Evidence Class Notes (seat 114)

First Class (irrelevant introduction to evidence omitted)

• Where doesn’t evidence apply?
• Laying the foundation: FRE 104(a) {The court must decide any preliminary question about
whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding,
the court is not bound by evidence rules, except those on privilege.}
• this means evidence rules don’t apply when deciding whether evidence gets in, with
the exception of privilege (i.e. the evidence rules of privilege)
• Judge’s evidence decisions also have enormous insulation at the appellate level. (FRE 103)
• FRE 103(a) even if the judge was wrong the party must have had a substantial right
effected (significant prejudice to the case), this is the harmless error standard
• For evidence that was incorrectly admitted FRE 103(a)(1)
• the party must also make a timely objection and state the specific ground for this
objection, unless it is apparent then the objection doesn’t have to be stated.
• Evidence incorrectly struck FRE 103(a)(2)
• Offer of proof must be given, that is what would of been revealed must be shared with
the judge outside the presence of the jury (FRE 103(d)), this creates a record for the
appellate court
• A plain error is the standard shown if the earlier steps weren’t followed, this never really
works because of how high the standard is(plain and well settled, letting it stand would be a
miscarriage of justice) FRE 103(e)
• Once a court makes a definitive ruling on the record a party need not resubmit an
objection, that is, once something is sorted out in limine and the judge makes a ruling,
there is no reason to restate the grounds of the objection FRE103(c)
• Banera v. City of Quincy
• Banera calls witness Coletta. City new Coletta would be called and had raised a motion in
limine ahead of time, which was denied. However, they only filed a motion about what they
expected Coletta to discuss, but ultimately she discussed more. When she discussed, the
city objects, but only on timing grounds not relevance grounds. City losses and later
appeals based on Coletta’s opinion.
• Court agrees Coletta’s opinion shouldn’t have been submitted, but the City failed to make
the right objection (FRE 701) and so the statement was allowed.
• Only gets reviewed for plain error, since correct objection was not raised (FRE 103) and
there was not plain error here.
• Problem 1.1 (pg. 16)
• Harmless error standard if it was plain from the circumstances what objection was being
made (FRE 103(a)(1)(b). Or, if the correct objection was not made, the plain error standard
must be met (FRE 103(e).
• Problem 1.2 (pg. 16)
• FRE 104(a) judge can decide.
• Rule of relevance
• FRE 402, relevant evidence is admissible unless there is a particular exception and
irrelevant evidence is inadmissible
• Hypo: Suppose a defendant charged with a murder in a fatal shooting. The prosecution
has a bill of sale for a handgun that is the same calibre as the gun used in the shooting. Is
this relevant? Yes. (FRE 401) in this case the action is a murder conviction and the fact of
consequence is that the defendant owned the same kind of gun. This definition is looking
at the case with the evidence and without the evidence. This is not judging the whole case,
but just the use of the single piece of evidence.
 Evidence Class Notes (seat 114)

• notice that relevance is a relational concept, need to have context to determine

relevance
• relevance is not a legal test, that is the decision is based on logic, common sense, etc.
• Relevance is necessarily distinct from admissibility (relevant evidence can still be
inadmissible). Neither concept should be mixed up with the importance of the evidence or
the sufficiency of the evidence. We just judge the piece of evidence on its own, not asking
if it will change the whole trial.

 Evidence Class Notes (seat 114)

• January 23
• This the night I went to Big red barn before class…
• What to look for in a case
• Dominguez
• What was challenged? defendant’s ownership of the gun
• ugh I can’t do this
• witness credibility is always relevant
• With cases alway look at what happend out of court, what triggered litigation, what is
procedural posture, why are we talking about it at all?
•
 Evidence Class Notes (seat 114)

January 27
• Old Chief
• Charged with multiple crimes arising from assault.
• Pieces of evidence don’t just prove one thing, a single piece of evidence can support
different things.
• In this case the evidence could prove that Old Chief has propensity to commit assault.
(FRE 403).
• FRE 403 don’t just way probative value v. danger. look to see if there is an alternate
piece of evidence we can use with less danger then we have to discount the first
piece of evidence.
• The supreme court says “a matter need be in dispute to be relevant.” Also say we don’t
need a perfect fit (the evidence can prove more than just one thing).
• What does the supreme court say about the general ability of courts to control how litigants
run their case?
• No. so how does the court reach their decision here and restrict the evidence?
• The court decides the trial court abused their discretion by not requiring the
prosecutor to take a stipulation
• Problem 2.1
• Can’t make someone stipulate away this. The court isn’t required. Does the defendant
have a remedy here? Try and use FRE 105
• Did the prosector do something wrong by not stipulating? Should he have tried to avoid
unfair prejudice?
• Conditional Relevance (FRE 104(b))
• Compare to Simple Relevance?
• Conditional relevance depends on a particular preliminary fact, and this additional fact
totally determines whether something is true or not.
• Preliminary questions determined by judge, kind of. He decides whether a reasonable
jury could decide that the preliminary question is true.
• State v. McNeely
• Inmate testimony case
• The relevance here is based on the existence or nonexistence of a condition. The trial
judge hears the evidence and asks if a reasonable jury based on the preponderance of
evidence that McNeely made the statement
• Problem 2.2
• If you were the judge how would you frame this as a simple relevance question?
• Evidence should be admitted if evidence of the assault makes it more probable that
the defendant killed the victim or does its prejudicial value outweigh this (or would it
be less likely to think this without the evdience). Think of the case without the
evidence, the killing seems less likely (the any tendency standard).
• As a conditional relevance problem?
• Only if jury could believe defendant believe assault occurred.
• So conditional relevance or simple relevance?
• Authentication (classic example of conditional relevance)
• this is like a subset of evidence rules, to admit physical evidence, the party offering it must
prove the evidence is what it is claimed to be. (FRE 104(b))
• basically if it is what it is claimed to be it is relevant and if not vise versa
• evidence goes to jury as long as their sufficient evidence for jury to believe the evidence
is what the proponent claims it is
 Evidence Class Notes (seat 114)

• FRE 901, to satisfy authentication evidence proponent must produce sufficient to a finding
that the item is what the proponent claims it to be (can’t say it is a document)
• note FRE 901 gives a list of ways to authenticate, not declarative, but helpful (make sure
to notice how limited these are)
• all cases line up with parts of FRE 901, good exercise to match them up.
• Problem 11.1
• Does the photograph need to be authenticated? Yes. Someone who was present just
needs to testify, or metadata on the photograph

 Evidence Class Notes (seat 114)

January 29
• Authentication
• Russian FB case.
• Contested piece of evidence?
• Printout of Russian FB-like page. Notice that the authentication of this piece of evidence
is case dispositive.
• What does prosecutor claim this piece of evidence is?
• The (D)s fb page, which is significant cause it has the same name. (it is only
submitted as being something online, so there is a relevance concern)
• How does prosector try to establish relevance?
• Brings in an “expert.” shows photograph, hometown, employer, sky name, same
profile name but different spelling, and notes the place where D met the witness
• What else could have been done?
• could try and ask on cross examination
• get ip address that created the device
• etc.
• Certainly seems that prosecution satisfied the burden of 901.
• why was more testimony necessary than the FBI agent
• Hearsay
• Definition Components
• Out-of-court
• made outside the presence of the fact-finder in the trial in which he statement is
offered
• Statement
• oral statements, written statements, certain kinds of conduct
• Offered to prove the truth of the matter asserted
• this means the matter the declarant intended to assert, not what it is intended to prove
in court
• Witness v. Declarant
• A witness hears the declarant
• The issue with hearsay is offered in court that is an
• Example
• people see accident, bystander see accident and makes statement to cop, later cop
testifies based on this, what are our concerns?
• (1) don’t know how the bystander’s perception was (drunk, bad los, memory, etc.)
• (2) ambiguity
• (3) insecure
• don’t we have these concerns all the time? in court we have the following safeguards?
• under oath
• jury observes witness
• cross-examination
• what function do these safeguards serve
• deterrent function
• notice function
• corrective function
• rationale for the rule against hearsay
• when a party offers into evidence an out of court statement - not under oath not before
the fact find, and not subject to cross examination - to prove what the statement asserts
those safeguards, which help protect against inaccuracy due to poor perception, faulty
 Evidence Class Notes (seat 114)

memory, defective narration, and insincerity are absent; as a result, the evidence is
excluded because of reliability concerns
• Leake v. Hagert
• What was at issue?
• was the red lens on the tractor at
• Why was this relevant?
• It would have proved that truck wasn’t properly lit at night.
• son made a statement that the red lens was out
• made out of court
• seems like a statement
• clearly offered to prove the truth
• note that it doesn’t matter if a statement is corroborated, that a witness can’t be called
etc.
• Offered to prove the truth of the matter asserted
• the trick is that you have to determine if there is a relevant use of the statement that
does not rely on the truth of what was said
• Lyons Partnership v. Morris Costumes (Barney)
• Who were out of court declarants?
• children, parents, principal, and newspaper articles
• What were the out of court statements?
• Kids screamed Barney and the I love you song.
• The argument could be made that the kids are saying I think its barney and a hear say
claim is raised.
• United States v. Perry (Guy thought he was working for DEA agent)
• Notice that Perry himself stated, this could’ve been objected to as well
• Didn’t matter whether he was true, what mattered was he thought it.
• First twist, this statement is a little complex, he could’ve claimed he was actually
working for the agents, then this statement would appear differently, the statement
would be hearsay then
• What would jury do if both claims are raised? Limiting instruction
• Second twist, when he says I am working with the DEA agents he really mean I think
I’m doing it, arguably he is proving the truth of the matter being asserted
• Subramaniam v. Public Prosecutor
• he probably claimed he was told “do this or we will kill you”
• his belief that the threat was relevant is what is key, not whether the actions would’ve
been acted on

 Evidence Class Notes (seat 114)

February 3
• why this is ok
• since we aren’t asserting the truth of the matter, all that matters is that the statement was
made, since this is the case we can cross examine etc. the person who says this statement
was made, therefore no hearsay concern
• Hypo/Explanation
• Event 1 (big animal costume comes to party)
• Event 2 (kids say its barney)
• Testimony (kids said it was barney when they saw costume)
• arent’t offering testimony to actually assert costume was barney, but that the kids said it
was barney, that is the matter being asserted and can be cross examined etc., which is
why it’s ok
• this means the real trick is making sure the original statement can meet a relevancy
test
• US v. Johnson
• what was challenged? the testimony that one doctor told the other doctor to stop making
prescriptions “like that”
• all that’s being offered is that the first doctor was on notice that he was doing something
wrong, not whether he actually was
• US v. Saavedra
• what was challenged? victims of the scheme testified that they got the calls, declarants
where the prison inmates, doesn’t matter whether inmates really were officers (as tehy
claimed), what matters is that they said they were officers
• Hanson v. Johnson
• who owns the farm? Hanson, rents it out to Schrik, shrik pays for part of farm by giving him
2/5 of the corn he harvests, 3/5 of corn given to bank for a loan, things go poorly for shrik,
bank sells the corn it thinks its owned, bank sells corn to Johnson
• claim is Hanson saying Johnson got his corn (the 2/5 owed by Schrik)
• evidence offered?
• Bystanders say Shrik pointed to certain crib of corn and said that it was Hanson’s.
Seems like hearsay? How do you get around this?
• the statement established Hanson’s right to that particular corn. the statement
signalled the transfer of the corn, it is a performative act.
• Creaghe
• out of court statement is the call saying cancel my policy, again this is a verbal/performative
act and so is not hearsay
• US v. Montana
• out of court statement “its going to be 10,000” doesn’t matter if that’s true, but that it was
solicited.
• Problem 3.2
• not hearsay, (key was proving state of mind for self defense, not factual)
• Problem 3.3
• not hearsay, the mere fact that the magazine showed it is what matters (not whether she
was drunk)
• Problem 3.4
• yes, this is trying to show the truth of matter (key is to prove falsity, which is factual)
• Problem 3.5
 Evidence Class Notes (seat 114)

