
on board hearsay? No there is no reason to think the captain was
attempting to communicate anything by boarding the vessel, as
there was no audience. It is not hearsay because there is no
assertion involved in the action.
27

Things which are not assertions are not considered hearsay because
if nothing was intended to be communicated, we assume they
weren't lying
7.10- Head of the Atomic Energy Commission, goes to a nuclear test
site with his family, after much protestation that the site was unsafe.
Is it hearsay?
Yes it is, it is a statement, made out of court, used to prove the
matter asserted. It is an assertion because it is clear that the Head
is taking this action to show that he thinks its safe.
Why is assertion so important? Because we assume someone not
intending to communicate was not lying.
Hearsay Exceptions: Admissions by party opponents
801d2, 104a
4 rules:
A statement made out of court
Made out of court
to prove truth of the matter stated * controversial one
An assertion
Exceptions 801d2 Admission by party opponents
Deinfed as not hearsay (not really true, hearsay but I dont care)
Billables 7.11 p 396
She billed 104 hrs/wk
Hearsay but does it follow under the exceptions
If your lying how can you complain now, if you want to say these bills are
inaccurate then you can say so
7.12 oj simpson
Oj said take my blood please, prosecutor doesnt want it to come in
Trying to prove, I am happy for you to take my blood. May not say to prove
the truth of the matter. May not be hearsay at all.
No hearsay exception hear.
7.13 Buddies
Under cover cop buys cocaine, you can get another from my buddy the
other person sitting there gets up and gets more drugs. you can get one
from anybody
Four things - admission
28

7.14

Person who adopted the statement hear and adopted the statement
The person could have responded
Naturally you would have
Failed to respond, or deny it
daughter visits dad in jail to explain why she is turning him in, says
something like the truth will set you free. Dad points to sign that says
conversations may be monitored
prosecutions wants in, d says hearsay
you can claim and say this was ludacris, if state actor you can claim
exercising your right to remain silent, probably going to come in

Sophie the wolf

question of whether the wolf hurt the small child. The kid was walking by the
fence and he is injured and the wolf is standing next to him.
When the owner comes home, goes to the research center, and leaves a note
that the wolf had bitten someone
o Note and talk were both hearsay
o Minutes of meeting
Comes in under 801d2e, possibly 801d2c
o Trial court doesnt let it in
o Arg. He doesnt know if his statement was true, his statement was the
product of hearsay.
o Your on the hook for stupid things your agents say
Statements pursuant to these exceptions can come in even if they are truly
false and bs
o Coming in based on nec. And some sense of just desserts.
Hearsay Exceptions: Past statements
613
Party admissions
Comes in regardless if declarant is available
Put in on nec and dessert
801d2a
Parties own statement can be used against you in any proceeding
801d2b
Adopted statement, someone else says something and you adopt it
801d2c
People authorized to speak
801d2d
Agents or employee
29

801d2E
Coconspirators exception
Statement must be made while in conspiracy
Conspiracy must be unlawful
Bragging about it to further the conspiracy admissible, idle chatter is not
Boujaily v. US
2 issues
o Who gets to decide if the conspiracy exists?
Conditional evidence? Judge would let it in if the jury could
believe nec fact
Question of law? Judge would simply decide
Standard?
104a, everything else or 104b conditional relevance
o Bootstraps issue
Police officer wants to offer a statement a minion says t offers
the best cocaine
Evidence of conspiracy based on statement at issue.
Bootstrapping
Bootstrapping is allowed (now 801d2e)
Ok in 104a
Bootstrapping permissible but cant do it under co consp if
the only evidence is the statement itself
P 415 7.16
Guy selling to undercover cops, cousin in Lebanon. Cousin can bring a lot of
heroine.
o N says Y is going to get off the plane and trade it for aphoto of himself
o Buyer Y and N get on a plane and during the flight the undercover,
cousin is translating says this stuff is so strong I got a nose bleed.
o Y defense at trial is that he didnt know what was in the satchel, N was
killed
o P wants to call cops to say what Y said on the plain
o Hearsay problem
The translation
801d2a problem
Also 801d2c
The statement itself is good evidence of existence of conspiracy
Past statements under 801d1
Arent hearsay or fall under hearsay 801d1
3 purposes
o Impeachment (613) still under 403 rules
o Character for untruthfulness (608) cant bring extrinsic evidence
o 801d1a actually hearsay exception coming in for their truth, to prove
prior inconsistent statement was true not this one
Must have been made under oath
30

Must be able to cross examine

Harder to get it in

Barrett
Statement of someone on trail for burglary of a stamp collector
Guy knew how to use a voltmeter to get around the alarm and get in heavy
vault door
Issue:
o Witness statement:
Bucky wants to impeach buzzy
Trial judge doesnt allow impeachment or prior statements to
come in
Court throws the judgment out, statements should have come in
Retraction 717 p 424
Wants to explain away his prior statement
Prior inconsstent statement is trying to come in
Prior inconsistent statement is some random thing in the past, saying she lied
right now about a material matter, who shot the person and you said you
didnt know before. You can now bring in the detective to say what he heard.
(613)
o Not a sworn statement in a prior proceeding
Cab driver - 613 is not a hearsay rule
He refuses to say he ever said anything different?
o Can the p now call a police officer to testify about what he said?
Yes, hes wrong about what hepaid and wrong about what he
said
Not admissible for its own truth, but it is about
US v. Ince
Shooting after rap concert on military base. Man with orange shirt shoots
pistol twice in the parking lot.
AN signs unsworn statement saying Ince admitted fireingthe shots. At trail
she says she doesnt remember. Cop testifies to impeach her. Hung jury
Under 613 to impeach, hearsay.
o Not an 801d1, wasnt sworn, only under 613 to impeach her testimony
o Trying to impeach their own witness
o Not a real witness, government is calling her and wants to impeach
her.
o Government attempt to go around hearsay rule, but court says even if
allowed under 613, not allowed under 403
Past statement
801d1
3 prior purposes of putting in a witness prior statement
o Impeachment
31

Character for untruthfulness

Other side can attack your truthfulness under 608 on cross, can
use specific interests (general character)
Your side can then be rehabilitated during post cross
Substantive attacks 801d1a
Can bring in prior statement because your prior statement
is the one the jury should believe.

Prior inconsistent statements

438
7.19
o Victim ft, ft checks in hospital for blow out fracture of orbital eye
socket. Formenr bf hit her in the eye. At trial, FT testifies she was
injured in an argument. Doorknob hit her in the eye on accident.
o Wants to bring in transcript, prior inconsistent statement
o If pros rests, and moves for a motion dismissal
o Sworn statement, can be cross examined. Only evidence prior inconsist
statement. Judge, prior inconsistent statement is their only evidence
and the jury has the will to believe whichever story they deem more
creditable
At trial, now she
7.20

Now she says she doesnt remember how she got hurt
o Is this really a prior inconsistent statement?
o Implied that she did remember the situation before, so this is a
inconsistent statement.
o If the person has truly forgotten is not inconsistent
o Would come in under 801d1e if she is lying and really does remember
Standard
o If 801d2b is met you must let it in
o If not, stays out

Movie
Guy on trial cant attack his own statement.
If the witness got a deal, you can bring it up to show bias
801d1b before or after meeting matters, if a witness is saying something
thats not true a prior consistent statement can come in to prove the truth if
it was made before the alledged bad motive arose.
Tome v. US 439
Girl in custody dispute w/ parents. Mom calls cops and the daughter says dad
was abusing her. Court says the things said are just to get the girl to stay with
her mom.
P brings in other witnesses, but all the statements were all made after motive
for bias was est
32

Statements shouldnt have been allowed in, reversed.

o Does this make sense? Somewhat
Breyer dissent:

