Weninger, Spring 2004


Text: Mueller, Kirkpatric, 4th ed, “Evidence under the rules.”

Grade: B


Relevance 401

Two aspects

1. Does the evidence have any tendency to make that item of fact more probable than less probable?  This must be determined by the judge

2. is it properly provable in the case?

The Federal Rule was worded to include the concept of relevance and materiality.  “Fact that is a consequence of the determination.”


Example: D is prosecuted for robbery.  D would like to introduce evidence that the victim had had a few drinks before the occurrence.  Is this evidence relevant?  Four or five drinks might help to show that the victim was intoxicated.  But is this material? is it a fact of consequence?  Intoxication of the victim is irrelevant with respect to proving robbery.  It’s not a defense.  The proposition is not properly provable.


Relevancy is a relational concept.  If we take this same item of evidence and use it for a difference purpose or proposition, then it might be relevant.  We can assume that the victim will be a witness, and the jury needs to know the credibility of the witnesses, for which prior convictions can be used.  The intoxication might bear on the witness’s credibility as a witness, it might cast doubt on his ability to identify who robbed him. 

Evidence directed at the credibility of the witness is always relevant, because it will bear on the facts that are contested.  So the substantive law will determine whether a fact is properly provable.


The item of evidence is that “the victim had four drinks.”  If it is aimed at proving a defense against robbery it would not be relevant.  But if directed at the credibility of the witness it would be properly provable.


Functions of the Judge and jury.

Judge: decides is the evidence relevant.

Jury:  decides what weight to give the evidence.


Relevancy and sufficiency:

Relevancy is applied on an item-by-item basis.  Sufficiency is not directed to a single item; it’s a question that arises when determining whether a party has produced enough evidence to make its point.  Sufficiency is like relevancy because it relates to the persuasiveness.  It arises because the opposing party is going to make a motion for directed verdict, saying there is insufficient evidence.  Both relevancy and sufficiency are determined by the judge.


Threshold for finding an item of evidence relevant is very low.  If it has any tendency -- even a slight tendency -- to prove the proposition at which it is aimed, it is relevant. 

Is an item of evidence relevant only if it renders the item at which it’s aimed more probably then not? no.  The Rule only requires that there is the slightest tendency to make the existence more probable than it would be without the evidence.

If it is prejudicial, though, and relevance is only slight, then it might be excluded.


Old Chief, p. 62—stipulation does not render an item irrelevant.

D is charged with being a felon-in-possession of a firearm, which is a violation of federal law.  The prosecution has to prove that he is a convicted felon.  His offer to stipulate rendered the prior conviction an undisputed matter.  His prior conviction was for “assault causing serious bodily injury.”  D doesn’t want the jury to learn the name of the felony that he has, because it involved assault, for fear that the jury would be prejudicial

Held, the offer to stipulate didn’t render the record of his conviction irrelevant. 

ACN to 401—“The fact to which the evidence is directed need not be in dispute.  While situations will arise which call for the exclusion of evidence offered to prove a point conceded by the opponent, the ruling should be made on the basis of such considerations as waste of time and undue prejudice (see 403), rather than under any general requirement that evidence is admissible only if directed to matters in dispute.”


2d argument:  introducing the evidence is overbroad and introduces too much.  The item is not relevant because it’s too broad, you can have a felony conviction without having a felony assault conviction.  Held, the jury expects a story, such as the color and make of vehicles in an eyewitness testimony.


A Party is entitled to prove a case with the evidence it has: the prosecution is entitled to prove its case the way it wants.  D should not prevent the prosecution from presenting a narrative with sufficient richness to give the jury a full account of what’s at hand.  Parties at trial have a right to admit the evidence they have.

Jury expectation:   The law puts an obligation on jurors; they have to decide people’s fate, and so they are entitled to hear the evidence and not hear a case based on abstractions.  But if you call witnesses, they satisfy jury expectations.


Standard of review: abuse of discretion.



Even though the gruesome photos are relevant, they are so prejudicial that they should be excluded.  Could gruesome photographs be relevant? yes, to identify the victim, show the nature and location, degree of atrociousness of the crime.  But the matter in dispute was the identification of the murderer.  Not whether or not the victim was dead or how he died, so the relevance of the photos was low.

CT:  the relevance is low or technical, the photographs do not go to the identity of the defendant.  It was therefore unnecessary to introduce the photographs.