• no, not being offered for truth of the matter, showing that the reporter had heard actress
was drunk not that she actually was (key is to prove absence of malice, which is state of
mind)
• Problem 3.6
• no, relevant that hospital was told doctor was incompetent (what hospital knew matters
here), will want limiting instruction to make sure this isn’t used to judge whether doctor was
competent
• Problem 3.7
• not hearsay, this part of the claim (part of adverse position is telling other people the land is
yours)
• Problem 3.8
• yes, this is all hearsay, all being offered to prove the truth of the matter, what caused the
accident
• Problem 3.9
• yes, used to prove what time it was when the event occurred
• no, both testifying
• Problem 3.10
• no, not offered for the truth of the matter, doesn’t matter whether he has house on mars
• Problem 3.11
• yes, these are only relevant if there were fish in the drawer
• What is a statement?
• statement means a persons oral assertion, written assertion, or nonverbal conduct if it was
intended as an assertion
• oral assertion (blue car ran the red light)
• written assertion (whenever you have a document there is a big concern about hearsay)
• nonverbal conduct if it was intended as an assertion (pointing at something for instance)
• what about nonverbal conduct not intended as an assertion, offered to prove the truth of
the matter asserted
• such as a captain sailing on the ship, shows he thinks it is safe
• this gets over insincerity concerns, can be a more thorough statement,
• Common Law treated this as hearsay
• What about implied assertions
• oral, written, or nonverbal communication offered to the truth of what the thing
communicated implies
• Wright v. Tatham
• was the testate competent?
• challenged evidence was letters written to the testate about stuff, these were
offered not to prove the truth of what they said, but that he could read them and
was therefore competent
• US v. Zenni
• police raid betting parlor, get calls with people placing bets while they are there, are
these bets inadmissible?
• these states are very different from Wright v. Tatham, because the betters aren’t
asserting facts, they are really trying to do something
• State v. Dullard
• was there a meth lab? a note was left saying that a cop car was sitting outside.
• enough of a concern about sincerity that this wasn’t admitted
• ACN Rule 801
 Evidence Class Notes (seat 114)

• says some nonverbal conduct (assertive conduct) is essentially verbal conduct, acting
to show belief while not intending to convey that belief is ok, don’t assume nonverbal
conduct was not done to assert something!
• Problem 3.12
• Yes under Wright v. Tatham, trying to use the fleeing to saying something, we have to
“go into the head” of the declarant (intent doesn’t matter, if you have to go through the
actor’s head)
• Not under FRE, no intent to assert (which is what defines the decision)
• Problem 3.13
• Yes, only reason they’d take sweaters off is cause its cold, this means we have to go
through their head again
• No, not intended to assert with either no complaints and taking off sweater
• Problem 3.14
• yes and yes, this appears to be nonverbal conduct if the person intended it as an
assertion, so it is a statement under both common law and the FRE
• Problem 3.15
• the officer testifying about the dog does not seem to be hearsay
• this means we are traveling through the dog’s mind to interpret the statement, however
we don’t have the same concerns about the “declarant” in this case (we can’t put him
under oath, observe him, or cross examine him anyway)
• would get in under common law and under FRE (notice that FRE 801 requires “person”)
• Problem 3.16
• irrelevant problem
• Problem 3.17
• what does the statute mean by the matter, this will determine whether it is the same or
not
• Problem 3.18
• parrot is not really the out of court declarant, the woman who was shot was the
declarant, the parrot is like a witness or recording (follow the dog analysis for the parrot)
• the statement made by the victim is most like an implied assertion (Harry don’t shoot
implies Harry is going to shoot her)

Process
Figure out who declarant is, who witness is, what the statement was, what it was being offered
to prove
Differentiation
• oral assertion: statement
• written assassin: statement
• nonverbal conduct if the person intended it as an assertion: statement
• nonverbal conduct, not intended as an assertion when offer to prove the truth of the actors
apparent belief: not a statement
• implied assertion: oral, written, or non-verbal communication offered to prove the truth of what
the thing communicated implies: not a statement (ACN & Zenni), statement (Dullar)

police knocked down door cause they hear voice saying shut shut up to a barking door, turns
out it was a parrot

 Evidence Class Notes (seat 114)

Reading #5
Hearsay & Confrontation
• limitations from 6th amendment
• applies only in criminal prosecutions
• only enjoyed by the accused (only one party can use the clause as a barrier to the entry of
certain evidence)
• to be confronted with the witnesses against him (limits on how much you can conceal the
witness)
• Crawford undid about 25 years of well settled precedent, so what came before it
• the prevailing test was the Ohio v. Roberts test
• restricted the governments use in criminal cases of all out of court statements offered to
prove the truth of the matter asserted unless the declarant either testified or was proven
to be unavailable
• admission of out of court statement to prove the truth of the matter asserted was
permissible if there were sufficient “indicia of reliability”
• how to tell if statement was reliable?
• either well recognized hearsay exception
• or equivalent particularized guarantees of trustworthiness
• this was a very broad rule it applied to all out of court statements offered to prove the
truth of the matter asserted
• substantial overlap with the rule against hearsay in criminal cases
• exceptions based on judicial assessment of reliability of the out of court statement
• courts frequently admitted into evidence over hearsay and confrontation cause
objections post-arrest statements of non testifying criminals in which they admitted guilt
and named accomplices or co conspirator
• statements to police
• grand jury testimony
• guilty pleas
• no cross examination in those settings
• Crawford v. Washington
• Crawfords stab this guy Lee in retaliation for Lee trying to rape Mrs. Crawford. Crawfords
arrested, Mrs. Crawford makes a recorded statement. She can’t testify in court, but state
wants to submit her recorded statements.
• Isn’t this hearsay? No, she is incriminating herself which might work to exempt it and it
was a statement made to the police etc.
• Court is concerned about a few things
• unpredictable process to determine reliability
• people being convicted based on statements by accomplices that weren’t cross
examined
• Court reaffirms that the confrontation clause plays a role in the admission of out-of-court
statements
• focuses on a subset of out-of-court statements: “testimonial statements”
• what is a testimonial statement?
• (1) ex parte in court testimony or its functional equivalent
• (2) extrajudicial statements contained in formalized testimonial materials
• (3) statements that were made under circumstances which would lead an objective
witness to reasonably believe that the statement would be admittable for use later
at trial
 Evidence Class Notes (seat 114)

• (4) statements in which there is involvement by government officials in the

production of testimony with an eye toward trial
• examples of testimonial statements
• what counts: sworn affidavits, in-court testimony (prelimnary hearing testimony,
grand jury testimony, statements made during guilty pleas), statements made to
police officers during formal interrogation (confessions)
• what is the rule with testimonial statements
• if the declarant does not testify at trial (ftnte 8 pg 78)
• out of court statement is offered to prove the truth of matter asserted (ftnte 8 pg 78)
• state is not admissible unless
• declarant is unavailable
• the defendant had an opportunity to cross examine the defendant at the time the
statement was made
• again compare to Ohio v. Roberts
• no judicial assessment of reliability here
• no consideration whether the statement satisfies a well recognized exception to the rule
against hearsay
• requirement of a procedural protections designed to ensure testing of reliability
• must be confrontation of the declarant in the trial in which the testimonial statement is
offered or at the time the statement was made
• more robust exclusionary provision
• what of non-testimonial statements?
• after crawford there are two possibilities
• the crawford rule applies to testimonial statements offered for TOMA and Ohio v.
Roberts applies to non testimonial statements
• crawford rule applies to testimonial statements offered for TOMA and the FRE applies
to non-testimonial statements
• this is what the court decided
• Testimonial v. non-testimonial
• Davis v. Washington
• Hammon v. Indiana
• Michigan v. Bryant
• All three decision involved statements about alleged criminal conduct tat was either
ongoing or recently completed made by apparent victims in response to question by
police or 911 operators
• were they testimonial statements
• test to determine testimonial or non-testimonial
• statements are non testimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency
• they are testimonial when the circumstances objectively indicate that there is no such
ongoing emergency and that the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal prosecution
• In Michigan v. Bryant court spells out that police interrogation is not determinative one
way or the other it is just a helpful factor
• Davis v. Washington
• see reading notes for facts
• was the primary purpose of the call to meet an ongoing emergency or to establish
events with a view towards trial?
 Evidence Class Notes (seat 114)

• the statement was made during an ongoing emergency, this means the statement was
non testimonial statement during an ongoing emergency
• Hammon v. Indiana
• again see reading notes for facts
• court decides this was testimonial, the emergency was over and she was looking
towards an eventual trial
• the despotive question is what the purpose of the interrogation was, not whether there was
necessarily an ongoing emergency
• however, this is still unclear in cases like domestic violence, it is unclear when the
violence ends
• very common in domestic violence for the statements only to be made once and then for
the witness to not co-operate

 Evidence Class Notes (seat 114)

Reading #6 (parts of 5)
• Refresher on confrontation clause (first was statement testimonial if so was it offered for truth
of the matter asserted if so was their cross examination and testimony)
• Problem 3.19
• Yes this is hearsay, statement being made out of court and offered for the truth of the
matter asserted. Would this violate confrontation clause? Defense is offering this
statement so there is no confrontation clause issue.
• Problem 3.20
• This is an out of court statement offered for the truth of the matter asserted and therefore
hearsay. Would this violate confrontation clause? Only if coroner’s statement is a
testimonial
• Problem 3.21
• Not hearsay, it is an out of court statement, but not for asserting the truth of the matter.
Is there a confrontation clause issue? No there is not, first this statement is not a
testimonial (victim is talking to defendant), and it is nto being offered for the truth of
matter asserted.
• FRE 802
• hearsay not admissible unless we are told otherwise
• how do the exceptions work?
• varies from case to case
• categories of exceptions
• FRE 801
• FRE 801(d)(1) declarant testifies
• FRE 801(d)(2) admissions by party litigant and others associated with party litigants
• FRE 803
• unavailability of declarant not required
• FRE 804
• unavailability of declarant required
• FRE 807
• residual hearsay exception
• FRE 801(d)(1)
• this applies not because they are necessary reliant but because the declarant is in the
court and subject to cross examination
• (the two requirements are that the declarant testifies and is subject to cross examination
about the prior statement)
• what is the difference between these two requirements?
• hypo: auto accident, where witness testifies in deposition that he was in D’s car and
that d had been drinking, at trial this witness testifies and is asked about what
happened and he says he doesn’t remember what happened in the car but does
remember the deposition
• he is testifying, but is he cross examined?
• yes, see Owens, don’t need to remember what statement was about, but that
statement happened
• what if d didn’t remember the deposition?
• doesn’t matter, still cross, no guarantee of a good cross examination
• how could you not be subject to cross examination?
• refusing to answer questions or judge won’t allow the questions
• as long as witness willingly answers cross examination question the requirement
is satisfied
 Evidence Class Notes (seat 114)

• US v. Owens
• similar to the facts of the hypo, but guy hit in head by a pipe rather than drinking
• in second of two interviews Owens remembers his attackers, after his condition
improved and he had visitors, defense suggest visitors told Owens who to finger
• at trial Owens cannot remember who attacked him, so same issue as above
• the text of the law requires cross about the statement itself not what the statement
was about
• FRE 801(d)(1)(A) (depose anyone who matters! or put them in the grand jury)
• Albert v. McKay
• Is there a relevant non hearsay use of the statement? Goes to witness’s credibility,
doesn’t matter whether statement is true.
• What is the problem here?
• P has to show negligence and only evidence of that is the prior inconsistent
statement. But this kind of statement (prior inconsistent statement) is not admissible
to prove truth of the matter asserted only for impeachment value (witness credibility).
• if you were representing the painting now what would you do?
• depose the witness cause then the prior inconsistent statement can be used for truth
of the matter statement
• what does inconsistent mean?
• courts have a pretty broad reading, just different in anyway that is relevant to the
litigation
• doesn’t matter who puts the statement in (other witness can introduce the contradictory
statement)
• FRE(d)(1)(C)
• if a person identifies someone they perceived earlier the statement comes in to assert the
truth of the matter asserted
• there is a concern about in court identifications (very suggestive situation)
• so we can use photo array or lineup etc.
• Problem 3.22
• decided same way under FRE
• Problem 3.23
• no, see FRE 801(d)(1)(C), she is testifying and subject to cross examination. How about
confrontation clause? Testimonial statement and cross-examined at trial.
• Problem 3.24
• Yes this barred by hearsay, officer not subject to cross examination.
• Problem 3.25
• Yes this is allowed, anyone can get in under 801(d)(1)(C). Declarant testified at case
and was subject to cross examination and so any witness who saw the identification can
testify.
• Problem 3.26
• notice there are two things going on: (1)admissibility, should an out of court statement be
admitted into evidence? (2)sufficiency, once this comes in it can be relied on alone, do
we want to punish solely on untested testimony? No
• FRE 801(d)(2) (this is huge and easy to use)
• statement offered against an opposing party and made by a party
• this is not statement against interest rule
• US v. McGee
• statements aren’t against his interests (lots of different stories told to detective)
• all that matters is that it was made by a party and offered against a party
 Evidence Class Notes (seat 114)