You get the right to cross examine, but if their not their or they claim 5 th thats ok.
You cant be cross examined. Rule not satisfied. In owens
Owens
Guy beat by inmate. Doesnt remember anything. Then he pics one guy out
of a picture line up. Now he says I dont remember, but I remembered that I
idd one guy and I was pretty certain them. It can come in, because you can
cross examine him. The previous ID can come in.
801d1c
Commonwealth v. weichell
Guys sees robber for 1 second under a street light. They make a composite
sketch and it is a dead ringer for the guy on trial. Is it hearsay?
Yes hearsay, but for an exception its no good.
What do we need?
o A prior ID
o Cross examination
Useful?
7.21 Domestic violence III
She now says she got hurt in an accident, but previously at the hospital she
told the nurse her ex bf did this
801d1c prior ID
o 801d1c isnt relevant
o To the extent there is no dispute over who did something, this is not
there
Declarant Unavailability
804a, 804b1, 804b3, 801d1
Party opponent person being accused. Can be wire tap, to cop interrogating, to an
observer. Person whom is against the evidence coming in.
801d1a (there they must be there to testify for cross at trial)
804 (here you dont, this is for people unable/willing to testify)
PAST STATEMENT OF someone who has already testified
3 reasons
o Impeach
613
o Character for untruthfulness
o Substantive truth, y told one story then and a different one now
801d1
Is it sufficiently grave (danger of unfair prejudice) as to outweigh
is probative value (403 analysis)
33

D1a
o
o

Inconsistent statement
Under oath
Reason
Previous statement closer in time of event
Necessity
D1b prior consistent statement
o Must be put in to rebut a recent statement thats consistent after
charge made (tome)
Before statement is direct rebuttal for your bad motive
801d1c
o Doesnt matter if consistent or inconsistent
o Identification
o Around to testifu
Either side can bring up a previous identification

804 where declarant was available

Doesnt mean specifically that the D is not there. Reasonable efforts were
made and the declarant cannot be there
o Dead
o There, but refuses to talk
o There, says he cant remember what happened 2 weeks ago
Why?
o Exceptions, if the person is aroud and could testify the probative value
of hearsay is not good enough to justify hearsay exceptions.
o In these instances, then we have some reason to believe prior
statements are trustworthy. Not the fault of the people trying to bring
in statement.
722 domestic violence
o Lady got battered, refused to testify, offer grand jury testimony.
o Can this come in:
No, cant come in event though not there under rule.
801d1a (not applicable, not inconsistent statements)
o 804a2
804b1 given as witness at another hearing, if the party for
whom the testimony is now offered had an opportunity to cross
or redirect
Kinda like collateral estoppels, if you the person could have
cross examined it was ok. Can only bring in the prior evidence if
you could have cross examined. Had to have similar motive.
Didnt have it in grand jury.
o If this had happened at civil trial, not grand jury, that testimony could
come in
o 804b6 - forfeiture for wrongdoing if someone made the witness
unavailable ie they killed the witness or told her he would kill her if
she testified. Then it would be admissible.
34

7.23 roadway incident

o Man and woman collide and incident. Charge man with drunk driving.
Then he gets sued. Guy testifies at his civil trial, but then hurts his
head and cant remember for criminal.
o Un available because she is in the hospital, but admissible because it
was under oath at the trial, able for cross, same purpose.
o Motive in question: if he is getting sued for a lot, he would have hired
the best lawyer, if it was cheap he may not have.
o Motive: criminal convictions are stronger and more scary. Also,
insurance pays for civil, not criminal.
o Possible no fault insurance.

US v. denapoli
Call under grand jury for immunity. Claim the dont know anything. At trial
they claim in 5th amend.
The people on trial want to call in their previous testimony and say they
didnt know anything. People have taken the 5 th. In former testimony, did
prosecutotor have same motive then as he does today.
Court says: the government did not have some motive at grand jury as he
does at trial.
o Why:
Already had them indebted, just to get some more stuff on the
record. May not want to bring in all his evidence at grand jury.
Dont say this is true in all cases, but it must be strong
Lloyd v. American Export Lines
2 people, on a boat, get in fight, Lloyd sues his employer. Says he should
have been protected.
o Boat co brings in the guy who alledgedly beat him up?
o He says llyod beat up on me, and they should have protected me.
o Both claiming boat co should have protected them
o Llyod didnt show up
Llyod spoke to coast gard about his previous his altercations with alveres
o Wants to bring in this testimony
Unavailable
Former testimony at depo
Is coast guard a predecessor in interest for alveres
CG wanted to show this guy was no good. I also want to show
that.
Party questioning him should be able to do it.
o Motive of CG at issue:
Court says not a predecessor at interest
Too broadly interpreted, just because you both dont like the guy
isnt enough
o If your arguing the predecessor at interest, you want to define it as:
o Narrow if you want out
35

Broad if you want in.

Statements against interest:

804b3
o Blonde woman found dead, and wife accussed of killing her, husband
just admitted affair with her.
Is it ok? No hearsay problem, not used it as truth of the matter.
Just to prove motive
o Now husband is charged with murder:
Motive, opportunity
Has to be true for it to matter to him, if he is lying he would
know that so he wouldnt have to kill her. Care about truth of the
matter asserted.
801d2a parties own statement can come in.
o Now husband is found dead and other woman charged with murder:
Motive
Yes hearsay, depends on the truth of the matter
Can it get in:
Statement against interest 804b3:
Reasonable person wouldnt confess unless its true
Is it covered?
o Your not afraid of prosecution/tort
o So probably not, against his interest colloquially but
he is not subjecting himself to prosecution or suit.
D wants to offer testimony of someone elses confession
o Against his interest and he would be subject to criminal liability
o Other requirements: reasonable person wouldnt have said it unless its
true
When in criminal case and being used to help accused:
Not admissible unless corroborating evidence
Here no real corroborating circumstance
o Need timing, motive other evidence
Prior statement to guy, who then told trooper that they talked about killing
him.
o D respons: not really a statement against interest. Blaming it on the
bro.
Oconnor:
Collateral statements dont come in along with. Ie I killed my brother and so
did someone else. Must sever them to find that is against your interest. The
rest is still no good. \
Kennedy:
Who convo should come in, this is dissent and its not law. Oconnor wins.
Availability of Declarant Immaterial
804b2, 806, 804b6, 803(1-3)
36

804b1 former testimony

Unavailable
Given at another proceeding
The person who it is against, or predecessor in interest, had the chance to
cross examine and have the same motive/purpose
Statements against interest
Not admissions 801d2, just statements
Can be used against anyone, unlike admissions where it can only come in
against you
o Specific kind of interest, must cost you a legal claim or something like
that legally
If you make this statement to get someone else off, there must be some sort
of corroboration
Williamson rule_ if you have a narrative only the statement against your
interest comes in, not the whole statement
P725 p 460
Truck robbery and they arrest a woman. Find out a man might be involved.
Police show up to moms house, and she turns around and asks if he did it. He
says, ask magnolia. It was her idea.
Joint trial police officers testimony against both. Barton pleads fifth.
Object to its use against magnolia
o Yes hearsay.
o Own statement so it comes in under 801d2a
o Possibly 801d2e conspiracy, probably not, doesnt further conspiracy
o Here, statement against interest 804b3
Unavailable
Against his penal interest says it in front of cop
Complication Williamson rule.
Ask magnolia. it was her idea.
2 statements, magnolia was leader and I was involved
implied.
o 2nd part clearly against penal interest
o Here, I was involved was an implied assertion
o You could split up the trials, and link barton to magnolia
Accomplises p 476
Killed security guard during robbery. D wants to say her bro ame to her house
asking for lemon juice saying it would remove the gunshot residue. Admits he
shot guard in foot, other guy shot him in neck.
Hearsay:
Statement against interest, just because we know he says something that will
get him in trouble, he doesnt know this. Felony murder rule. If he thinks he is