Unfair prejudice:  when strong emotions are involved, when there is a tendency to inflame the passions of the jury.  This will set the mind of the jury against the defendant without proving an issue.  The fact that evidence sets the mind of the jury against the defendant is not thereby rendered unfair.  Just because it’s damaging doesn’t mean it can’t com in ... only if it is unfair, it would inflame the passions of the jury.


FRE 401 sets out the general standard of relevancy, but there are other rules, such as rules of character evidence.


Old Chief (II)--Unfair evidence has to be assessed in the full evidentiary context of the case.  In balancing Rule 403, the trial court must consider the need for the evidence, and the offer to stipulate over the reduction in need for other proof.  To avoid waste of time, the trial judge can consider it.  Did the jury need to know that it was felony for assault, or was it sufficient to know that it was a prior felony?  In felony-in-possession, it doesn’t matter what type of felony it was.  It can be introduced to establish motive or intent, when motive and intent is at issue.  But in a felony in possession case, where the only issue is whether he was a convicted felon or not, there was no need to introduce the name.


p. 94

Problem--2-D Battered wife

D claims he was defending himself; she fell on his knife.  The issue is whether he had the intent to kill.  The question is whether an item of evidence is admissible.  The Prosecutor offers the testimony by the counselor at the shelter—this is circumstantial evidence.  It depends on drawing a chain of inferences: She took refuge at the shelter.  From this the jury can infer something about the mental state of the wife:

            When we link the fact of her seeking refuge to her fear of the D, there is a premise that can be associated with the inference.  This is a proposition the court will find reasonable.

69-75 the editors talk about forcing inferences.

Seeking refuge is not an element of murder, but it may be relevant.  That he mistreated her in the past are not elements of murder.  But intent is an element of the crime which Defendant denies.  His intent is a material fact, and it is hard to find better proof than the counselor’s story.  Her flight to the shelter admits an inference that D committed prior assaults.  It need not show this conclusively, he need only show a slight tendency to prove D’s guilt.

Is it Prejudicial?  Yes, but it is not necessarily unfairly prejudicial; balance whether the value outweighs the prejudice.


Direct evidence.

There is no drawing of inference; if the jury finds him credible, then it’s taken as fact.  But when it is indirect, then it requires a drawing of inferences.


Problem,  2-F p. 95


FRE 411Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.”


At an automobile accident.  Lina says “Whoever screws up, her insurance pays.  I’m sure my insurance will cover it.”  Myra will testify that Lina said this. 

permissible uses

not permissible uses

to prove she has insurance

to prove negligence



Whenever evidence of insurance is used to prove wrongdoing, FRE 411 would keep it out, and FRE 403 (prejudice) would also keep it out because the jury may find against the person who has insurance believing the insurance will pay for it.  The evidence has relatively low relevance, and appears to be high on the prejudicial scale. 

CN: a single item of evidence may be admitted for one thing for which it is proper and but not another for which it is improper.


The statement could be used properly to show fault on the part of Lina, but not because she had insurance as a basis for finding fault.[????]

Could this statement be redacted to eliminate the reference to insurance?  Sometimes the improper aspect cannot be separated from what is proper.  Here, her admission of fault is inseparable; the court might find under FRE 403 that the proper aspect is outweighed by the improper aspect.  If the court thought the instruction wouldn’t be effective, it might refuse to admit it even for its proper purpose, for the risk of prejudice, etc.


Limited Admissibility --FRE 105, p. 96

Often a statement is admission against the person who made it, but not others.

Hypo:  D is being sued for not maintaining the stairs.  D wants to admit evidence that he repaired the stairs after the accident.  FRE 407 – prevents evidence of subsequent remedial measures to show negligence on the part of the person making the repairs.  This item of evidence will be admitted, not to show that the D acted negligent with respect to the care of the stairs, but to show that he had control and responsibility. 

Limiting instruction: admitted only to show control of the stairs, but not negligence.


3. Completeness--FRE 106, p. 97 


Problem 2-G:

The rule of completeness.  FRE 106 applies to writings, not conversations.  When the proponent of a writing takes parts from the writing, the opponent can immediately have the entire writing introduced into evidence.

EX: Husband found that the wife’s death was caused by a mechanical failure.  The plaintiff’s case was based on expert testimony.  The letter was written to the commander.  The plaintiff does not introduce this letter as his case-in-chief.  P couldn’t offer it himself because it is hearsay.