• US v. Phelps
• one criminal defendant could not admit the out of court statement of the other
• has to be adverse parties so that you can be “against each other”
• FRE 602
• as a general matter we do not allow in testimony unless the witness has personal
knowledge about the matter
• compare to the truck driver case Salviti v. Thorpe that allows stuff in anyway cause of
FRE 801(d)(2)
• Reed v. McCord
• Hypo: guys own laundromat because employees are spilling toxic waste and he is an
absentee owner, but he says something about this it will still come in as an admission by
him against him, but if he says his employees tell him that this happens then it is not
admissible
• FRE 805
• if you have a statement passed down you need to establish each link meets a hearsay
exception
• 911 Call
• women gets on and says that her brother came by and said he committed a murder, says
where they lived and gives more information about brother, more information obtained, talk
about where police station is
• Suppose we are the prosectors here and want to play this tape. Is there a hearsay
problem?
• Out of court statement offered for truth of matter asserted.
• First declarant is the defendant and he is out of court, alleges he committed a murder,
says it to sister and husband who call 911. This is multiple hearsay.
• exception to get over first statement? it is an admission, statement made by a party
offered against a party
• how about sister’s statement to 911 operator? we don’t know yet
• Is there a confrontation clause problem?
• Depends who is in court. If sister comes in we are good. What if she can’t come in?
911 operator comes in and so how does this help if at all? Is it testimonial? is there an
ongoing emergency situation or were statements intended for future litigation (use
Crawford primary purpose test)
• argument for emergency situation?
• not sure where subject is
• declarant afraid for life
• information is for apprehending statement rather than trial
• argument against emergency situation
• not sending out officers, but directing her to police station
• husband seems calm
• 911 operator didn’t ask where the brother is, is he armed, etc.?
• suppose we get over hearsay and Michigan v. bryant and we tape rather than 911
caller testimony
• just get her to testify that the converstation sounds right

 Evidence Class Notes (seat 114)

Reading #7
• Loose ends from last time
• confrontation clause cases, rule came from crawford, remember testimonial statement
triggers the issue (first is it evidence by prosecution, then is it testimonial, if yes to both
there is a confrontation clause issue). rule for defining testimonial statment is a primary
purpose rule, if the primary purpose is to deal with an emergency it is not a testimonial
statement.
• further defining primary purpose: is there an emergency, this is where issues can come
up
• multiple hearsay: multiple declarants and information is passed down, FRE 805 requires
that in these problems every link in the chain must satisfy hearsay rules. best way to figure
this out is map out declarants and statements
• HYPO
• shooting at a bar, police get information afterwards and arrest a suspect, suspect admits he
was in bar, had argument with victim, admits he owns same kind of gun in murder, but later
says he didn’t have gun and he wasn’t there for shooting, this was all recorded. prosecutor
wants to call detective to play parts of the recording
• do these come in? these are out of court statements offered for truth of matter asserted,
but FRE 801(d)(2) allows admissions
• suppose now that defense objects that whole thing has to be played? whole thing
should be accepted under FRE 106 (if you introduce a writing or recording any other part
can be required), the rule of completeness
• is this a rule of timing or admissibility? a rule of timing, when you introduce some
information at one time the other party may not have to wait for their case to introduce
the rest of the information. this also appears to overcome a hearsay objection, but
that is a little unclear
• Beech v. Rainey
• this is the plane crash case, husband wrote letter, debate over whether whole thing can be
admitted
• issue is whether whole letter could be admitted, part of the letter went for the P, but most
went for the D, Court argues that FRE 106 means the whole letter should be submitted
• could this be done w/out dealing with hearsay, could argue the second part is just not to
mislead the jury, in which case we aren’t asserting the truth of the matter, and so aren’t
dealing with hearsay
• 911 call
• suppose prosecutor had only played parts about defendant admitting shooter, can the rest
of the car come in under FRE 106?
• if you were trying to keep the rest of those statements out of the 911 how would you do so?
• these statements don’t go to the facts, that is they don’t need to be considered “in
fairness” at the same time
• Problem 3.27
• (a) no, this is an admission
• (b) no, this is an admission about a statement not offered for the truth of the matter
(meaning not multiple hearsay)
• (c) yes, that first statement offered for truth of matter so it is hearsay, doesn’t matter if we
have an admission
• what if it isn’t based on personal knowledge, doesn’t matter for admissibility
• Problem 3.28
• should agree, this wasn’t a writing or recording so no FRE 106
 Evidence Class Notes (seat 114)

• how does fairness go? probably just take the whole thing
• Adoptive Admissions
• statement offered against opposing party, opposing party didn’t make the statement, but
the party manifested that it adopted or believed it to be true
• this is harder where someone is silent and doesn’t explicitly accept (US v. Fortes)
• US v. Fortes
• was silence at time silence made a manifestation of agreement, court says yes, she was
there and could of objected
• if you want to object to this object to the judge first so that the jury doesn’t even hear it
• Southern Stone Co v. Singer
• P counsel wrote letter
• letter trying to confirm conversations where Moore said he was instructed to buy a bunch
of stuff, letter said if you disagree to respond
• was the first statement a hearsay statement
• Problem 3.29
• seems like you’d expect a firm denial so probable 801(d)(2)(B) adopted admission
• on the other hand he did say he didn’t remember doing that
• what circumstance might you want to know here?
• how long ago this incident was
• Hypo
• John wants to sell house and hires realtor for price evaluation, realtor sends letter with
value, offers house for same amount as letter, house burns down, trial over value of house,
question whether the letter is admissible
• price (statement made to general public) is hearsay, out of court statement offered for
the truth of the matter asserted
• however, this seems like an authorized admission, realtor hired to speak on your behalf
and while the relationship existed
• Hanson v. Waller
• here an attorney sends a letter when working for a party, so it is covered
• notice that the letter is limited to the subject
• Hypo
• same hypo as above except instead of listing house for sale John is only sent the letter,
can this be admissible
• yes. still hearsay, even though this is an internal statement it still falls under FRE 801(d)
(2)(C)
• Problem 3.30
• this would certainly be authorized admission if she wasn’t fired
• so who makes this decision FRE 104(a) the judge in a preliminary decision, need the
preponderance of evidence (who has the burden, party submitting the evidence, the
plaintiff here), defense has slightly better argument therefore not a preponderance of
evidence and so not admissible
• Mahlandt (wolf case)
• wolf might have attacked child or pulled child under fence
• three statements
• do the oral and written statement come in against Poos?
• seem like an admission made in an indvidual party
• lack of personal knowledge doesn’t matter
• FRE 801(d)(2)(D) (not c cause it wasn’t his job to speak on behalf of center, but was
in his scope of employement)
 Evidence Class Notes (seat 114)

• does it matter he make the 


 Evidence Class Notes (seat 114)

February 16
• Southern Stone
• This is the letter case (ie deny it or it is true)
• Three layer multiple hearsay problem:
• Singer to Moore. hearsay? arguably not for truth for matter asserted, instead were
instructions given before the company went under, or it falls under admissions doctrine
• Moore to Attorney. hearsay? This is being offered for truth of matter asserted, but it is an
admission, since Moore is a party.
• Attorney Letter. hearsay? Is this an adopted admission
• 801(d)(2)(C)
• only tricky thing is when there are internal statements, but those are still admissible
• Mahlandt (801(d)(2)(D) applies to both internal and external statements)
• wolf case
• Poos makes statement to employer (note and to board). Does this fall under the rule of
insider statements apply to 801(d)(2)(D)? Sure, same logic.
• we are not holding principles liable for things said by people not hired to speak on their
behalf, rather just people they have hired
• for instance in Mahlandt there was a good chance that Mahlandt was just wrong
• this is a far step from the admissions doctrine when you are hurting yourself
• note that company’s don’t speak for their employees
• in Mahlandt the board couldn’t speak for Poos
• Sealand Service
• employee of one party sends an email saying something like “we screwed up” this goes to
another employee of the same business, the employee who gets this email doesn’t know if
its true, but forwards it to the other party. Is this email that admits culpability admissible?
• Two approaches
• Multiple Hearsay:
• Employee 1 to Employee 2, Employee 2 to Outside Party
• Look at the 2nd statement as an adoptive admission:
• an agent/employee is manifesting an adoption within the scope of their duties
• Problem 3.31
• Admissible against driver, admission (801(d)(2)(A))
• Not Admissible against company, no longer employed (no under 801(d)(2)(D))
• Problem 3.32
• Lack of malice is a state of mind, so not submitted for truth of the matter and not hearsay
and therefore acceptable
• Hearsay, but this gets in under 801(d)(2)(D) because made by employee within scope of
employment (VP of Menus) and while relationship exists
• Problem 3.33
• Hearsay exception works, internal statement applies to 801(d)(2)(D) (Mahlandt) and he
was employed, it was under his scope of employment, not confrontation clause (this is a
criminal matter (don’t need it in civil case), offered by prosecution (doesn’t apply to
defense; can’t be objected to by person who made the statement), not testimonial
statement (not made for future legal purposes))
• You might try and argue this isn’t hearsay. What matters is the company knew they had a
problem and this sufficient to show that. This doesn’t work though:
• However, statement made after incident
• Negligence doesn’t ask, but what a reasonable person would do so notice doesn’t matter
• 801(d)(2)(E)
 Evidence Class Notes (seat 114)

• co-conspirator exception, has 5 requirements

• conspiracy must exist
• declarant must be member of conspiracy
• party against whom statement is offered must be a member of the conspiracy
(doesn’t matter who conspiracy was offered to)
• statement had to be made during the conspiracy
• statement must be made in furtherance of the conspiracy (or at least this must
believed, which means undercover agents can relate the statements even though
they weren’t going to allow the conspiracy to go further)
• Hypo:
• A and B are in conspiracy to sell cocaine. B meets S to sell cocaine, says “A and I have
good stuff.” S arrested and introduces B’s statement.
• B objects on hearsay and confrontation clause
• B made the statement and it is offered against him so it is just a regular admission
801(d)(2)(A), so there is a hearsay exception. Seems to get past confrontation clause
cause he made the statement.
• A objects on hearsay and confrontation clause
• Does 801(d)(2)(E) apply?
• Conspiracy existed, A & B were member of conspiracy, conspiracy ongoing and to
keep conspiracy going
• Confrontation Clause?
• Crawford said conspirator’s statements during conspiracy are not covered
• Hypo:
• A and B are in conspiracy to sell cocaine. B meets S to sell cocaine, says “A and I have
good stuff.” S was under cover agent and introduces B’s statement.
• B objects on hearsay and confrontation clause
• same situation for him
• A objects on hearsay and confrontation clause
• doesn’t matter that S wasn’t a member of the conspiracy, who statements are made to
do not matter, however she wasn’t going to buy the drugs does this matter? No did
the party believe it was in furtherance when the statement was made is what matters
• Hypo:
• A and B are in conspiracy to sell cocaine. B meets S but not to sell cocaine, says “A and I
have good stuff.” S introduces B’s statement.
• B in same spot
• A objects on hearsay and confrontation clause
• This time the conspiracy is not being furthered cause he never meant to sell the
concaine
• Hypo
• A and B are in conspiracy to sell cocaine. B meets S to sell cocaine, says “Jason (who
doesn’t exist) and I have good stuff.” S arrested and introduces B’s statement.
• A’s attorney wants S to give the admission. Hearsay or Confrontation Clause?
• isn’t offered against a member of the conspiracy
• B objects, hearsay or confrontation
• he’s screwed he made the statement, but it is not offered against him or anyone in this
case (A wants to use it to be exculpated) so B might get away with a hearsay claim
saying 801(d)(2)(A) doesn’t apply
• Hypo
 Evidence Class Notes (seat 114)