37

minimizing then the normal minimizing stuff. Undermines the trustworthy of

the statement.
Video
804b2
Dying declaration
o Unavailable because hes dead
Objections:
o We dont know who wrote that
o We dont know what he was trying to say with that name
Dying declaration must be impending
484 gray
US v Gray
Woman has collected a lot of life insurance. She meets willson and becomes
friends with her. Tells her she killed her first, second husband, then a third
husband, and her affair boy friend.
Murder trial for second husband
o Prosecution
Grays complaint about assault
Statement to detective
Goode threatened him with guy before he was killed
o Can they come in under 804b6
o You can use them both as parties own statement,
Says gray was killed not to keep him from testifying at this trial,
but another trial
We dont care which trial, he was prevented
Doesnt matter if they were actually on the list, even if
they were a potential witness, and your act was wrongful
and prevents him from testifying you forfeit that right
You dont have to be the one who actually does it in
person, someone else can do it on your behalf.
If you intimindated someone out of testifying its the same thing
803 these statements are trustworthy in an of itself. Dont have to be unavailable
for these rules.
P492 Dog Mauling
Excited utterance
To prove that she wasnt sicking the dogs on him.
Declarant Immaterial
803(4), 803(5), 612

Witnesses in general (excluding experts) can only testify to things

they actually know. (personal knowledge requirement) personal
admissions are not subject to this requirement.
38

803(3)- Why are future plans, future motive admissible? Because

people know their state of mind, we have no trouble of memory or
perception.
7.33- Kid goes to meet a drug dealer, tells friends that hes going to
meet him and that he would return. Never returns, can his
statements to friends be admitted? Statements would be admitted
under Hillman rule, because it shows present intent, so its okay to
show he intended to meet a particular person and that he intended
to return. What about under 803(3)? Evidence is admissible to show
the declarants intention, but not to show the actions or intentions of
others. So the evidence could come in to show that the declarant
intended to be right back, but not as to the dealers involvement.
Some courts have adopted an intermediate reading of 803(3)allowing some backward looking inferences only with additional
corroborating evidence. So in 7.33 if there's security camera footage
showing the dealer show up, the testimony relating to him being
there is admissible.
Shepard v. United States (cont.)
wife poisoned, said something about my husband poisoned me.
Court throws out dying declaration argument, prosecutor claims
they were offering the evidence to rebut a theory of her suicidal
state of mind. - Court did not allow it because that was not the
purpose given for the evidence admission at trial.
803(4) Justification- assumption that people will not lie to a doctor
because it is potentially damaging or lethal to lie to a doctor.
7.34
Old man says caretaker abused him, fires caretaker. Before he told
doctor and lawyer that she had harmed him. Caretaker is being
prosecuted.
Prosecutor wants to admit that
Old man said to lawyer that he hit his head.- Hearsay, cannot be
admitted
Old man said to the doctor that he hit his head- 803(4)
39

Doctors testimony that old man said caretaker hit him. - 803(4)
doesn't allow the identification, that someone pushed him yes.
United States v. Iron Shell
generally the doctor can investigate for medically relevant
purposes, and testimony to that end can come in.
7.36
Does the doctor talking to a child about the importance of honesty
of import to the admissibility of 803(4) evidence? Children may not
understand a doctors job and how that relates to medical care.
7.37
Statements made to a family member in order to get medical
treatment is within 803(4), so long as the declarant thinks it will be
used for the purpose of getting treatment.
Statements made for purpose of getting medical treatment or
diagnosis is not limited to only a patient talking to his doctor. So in
7.37 when the wife tells the nurse about the situation of her
husband, that is covered by 803(4) because even though the wife is
not the patient and she isn't talking to the doctor it still comes in.
What about doctors diagnosing statement? It could be considered a
statement for diagnosis, if its the final diagnosis its probably not
admissible.
803(5)- can refresh the recollection of a witness through hearsay
testimony, also if the witness says my recollection at the time
whatever was recorded was better.
Business and other Records
803(6), 803(7), 803 (8), 803(10)
803(2) excited utterance
803(1)
Personal knowledge requirement
o Dog bite,
803 (3)
Impression, whats in her head while she makes the statement
40

803 (4) medical diagnosis

Must be for purpose of medical care
2 part test
o Looking at declarants motive
o Does the person have the motive to tell the truth we expect
Reported present recollections
803(5)
o If you have a witness that testifies that she once had knowledge of
something, she recorded the info, but no longer remembers. Counsel
who is questioning her can show her the paper, and it may be read.
3 things nec
Must remember that she did know this stuff
When she knew it she recorded it
She now must say that paper is what she recollected it on
If they vouch for the paper, they can show the paper to the jury
P521 license plate example
Hit and run accident
2 witnesses
o One guy yells out the license plate number
o Other guy writes down the number on an envelope
At trial, guy says he never saw the plate but wrote down what the other guy
says
o Says yes this is the envelope I wrote it on, wants to submit it to
evidence
o No coming in unless its by an adverse party
The guy yelling the numbers came in, he said he memorized the number
o He then recites it after barely glancing at the number
803 (5) Company records make in the course of regular business.
Why? Simple necessity. Nec & accurate
Hospital record
o Used just to show doc had knowledge of when the patient last ate
Admissible? No hearsay, not for truth of the matter
o Nurses testimony, can it be proved when the lady last ate
Hearsay, used for truth, but the nurse asked the patient so its
relevant for medical treatment 803(4)
o Ps counsel cannot find the nurse because she quit, record itself is
offered
Double hearsay 803(4) then nurse writing down on form
Is it regular practice to make a report
Palmer v. Hoffman
If the doc is designed to prevent against suit, its not in the purpose of
everyday business

41

P535
Lawn mowers 7.39
Girl buys lawn mower, sued manufacturer for injuries when the pull cord
breaks
Scenario 1: offers merch return records, both say because the cord was loose
o The statement is admissible under business record exception to claim
that it had been returned for this complaint to prove they
o Can use the business record exception to prove they knew they had
breaky cords
Scenario: grass shoot pops off
o Now how do we get it in for the defense that it wasnt for that reason
Government records:
A few good men hypo
What rule might allow this evidence to come in 803 (10) to prove absence of
the record
Beech aircraft
Navy training aircraft crashes, surviving spouses sue under product liability,
say a lack of engine power caused the crash, d says pilot error.
D cos offer jag report
803 (8) c
You can put in factual finding made pursuant to a body provided by law
o Is it limited to finding of facts, and no conclusions or opinions
o House and senate disagree about the law
Judge can keep it out if the circumstances dont lead to trustworthiness, also
rule 403
o Other side can rebut the evidence
Hearsay: Residual Exception, Confrontation clause
807, Amen 6
Business record
Bus records at or near time, made with person or knowledge
Regular business record, and something they do regularly, not just for
litigation
Absence of a bus or pub record
If something isnt in there, its also probative. Evidence of absence is possible
803 (7) & (10)
Public record exception
803 8 same but with public agencies. Facts and opinions and conclusions can
come in with the facts.
Reports can be cut up, to get in only the really important parts
803 (6)
42

Constitutional confrontation clause.