D introduces the letter.  D calls P as an adverse witness in the defendant’s case-in-chief.  D didn’t want to introduce the whole letter itself because he actually concludes that the flame-out caused the accident. The Defendant is not precluded from introducing it because [admission by a party opponent??]..... notwithstanding the hearsay rule, plaintiff can get this letter in under FRE 106.


The plaintiff gave a full account of what he had discovered during his investigation, some of which cast doubt on the plaintiff’s wife’s ability: she was tired, acted instinctively, and turned to the right to avoid an airplane approaching from the left, which is a violation of flight pattern rules.

D is using only the unfavorable parts of the letter; taking it out of context. 

Redirect: P tries to introduce the entire letter.  Under FRE 106, the opposing party can use the letter right then and there, and doesn’t have to wait until redirect, to put things into context. 


4., p. 99


5. The Functions of the Judge and Jury

Simple Relevance.  FRE 104(a) Only the judge decides

·        whether a point is “consequential” under FRE 401.

·        whether the evidence really has a tendency to prove the point for which it is offered.

Conditional Relevance.  Rule 104(b)—when relevance turns on “the fulfillment of a condition of fact,” the judge performs only a screening function: When different answers are reasonable, the jury decides whether the condition is satisfied.

·        EX: When a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it.  Jury must decide if X heard it.

·        EX: When a letter apparently from Y is offered as his admission, it has no probative value unless Y wrote or authorized it.


Character Evidence inadmissible, p. 465

FRE 404--in general, character evidence is inadmissible.

1. Relevancy and Form

Character as evidence of conduct.  Specific inclinations are predictive.-> the propensity argument justifies using proof of character as “substantive evidence of conduct on a particular occasion.”

Form of the evidence.  405(a)

·        specific acts by the person which indicate the trait

·        opinion that he thinks the person is “honest” or “deceitful.”

·        reputation


2. Character to Prove Conduct on a Particular occasion.

a. Character of Criminal Defendant.

Problem 5-A, p. 468.

Character evidence shows a tendency, or a character trait.  With character evidence, we still have to draw inferences even if it is credited as being truthful, because it’s circumstantial.

Coach Jones: “Don is quick tempered and violent.”  From this the jury asked to infer that Don has a disposition of violence: he acted in conformity with that disposition

the prosecution can only offer evidence to rebut evidence introduced by the accused.  FRE 404(a)(1).  Is it relevant?  probably low in relevance.  The testimony is inadmissible evidence, because

character evidence has to be raised by the defense first; not until the defense raises it to establish his good character, under 404(a)(1).

How relevant is this evidence?  “Disposition evidence” may be useful in assessing long term behavior, but people don’t always act in conformity with their tendencies.  In general it is not considered relevant.

Downsides to character evidence?  Distraction, unfair prejudice? Distraction because the real question is what he did in the barroom, not his character.  Unfair prejudice?—yes, because if he has a poor character, the jury might convict him not of the crime charged, but because he has a poor character.


Can the Reverend Gram characterizing the ‘victim’ as peaceful and not violent? yes, if it is a pertinent trait of character.  404(a)(1).  But once Reverend is allowed give his opinion about D, then the prosecution should be allowed to rebut it with the Coach’s testimony.


NOTE: Rev. Gram cannot testify to his honesty and veracity because it is not a pertinent trait. What if he offered evidence that he is law abiding person.  note 3, p. 469 – evidence that a person is law abiding, while marginal, is generally acceptable.


Notes :  the prosecution can only introduce evidence to rebut character evidence offered by D.


2. Pertinent trait of character

Depends on the charge. 

If battery, then

“peaceable” or nonviolent, but not “honesty.” 

If drug charge, then not honesty.”


4. Jury instructions?—this can be very important and how it’s worded makes a difference in the case.  The jury might be instructed that character evidence, standing alone, can raise a reasonable doubt.  OR:  Character evidence can be considered only in the context of the rest of the evidence.  Which is more favorable to D? the “reasonable doubt” instruction.  This suggests that good character can be grounds for acquittal.


b. Character of Crime VictimProblem 5-B, p. 470; Red Dog Saloon Part II

The evidence should be admissible under 404(2) as ‘evidence of a pertinent trait of character of the alleged victim of the crime” because if he is ‘fight-picking,’ and it would be relevant to whether he were the initial aggressor


but W should only be able to testify that he picks fights, and maybe that he is aggressive, but that he is “belligerent” or has a “short fuse” is irrelevant and prejudicial.  Under 405, it is admissible because it is in the form of an opinion.