• A,B, and S are in conspiracy to sell cocaine. S arrested and gives full testimony against A
& B then disappears.
• A&B object hearsay and confrontation cause grounds
• not made in furtherance or during conspiracy cause the statement was made after she
was arrested so 801(d)(2)(E) does not apply
• Hypo
• A,B, and S are in conspiracy to sell cocaine. S and B arrested, while on way to jail B says
not to say that A was involved and S says ok.
• B objects
• made the admission
• S objects
• adopted admission
• A objects
• not in furtherance, conspiracy ends with arrest
• 801(d)(2)(E) Co-Conspirator Statements
• statements need not be made to a coconspirator as long as it is by a coconspirator and
offered against a coconspirator
• statement doesn't need to actually further conspiracy as long as it was made in effort to
further conspiracy (undercover agent)
• conspiracy need not be charged for the exception to apply
• casual conversation is not in further, but efforts to keep other conspirators up to date on
conspiracy are furtherances
• must be offered against a party
• statements after conspiracy has succeeded or failed are not in furtherance of conspiracy
• 801(d)(2) Procedural Issues
• Who decides if foundational elements have been satisfied?
• Foundational elements are the status of the person making the statement (e.g. still
employed? scope of employment? coconspirator?)
• The court makes these decisions (FRE 104(a))
• What is the burden of proof?
• Preponderance of the evidence, has the party trying to get the statement in shown by a
preponderance of the evidence
• What evidence can a court consider when determine the admissibly of the out of court
statement?
• the court can consider the statement itself and not just independent evidence (Bourjaily,
citing 104(a))
• Is the out of court statement alone sufficient?
• No, see the rule (a good example is the facts of Bourjaily)
• When must the proponent offer the evidence?
• suppose you want to introduce a coconspirator when should you offer this before or after
the statement, it is up to the Court
• Problem 3.34
• No, conspiracy over when they are arrested, so statement not made in further of
conspiracy.
• How about confrontation clause? this is a criminal matter (don’t need it in civil case),
offered by prosecution (doesn’t apply to defense; can’t be objected to by person who made
the statement), this is a testimonial statement (made for future legal purposes) and so the
guy must be there)
• Hypo
 Evidence Class Notes (seat 114)

• B robs bank and escapes in a car driven by A. B identified by surveillance photographs.

Informant identifies A. B confesses during interrogation and A does not. Go to trial
together. Prosecutor introduces B’s written confession (confession says I robbed the
bank, there was a getaway car, and A had agreed to the driving)
• Is this admissible against B?
• Yes, statement against yourself its over
• Is it admissible against A?
• It is hearsay and not under coconspirator exception (made after arrest) and it is
testimonial statement so there are confrontation clause issues.
• therefore the confession is only against B and not A, what do we do?
• give jury instruction
• Bruton
• This applies when there are (1) multiple defendants and (2) one or more has
confessed and (3) confession incriminates both the confessing defendant and
another defendant, (4) the confession is not admissible (e.g. due to hearsay and
confrontation clause) against the other defendants only the confessing defendant.
• A jury cannot follow limited instruction to allow confession as evidence against the
confessing defendant and not the named defendant. It violates the confrontation
clause.
• History & Rationale
• Court had allowed limiting instruction in Delli Paoli
• This was indirectly overuled later because it was claimed jury could not “forget” things
Jackson v. Denno
• Bruton applies this logic to confession
•
 Evidence Class Notes (seat 114)

February 17
• Situtation 1
• coconspirator statement makes statement in furtherance of conspiracy
• if offered against person who made statement
• no hearsay problems: it is an admission
• no confrontation clause problem: can’t cross examine yourself
• if offered against other member of conspiracy
• hearsay problem? 801(d)(2)(E) as long as it meets 5 criteria above it can come in
• confrontation clause? in Crawford coconspirator statements are stated not to be
testimonial statements
• the statement gets in against both and is valid whether it names the other party or not
• What if this is a joint trial?
• the statement will get in against all of them
• Situation 2
• statement that a person involved in criminal conduct makes after having been caught
• (1) person makes statement to police and admits there own guilt and another’s
• (2) person pleads guilty and admits guilt before judge and describes another’s actions
• (3) person testifies as a witness for the prosecution, admits their own responsibility and
fingers someone else
• (in all of these statements the person incriminates themselves and another)
• statement offered against declarant
• no hearsay problem, an admission 801(d)(2)(A)
• no confrontation clause problem
• statement offered against another named in the statement
• potential hearsay problem (might be an exception)
• potential confrontation clause problem (the person making the statement probably won’t
testify)
• Crawford says that the party who didn’t make the statement can make an
objection based on the confrontation clause (unless codefendant takes the stand)
• So there are two outcomes when the statement is offered not against the declarant but
another.
• if it is a coconspirator statement it comes in against everyone
• if it is not a coconspirator statement Crawford shows the confrontation clause problem
• Where does Bruton come in?
• Bruton never comes into play in the first scenario because the statement is admissible
against everyone so no need for it. (see footnote three of the case)
• Bruton comes in on situation 2.
• Where a post arrest statement comes in and as admissible against the declarant, but not
another. Bruton does not allow limiting instructions in this case.
• So, what do we do?
• can’t just admit the confession (Bruton)
• request 2nd trial
• Amending a confession
• We must amend a confession so that there is no reference to name or existence of
non-confessing co-defendant. (Bruton)
• it we remove name or existence, but the defendant can be linked inferentially, that
is ok (Richardson)
• how about replacing names with just the word deleted cause it cannot be easily
amended?
 Evidence Class Notes (seat 114)

• Gary v. Maryland doesn’t allow this

• how about just rewriting (tailoring) confession
• Gary v. Maryland doesn’t allow this either
• How about interlocking confessions?
• can’t use these have the same problem
Hearsay
• hearsay:
• out of court (not made while testifying at the current trial or hearing)
• statment (a persons oral assertion, written assertion, or nonverbal conduct, if the person
intend it as an assertion)
• offered to prove the truth of the matter asserted
• Rule 802: hearsay is inadmissible unless an expression applies
• non-hearsay-out of court statement not offered to assert the truth of the matter asserted
• 801(d)(1): certain statements by testifying declarants who…. (get rest from slide)
• FRE 803
• regardless of whether the declarant is available as a witness these are ok
• ACN exceptions are phrased in terms of non application of the hearsay rule
• this means all we are talking about exceptions to rule against hearsay, but that is it
(not relevance, confrontation clause, etc.)
• HYPO
• A and B on a ski slope, C skis by and is out of control, A says to B that guy was out of
control, C crashs into tree and sues ski resort claiming slope was unsafe. B testifies
• C objects
• Hearsay? offered for truth of matter, out of court, but present sense impression 803(1)
(statement made as event was occurring while he was watching)
• 803(1) Present sense impressions
• what makes these reliable? don’t have time to lie
• Three requirements:
• Trigger: event or condition that the declarant perceived
• Content: statement describes or explains the event or condition
• Timing: made while or immediately after the declarant perceived the even or
condition
• HYPO
• A and B on a ski slope, C skis by and is out of control, A says to B over the phone that guy
was out of control, C crashes into tree and sues ski resort claiming slope was unsafe. B
testifies
• C objects
• does this meet 803(1) requirements: yes, use the statement itself (104(a)) to lay the
foundation with the statement itself (might be able to use crash as independent
evidence)
• HYPO
• A & B skiing together, B gets ahead, A catches up and then makes statement saying C is
out of control and has done that before. C crashes into tree and sues ski resort claiming
slope was unsafe. B testifies
• C Objects
• does this meet 803(1) requirement?
• one issue is the delay, the question is whether this immediately after, it probable is
• other issue is that he is making a statement “before” this does not “describe the
event or condition” he was immediately seeing
 Evidence Class Notes (seat 114)

• what rule could we look to?

• could use 803(2)
• 803(2) Excited Utterance, requirements
• Trigger: startling event or condition (that declarant perceives)
• Content: statement relates to the even or condition
• Timing: Made while the declarant was under the stress of excitement that the event
or condition caused
• US v. Obayagbona
• FBI agent was out of court declarant, said “girl in black and white handed it to me,” he
made the statement right after being arrested
• Trigger: end of investigation was exciting (used tone of voice, 104(a) to show this)
• Content: related to even or condition
• Timing: right when arrested
• Bemis v. Edwards
• problem here is that the declarant didn't have first hand account, he was just relaying stuff
• how do we defend this: use present sense impression, then excited utterance as a chain

 Evidence Class Notes (seat 114)

February 19
• 803(1) Present sense impressions
• Trigger: event or condition that the declarant perceived
• Content: statement describes or explains the event or condition
• Timing: made while or immediately after the declarant perceived the even or
condition
• 803(2) Excited Utterance
• Trigger: startling event or condition (that declarant perceives)
• Content: statement relates to the even or condition
• Timing: Made while the declarant was under the stress of excitement that the event
or condition caused
• HYPO
• B attacked by unknown assailant. a few months later B sees assailant and tells A, that’s te
guy. at trial statement offered through A
• Is this hearsay: yes…
• Is there an exception: excited utterance
• startling event was the assault etc.
• US v. Elem
• res gestae: this mean different things at different times, really imprecise. so really just
ignore it
• how does this work with obayagbona?
• in Obayagbona prosecution was making utterance in it got in, in Elem defendant made
statement and it didn’t get in
• argument is you are more calculating once you’ve been arrested
• Problem 3.35
• Obayagabona: criminal case, prosecutor offering, testimonial? (could argue either way),
but agent testified, so no change
• Edwards: civil case
• Elem: criminal, defense offering statement
• Problem 3.36
• Is this hearsay: offered for truth of the matter asserted, out of court, so yes
• Is there an exception:
• 803(1): not describing the even that is happening/just happened
• 803(2): questions again is whether this relevant to the exciting event, talking about the
not sleeping relates to cause of excited utterance
• takeaway that 803(2) excited utterance is easier to meet
• Problem 3.37
• Hearsay, yes.
• can’t use 803(1): problem here though is that he isn’t describing what’s going on just
what he thinks s going on
• confrontation clause: criminal case, prosecuting offering, not a testimonial statement
• HYPO
• A and B get in an accident. C helps B out of car. B says to C my legs hurt. B sues A and
uses C to testify:
• Hearsay: yes
• 803(3) describing of declarant’s current physical/sensory condition, doesn’t matter if
declarant is available
• 803(3)
• this is really just an inward looking version of 803(1)
 Evidence Class Notes (seat 114)

• same three requirements

• trigger: any even that cause a state of mind
• content: state of mind (such as motive, intent, or plan) or emotional, sensory, or
physical condition (such as mental feeling, pain, or bodily health)
• timing: must describe “then existing” condition (not a statement of memory)
• HYPO
• A and B get in an accident. C helps B out of car. B says to C, three days latter, my legs
hurt. B sues A and uses C to testify:
• is the pain suffered three days later relevant, sure why not, this is still “then existing” pain
and suffering
• HYPO
• A and B get in an accident. C helps B out of car. B says to C, three days latter, as I
remember my legs hurt. B sues A and uses C to testify:
• doesn’t get in under 803(3), see the last clause excluding “statement of memory”
• HYPO
• A tells B he is depressed. A few days later A’s car goes over cliff. Insurance won’t pay
cause argue it is suicide. A’s statement offered through B.
• Is this relevant: how does this statement make a matter of consequence more probable?
• hearsay: yes
• 803(3): not backwards looking, question is how he felt on day he made statement and
projecting this forwards (still sad later), rather than just looking backwards
• Hearsay State of Mind Exception v. 803(3)
• Lyons: kids say it is Barney
• Parry: guy thought he was talking to officers
• State of Mind Exception under 803(3) is different, but how?
• in the previous cases the declarants weren’t trying to communicate about their state of
mind, just how they understood things (that is barney {not that I thought it was barney}).
So you are not using the statement for what they were made for.
• In the HYPO above the whole point is conveying state of mind, it is the matter asserted.
• Basically if statement is not offered for truth of matter asserted it is not hearsay in
the first place, if it is offered for truth of the matter asserted see if you can use
803(3). Either way it can get in.
• US v. Harris
• D tells people he is being setup by the government (a statement of fact) or “I believe” the
government is trying to set me up.
• under either it gets. If statement of fact, it gets in under state of mind, if I believe then
using 803(3) it gets in.
• Mutual Life Ins. Co. v. Hillmon
• This is the case with the letter sending and the possible fake body to get life insurance
money.
• The issue is whether letters could be admitted. (they said I expect to leave with someone)
• what was theory of admissibility?
• the letters can be used to show what he intended to do, therefore his then existing
mental condition
• Shepard v. US
• P brings in witnesses to talk about statements made wife made to say she was suicidal
• were these statements hearsay, were they offered to prove truth of matter asserted, I’d
say so, but you might be able to argue that they were more cicrumstantial, they get in
either way
 Evidence Class Notes (seat 114)

• D wants statement to get in where D said P poisoned her.