Residual exceptions
Dallas county v. commercial union
Clock tower falls in. Dallas county files claim against insurance saying it was
hit by lighting. Ins. Says it wasnt hit by lightning and it was not structurally
sound. There are charred timbers. In a news paper from 50 years ago, says
court house damaged by fire. Argues that when they fixed the court house,
they left some charred timbers.
All newspaper articles are hearsay. You cannot cross examine a newspaper.
Ancient document exception
If a doc is really old and there is no reason to think that its false it can come
in. The people who could vouch for it are really old, they cant remember
clearly. Also, inconvenient. Hard to find these peoples. Fed rules state 20
years
Ancient doc, might not work in this case, no reason given why
o Possible that he didnt see the actual incident himself
If it was untrue, it would have been disproved by now, no corrections in
further issues
o No more reliable witnesses
o Problem creates uncertainty, not the most clear.
Today: It could come in under rule 807 and probably the ancient doc
exception
Regular hearsay
Why do we keep it out:
o Necessity
o Reliability
o Here, it makes sense because these papers are both so their ok
US v. Laster
Near miss doctrine, p560
Its close to a real exception, but it should come in anyway
Its the exact stuff that they thought about, but just didnt come in.
o Possible should come in
Business record, without a custodian. Can it come in
o No 803 (6), but come in under 803 (7)
o If its reliable and nec. It comes in.
Dissent
o Its weird to let things in outside an exception.
o Circuit split, it exists but not defined.
Confrontation

43

Hard to get small children to tell their story, so they keep kids somewhere
else and coax out their testimony using dolls and stuff. Cant stand up in a
court room and get cross examined.
Prior inconsistent statement wouldnt get this in, its not inconsistent not to
talk
o Possible under 807, but confrontation clause

Hearsay review:
Out of court statement
Used to prove the matter asserted
o Cant coe in unless it falls under exception
o Rationale: want to be able to cross
o Rationale:
Nec & reliability
6th Amend:
You can be confronted with the witness against him
Could mean, the people who wrote BOR just exemplifies the hearsay rule
o Supreme court says no
Pre confrontation clause
Fundamental rules to remember
1) Hearsay rule not the same as the confrontation clause
2) CC applies only in criminal cases
3) Applies only to witnesses against accused
4) While the hearsay rule may change from state to state (and within a sate
from fed to state) the CC does not change
EX:
Barred by hearsay rule only:
Certain previsions by witness on the stand (no confrontation clause problem,
but still hearsay not within any exception)
Barred by confrontation clause only:
Certain business record (covered by hearsay exception, still inadmissible
under 6th amend)
Both
my brother told me he saw the D rob the bank
Hearsay and Confrontation Clause
6th amend
Newspaper:
Author had no motive to falsify
Motive not to falsify, easily checked
Near miss case
44

Something that would almost fit under a hearsay, but fail, so 807
Reliable and necessary
o Meant to give discretion to judges

Child molestation case

Ohio v. Roberts
What are the indica of reliability, if its npt under a hearsay exception.
Crawford v. Washington
2 eras, 6th amend era, and 6th amend era.
Facts:
o Man stabbed a guy who tried to raped his wife. They go to his house to
confront him, and Mr. Crawford stabs this guy.
o Mr & mrs are being being interview. Guy says he thought the guy was
coming at him with a knife.
o Mrs Crawford - says his hand were out without anything in them, and
he wasnt reaching for a weapon
They want to bring in her statement. She didnt testify due to marital
privilege. Under state law you can tell your spouse not to testify against you.
o They then bring in her prior statement
804b3 statement against penal interest
804b6 forfeiture of a wrongdoing did he do something wrong that
prevented her from testifying
o No
Points of confrontation clause is to cross examine
o Ohio v. Roberts gone:
Too broad, covers all evidence that goes beyond 6 th amend
Its really about testimonial statement, by applying it to
non testimonial statement is too broad
Roberts is too narrow
When your talking about actual testimonial statements
Wouldnt prevent all testimonial stuff from coming in
Roberts is too uncertain
9 factor test to see if it comes in
New test:
o Is it testimonial
o Must be tested by cross, or its barred.
Doesnt have to be at the trial
if not testimonial
o may or may not need to be cross, ohio v. Robert
How does it get in?
Declarant appears at trial, 801d1
Is declarant unavailable, but you had an opportunity to cross 804b1
If noy being offered to prove the truth of the matter, not a confrontational
problem
45

Forfeit confrontation clause if you kill the winess, then it doesnt hold up

Testimonial?
Making the statement for the purpose of the prosecution of your assailant
Difficult to
Confrontation Clause
What is testimonial?
Crawford:
Gets rid of ohio v. Roberts
New test
o If a statement is testimonial its cant come in unless it can be cross
examined
o If not testimonial, no problem
Exceptions:
o If declarant appears, the prior testimonial statement can come in,
because now she can be cross examined
o If the person is cross examined at one point, her testimony can be read
into the record, Maddux
o If its not offered to prove the truth of the matter at all, then no
confrontation
o Forfeiture by wrongdoing, in Crawford, if you act badly enough you can
forfeit your confrontation clause right
o Dying declaration with stands Crawford
Davis v Washington 597, Hammond v. Indiana, in same opinion
Davis
o Facts:
Domestiv violence 911, vic reportin physical attack in progress.
911 opp gets the persons name, as he is leaving, the opp then
asks a bunch of questions about what happened, vic doesnt
testify, bf raises confrontation clause arg
o Are statements bared by hearsay rule?
Want to use for truth of matter
Yes
Excited utterance
o Is it in or out in davis
In, under davis, whether the primary puspose was to collect
evidence, or to help in the ongoing emergency
If it is test, he is not going to jail, if not testimonial he probably
gets off
o Why get this info
Helpful in finding the person
End of the call, still testimonial?
More like collecting evidence
Hammond
o Facts:
46

Dom violence, police show up, vic says nothing is the matter,
police see messed up house and separate the 2, the wife then
says the husband through her aroung the floor, hit her and the
daughter, writes and signs aff. Presence sence express, excited
utterance.
Hearsay?
Out of court statement on truth of the matter
Yes
Excited utterance or present sence
Did his counsel protect his aff?
Makes him angry, cant cross examine it
Classic ex of testimonial hearsay
If they just wanted evidence, she would have done it herself,
emergency is over here. This is an investigation

Difference bw 2 cases
Definitely testimonial
Solemn declaration made for est. or providing some fact
o Affidavit
o Deposition
o Confession
o Prior testimony at prelim hearing/grand jury. Trial
No testimonial
o Casual remarks
o Overheard remarks
o Rule 801d2f coconspirator
o Some business records
Might be
o Statement to police not during interrogations (ie 911)
o Government business records used by investigators/prosecutors
(coroners report)
o Letters (depends on addressee, circumstances of writing, purpose)
Test for bw davis and Hammond:
Primary purpose test:
o Focus on the purpose of the statement
Deal with emergency
To prosecute or investigate past conduct
o Is it a objective or subjective investigation?
Objective, what an impartial 3rd party observer would think
o Whose purpose? Declarant or interlocketor (operator)
The purpose of a reasonable police office (appearance)
Davis
Defense ok ive got help on the way, everything after that is just testimonial
47

Prosecution wants it all in

Whats garunteed by the confrontation clause

Narrow:
o Confrontation clause only applies to witnesses (those who testify at
treual ) not hearsay declarant at all
Broad: opposite extreme, con clause bars the use of all hearsay against a
criminal def (at least all hearsay by persons not subject to corss examination)
In between
1) Ohio v. Roberts CC doesnt cover firly rooted he
Crawford:
It cant come in unless there is availability of cross exam
What is testimonial
Actual testimony, at depo, aff, etc
Non test
Casual remarks
Davis

Primary purpose test

What the purpose in this line of questioning, to catch them or to try them
Looked at objectively
Formaily, more formal = more likely to be testimonial
Frantic = not usually testimonial
o Presence of an emergency = more likely not testimonial

When does the emergency end

When the immediate threat to the vic is over
o This still might not be concrete.
Or, when Danger to the public at large is over
Child vic cases
Always a duel purpose, but the identity of the sexual assault is important for
their safety
Once the id of the person is known, it may be that questions about the ID of
the assailant is about tracking down the person and convicting him.
o To whom is the child speaking, cop v. doctor
o Nature of the questions
o Are they aimed at the treatment or looking to track down the bad guy
Hearsay execption, specifically for child abuse vic.
o Some states created new hearsay exceptions saying its ok
8.1 (p616)