CN: It’s relevant to show that Vince was there first aggressor.  But isn’t this barred by 404(a)?  the exception 404(a)(2) applies, evidence of a pertinent trait of a victim.  Can the prosecution present evidence of the victim’s character? Unless it’s a homicide case, only the defendant can open the door on the victim’s character.


If the D attacks the victim’s character, then the prosecution can offer evidence of the victim’s good character.  By opening the door as to the victim’s character, the prosecutor can an attack on the defendant’s character.  404(a)(1)


Homicide exception.  In a homicide case, the victim is not there to defend his character.  to make it more fair, they allow the prosecution to introduce evidence of the victim’s good character even if the defendant has not raised the issue.


In a Self-defense homicide case:  Can the prosecution also raise the issue of the defendant’s character, even if the defendant has not done so?  No.  evidence of the defendant’s bad character is admissible only if the defendant has first introduced evidence of his good character, thereby opening the door.


In an assault case:  D might offer evidence that Vince has threatened to kill him.  Would threats made by the victim be admissible?  Yes, but it’s not character evidence.  Threats made by a victim may suggest his... this kind of evidence is admissible as a bases for inferring that D was fearful of the victim and that’s a basis for judging his actions and evaluating his claim that he acted in self-defense, and that he acted upon his intent.


c. Methods of proving character

Problem 5-C—Ernie’s testimony

opinion.  He’s not saying how Vince is known in the community.  Is the evidence that “Don is peaceably disposed,” opinion evidence?


Foundation needed to lay for this testimony: that he is sufficiently acquainted with D, FRE 602 says he needs to have personal knowledge of the facts.


Reputation:  “Vince is known in the community as belligerent.”  Foundation: that witness had talked to a lot of people in the community about this individual.


If the testimony is that Vince is “aggressive, fight picking and belligerent.” if it was based on his observation .....405 proscribes the use instances of specific conduct.  D can be guilty of assault even if he has a peaceable disposition, so character is not itself an element.


specific instances -- overly prejudicial, the jury might convict him for his prior behavior.  Danger of diverting the jury’s attention.  You could bring up specific instances of all kinds of past conduct which would cast him in a bad light and be of little value in proving.


Notes on opinion and reputation.

1. How long must a witness know a D before he can be a character witness?  W has known D for two months insufficient.  What if you hire investigators to interview members of the community and allowing him to testify?  Courts have said no.

2. Is the character of Vince an element of Don’s defense?

b. What if Don had prior knowledge of Vince’s violent behavior?

3. Don’s conduct after the assault.  CN: what reputation is relevant?  Reputation before or after the indictment?  Trial is to determine the truth of the indictment.  An indictment can be based on gossip.  Allowing reputation after the indictment would be circular, because the indictment will generate gossip.


If the witness testified that he heard that V had beat people up on prior occasions.  Could this be brought in to show intent or motive, but not propensity evidence, because it bears upon whether or not D acted reasonably if he knew that V was violent.  He could say, “I heard of him beating people up in the past and so I struck.”  This goes to D’s state of mind, showing that he is fearful of Vince.  This would suggest that he was not the first aggressor.


d. Cross examination and rebuttal, p. 472, Problem 5-D, p. 472

Gram testifies that Don is nonviolent.  On cross-examination, the prosecutor asked him is he knows about him beating up his wife (a specific instance)?  Yes, they can do that.  But would this permit the prosecution to argue that D is a person of poor character who must have committed the crime involved? can they argue this in closing?  FRE 405 says specific instances of conduct is allowed on cross.  Would it be ok to speak to his character on cross?  The idea of the cross examination is to test the credibility of the witness.  Cross is designed to test he’s knowledge of Don, or if he does know about the wife beating and it doesn’t bother him, it would show that he has poor judgment.


Notes on Cross examination of character witnesses:

1. Prosecutors can cross examine a character witness once the defendant has asked W to testify to his good character.

3. What if the prosecutor thinks up the worst thing imaginable, does the prosecutor have to have a good faith belief that this really happened?  He can’t ask on cross “Did you know that Don throws rocks at children.”

4.  Don’s lawyer can ask Coach Jones (hostile witness) about specific instances of Don’s good conduct.  But there is a down side to doing so, because it would open up the door to proving specific instances of conduct.  Prosecutor could then on redirect ask for specific instances of bad conduct to prove the belief in his bad behavior.