• hearsay: certainly if you want to use it to prove P poisoned her
• does get in if you want to show she was not suicidal cause then it is state of mind (she
is less likely to be suicidal if she makes this statement)
• court makes two important statements
• talks about backward looking statement
• state of mind statements not admissible to prove a fact remembered or believed
• talks about jury instructions
• US v. Houlihan
• dispute about whether Hillmon said statements of future intent are only admissible to prove
future actions of declarant or whether they can describe future intent of another
• this is admissible (2nd requires extra evidence though)
• 803(3)
• admission of out of court statement of then exiting physical contain to prove the physical
condition
• admission of out out of court statements of then existing or emotional condition to prove the
mental or emotional condition
• compare to use of out of court statement of facts as circumstantial evidence of state of
mind
• admission of out of court statements of declarants present intent to prove declarant acted
in conformity with stated intent (Hillmon doctrine)
• admission of out of court statement of declarants present intent to prove conduct of another
person (Hillmon)
 Evidence Class Notes (seat 114)

Reading#10
• Problem 3.38
• Gets in under state of mind exception, he was saying what he knew at the time
• counter argument is he is saying he doesn’t know what happened in the past
• Problem 3.39
• should letter get in?
• show’s then existing mental statement of intent, which is relevant, should get in
• Problem 3.40
• this is a backward looking statement so no state of mind, doesn’t matter she is afraid now,
matters that she was afraid about past incidents
• ask what jury is trying to conclude
• HYPO
• Garvey gets really ill after lunch with you, you tell intake clerk Garvey got sick at X, Garvey
later sues x and want’s to use the intake clerk’s notes
• yeah gets in
 Evidence Class Notes (seat 114)

Reading#11
• Problem 3.43
• when will the note be admissible in prosecution of the driver?
• his statement was an excited utterance 803(2) (might count as a present sense
impression), her note is a present sense impression 803(1) (might’ve been an excited
utterance, but this is a stretch), so how about admitting the note?
• suppose neither husband or wife available can we get the note in?
• no, you’d have to authenticate it, and this would involve showing the wife rewrote the
note, so you need the wife
• what if there is a hearsay objection, do we need either the husband or wife?
• if excited utterance 803(3)
• that there was an exciting event
• that declarant was excited
• that note relates to the event
• proving any of these foundational requirements will require testimony, the last piece
will require the wife specifically
• 104(a) allows inadmissible evidence to lay foundation
• if present sense impression
• can foundation be laid by husband alone? husband can’t be sure wife wrote note at
that time
• how can we use note to refresh memory of husband?
• you can show it to him, but you have to ask him “does this refresh your memory,” if he
says yes then he can tell jury but can’t read, if he says no you can use 803(5) which
requires three things:
• matter made about something he knew about (easy)
• made or adopted by the witness when the matter was fresh in the witnesses’s memory
(this is harder cause he didn’t write the note down, but he presumably asks about the
note later and so he adopted it)
• reflects his knowledge (easy)
• if you can get past 803(5) you can put it into evidence
• Business Records
• 803(6) misc. notes
• this applies to a record not an oral statement
• notice how broad this record exception is
• what does someone with knowledge mean? notice that information transmitted by means
only the first person needs knowledge and the whole chain is made up of business
insiders
• how do we lay the foundation for this requirement?
• with the testimony of a custodian of records or other qualified witness or through a proper
certification
• State v. Acquisto
• this is the payroll vouchers case
• how do you cross examine vouchers?
• try and refresh their memory
• in a way these are prior inconsistent statements this allows you use them for non-
hearsay reasons
• what if there were a confrontation clause objection?
• not testimonial
• opportunity to cross examine exists
 Evidence Class Notes (seat 114)

• Keogh v. Commissioner Internal Revenue

• shows how far you can go to still have valid records, the guy with the diary was a bad
dude, but he made these for himself and there was no reason for him to lie
• Can we use FRE 806 to cross examine the diary?
• even if he is dead we can bring out his problems
• US v. Gibson
• even illegal business records count, so, as long as you can lay the foundation you’re set
• Palmer v. Hoffman
• Business records admissible under the hearsay exception rules do not include accident
reports prepared for litigation even if the reports are prepared in a routine, systematic
process.
• Lewis v. Baker
• this is more like the law now
• this is where we we get 803(6)(d) asking is the source reliable
• Wilson v. Zapata
• for business exception to apply you need everyone involved to be in the business, so in
this case the sister’s statement must be backed up somehow
 Evidence Class Notes (seat 114)

March 3
• Absence of Record 803(7)
• Why is this not necessary? It’s not a statement, since it is not intended to assert. Therefore
it is not hearsay
• US v. Gentry (M&M case)
• Problem 3.44
• Emails weren’t sent in “the course” of the activity. So probably wouldn’t meet exception.
Unless her brother were her publisher, keeping her on track, etc (best way to find this out
would be to read emails, emails are hearsay, but we can use 104(a)). Then we meet all
the requirements.
• You could argue this wasn’t an occupation or calling, but that seems week.
• Problem 3.45
• Hearsay is admirable to lay the foundation so these get in.
• Really is not a business record though cause while the samples might be regularly taken
the statements were not made regularly.
• Public Records
• HYPO
• J purchases a building to make it into condos. Takes out insurance. Can’t get permit for
condos. Building burns down under suspicious circumstances. Insurance company
investigates and determines it was arson and won’t pay. J sues. Insurances company
trying to show when fire started and so introduces report of the fire department showing
when it received the call of a fire.
• Is this hearsay? (Always start with whether the statement is hearsay)
• Yes, statement made for the truth of the matter asserted, namely the time of the call
about the fire.
• Is there an exception?
• Gets in under 803(8)(A)(i), it’s laying out the fire department’s activities.
• There is a twist here, the info is based on a call made to the fire statement.
• If so, we have a multiple hearsay problem, cause we have a person outside the
company.
• This can be overcome with an excited utterance exception
• However, pg. 198 footnote 6 talks about Baker, which says that even though part of the
information was based on an outside source that public officials will have accounted for
this and filtered out unreliable information and so we aren’t worried about it. This
obviously points to the call not being multiple hearsay.
• HYPO#2
• same facts, but insurance co uses fire investigator report, report says investigator found
three empty gas cans near the point of origin of the fire. it’s offered to prove the cans were
found near the point of origin
• Is this hearsay?
• Yes, offered for truth of matter asserted.
• Is there an exception?
• probably falls under 803(8)(A)
• gas can part seems more like (ii)
• conclusion about where fire started sounds more like (iii)
• notice that we are in a civil case and that there is a legal duty to report and its legally
authorized
• Beech Aircraft
• what was the out of court statement?
 Evidence Class Notes (seat 114)

• JAG investigator report, specifically his opinion that it was opinion based on a factual
investigation
• court says rule permits conclusions based on factual findings
• there are safeguards such as section (B) and factual findings requirement
• HYPO#3
• now he is getting criminally prosecuted and the fire investigator’s report is used
• Is still hearsay: Yes
• Is is admissible under 803(8)
• NO! still factual finding, as required by Beech, but it is being used against J, not the
government
• exception would get in if fire investigator were law enforcement personnel
• Meledez-Diaz v. MA
• Is the report a testimonial statement?
• Yes, even though witness is not personally connected it is testimonial.
• Therefore Crawford applied
• this means the rationals used for 803(8) in civil cases are really undercut in criminal
cases
• Bullcoming v. NM
• unlike Melendez-Diaz which required interpretation this just required reading the machine
•
 Evidence Class Notes (seat 114)

March 5
• US v. Bollin
• can’t use 804(b)(1) if you make yourself unavailable
• Kirk v. Raymark
• court won’t allow it in if effort isn’t made to get over unavailability
• Former testimony exception
• declarant is unavailable
• declarant testified at a trial hearing or lawful deposition whether given during the current
proceeding or a different one
• it criminal case the party again whom the former testimony is offered or in a civil case the
part or a predecessor in interest
• had an opportunity in the first proceeding to develop the testimony by examination
• had a similar motive in the first proceeding to develop the testimony by examination
• what to ask about first proceeding
• who were the parties
• who was the declarant
• did the party against whom the statement was made have a similar motive and option to
cross
• what to ask about current proceeding
• is it civil or criminal
• is declarant unavailable
• keep in mind this isn’t the only way to get hearsay that was old in, can use other exceptions as
well
• Prior Inconsistent statement
• kind of alike
• prior inconsistent statement requires current cross examination though, and witness to be
there
• former testimony requires cross when statement was given, witness has to be unavailable
• Clay v. Johns-Manville
• this explains predecessor at interest, by saying it means nothing, but not all courts agree
with this
• what is the first proceeding: a deposition in a prior case of a doctor working for
• Berger is dead
• what was d’s claim? the party that had the same motive and interest wasn’t a predecessor
• so they want the motive to be there’s literally, but too bad
• US v. Salerno
• what does similar motive mean?
• claim grand jury and trial were different for motive
• Problem 3.46
• keep in mind transcripts present multiple hearsay problems, but we only worry about part
cause 803(8)(a)(i)
• director have similar motive or opportunity to cross in the first case
• suppose janitor is available and testifies in the criminal case, might be prior inconsistent
statement
• Problem 3.47
• what was the first proceeding: criminal case, people v. gas manager
• who’s the witness: employee of the gas station
• what was the second proceeding: civil case against company
• 804(b)
 Evidence Class Notes (seat 114)

• not offered by same party

• but is the manager a predecessor in interest?
• depends on the standard, if we have the lax standard then we have it, but with higher
standard it is harder to say
• Is there another way to get in?
• 801(d)(2)(D) might apply
• Dying Declarations
• what are the components of this:
• declarant made a statement while under belief that his or her own death was imminent
• the statement was about the cause or circumstances of what declarant anticipated to be
his or her own impending death
• the declarant is unavailable at trial, whether because of death or for other reasons
• the statement is offered in a prosecution for homicide or a civil case
• ere

 Evidence Class Notes (seat 114)

March 12
• Dying Declaration
• 804(b)(2)
• declarant made a statement while under belief that his or her own death was imminent
• the statement was about the cause or circumstances of what declarant anticipated to be
his or her own impending death
• the declarant is unavailable at trial, whether because of death or for other reasons
• the statement is offered in a prosecution for homicide or a civil case
• Shepard
• stands for the prop that the declarant has to believe that death is imminent and certain,
when they make the statement
• how does one lay the foundation to show that is what the declarant believed (after all the
declarant is dead)?
• surrounding circumstances
• whether the declarants statement is statement of fact or speculation
• burden lies with the one trying to get the evidence in
• Sacasas
• teaches that the statement is being offered in a robbery case, not a civil case or homicide
case (the only time a dying declaration can be admissible)
• statement also doesn’t concern cause or circumstances of death (also required)
• State v. lewis
• brings up what impact a dying declaration has under the confrontation clause (Crawford
made a specific exception)
• Michigan v. Bryant seemed to bring this up, but the prosecution hadn’t bothered to follow
up on this
• this is significant because dying declarations can be testimonial
• Lewis just reinforces that theses still get in
• also raises the issue about whether the declarant really knew about the person he was
fingering
• Problem 3.48
• let’s assume Engels meets the not available and thought he was going to die requirements
• what makes this difficult?
• the shooting of engels is not the case being tried here, instead the case is about the
murder of Carleton, so does the testimony really to pertain the cause and circumstance
or engels shooting or Carleton’s shooting
• it really relates more to Carleton’s shooting (maybe you could argue it relates to both,
but that is a stretch)
• so probably excluded
• Declarations Against Interest
• since this in 804 there is a requirement that the declarant is unavailable, if the declarant is
available are inadmissible, so always start by asking if the declarant is available
• how does this compare to the admissions doctrine?
• admissions doctrine 801(d)(2)(A): statement made by a party is admissible against that
party (litigant who made a statement has to live with it)
• it is against declarant, but there is no need for the content of the statement (doesn’t
matter whether it is against declarant’s interest or not)
• statement against interest: statement of unavailable declarant to be produced against
someone else (so use this to get a statement in against someone else not to use the
statement against the declarant)
 Evidence Class Notes (seat 114)