48

2 weeks before death, gives sealed letter to neighbor. The letter said her
husband was looking up poisoning, and wanted to kill her. She also said it
wasnt suicide.
Yes hearsay, 803(3), statements of her emotional condition
o Come of the letter could come in under this exception
o Possible under dying declaration not sufficiently immanent
o Not an excited utterance
Is the letter testimonial
o Yes, written for the purpose of showing that her husband wanted to kill
her.
o Addressed to the police, and they should get it if she dies
o Arg for not testimonial, not thinking about a court case per se.
Not a statement solicited by the police
Whats her primary purpose, possibly to settle her affairs
But she did write to the police.
Because she went to the police, probably testimonial

8.2 confession in bllod

strangled and burned body found. P wants to introduce the testimony of a
guy who said he saw a robbery gone bad, where the d SAW the vic in the
house while they were robbing her and she was killed.
Hearsay:
o Yes, statement by another person, and is to the truth of the matter
Exception:
o Statement against interest, he faces charges for the crime because he
was with them. Faces felony murder charge.
o Made story to nephew, not to the police. Maybe under Williamson its
not a statement against interest
Do we have a Crawford problem?
o Probably not testimonial
DOVE interview
Police officer is present but cant ask questions at this sexual care facility.
Nurse collects questions and evidence. Signs form saying you can use this
statement. Then she dies
o Hearsay?
Yes
o Statement for medical diagnosis hearsay exception
o Testimonial?
Primary purpose test
The point is to get the woman the treatment she needs.
Police officer is there, his purpose was to get evidence,
Is that usual practice? That affects outcomes.
She did sign form
Must focus on primary purpose test in this case.

49

Gyles
D is charged with violating protection order. Vic wont testify. Grand jury
testimony
o Yes estimonial
o Forfeiture
o D asks for motion before trial, only available if she actually doesnt
show up
Wrongful conduct?
o If he is trying to blow kisses at her on the stand?
Make up, or to intimidate
o Need to know his purpose.
o Did his conduct actually cause her not to show up?
o Wrongful conduct must be done with the intent of keeping them from
testifying, if you just kill him because you hate him, doesnt count,
must do it to keep him from testifying
Preponderance of the evidence question.
Bruton Doctrine
Bruton Doctrine
Statements against 1 person that causes problems for someone else.
Applies only in criminal case
Must take stand and be available for cross if testimonial
Context matters
Bruton going to be on final
Joint trial of bruton and Evans
Evans confesses and its ok against him, but not bruton because its hearsay
Heard at joint trial and judge gives limiting instruction
o Judge admitted confession against evans, ds own statement 801d2a
o Possibly statement against interest 804b3
o Jury can consider confession only against evans
It cannot be wiped from the brain of a jury, so its not possible to get it in with
the joint trial
o No, the statement by eans is testimonial, no cross
o Under Crawford, this statement is plainly a confrontation clause
violation
Dissent
o Redactions will create weirdness in the statements and create
confusion
Basics of bruton
o Remember for a bruton violation to exist, the statement against party
A must violate the confrontation clause against party B
o Is the statement sufficiently straight forward enough that he has a
complaint
Menedez Video
50

Any statement made with the intention of getting medical help

o What does that tell us about the psycho therapist exception
o If you tell you wife about your day, and this is admissible, it would
swallow the hearsay rule
Solutions?
o Redaction? Probably not
o Have two trials or two juries.

8.6 Dog O war

o Dog killed someone, owners on trial. They were part of the Aryan
brotherhood.
o Letter where he talks about raising his dogs as a Dog O War scheme
o Goes to if they knew the dogs were dangerous
o Owning dogs you knew killed people can go to homicide
o Hearsay? Yes out of court statement, going to the truth of the matter
o Thing asserted is that he said these things, and called them dogs o war
o 801d2e co conspirator just breeding dogs not criminal
o If not admissible against one, but admissible against the other one is it
a bruton problem?
Is it testimonial? Probably not, casual chat. Not going to be used
for prosecution
No confrontation clause complaint, its admissible against A, not
B due to hearsay, and not have a brutoon problem
o 403, just because its relevant, doesnt mean you cant keep it out
Probative value v unfair prejudice
Bruton Mechanics
Cruz v. New York
o 2 sets of brothers
B & A cruz
Murder resulting in robbery of gas
Station
o Ben confesses
N had confessed to his friend
A
o Only evidence against me is a bogus, tainted confession
o Bs confession comes in, not admissible against bro
Ns confession also tries to come in
The reason the bruton court disregarded the rule that juries cant follow the
rule to ignore the evidence is because its so devastating.
o State Argument other evidence is devastating too so its ok
Court not buying it
o The more the bruton problem and other evidence interlock, its not
good.
o They throw it all out
Bruton still apllies even if there is a bunch of evidence against the person
with the complaint
51

Gray v. Maryland
You can use elaborate redactions only if its not obvious as to who its referring
to
Cruz

Redacted names in confession, is that ok?

o No, they still know

Compulsory Process
6th amend
Brutton Doctrine must have joint trials
Evidence correctly admitted about testimony
If the first person was on trial by themselves, could the evidence come in
against D B
OK against A, bad against B, but it comes in anyway
o Has the court taken sufficient steps to prevent leakage against B
Cruz

Just because prosecution has good evidence, doesnt mean they can now use
bogus or weak evidence too.

Testimonial
If things are testimonial, cc kicks in, if not it doesnt matter.
o Cures for brutton problem
Sever the trial
2 juries, 1 trial
Redactions, or cutting up the statement
Problems w/ redactions
o Artificial
o 3rd person might reject, ie more than one other cods
o Confessor is going to look even worse in some
cases
8.7, 662
10 yr gap bw, fire & conviction
10 people, were convinced to give false testimony
663, Chamber v. Missippi
Guy murders cop in MS, circuit justice lets him out of prison.
Attorney general didnt object to the bail application
o Flip side of confrontation clause, usually prevents evidence from
coming in, here its flipped, D complains he cant put in evidence.
Chambers problem:
o 3rd party guild case.

52

He said I dont know what your talking about, this other guy did it, he
confessed to it, and 3 other people say yes the other guy did it, but
they cant testify.
o Other guy signed statement
Oral confession
o Mississippi evidence rules: evidence couldnt come in because no penal
interest excetpion
o Part admission rule is a dessert statement, can be used if the other guy
was on trial against him, but not to get this guy off.
o Jury heard about it the statement, but the guy who confessed said it
wasnt true
What if fed rules applied, Oral rules
o Some Statements not under oath are admissible under penal interest
804b3
o Against his interest, but he is available, so 804 exceptions arent going
to work
o Corroborating circumstances: yes, it probably could have come in if the
guy wasnt available
If guy is available:
Prior inconsistent statement 613, prove they were lying
801d1a depends on if prior statement was sworn
Voucher Rule
o You cannot impeach your own witness, this is MS rule, not fed rule. Fed
rule says its ok
o
Exclusion of this evidence is unconstitutional
o Due process clause, 14th and 5th amend
o If evidence is critical to the D, and bares assurances of trustworthiness,
its unconstitutional to not let him put on his defense.
SCT:
o Combo of that restrictive hearsay exception, along with voucher rule,
prevent him from putting on his evidence. Unconstitutional.
Voucher rule is pretty much gone
o

Holmes v. SC
Guy convicted of homicide, claims evidence was planted
Offers evidence of a 3rd party guilt
o 3rd party guilt evidence is let in only, when evidence is really strong
(largely probable, cant remember phrasing)
o Otherwise you cant bring it in at all
Cruz this theory is bad.
o This is a bad law, they should let him bring in the evidence, even
though your evidence is strong.
o This prevents Meaningful opportunity to put on a complete defense
How does SCT decide
o Confined to facts but: how important and reliable is the evidence
53

o
o
o

5th and 14 amend

Confrontation clause
Compulsory process clause
If you are criminal d, you can use compulsory process to obtain
people in your D
Tools of state will help compel people to come to the trial
on your behaf