5. How to ask about an event to test credibility:

If opinion testimony, then ask “Didn’t you know....”,

If he gave reputation testimony, then ask “ Didn’t you hear . . .”


e. Civil Case

General rule: character evidence is never admissible in civil cases when offered to prove behavior in a particular instance. 

Exception: where the underlying conduct is criminal in nature.


3. Character as an element of a charge, Claim or Defense, p. 475

a. Criminal cases


Problem 5-E, p. 476—FRE 404(b)

CN: D is charged with shoplifting.

Prosecution wants to offer previous shoplifting convictions.  Under 405(b), when character is an essential element of the crime of theft as permitted under this statute, then all types of evidence may be adduced, including specific instances of conduct.  Is disposition for stealing an essential element of the crime charged?  No, there are no modern crimes for which character is an essential element of the charge.  D could have a reputation for shoplifting and still be guilty of theft.

What if after telling her story, she thought the goods really belonged to her, the woman offered the statement, “I’m no thief.”  If this is character evidence then it might be opening the door.  If he is opening the door, then they can bring in all kinds even specific instances on cross. 

What can the security guards testify to, if she said she was no thief?  They can only testify to her reputation on direct.  If D opens the door on character, can the jury somehow learn about these prior thefts, these prior specific instances of conduct?  By interviewing her.


b. Civil Cases: EX:

Defamation, libel suit,

Negligent entrustment.

Child custody. which parent the child should live with.

Wrongful death.  To determine the net worth of the deceased.


4. Prior Acts as proof of Motive, Intent, Plan, and Related Points, p. 480

a. general considerations.  FRE 404(b) allows the introduction of prior acts to prove intent, which is common in drug cases, using prior drug crimes to show accused intended to sell drugs on this occasion.

Prejudice.  Judge decides

1) whether the evidence is offered for a proper purpose,

2) whether it is relevant for that purpose,

3) whether its probative worth is outweighed by the risk of unfair prejudice, and

4) gives a limiting instruction on request.


b. Proving intent, p. 481

Problem, 5-F Drug sale or scam

Facts: Rhoda Smith moved out of Moore’s apartment and told police that Moore was selling large quantifies of drugs.  She wants to testify at trial that he intended to sell drugs.  She would testify that she lived with him for 18 months and that he sold cocaine numerous occasions.  D claims the proposed cocaine transaction was a scam to dupe the buyer and that he planned to collect the money and depart without turning over any cocaine.

Prosecutor wants to introduce evidence of past transactions to prove intent.

Answer:  Her testimony cannot be used to show that his action on this occasion was in conformity with his past actions.  this is forbidden inference under 404(a).  But his intent is genuinely at issue because the State needs to prove it and he says he didn’t have intent, so 404(b) will allow Rhoda’s testimony to prove intent.


How do past sales tend to show intent?  they show a disposition to sell drugs.  If he has a disposition to sell drugs, what’s the first thing we seek to infer from his disposition to sell drugs?  that he had the requisite intent.  The evidence is presented for the limited purpose of proving D’s intent to sell. 

This has to do with the specificity, the disposition evidence is carrying a lighter load if the evidence is being used only to show intent, not that he in fact did sell drugs on previous occasions.



5.  Evidence of prior crimes often sheds light on other relevant mental conditions.

·        knowledge. prior drunk driving convictions to show D knew the risk of driving drunk to prove malice


6. Entrapment defense.  By asserting this defense, D is injecting disposition – character – into the case itself.  Why?  Because he’s claiming that he’s not the kind of person who would sell drugs.  The counterproof is that he is the kind of person inclined to sell drugs.  Evidence of similar crimes ordinarily barred by 404(b).

405—The predisposition is an essential element of the rebuttal of his offense.

403—argue this evidence is unfairly prejudicial.  Because the jury will be tempted to convict because of the past acts rather than because of his guilt.  Instead of drawing the limited inference of intent to sell, they say the broader inference that he did sell and so acted in conformity with his intent.  Although there is danger of prejudice, the evidence has a lot of probative worth. So the gov would likely get the evidence in despite 403, and 404.


c. Modus operendi and identity

Example: 5-G, p. 483--D is charged with bank robbery.  His confederate would testify and implicate him.  There is a confession of 8 similar robberies.  Gov would like to use evidence of the previous robberies.  Would it be admitted?

there’s an inference sought to be drawn by D’ past behavior that his acts are like a signature.  So if D commits crimes in a distinctive way, then evidence that he did such a thing before, he’s likely to have done it this time.