• do need to look at content of statement to make sure it is truly against interest

• US v. Duran
• who was out of court declarant?
• Bolivar Iglesias, guy who stole builts
• what was the statement
• an apology for stealing the belts
• suppose Duran was suing Iglesias, how would he get the statement in?
• as an admission 801(d)(2)(A)
• however, Duran wants the statement against someone else so not 801(d)(2)(A)
• tries to use 803(3) (state of mind) but this only gets in state of mind (contrition) not the
circumstances that lead to the state of mind
• also uses 804(b)(3)
• statement was against interest
• was he unavailable
• this was tricky, the evidence for his unavailability was that he was in a different
country and so there was no subpoena, tried to contact parents, etc. basically they
used reasonable efforts to make him available
• HYPO
• what if someone confesses to murder, but does so to get tried elsewhere? who knows
whether this is a statement against interest for 804(b)(3)
• US v. Jackson
• what was the statement?
• plea allocation, someone was admitting guilt, but said they hadn’t seen defendant do
anything wrong
• when someone pleads guilt in fed court they have to describe the crime
• how does he get over hearsay
• 804(b)(1) former testimony
• why no Crawford? (not offered against Defendant)
• they said there was no cross examination so no opportunity or similar motive
• is he unavailable? yeah he invoked the 5th
• 804(b)(3)
• does this clearly incriminate him?
• no, in fact it might be in his interest
• when you are assessing whether something gets in over hearsay you have to look
at each part and consider admissibilty (this is really important)
• what about corroboration?
• even if everything else is satisfied we need corroborating circumstances that clearly
indicate trustworthiness (notice this only applies to criminal cases that expose
declarant to criminal liability)
• Problem 3.49
• statement against interest?
• certainly unavailable
• at the time he made the statement it was against his criminal (well I dunno, he knew he
was going to die, on the other hand his state is still open to a law suit, this is kind of an
open question)
• hard to tell if there is corroborating circumstances, but the money probably satisfies this
• Dying Declaration?
• no, not offered in homicide case and not relating to circumstances of death
• Problem 3.50
 Evidence Class Notes (seat 114)

• statement against interest

• he is unavailable
• no part of this statement says dwight carried this out, so yeah statement was against
Greg’s interest, but doesn’t help with prosecuting dwight (what about it being a
conspiracy? well he already said it was a conspiracy, so is there an argument that
identify a coconspirator exposes you to more liability? SCOTUS has said this counts,
admitting a conspiracy is against you, naming coconspirator is against your interest
cause there is more likely good testimony)
• is there corroboration?
• the money only helps with part of the statement, that he was involved with a
conspiracy to rob not that Dwight was involved, so this is not included
• this is probably not testimonial, just a fishing trip
• Problem 3.51
• Statement against interest
• unavailable
• same problem with being against interest with him being dead
• can we use it against Wesley
• need corroboration
• what about wrongful death suit
• probably admissible here, don’t need coronation in civil cases
• also might get in as an admission here
• Forfeiture by Wrongdoing
• HYPO
• D charged with murdering A, A had owed D money and not paid, A makes a statement to
W and says “I owe D money and he threatened to kill me.” While prosecuting D,
statement to W is admitted, does this get in over hearsay objections?
• 804(b)(6)
• question of course is the intention of killing, it isn’t just enough to make someone
unavailable through wrongdoing the point is you have the intent to make some
unavailable
• foundation has to still be laid
• also have a confrontation clause issue
• Giles
• looking at votes matters here
• Scalia seems to win, with the claim that there has to be the purpose of making the
declarant unavailable
• dissent focuses on the problem, particularly in domestic violence cases, of people killing
others to make them unavailable
• look at how Ginsberg and Souter occur
• they are arguing that it is sufficient in a domestic violence that there is an ongoing
history of violence because the silence is usually there to silence the victim
• dissent agrees with this
• therefore 5 justices are saying that there is a domestic violence exception, you
can infer purpose or intent from an ongoing domestic violence situation

 Evidence Class Notes (seat 114)

Reading#16 (269-87)
• Finished the problems
• Chambers v. Mississippi
• couldn’t bring testimony of guy who committed to the crime
• if state rules of evidence, even if properly applied, they can still deny due process
• how far does this go?
• Fortini v. Murphy
• this wasn’t an evidence rule, but there was a character issue
• kept out of evidence in this case, says SCOTUS gave very narrow scope and there needs to
be an egregious case where the evidence is extremely reliable and probative, so while this
is good law it doesn’t really apply
• Character Evidence
• When is evidence being offered to prove character as opposed to some other fact?
• testimony or other evidence? (look at Zackowitz case v. Zackowitz Hypo)
• proof of a person’s character
• proof of some fact other character
• When is character evidence being offered to prove that a person acted in conformity with
that character on a particular occasion?
• dishonest committed fraud etc. not violence prone he committed the fraud
• this is exactly what the prosecution is trying to do in Zackowitz
• When is character evidence offered to prove action in conformity therewith admissible?
• common law is that evidence used this way is inadmissible as a general matter
• why?
• jury might give it too much weight
• might just punish for character
• might have to spend too much time on character
• FRE 404(a) addresses this issue
• When evidence of character is admissible how can it be proven?
• Zackowitz
• character evidence for character (had guns) v some other fact (brought guns)
• Cleghorn
• this wasn’t showing character in this particular occasion cause the case was against hhis
employer
• Berryhill
• admitted

Exceptions
• Defendant in criminal case can offer evidence of his own pertinent character trait to show
action in conformity (404(a)(2)(A))
• Defendant in criminal case can offer evidence of victims pertinent character trait to show
action in conformity (404(a)(2)(B)
• If defendant offers own pertinent character trait, prosecution can rebut (404(a)(2)(A))
• If defendant offers victims pertinent character trait and it is admitted under 404(a)(2)(B)
prosecution can rebut it (404(a)(2)(B))
• If defendant offers victims pertinent character trait and it is admitted under 404(a)(2)(B)
prosecution can offer same character trait of defendant in rebuttal (404(a)(2)(B)(i))
• If defendant in homicide case claims that victim was the first aggressor prosecution can show
victim’s character trait for peacefulness 404(a)(2)(C)
 Evidence Class Notes (seat 114)

4.1
ask why the evidence is being admitted
in this case
4.2
inadmissible cause this is a civil case in the first case
admissible in the 2nd part cause the claim is showing the state of mind

4.3
 Evidence Class Notes (seat 114)

March 19 (Character Evidence)

• Primary Questions
• When is evidence being offered to prove character as opposed to some other fact?
• see the Z case with gun hypo
• When is character evidence being offered to prove that a person acted in conformity with
that character on a particular occasion?
• When is character evidence offered to prove action in conformity therewith admissible?
• as a general matter this is only in criminal cases (exception is d opening the door or
witnesses)
• When evidence of character is admissible how can it be proven?
• Other breakdown
• A person’s character or trait of character can be offered to prove two things
• character when character is the issue
• character when proving action is in conformity
• What about proof?
• three ways to do this:
• specific instances of conduct (he is violent and this was a violent act of his)
• opinion testimony
• reputation testimony (what you hear in the community)
• Michelson
• this represents the common law view, that one could prove a persons character
• this gets in under 404(a) d can put in their own character argument
• this is done through reputation testimony only in common law
• FRE allow opinion testimony as well, but still keep out specific instances of conduct
• why did the common law limit testimony to reputation?
• if this wasn’t done trials would devolve into exploring other instances and lose track of
main issue
• 405(a)
• evidence of character or character trait can be proved through reptuation or opinion
• this is basically what Michelson said
• how do you do this?
• Reputation:call a witness, establish witness knows the person, ask have you heard from
others what that reputation is
• this is necessarily hearsay, but 803(21) lets this in
• Opinion: call witness, establish witness knows person for long enough time in relevant
way, ask what opinion is about trait
• implicit in this is that specific instances of conduct are not admissible
• once character evidence is put in by d prosecutor can rebut
• one way to do this is bring in other character witnesses
• 405(a) allows cross examination where you can ask about specific instances (has to be
relevant), this is done to basically said well “did you know this”
• even if character witness says no it is hard to go back
• case book has the right way to cross examine
• with reputation witness you ask “have you heard…”
• when character witness is giving opinion testimony “did you know…” or “are you aware
of…”
• Roland
• stands for the idea that you cannot get into specific instances of conduct unless the
opponent opens the door
 Evidence Class Notes (seat 114)

• does criminal defendant bring up character therefore opening the door for 405(a)
• so here the court ruled the door was sufficiently opened
• Krapp
• the second limitation (after opening the door as the first limitation) is that the litigant have a
good faith basis to believe the specific instance occurred
• note that 405 and 403 let the court just decide not to use the information
• the more professional way to handle something like this (cross examination question) is to
go to sidebar and let the judge know what is coming and the good faith basis for why you
know this is coming (obviously wait till door is open though or opponent may catch on)
• What about when character is the ultimate issue?
• 405 addresses this, 405(b) says that character or trait may also be proven by specific
instances along with opinion testimony and reputation
• Setien
• specific instance can be admitted when character is the issue, but you can’t just expand
allegation until character is at issue
• character is not at issue merely cause you are charged to do something wrong (ie charged
with conspiracy to sell cocaine)
• Problem 4.6
• two questions
• is character evidence admissible (relevant in tax evasion case)
• how can we prove it (reputation and opinion testimony)
• yes, 405(a) opinion testimony
• yes, 405(a) reputation testimony
• no, this is a specific instance
• no, this is a specific instance
• Problem 4.7
• no, 405(a) says you can cross examine, but this is a specific instance
• yes, 405(a) allows this cause it is rebutting ministers testimony
• yes, 405(a) are you aware is better cause this is an opinion testimony
• Problem 4.8
• tendencies seem to be reputation and can come in
• suicidal instances are specific instances but don’t get in unless character is at issue (keep in
mind it is unusual for character to be at issue), which it isn’t here
• Ok, where are we now
• we have a diagram (see slides) that shows three way to prove character: reputation, opinion
testimony, and specific instances
• all three of those can only be used when character is at issue, but this is rare. much more
common to have conduct in conformity or mental state which only allows reputation and
opinion testimony (also needs to be criminal case where d opens the door)
• this is manifest in 404(a)(1) and 405(a)
• 404(b)
• the first part 404(b)(1) reiterates what we have already talked about, this is really just a
combination 404(a)(1) and 405(a), can’t use specific instances of conduct to show person
acted in accordance with character
• 404(b)(2) is different though, gives list of things that can be proven with specific instances,
note these aren’t character concerns
• this is typically referred to as “other act evidence” what does this mean?
 Evidence Class Notes (seat 114)

• typically certain conduct is alleged in the complaint/indictment, typically with other act
evidence we mean actions not part of the charges (more often this will be criminal
cases)
• the cases give examples of these
• Beechum
• this is an intent case, the specific incidents were chosen to show intent
• two part test
• is the danger of prejudice greater (substantially outweigh) than probative value
• in this case intent was the key part of the case and wasn’t an inflammatory
piece of evidence
• evidence must also be relevant
• the line between showing character and intent and is practically illusory
• Boyd
• this is a motive case
• same approach
• evidence was offered for permissible reason and not just for character
• DeJohn
• opportunity case
• evidence showed he had the opportunity for the crime
• as a general matter courts are reluctant to let in other act evidence unless it goes
to a disputed issue, this isn’t law, but is the case nonetheless
• Lewis
• this case shows preparation/planning
• Crocker
• knowledge, shows he knew the law and what he was doing was wrong
• Dossey
• issue here is identity
• robbery of another bank with the same disguise shows motus operandi
• notice evidence of robbery without costume description was omitted
• Wright
• this is another identity case
• shows where to draw line between specific claims and propensity claims
• if claim is general about character it isn’t getting in, need specific relevant cases
• Huddleston
• in addition to a notice requirement we have to prove other act evidence, other act
evidence is really potent so this is pretty significant
• so what quantum of evidence is necessary to prove up the other act
• relevance of tv’s was based on whether they were stolen, irrelevant if not
stolen, d wanted this question of relevance decided by the court
• SCOTUS says 104(b) applies here, asks could a reasonable jury find this fact
by a preponderance of the evidence
• court justifies this with the safeguards they have (non prosperity use,relevance
requirements, court can always not use it, and limiting instructions)
• 404(b) talks about crime wrongs and acts
• its not the arrest or conviction at issue, but the conduct underlying it
• this can be signifigant in the case of aquatic because prosecution requires beyond
reasonable doubt which is a lot higher than preponderance of evidence
• notice that timing allows acts before or after the charged event
• summary
 Evidence Class Notes (seat 114)