Wrap up
Missed opportunities,
Lay and Expert Opinion
701, 702
Chameber v. Miss flip side of CC
CC restricts, chambers relaxes rules of evidence on behalf of D.
Someon else, 3rd party, guilt evidence
Holmes v. SC
Just because prosecutions case is strong, not a valid reason to keep the
evidence out. It has to come in on its own merits.
Lat & Expert Opinion
Requirements for lay witness 701
o First hand knowledge (rationally be based on perception of witness)
o Must be helpful
Testimony of the witness gives the jury something they couldnt
figure out on their own without this testimony
This thing your helping the jury find out must be relevant
o Cant be a sciencentist under 702
Video
Gives impression of guys state at time of conversation
Ne sounded depressed etc.
Variety of just the fact types of descriptions are ok, add a little bit more than
some of the parts
Experts
9.2 How Old?
Sold cigs to 17 yr old. Can claim she thought she was older. Wants to bring in
someone else to testify se looks older
o Arg for:
Based on what they thought
She could have looked differently on the day she tried to buy
smokes
o Arg against:
You can show a pic of her or bring her in
54

Result:
Probably comes in with no problems

684 9.3 white powder

Found white powder in Ds shoes.
Prior to this she had used and tasted cocaine
o She tasted it and it tastes like cocaine.
Based on first hand knowledge
o Helpful
Cant just say what it tastes like
o Most people dont know what cocaine tastes like
Based on specialized knowledged?
o Not really, she didnt train for it, but once weve tasted like chocolate
we know what it is
You can give a lay opinion, based on personal knowledge, instead of
specialized knowledge
o PK, maybe something your average person doesnt know, but knows it
because of his personal experience
US v. Ganier
If someone is classified a real expert, you have to make reports etc.
D is on trial for destroying evidence
o Government witness is using a computer program to convict him
o Says its personal knowledge, he just knows how to use this program
o D says this is a computer program a non expert could have used
Annoying problem with this continuance
o Once youve charged the jury, you have to stick with them or its
double J.
o Annoys judge with court calendar
Heiroglyphics 9.4
Find phone book in stash house.
Wants to introduced evidence of a guy that cracks the code of the book
o Phone numbers are for people in the conspiracy
o Matched numbers to letters
o Etc
1 to 1 correspondence code, like the one on the back of the cereal box.
o Not so hard.
o Probably going to come in, not specialized knowledge
702 expert
Has to have qualifications, knowledge skill experience etc
Must be a proper topic for which expert opinion is appropriate, must be
beyond ability of jurors
Is there a sufficient factual basis for the opinion your expressing
If so, did you then use reliable methods to turn your facts into your opinion
Assuming this is appropriate testimony, Does it survive rule 403
55

9.5 Horticulturalist
Guy is claiming he knows what weed from different contries looks, smells
and, tastes like.
o This requires specialized knowledge, not personal knowledge
o Stuff non experts dont know abaout
Is he qualified as an expert?
o Yes, he was employed by drug cartel to get this right
o May be knocked out by dalbert thought (get to later)
Johnson battle of experts
Just because one expert says the other is a nimrod doesnt mean he gets
kicked out, up to jury
Expert Opinion
702, 703, 704, 705

Lay opinion testimony under 701 opinion is allowed for non

experts so long as 1. they have first hand knowledge (on which the
opinion is based) 2. The opinion has to be helpful to the jury 3. Lay
witnesses cannot testify to opinions based on scientific, technical, or
specialized knowledge, that is expert testimony.
5 requirements of expert opinion
1. Qualifications often education and training, but does not
necessarily need to be.
2. The expert testimony must be of the sort that will assist the
trier of fact.
3. The testimony must have an underlying factual basis for the
opinions expressed therein.
4. The expert must use reliable methods to reach their opinion.
5. The testimony must survive a rule 403 challenge.

2. The expert testimony must be of the sort that will

assist the trier of fact.
56

7. Scooter Libby intends to bring an expert to his trial for

perjury. The expert will testify to the operation of human
memory such that it would cause Libby to tell
investigators incorrect information, but that isn't lies.
Arguments against admission- This is not something outside the
ken of the jurors.
8. Trademark dispute between Match and Macho one
side wants to call an English Professor to testify about
sounds and spellings of the words, and that they are
therefore likely to be confused.
Arguments against- This is not outside the ken of the juror,
furthermore the important question in this case is whether this
would likely be confusing to a reasonable person which the jurors
are.
9.9
An apartment complex in Chicago advertises with only white
models, and has no Equal Opportunity logo, African Americans sue
for violation of the FHA. Pl seeks to call a professor of Marketing
Communication who will testify as to how an all white advertising
campaign effects African Americans, in some way relevant to the
FHA charge.
This is probably not outside the ken of an ordinary juror. It
could however show what the apt owner knew if they
examined or did market research.
It would also be helpful to know the level of detail the experts
research went, It may be much more helpful for instance if
57

they had done actual research on the effect of cross racial

advertising in the housing market.
Ultimate Issue- In common law an expert could not express an
opinion that embraces the ultimate issue. Rule 704 now allows an
expert to testify to the ultimate issue. But the expert cannot testify
in effect to tell the jury what to decide.
9.10
Defendant and accomplice purchase several precursors to meth. Def
offers innocent explanation. Forensic chemist testifies that the
combined purchases brings him to the conclusion that these items
were purchased with the intent to produce meth. The expert
testified that he could not reach that conclusion based solely on the
purchases of the defendant (therefore his conclusion embraces the
ultimate issue of their working together, and therefore their intent)
Problem- The forensic chemist cannot really testify to the intent of
the def, in particular in the legal form. Also, the chemist is making a
determination about the credibility of the def (that the def's claim
that he wasn't working with his accomplice is false), and credibility
determination of testifying witnesses is fundamentally the province
of the jury.
704- testimony is not objectionable because it embraces an
ultimate issue to be decided by the trier of fact.
(b)- no expert witness testifying to the mental state or condition of
the defendant in a criminal case can give an opinion to if the
defendant did or did not have the mental state or condition
constituting an element of the crime charged or of a defense
thereto. (for example expert cannot testify that a defendant is
insane, generally or legally)
Generally if you use words that state legal conclusion, testimony will
not be allowed (witness cannot say defendant was negligent)
Hygh v. Jacobs
58

Man accused officer of excessive force in arrest. Pl expert testifies as

to police procedures in dealing with resisting arestees. Expert
testifies that the defendant's actions were totally improper also
gives a definition of deadly physical force. For both reasons court
rules that testimony should have been thrown out, though was
found to be harmless error.
9.11 Officer testifies that he shot a person in the back, officer
claims shot him in the chest. Expert comes in to testify about the
wounds, and also testifies that he thinks the officer is telling the
truth (because the officer knew an investigation would occur that
would show his claim to be a lie.)
Not allowed- he is testifying about the credibility of a witness.
State v. Batangan
Child molestation case, prosecution calls witness to testify about the
behavior of child sex abuse victims. (that they often recant, delay
reporting, etc.) The expert also testifies that he thinks the victim is
believable/telling the truth.
Held- the general testimony itself is helpful, but cannot testify
directly about the victims credibility.
United States v. Hines
Defendant is charged with robbery, wants to bring in experts about
the reliability of eye witness identification (specifically with regard to
cross racial identifications).
Held- This testimony is allowed, as long as the testimony is only
generally about the reliability of eye witnesses, but not about the
specific reliability of the particular witness.
9.12 Defendant had a gun stashed in the engine compartment of
his car. Prosecution brings in a police officer who considers himself
an expert in where criminals stash their guns.
Probably allowable, assume there is sufficient basis for his
conclusions.
59