MO is used to prove D’s identity as the perpetrator.


Two requirements for prior act to be admitted p. 484:

1) bear a strong resemblance to the present offense, and

2) the past acts have to be sufficiently idiosyncratic to permit inference of a pattern. 

Similarity:  each of the other crimes have similar features, such as the color of cars, the weapons used, which were the same from one crime to another.  Uniqueness/idiosyncratic: stolen cars and ski masks is not unique, but running in hunched over might be.

“Priors” need not have led to convictionsHuddlestone, p. 489:  Convictions for the priors do not ensure their admissibility, and acquittal for priors does not ensure that the evidence be excluded it.  If the jury believed D did it .... the acquittal only shows the presence of reasonable doubt, not that D didn’t do it.


d. Plan, Design

Example.  5-H  Corrupt Judge, p.485--The indictment cited 26 acts of corruption.  But there is evidence in question, because two witnesses –the court reporter, and a lawyer who gave bribes, without identifying the particular cases.  D argues that the testimony is inadmissible because the cases in which he was allegedly bribed are anonymous, the defense lawyer identifies which cases he bribed the judge and the court reporter ...they can’t tie it to the specific charge.  This only shows a disposition for accepting bribes, using it to show he in fact committed bribes on previous cases is barred by 404.[???]

Evidence concerning bribes not in the charge is not admissible.  The evidence can be admitted to show plan or designed, because the judge used his courtroom to collect money.  It’s all part of the same plan or scheme.

Plan and design, unlike intent, are not essential but they can be used to infer intent.

RICO—judge engaged in a pattern of activities.  How does its inclusion effect the admissibility of the bribes.  Does it expand the concept of intent?  It requires the gov to prove a pattern of racketeering.  So it becomes less important whether any one payment relates to a case.  What if the judge testified that he never accepted a bribe in is life?  Would this be an additional reason to accept the proof? yes, its not being used as disposition evidence, but to counter his testimony.  This bears on his credibility.


e. Other purposes

PROBLEM, 5-I, p. 487---A three year old is brought by her mother to the emergency room.  The child dies the next day.  The mother is charged with manslaughter.  Gov wants to offer evidence that there were two other times in the past year that the child was brought to the hospital, with similar injuries.  D claims the injuries were accidents.   404(b) says you can use it to show absence of mistake or accident.  The improbability of the child had three prior ’accidents’ with the same wounds, suggests it wasn’t an accident.

Number of priors required. The gov only have two priors, should it need 3? Are three accidents enough to justify the . . .?  What if the child is accident-prone or subject to seizures?

In this incident there are three identical accidents.



1. Courts are increasingly allowing evidence of prior abuse; the problem is that the testifying physician cannot say who inflicted the wounds.


f. Proving the Prior Act, p. 489

Problem 5-J,---D is charged with knowingly receiving stolen property, 5k video cassettes. Prosecution has to prove that D knew they were stolen.  What evidence does the prosecution offer to prove he knew it was stolen?  He sold color TVs for $35.  Selling the TVs is “prior acts.” 

But D denies that he knew that the TVs were stolen or that they were in fact stolen. 

D argues that this is a question for 104(a) that the judge must first find that the TVs were in fact stolen and that D knew they were stolen and find this by preponderance of the evidence.

Prosecution argues if the judge believes that there is sufficient evidence that the jury could decide by a preponderance, then the judge admits it and lets the jury decide.

The prosecution is right because its relevancy is conditioned on fact under 104(b).

S. Ct said this is a question for the jury to determine whether that evidence is to be considered.  Under 104(a) the judge decides the admissibility of evidence.

Now there is a lesser requirements, there only has to be evidence sufficient under 104(b).



1) Huddleston, p. 489, held:

1) the Rules do not require a ‘preliminary finding’ by the court that the government proved a prior act by a preponderance.  Instead the judge makes a ‘threshold’ decision whether the evidence is probative ‘of a material issue other than character.’

2)  the prior acts raise a question of relevant conditioned on fact under 104(b), which is for the jury to decided under the preponderance standard that the act occurred and that defendant did it.

CN: the evidence must only be sufficient to make a ‘preponderance’ determination.

The danger is that the jury hears evidence of allege prior misconducts, even if the prosecution hasn’t persuaded them that the conduct has in fact occurred.  FRE 403 could be used to try to keep it out.