• if you want a 404(b) issue isolate what the charged conduct was
• then determine if the evidence being offered is other act evidence
• some evidence of uncharged conduct is inextricably intertwined and so is not other act
evidence
• if there is other act evidence is there permissible non proposenity purpose
• has the other act evidence been proven is there enough evidence for the jury to prove by a
preponderance of the evidence
• does 403 require exclusionH

 Evidence Class Notes (seat 114)

March 23
• HYPO
• Assume there were no rape shield laws
• D is on trial for sexual assault and the defense is consent
• D calls a witness to testify that the v has a reputation in the community for being sexually
active, and that, in the witness’s opinion, the v is “loose”
• Admissible?
• Does it get in under 401 and 402 (tendency to make a matter of confidence more probable
than without the evidence?)
• it probably will get in, the “any tendency standard” is so low
• Does it get in under 404(a)(2)(B)
• character trait of consenting to sex so more likely to consent? (this is the victims
pertinent character trait)
• How to prove under 405?
• action in accordance with character trait: reputation and opinion testimony
• So it would get in without 412
• So what were rape shield laws meant to prevent?
• argument that this evidence is irrelevant or at best minimally relevant
• Note that 404 specifically references 412
• FRE 412
• (a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding
involving alleged sexual misconduct:
• (1) evidence offered to prove that a victim engaged in other sexual behavior; or
• (2) evidence offered to prove a victim’s sexual predisposition.
• Assault Prosecution v. Sexual Prosecution
• Assault Prosecution
• character evidence (testimonial and reputational) can be shown that victim is violent
person for self defense claim
• Sexual Prosecution
• character evidence cannot be shown that victim is promiscuous for consent claim
• Why this difference
• ACN says: the rule aims to safeguard the alleged victim against the invasion of privacy,
potential embarrassment, and sexual stereotyping that is associated w/ public disclosure of
intimate sexual details and the infusion of sexual innuendo into the fact finding process.
• HYPO
• Tabloid newspaper, libel, tennis player “sleeps around” – paper offers reputation for
promiscuous conduct
• 412 doesn’t apply, no sexual misconduct
• HYPO
• P sues D for sexual harassment – groped and unwanted sexual advances. D offers
evidence that P had previous sexual relationships with several coworkers – offered to prove
that he thought that his advances were invited
• sexual harassment is sexual misconduct
• excluded under 412(a)(1)
• HYPO
• D is on trial for sexual assault and alleges consent. D plays guitar for a popular local band
and calls a witness a co-worker of the v to testify that the v had expressed sexual fantasies
involving musicians
• this is sexual misconduct
• this falls under 412(a)(1) “fantasies” extend to behavior
• HYPO
• D wants to present evidence that the v falsely reported having been raped on 2 recent
occasions
 Evidence Class Notes (seat 114)

• Does not bar evidence of false reports or claims of rape, we are showing false claims
more
• HYPO
• D says there was consent or at least that he reasonably believed that the v consented.
Prosecution introduces “other act” evidence (404(b) that the d raped another v as proof of
absence of mistake. D seeks to cross-examine the “other act” victim about her sexual
behavior
• rule 412 applies whether victim is part of litigation and explicitly extends to pattern
witnesses, so it is excluded
• Extent of 412
• Applies in civil and criminal cases
• Applies only to cases involving “alleged sexual misconduct”
• Includes sexual harassment lawsuits
• Includes cases involving sexual misconduct even if not the basis for the lawsuit or criminal
charge
• Does not apply in defamation actions
• Prohibition on “sexual behavior” evidence includes sexual fantasies per ACN
• Prohibition on “sexual behavior” evidence does not include false reports per ACN
• Prohibition on “sexual dispositions” includes mode of dress speech or life style
• Any alleged wetness includes pattern witnesses
• 412(b) Exceptions
• (b) Exceptions.
• (1) Criminal Cases. The court may admit the following evidence in a criminal case:
• (A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that
someone other than the defendant was the source of semen, injury, or other physical
evidence;
• (B) evidence of specific instances of a victim’s sexual behavior with respect to the
person accused of the sexual misconduct, if offered by the defendant to prove consent
or if offered by the prosecutor; and
• (C) evidence whose exclusion would violate the defendant’s constitutional rights.
• (2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s
sexual behavior or sexual predisposition if its probative value substantially outweighs the
danger of harm to any victim and of unfair prejudice to any party. The court may admit
evidence of a victim’s reputation only if the victim has placed it in controversy.
• Three Criminal Case exceptions
• 412(b)(1)(A)-(C)
• Civil Cases Exceptions
• no specific exceptions, the court should just do a balancing test (probative value
substantially outweighs harm to victim and prejudice to victim)
• notice this balancing test turns 403 balancing test on its head, the presumption is in
favor of exclusion not admissibility; probative value has to substantially outweigh
prejudice and harm (not the opposite); notice the harm can be to anybody
• Olden v. KY
• wants testimony of extramarital relationship of victim to show intent (she wanted to hide
cheating from boyfriend)
• state appellate court is concerned with prejudice to the victim due to interracial relationship
not sexual prejudice, why is this the concern?
• scotus looks at constitutional rights, can’t bar d from offering motive evidence
• whenever there is a critical witness in the case bias or motive is critical to the case
• US v. Pablo
• Two challenged piece of evidence
• that victim was seen undressed with other guys
• vaginal injuries not consistent with consensual sex
 Evidence Class Notes (seat 114)

• that victim made sexual advances to the other defendant

• sexual advances to another possible before sex with this defendant
• court points out claims not raised at trial
• appellate standards of review
• when an appellate considers whether an error was made below they apply different
standards
• de novo
• appellate court looks at record and gives no deference to what happened before
• usually pure issues of law
• abuse of discretion
• this is the typical standard, appellant court doesn’t ask would we’ve done the same
thing as a trial court (as with de novo), asks if trial court abused discretion:
• did it get facts wrong
• did it get law wrong
• did it apply legal standard to fact in a way outside of reasoned decision making
• evidence decisions typically fall under abuse of discretion
• plain error
• this is for unpreserved claims, the litigant failed to make the same objection below.
• this means the trial court not only has to abuse discretion, but the error has to be
plain (they got well settled law wrong) and outcome had to produce miscarriage of
justice
• US v. Smith
• coast guard case
• d wants to bring up fact he was told that she had had consensual sex and said it was
nonconsensual
• majority determine that sanitized version of evidence was ok (just that she lied)
• dissent said that this was a false claim of rape and meets an exception, but even if under
rape shield law it should meet olden standard cause it shows her bias or motive
• Procedure to determine admissibility
• see 412(c)
• HYPO
• Bank is robbed by masked gunman, police develop the d as a suspect and arrest him. D
denies involvement and offers alibi. P offers evidence that d robbed a bank 5yrs earlier.
• Is this relevant: yes
• Admissible:
• if offered to show he has propensity to rob banks it is inadmissible
• HYPO
• V is sexually assaulted, police develop the d as a suspect and arrest him. D denies
involvement and offers alibi. P offers evidence that d sexually assaulted another victim 5yrs
earlier.
• Relevant: yes
• Admissible
• 404(b) no
• 413: evidence of prior sexual assault for whatever it may prove, so gets in even under
showing propensity (this is not ok in a nonsexual assault or child molestation case)
• HYPO
• V is sexually assaulted by a known attacker who says there was consent. P wants to offer
evidence that he sexually assaulted another woman 5yrs earlier
• Admissible?
• yes, gets in under 413
• HYPO
• Child victim claims to have been sexually molested by a known attacker, d says no attack
took place. Earlier incident?
• Admissible:
 Evidence Class Notes (seat 114)

• Gets in under 414 (functionally identical to 413), note 415

• All other crimes propensity evidence is off limits, but get in under sexual assault and child
molestation cases
• What role does 403 play in 412 analysis
• even if something gets in w/412-15 it can still be excluded by 403
• what would happen for 403 to apply
• LeCompte
• first time prosecution doesn’t give advance notice, can’t get in under 404(b)
• second time prosecution does offer evidence under 414, judge says prospenity evidence
is substantially unfair and that prejudice outweights probative value
• appellate court acknowledges 403 applies
• normally the jury weighing a prosperity inference is on the side of prejudice, but in this
case it is on the side of probative value, the point of the rules is to allow in evidence of
propensity.
• when would earlier evidence of child molestation apply?
• distant in time, weak evidence event occurred, dissimilar circumstances, extremely
prejudicial circumstances
• note how extreme this
• How much proof is required for the earlier incident?
• all you need is some evidence of the other molestation crime
• this is incredibly potent, might only need testimony from victim that didn’t even bring charges
•
 Evidence Class Notes (seat 114)

March 24
• FRE 407
• harm or injury then subsequent measure, what does this mean
• can you introduce remedial injury if it happens after first injury? if so that defeats purpose
of claim
• once first plaintiff is hurt and remedial measure is taken no other plaintiffs might use it
• or interpret on plaintiff by plaintiff basis
• Clausen v. Storage Tank Development Corp
• injury: hurt on ramp
• remedial issue: ramp replaced with steps (3 years later)
• what 407 exception: control
• what specifically: clausen claims d owns ramp, d says construction co in control, so now
we have dispute
• however, d says that putting in steps 3 years later doesn’t show who controlled area
during accidents
• In re Asbestos
• injury: asbestos inhalation
• remedial label: warning labels were later placed on product
• 407 exception:
• Diehl
• road widener case
• FRE 408
• compromise rule; excludes settlement negotiations even if they are being offered against the
party who didn’t conduct the settlement
• Davis
• fraternity case
• Ramada
• notice that here it isn’t the negotiations, but something connected to the negotiation
• Carney
• woo, someone met an exception
• PRL
• another exception
• Mezzantto
• FRE 410
• parties can waive away federal rules
• Problem 5.1
• FRE 408
• offering compromise to avoid litigation
• focus on language of “I don’t want to litigate”
• FRE 409
• would apply to part of the statement (covering medical expenses) if 408 didn’t work
• can’t rely on similar expenses, expenses not resulting from injury
• Problem 5.2
• suppose there was no contract:
• 411 would keep it out
• 403 could argue it is too prejudicial
• make a relevance argument, having insurance doesn’t mean he is negligent with the dryer
• now if there is a contract
• Mezzantto would suggest you can contract out of protections
• Problem 5.3
• suppose there was no contract:
• would come in under fre 407, feasibility dispute so it means that exception
• no with the contract
• feasibility waived which gets past 407, does Mezzantto allow this contract
 Evidence Class Notes (seat 114)

• contract might run against public policy cause they are explicitly fighting a rule to hide
the truth, not trying to get at the truth as Mezzantto, they are lying to the jury
•
 Evidence Class Notes (seat 114)