In Re Melton brings up the fact that the majority of opinion

evidence is based on inadmissible hearsay evidence. That testimony
is still admissible, but the underlying fact does not become
admissible. In this case there was 1 fact which was important, the
belief of which is requisite to believe in the value of the experts
testimony. In those cases limiting instructions are used.
Expert Testimony Daubert
702, 703
Expert v. Lay witness testimony
Expert
Can be schooling or experience
Must assist the jury
Factual basis
Reliable methods
Rule 403
Today reliable method
Fr v. US
Systolic blood pressure test lie detector
D on trial for murder, D wants to bring in the test because he passed
o He loses,
o Why?
Expert couldnt bring the test in, not scientific enough
Sufficiently establish science in field
Fry test is still alive in some states, now most follow daubert
Daubert v. Merrell Dow Pharm
Drug prescribed for morning sickness
Claim it causes birth defects
o Tried to produce evidence suggesting it was teratogen
o Happens on animals
o Similar to other drugs like ones people know cause birth defects
o Docs who reexamine the studies saying it wasnt
Evidence thrown out
o Do away with frye test in fed court
o Fed rules of evidence took over
Allow more evidence
o Rule 702
Frye requires hgeneral acceptance in the field
o Here in Daubert, if judge says its ok under reliable scientific methods,
doesnt have to be generally accepted.
Do not need to believe that he is correct, there can be experts on both sides
and they cant both be right
60

Can have some general relevance among experts

Daubert on remand from supreme court

Find against plaintiffs experts again, 2 parts test
Test:
o Based on scientific method (scientific knowledge)
o Must be relevant to the task at hand (FIT)
Problem
o Personal opinion
o Doesnt fit
In Daubert:
Causation problem
Not generally could cause birth defect, need to show this dose,
taken by this mom, resulted in these birth defect.
One expert says he can prove this, but his theory isnt testable.
If you cant show it was x that caused y directly, your case is over. Without an
expert to prove technical stuff, your case is over
Breast implant 748
Jury awards were huge.
Judge lets both scientists present side by side
Difficult to get stuff published that against the interest of people who give the
money
Experts who know a lot of stuff, you can test them
Polygraphs
702, 703

Evidence 11 - 10
the three most likely reading of 702
1. Evidence must be relevant
2. General Acceptance (under Frye) The key issue is general
acceptance by whom?
3. Daubert standard- has 5 factors (non exclusive)
1. Falsifiability
2. Peer Review
3. Standards of testing, with known error rates
4. General Acceptance
61

5. Whether the science was created for the litigation or

was existent before the expert became involved in the
litigation
Hypo- goes to a garage sale and sees a painting she thinks might be
a Jackson Pollack. Comes to believe that it is in fact a Jackson
Pollack.
Expert comes in (employee of Museums) and says not Pollack,
assume some sort of lawsuit, can he testify to that? Certainly has
qualifications, but there is difficulty in falsifiability, peer review,
general acceptance.
In this instance the Expert's method is just by looking at it he knows
Pollack or not, so the method is in effect a black box, cannot
determine how or why the decision is made.
Hypo2- Man quits smoking (has heart condition) goes on a nicotine
patch, but smokes while on the patch, has a heart attack. Expert
testifies that pre-existing heart condition caused the attack, but the
patch could have aggravated. But no evidence to support that
possibility. - problems with causation, but most notably no peer
review, post litigation scientific work, etc.
Important question- is the judiciary qualified to determine the
Daubert factors? Seemingly no, but they are things judges need to.
Admissibility of Polygraph evidence
United States v. Crumby
prior to this case- Polygraph evidence was per se inadmissible, due
to unreliability. The district judge was not following the rule- because
he was the first judge in the 9th Circuit to examine polygraph
evidence under Daubert.
The Polygraph machine is more likely to say that an innocent person
is guilty then it is to find a guilty person innocent.
Judge finds this to satisfy Daubert although only as evidence to
impeach or corroborate the testimony of the defendant.
62

However under Shepard polygraph evidence is not susceptible to a

Chambers attack (though potentially it could be in an egregious
enough case.)
Polygraphs can be admitted in most courts if both sides stipulate to
allowing it in. That's just the nature of the adversarial nature of
litigation, though really if something is obviously unreliable (divining
rod) it will not be admitted even with a stipulation.
Non scientific Expert Testimony Kumo
702, 703

Polygraphs
o Default, not admissible

Crumby
Only if Ds testifying & his viractity is challenged, then it can come in for that
limited purpose
Minority: most reliable when someone is telling the truth
Chambers:
If rule prevents, there is a scale to see if it can come in, Only if vital to Ds
defense
Daubert:
Why/ why not: error rate but seems low, problems with external validity, peer
reviewed
Why in:
o Jury bad at deciding who is telling the truth
o Probably not worse than other evidence
o Slippery slope arg
Kuhmo
Tire blows out on sue
Expert:
o Tread separated due to tire defect, despite being old
D: tire was good, driven too long. Aim to disqualify expert
Does test apply to nonscientific expert: 702
o Applies across the board, must meet 702 standard
o Why not?
Most stuff not published or peer reviewed, would keep a lot out
How do we tell if expert good?
o Some way to repeat method to determine if good
o Practically:
Dont want to worry about who is/isnt a scientist
Would hurt some forensic evidence
63

Hedonics problem
Son shot by, police, hedonics expert testifies as to how much life worth
o Allowable: qualifications, and does it assist jury?
o Proper data: using #s, average person v. this person
403
o Probably no 403 issue
o Hedonics experts rejected by most courts
Use of Inadmissible Evidence by expert:
703
o Allows them to use inadmissible evidence to form their expert opinion
o When can it be disclosed to jury?
Learned treatise: always admissible
If not, expert testifies & talks about she considered
o Person on cross:
Allowed to shoe tire stuff
Their playing defense
Use to impeach 403
Syndrome Evidence
o Is it going to assist jury?
o If used by D, much more likely.
Authentication of best Evidence Rule
091, 902, 1001-1004
Experts testimony
Black box: Experts with skill but no transparency, ie art authenticator
o Judges are bad at determining which experts are better
Judges are btter the jurors, because they may have seen it
before
Competing scientific disciplines
o Different ways of determining the same thing
o IE, epidemiology v. toxicology
Dont know which is better
Use best science available
Authentication
o Is evidence what it purports to be
o Best evid: must provide original sometimes if nec.
To send money hypo
Money in drug trafficking case
o Guys name on form
901b2
o Could use non expert witness on hand writing
o Can bring in actual evidence under 901b3
o Can bring in someone who saw it
Not handwriting
64

o Fingerprints on form
o Found some sheets with D 901b4
If authentic 803(6) business exception
o 801d2a
o Standard: 801d2a reasonable juror

Prob 10.3
Robbed armored bank
o Find anonymous note pointing to second car, find second car and
money
Admit note?
o Anonymous note to help cops, dont need to authenticate because
already anonymous
o Authentic but probably inadmissible
Voice
901b5 voice ID by someone who knows him
Calls 901b4 distinctive characteristics and specific knowledge
Cant use expert on voice
Photos
Pic of scene: depends on what used for
o Just to show scene and can be verified ok
Seiler v. Lucas films
Copyright case
o Didnt have original drawing, replica made after seeing film
o Not admissible: bad motive and tainted by seeing movie
Professional Privileges (non-attorney)
501
Authentication:
Not similar to admissibility, just is it what its supposed to be
Huddleston standard juror believe
901b
What you need to authentivcate:
Handwriting
o 901b2&3, someone familiar with handwriting
Voice:
o You can use someone familiar, but not expert
Photos:
o Live witness, or someone to say how photo was taken
Animation:
o Must be accurate
Best Evidence rule:
65

Only applies to writing

o Specific details matter you may need original, avoid fraud and
inaccuracy

Priveleges
Good evidence, but the jury cant see it
Basics:
o Rule 501: judges can create common law, through wisdom and
experience
o 592: waivers of attorney client privleges.
Jaffe