Dowling v. U.S., the Supreme Court held that the acquittal did not block evidence of the prior crime.

Huddleston requires only that the prosecutor prove the prior crime by a preponderance.


5.  Character in Sex offense Cases—FRE 412, p. 492

a. Sexual History of a victim (Rape shield statutes)

FRE 412 is a rape shield rule and qualifies 404(a)(2) by restricting the use of evidence relating to the sexual history of a sex crime victim.


Example 5-K, p. 493 –Rape Shield--She got a ride home from Fred.  He admits having sex but insists that she consented.  If there were no FRE 412, how might be her sexual history be admitted? 404(a)(2) would allow the accused, Fred, to offer evidence of the character, if a pertinent trait.  what would her past sexual history to show? that in the past she engaged in voluntary sex, and from this you can infer she consented on this occasion.

These speak to the form and the type of evidence that may be proved.  What is the method of proving sexual conduct must be proved by specific instances of conduct.  This differs from FRE 404, which bars specific instances of conduct.  But in FRE 412 opinion or reputation cannot be used.

Procedure: notice and in camera hearing. Fred wants to testify that they had sex on a prior occasion.  This would be allowed under 412(b)(1)(B), because it shows consent.  Argue against:  just because it happened one time a long time ago, doesn’t mean she consented now.  A single instance a year ago might have little bearing on consent today.  You could object under FRE 403 as evidence that lacks much probative value.

How to rule? courts might tend to admit it, relevancy will depend on the lapsed time and frequency.

Procedure to admit it, give notice within 14 days.

Greg’s testimony: inadmissible under 412(a) Because he’s not giving any specific instances of conduct.  The general prohibition applies and there is no exception.

If it did fall into one of the exceptions, it is still opinion (“she’s very active”) and reputation evidence (“she known as an easy mark”), which is never admissible in sexual cases.

FRE 412(a) bars using the evidence to prove victim engaged in other sexual behavior or a sexual predisposition.  Therefore Greg’s testimony should be inadmissible.

Why wouldn’t be admissible under 412(b)(1)(B)? because it requires sex between the victim and the accused.


Tom’s testimony: 412(b)(1)(A) should be admissible because it shows that a person other than the accused was the source of the semen, injury or other physical evidence. If the injuries are used to show forcible use, he could use it to show .  Is an alternate source of semen even relevant?  No, because it’s not at issue that they did have sex.  This would be admissible if Fred had denied.


If Fred had denied that he had sex with her, could Tom’s testimony be admitted then? yes, under 412(b)(1)(A).


Could Tom’s testimony come in to prove bruises?


412(b)(1)(B) Fred’s testimony should be admitted to prove consent.


 (1) Constitutional Right to Admit evidence of prior sexual conduct.  FRE 412(b)(1)(C)—p. 494:

·        Olden v. Kentucky: D may be constitutionally entitled to question V’s sexual history because.  D claims he’s entitled to show her motivation in accusing her of rape.

·        Black:  D is the father of the alleged victim.  D was entitled to show that V and her brother had an incestuous relationship.  D claims that V is claiming it was rape because father broke up the relationship between V and her brother.

4.  Attempted Rape.  Should D be permitted to introduce evidence that he had been told beforehand that the woman in question would say no but mean yes? maybe.

·        attempted rape requires proof of specific intent to complete the offense.  Should he be permitted to introduce this evidence?  D might be able to introduce this to explain why his perception of intent was reasonable.  It bears on D’s mental state, and shows that the heightened requirement of intent cannot be established.

6. FRE 412 applies also to civil cases. How would this affect sexual harassment suits?—both sexual behavior and sexual predisposition are excluded.


Foundational Evidence, Authentication—FRE 901, p. 977

Authentication goes to whether the evidence is what it is claimed to be.  This is a subset of relevancy.

judge decides: whether the foundation has been laid,

Jury whether it’s genuine.  It is ultimately a jury question.

Failure to authenticate can lead to the exclusion of evidence that may be essential for a party to prevail.

Authentication gives rise to issues of conditional relevancy under FRE 104(b), which contemplated that the trial judge will play only a screening function, passing the ultimate decision on authentication to the jury.  Therefore the proponent must offer proof of authenticity, and if it’s sufficient, it would go to the jury to decide, unless the evidence for or against is so compelling that the judge will make the decision.