March 26
• Impeachment
• showing that the witness or testimony is not worthy of belief
• dishonest v. inaccuracy
• cross examination v. impeachment
• not all cross examination is impeachment
• not all impeachment occurs on cross-examination
• impeachment by extrinsic evidence
• can impeach your own witness
• FRE 607 “any party including the party that called the witness, may attack the
witness’s credibility”
• redirect examination v. rehabilitation
• impeachment of a witness v. impeachment of a witness testimony
• Methods of Impeachment
• Impeachment of Witness
• witness is not a truthful person and thus was not truthful went testifying - character attack
to show action conformity
• witness has a motive to testify falsely or is based for or against a party in the case
• witness suffers from an incapacity that affects perception, memory, or narration
• Impeachment of testimony
• testimony is inconsistent with a prior statement by the witness
• testimony is contradicted by other evidence presented in the case - “specific contradiction”
• FRE 404
• character evidence admissible under certain circumstances for a victim and a defendant
• in addition to these evidence of a witness character may be admitted under 607-09 (FRE
404(a)(3))
• FRE 607
• Any party, including the party that called the witness, may attack the witness’s credibility.
• (witness credibility is fair game for both parties)
• witness’s character v. credibility
• character is only for truthfulness or untruthfulness (not for violence, etc.), so we say
credibility rather than character
• FRE 608
• (a) A witness’s credibility may be attacked or supported by testimony about the witness’s
reputation for having a character for truthfulness or untruthfulness, or by testimony in the
form of an opinion about that character.
• this parallels 405(a) (victim and defendant character if a victim’s or defendant’s character
is admissible it has to be attacked or supported through reputation or opinion testimony)
• US v. Lollar
• can a witness say “I wouldn’t believe the person under oath” this is permissible
character opinion testimony
• with witnesses character is put at issue just by calling a witness, opening the door is very
easy
• a person can be a defendant and also a witness if the defendant takes the witness stand
or someone can be a victim and a witness
• so sometimes you need to understand rules for both subcategories within categories
• this means if they are a witness and defendant you can always ask about truthfulness/
untruthfulness, but not necessarily other traits unless door is opened for other traits
• This is subject to two limitations
• (1) US v. Rosa
• the only pertinent character trait for witness is truthfulness or untruthfulness
• (2) character for truthfulness available only after attack
• the anti-bolsertering rule, need attack before arguing for good character
• (b)
 Evidence Class Notes (seat 114)

• talks about specific instances of conduct by the witness, other than convictions, that shed
light on truthfulness/untruthfulness, done through cross examination with court permission
• this happens in two situations:
• witness who gives the substantive testimony is on the stand, you can cross examine
with courts permission
• about the character of another witness the witness on the stand is testifying about,
again done through cross examination with court’s permission
• A testifies, opponent calls B to testify about A’s truthfulness (through opinion or
reputation testimony), now party who called A can call C to testify to reputation of A,
upon cross examination C can be asked about truthfulness of A
• can’t use extrinsic evidence about truthfulness is not true
• Witness Character Evidence
• Under Rule 404(a) a person’s character can be put in issues as BOTH a defendant and
a witness (if the defendant testifies) and a victim and a witness (ff the victim testifies)
• See US v. Lollar (character witness testimony about opinion of defendant’s
truthfulness)
• Attack on character must be pertain to untruthfulness, not another character trait
• US v. Rosa (court properly sustained objection to attempted cross-examination
concerning specific instances of conduct not bearing on untruthfulness)
• When cross examining a witness about specific instances of misconduct bearing on
untruthfulness the questioner is stuck with the answer; extrinsic evidence is not
available
• US v. Ling, US v. Aponte
• Cannot use Rule 404(b) to introduce extrinsic evidence of specific instances of
misconduct
• US v. White
• Problems I WAS CALLED ON, LOOK UP PROBLEM ANSWERS (NEAR 45MIN IN)
• FRE 609
• 609(a)(1)(A): In a civil case and when the w is not the d in a criminal case, felonies that are not
crimen falsi must be admitted unless, under R403, the danger of unfair prejudice substantially
outweighs the probative value.
• 609(a)(1)(B): When the d is a w in a criminal case, felonies that are not crimen falsi must be
admitted if the probative value of the evidence outweighs its prejudicial effect to that d
• 609(a)(2): For all crimen falsi (if the ct can readily determine that establishing the elements of the
crime required proving –or the w’s admitting- a dishonest act or false statement) the evidence must
be admitted regardless of the punishment
• crimen falsi: crimes where dishonest act or false statement has to be proven
• Rule 609(a)(2) convictions crimen falsi area admissible without consideration of rule 403 balancing test
(US v. Wong)
• Whether a particular case falls within rules 609(a)(2) is important because it will be admissible without
regard to punishment or any judicial balancing of probative value MORE TO TAKE DOWN
• US v. Wong
• 403 doesn’t apply with respect to crimen falsi crimes (609(a)(2)
• LUCE & OHLER
• Should a defendant be forced to testify and be subject to cross examination concerning a prior
conviction under FRE 609 in order to challenge on appeal a pretrial ruling that the prior conviction
is admissible? Yes, Luce
• Should a defendant who loses a pretrial motion to exclude evidence of a prior conviction waive any
appellate claim by fronting (never want the jury to be informed about stuff that is bad for your case
so you try and bring it up first) the conviction on direct examination? Ohler
• if you front something you can’t object
Problem 7.5
gest in under 609(a)(2)
Problem 7.6
 Evidence Class Notes (seat 114)

has to testify or waives privilege if evidence offered for impeachment. if offered for intent, then
it gets in either way cause it being offered isn’t contingent on d testifying
if pretrial motion plays out in practice that it prejudices it defendant it is appealable, otherwise it
is not
 Evidence Class Notes (seat 114)

April 16
• Witness has a motive to testify falsely.
• No specific rule for bias, the theory for admissibility is just based on 401 and 402. Bias and motive
evidence is particularly probative and important.
• US v. Abel
• gov cross examines witness about his membership in a prison gang that made him likely to lie for
his fellow gang members
• could government impeach him to show he was member of prison gang? => yes
• could government show extensive evidence when Mills denied membership in the gang? =>
yes
• this suggests that bias and motive evidence is a high order of impeachment (extrinsic evidence
not ok for specific instances of character)
• how do you differ bad character evidence and bias evidence?
• if it was character evidence should of been limited to 608
• Witness suffers from incapacity that affects perception, memory, or narration
• something like claims that a person was mentally unstable or under the influence of drugs, basically
what makes someone reliable other than sincerity
• make sure that what is really going on is not just bad character evidence
• These first three categories of impeachment of a witness not statement and there is a real possibility of
overlap
• use of extrinsic evidence permissible only if done to show bias not bad character, just as otherwise
impermissible evidence is only permissible for incapacity and not character attacks
• Specific Contradiction
• something the witness said is untrue or inaccurate because it is contradicted by some other witness,
typically the argument is that if the witness was mistaken about that thing they may be mistaken
about other things
• Collateral Evidence Doctrine
• not in FRE, adopted by most or all federal courts from common law
• applies when someone impeaches witness’s testimony by specific testimony
• the rule is this: if evidence is relevant to the case without regard to whether it impeaches a
witness’s testimony it is not collateral and can be proven by extrinsic evidence (basically if you need
the evidence just to impeach it is collateral and no extrinsic evidence, if you can use the evidence
elsewhere it is collateral and no extrinsic evidence)
• if the only value is impeachment value then it is not proven by extrinsic evidence
• Simmons v. Pinkerton
• This was 608(b) impeachment, court just goes into tangential discussion of collateral evidence
rule
• Example of Collateral Evidence Doctrine
• witness in drug smuggling ring
• cross examined about whether defendant was present at a drug meeting, this was specific
contradiction. was it collateral evidence? clearly not this evidence is admissible and reelvant
totally independent of impecahing the witness
• Methods of impeachment of a witness or witness testimony table
• basically this shows when you can use extrinsic evidence v. just cross examination
• Steps for impeachment problems:
• is the evidence extrinsic
• what category of impeachment are we looking at (look at table)
• is the evidence extrinsic
• Problem 7.11
• tinkering with the problem:
• can Lincoln ask if there was no light that night on cross examination?
• what kind of impeachment is this? seems like incapacity, so we can get extrinsic evidence under
this category if it is not a collateral matter (which it is not, this goes to his capacity to see the
crime, which is central to the case)
 Evidence Class Notes (seat 114)

• Problem 7.12
• trying to showing prior inconsistent statement
• is the matter collateral (yes)
• that testimony from the adjustor is extrinsic evidence
• Rehabilitation
• this is what comes after impeachment, basically this is a rebuttal to impeachment
• the principle rule governing rehabilitation is the anti-bolserting rule
• this is a generally accepted commonlaw principle and it says you cannot rehabilitate testimony
until it has been attacked
• this means rehabilitation evidence has to properly respond to the impeachment
• trying to show a witness was truthful and acted in conformity with that character trait
• there are three specific limitations
• anti-bolsterting rule (608(a), need character for truthfulness to be attacked first, look at ACN)
• what kind of attacks open the job (see slide)
• how can it be done when the door is open
• extrinsic evidence not ok
• Problem 7.13
• No, this is just going to bias or motive not honesty
• Problem 7.14
• no, this not truthfulness testimony (unless it is reclassified as her lying)
• takeaway: the way impeachment is classified is important to determine whether evidence gets in
• Prior Statements
• same bolstering rules, watch for hearsay
• the fact that a statement was made pre-motive is obviously very powerful, this is the most powerful
use of direct or indirect statement
 Evidence Class Notes (seat 114)

April 21
• Rehabilitation
• Antibolstering rule: can’t bolster something until it is impeached (608(a))
• only certain kind of rehabilitation are permissible, no solid rule, it is really a matter of relevance
• for instance w/prior inconsistent statement can rehabilitate with opinion about truthfulness may be
ok, but only after that character is attacked
• HYPO
• car accident in ithaca, D hits P, M in car witnesses event
• M tells A that D was within speed limit a few days later (prior statement 1)
• D tells M he was within speed limit and threatens M if she testifies otherwise, M tells B that D
was within speed limit (prior statement 2)
• M tells C D was within speed limit (prior statement 3)
• M called and testifies D testifying within speedlimit
• asked if she had told anyone prior that he was under the speedlimit
• can’t get in because it is hearsay and violates anti bolstering statement
• other attorney challenges her ability to recall
• can get prior statements in
• asked about drinking and not wearing glasses
• prior statements don’t affect her initial viewing of the incident, not relevant
• asked about D coercing M
• statements before that are applicable, so when she told A is applicable (this can come from
her or A)
• might be able to get in statements even after bias, if you can show they are sufficiently
disconnected
• if M asked about her relation w/D
• prior consistent statement not relevant at this point since it doesn’t reflect M’s relationship to
D
• Prior Inconsistent Statements
• note that 801(d)(1)(B) as long as a statement is admissible to rehabilitate a witness it is also
admissible substantially
• Lay Opinion Testimony
• generally are suppose to testify about facts and not opinions
• there are some exceptions though, where a lay witness can discuss facts
• witness not tesify as an expert
• witness can only talk about fact/opinions they witness
• opinion has to be helpful in clearly understanding the fact in issue
• see slides for case facts
•
 Evidence Class Notes (seat 114)

April 23
• same person can give lay and expert testimony
• what separates lay and expert witnesses is that lay witnesses have to testify on personal knowledge

• When is expert testimony permitted?

• specialized information has to assist the trier of fact
• Hatch v. State farm
• doesn’t have to be scientific knowledge can just be outside the knowledge of a lay jury
• Who qualifies as an expert?
• a person can be “qualified as an expert by knowledge, skill, experience, training or education”
• expert selection and shopping
• voir dire process (the party calling the expert will get to question him first and will establish he is
an expert)
• attacking an expert
• What are the requirements for admissibility of expert testimony?
• Explanation of specialized principles relevant to the case
• Opinion testimony
• sufficient basis to form an opinion
• this is often overlooked, you have to your expert has access to all the evidence in the case and
not just the evidence that helps you
• facts or data (can include opinions of other experts)
• knowledge within personal knowledge of the expert witness
• learned during the court proceeding
• facts provided in hypothetical questions
• learned by the expert out of court through sources other than person knowledge
• experts can rely on anything as long as it would be relied on reasonably by others in the field
• this covers evidence that would otherwise be inadmissible, these can only be shown to jury if
their probative value substantially outweighs the prejudicial value
• what effect does crawford have on expert testimony?
• crawford applied to uninvolved supervisor and affidavits about drug analysis
• williams v. illinois: court said that expert witness can testify about non-testify analyst
analysis
• reliability of expert’s methodology
- IN SUM:
o TCs are gatekeepers to exclude expert opinion testimony that lacks sufficient basis, is
based on unreliable methodology, or involves unreliable or unsupported application of
methodology to the facts of a case
o This approach applies to all forms – whether based on sci tech or other
o In the context of sci – daubert approach is both more and less stringent than the frye
approach
o Tc’s determinations about the procedures used to asses reliability; the factors to be
considered; and the admissibility of expert testimony are all subject only to “abuse of
discretion” review on appeal”
• reliability of the application of methodology to the facts of the case
• see slides for more about expert witnesses