Police officer responds and shots a man on scene with a knife

PO went to social worker to talk
o Judge orders him to talk, but wont
SCT: says privileged, we want people to be able to talk to psych helpers

Relayed threat:
If creditable threat, not privileged
Crime fraud exception: you dont have privilege if your calling to cover up a
crime
Judith Miller
In fed corut: no reporter privilege, not in const. but might have local law,
balancing test
Privilege
Exam:
1/3 multiple choice (about an hour)
2 hours of longer stuff doesnt know yet
Book, rules, stuff he put up on website, any notes or outlines
Privilege
Exclusion of otherwise good evidence, based on a privilege we deem nec. By
society
Rule 501
o Courts create privileges based on common law, reasonable experience
Broader concept
Rely on some kind of status relationship. Spouse, therapist, doctor, priest,
etc. state will think these conversations ought to have a privilege.
You have to have the intent that the conversations would be confidential: ie if
your just talking about football. Also if your talking in public its assumes its
not confidential. Only protects communications, as opposed to the underlying
facts. Ie if found via a different means, you cant say its privileged because
you talked about it with your psych.
Exceptions:
66

o
o
o
o
o

Waiver voluntary
If you tell someone else, or waive it in court
Dangerous patient exception can disclose for the safety of the person
or someone else.
Problem: thought would be confidential, but has to be told on above
rule
Crime and fraud: if your talking to commit a future crime, not priv.
Chambers style balancing test: if critical for D, assurance that its
reliable, can sometimes be weighted against societal interest of
privilege. Likely wont help.

Ex:
o
o

Psych/patient: mental health treatment. All 50 states recognize

No balancing test in federal court
Reporters privilege
Yes, no, maybe in fed. No in SCT;

Professional privileges
11.2 p 870
Guy charged with rape, thinks someone else did it. Finds guy and wants him
to testify, but he wont. He already told psych. Mom waived privilege before
talking. Now, guardian says no way waived.
Get it in: waiver, cant take it back
o Rule 511, says privilege can waive the priv.
o Chambers balancing test: conflicting with compulsory process cluse
Anything that makes it seem more reliable
No reason to make it up
How vital to Defense
Pretty probative
Jaffe no balancing (civil so it doesnt count) privilege abosolute
here, but may not be in a chambers case.
Keep out: guardian at litem moms so bad at protecting his interest so we
had to appoint someone else. Compelled erroneously or made without
opportunity to exert privilege.
Is this a good idea to make him testify?
o They could give him immunity
o Courts dont like defense granted immunity
Morales v. Portuondo
Says someone killed the person he is in jail for killing and he has admitted it.
Vic walking with family, see teenagers. Group attacks him and beats him to
death. Convicts Morales.
o Another guy confesses to a priest and says he did it. Confesses to a
lawyer, who tells him not to say anything. He also tells D, and Ds
mom.
o Priest: Wants to come in and say what happened.
Hearsay: out of court statement for the truth of the matter
67

Possible penal interest privilege: if you think its privileged its

still hearsay
No assumption of confidentiality
Must be some other indicia of reliability
Says it to a bunch of other people
o Does priest privilege apply?
Talking about a serious matter to a member of the clergy
Absolved of his sins at the end
Someone is actually innocent privilege usually absolute, but in this case its
not.

506

Any confidential conversation with clergy counts

Even if privileged, doesnt mean mom cant come in.
o Moms conversation only relays the facts, ie that he talked to the priest.
o You can repeat facts, but the priest cant
o Pretty reliable

Attorney client:
Counsel meeting with someone who seems to have murdered someone
Attorney client privilege
Moralez:
If there wasnt actually an innocent guy, this probably wouldnt have
flown.
Tramel: 955
A married couple is engaged in heroine transport ring. Wife caught in
Hawaii w/ heroine. Cooperates and discusses her husbands rule in the
conspiracy.
Husband/wife Spousal privilege apply in fed law?
o Hawkins: set out.
o Old rule: testimony spouses were not allowed to testify at husband
trial even if they wanted to. Too much self interest. Perjury
o Modern rule: can testify on each others behalf, just cant be
compelled to testify against one another
You can stop witness spouse from testifying, protecting
marital harmony.
You can waive this privilege. And state can make him
Wife or husband can decide if they want to testify against
their spouse.
Witness spouse owns the privilege. If they want to Testify, thats ok, but
the state wont make her testify
o Against it: people not married dont get privilege, people wont talk
to their wives
Moon:
68

Change in privilege law:

o Domestic violence
o Woman may be in more danger
o Exception: crime committed by one spouse against another
o NO matter who owns the privilege: if one person commits crime
against the other or their children, no privilege at all.

If wife doesnt want to testify for you, you can make her.
Communication Privileges:
Tramel rule more prevenlent
The marital privielege surviving outside the marriage: conversations
before end, yes, after no
Types of communications:
Ones intended to be confidential, and ones while the relationship still
existed
Tom Hanks call?
Does privilege apply?
o Yes, covered. Still in marriage and confidential
o Marital conference applies too
Why?

Rational: testimonial to protect marital harmony

Marital conference want them to be comfortable talking to each other

Kitchen counter note:

One spouse writes note to the other. Thinks husband is defrauding people,
you have to get your sister to stop stealing or im going to talk.
Wife joins the criminal conspiracy
o Who has access to kitchen
Martial, so kids dont count. Babies hear might be ok, not
teenagers
Bulger:

Guy is scared and doesnt want to talk bout it. He is being charged with
perjury

Monday 13 @ 2 for review session

Federal rule 804b3 statements against interests has been amended
o Can bring in witness to say they heard someone else say the did the
crime, if it was going
o Other than saying it now goes for both sides, still the same
Value of Medical Treatment:
In a case where your trying to figure out value of medical treatment is = to
that to satisfy the debt
69

Personal injury lawyer how much money?

Damages? Medical treatment what is value of it
Amount paid is value of medical treatment
prohibited her from putting in the bill, just how much medicare paid.
Offered to bring in doc to say this is the real value of the medical
assistance
o Court SCT: just said this was ok. You can bring it in and show the jury.
They can bring it in and the jury can believe it if they want to.

o
o
o
Court
o

Problem 13.3
Poisoned deadtsck hypo
Dead animal removal business,
Main client, created their own dead animal collection business, he goes out of
business
o The new corp, was found to be selling tainted animals
He is on trial for tainting the animals: because he was upset
o It wasnt me defense
o Claims it was a guy who works for the co, giant ants and saw poison,
and reported to FDA
Worch is saying marital privilege, his exwife cant talk
Statements made are covered, even though she is no longer his wife.
Confidential, about work
Does conversation w/ FDA about ants get rid of the privilege?
o No longer privilege, didnt disclose the conversation itself, just the
facts
o This doesnt get in
Probative, reliable must overwhelm privilege
o Telling the truth, and no other way to prove it
o Can still use statements to FDA, and can put on other evidence
o Probative value, how important is this particular thing when we already
know he spoke to investigator
Trustworthiness?
o This could get him fired, so it seems trustworthy
o Privacy interest pretty week. Your not going to stop talking to your
wife, and he already told someone else
Movie:
Old guy hard of hearing and having . brother
Can he not testify?
o NO, no sibling privilege
Predictability:
He sued for 100k, I have a 70% chance of losing, so ill take 70k
Sibling privilege predictable, people like spouses but arent, no predictability
P977 Parent Child privilege
Do we think parent / children are like spouses and we shouldnt invade that.
70

71

3 appeals:
o Maj: No blanket communications privilege for kids/parents. They will
still keep talking. Too broad. Nothing gets in.
o Min 1: mom supeona to testify against kids, they cant get divorced like
in marriage. But it will be very difficult to keep a good relationship. If
they want to, they should be able to, but if not, the parent shouldnt
have to.
The few cases lost to this, are worst keeping this out