Laying the foundation. Steps:

1.      mark by court reporter

2.      authenticate by witness or self authenticating

3.      offering the exhibit into evidence

4.       permitted adverse counsel to examine it

5.      opportunity to object

6.      submit it to the court of re-examination

7.      obtain a ruling of the court

8.      request to have it presented to the jury


NOTES on Authentication requirement, p.979

5. Civil cases, FRCP 26(a) requires a party to supply the opponent with a list of all exhibits during discovery, and the opponent then has 14 days to object.  This helps the authentication process.

6. Authentication by stipulation in civil cases under FRCP 36, and sanctions for not doing so under FRCP 37(c).


B. Tangible Objects


Johnson, p. 980

Johnson objected to the introduction of the axe because there was insufficient foundation and authentication: Papse (victim) could not distinguish it from other axes or identify specific characteristics; he based his identification on an assumption that there was only one ax at the scene, and the ax was in a changed condition from the one noted at the scene.

FRE 901(a) –“is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”  Once this determination has been made, it is up to the trier of fact to determine the evidence’s credibility and probative value.


1.      V was ‘pretty sure’ it was the ax used against him,

2.      was personally familiar with this particular ax because he had used it in the past.

3.      doubt or hesitancy should go to the weight of the evidence

4.      Though the jury was free to reject that this was the ax used, the requirements for admissibility under 901(a) were met.

CN: for what purpose is the gov offering the ax?  That this was the weapon that was actually used.  Papse’s testimony would establish the authenticity.  OR an eyewitness.  The kind authentication needed to lay the foundation will depend on what the evidence is offered to prove.

Change in conditionnot grounds for exclusion: at the crime scene it had blood and hair on it, but not at court.  This will not be grounds for excluding it because it’s substantially in the same condition.


Notes on authenticating tangible objects, p. 981

1. Does the nature of the required authentication depend on the purpose for which the exhibit is offered? yes. The type of foundation will depend on what the evidence is being offered for.

EX: If offered to impeach Johnson’s claim that he didn’t own an ax, then there is a different foundation required.


2.  What if it were just introduced to show what type of ax was used; what kind of foundation would be needed? Testimony by the victim that this ax is similar.  That would be enough. if the prosecutor doesn’t feel she has enough evidence to claim that this was the actual ax which was used. 


Problem 13-A—FRE 901, p. 982

CN: Foundation: that the baggies are the ones that were seized.  And the witnesses who had custody over the evidence from the crime scene to the trial.  Sometimes the evidence is identifiable because the officer tags it at the crime scene.  IF the arresting officer had tagged them, they would be uniquely identifiable.  Would this render the baggies admissible without any chain of custody being required?  An object that’s tested is likely to pass through different hands, then you need testimony of the custody from the time of analysis.


“Missing link unimportant.” Howard-Arias, p. 982

The coast guard found large quantities of marijuana on board and delivered it to the DEA.  D claims the marijuana was inadmissible because the gov failed to establish a continuous chain of custody from the time of its seizure until introduction at trial.

R: The ‘chain of custody’ is not an iron-clad requirement, and the fact of a missing link does not prevent the admission of real evidence, so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspect.

If the arresting officer were missing, that would be an important link.


Notes on Chain of Custody, p. 983

1. How much a break in the chain of custody will be tolerated? This will be fact specific, with no bright-line rule.  It’s a matter of judicial discretion.


C. Writings,

Bagaric, p. 984

RICO prosecution.  Gov claims that a letter is from an un-indicted coconspirator to D.  D claims that a letter linking him to a racketeer was not property authenticated, under 901(a). 

R: Authentication may be based on circumstantial evidence, including ‘appearance, contents, substance . . . and other distinctive characteristics’ of the writing. 901(b)(4). Here, the letter, addressed to D, contained numerous references to D and all the circumstances surrounding his life, as well as the names of many of the others in the racketeering ring.

Held, ample demonstration that the letter was in fact what the gov claimed, i.e., a letter from Miro to D.”

CN: some evidence is self authenticating, under FRE 902.  “Extrinsic evidence is not required with respect to the following.”  “extrinsic’ means testimony by the witnesses.  Generally, extrinsic evidence is required to authenticate it.  In this case, they rely on the names and locations mentioned in the letter, the circumstances surrounding the writing and the content.  When authentication comes under 901(b)(4), this comes closest to self-authentication because you are looking at the contents, appearance and circumstances of the letter.  Here, it is addressed to Vinko and it comes from Asuncio, Paraguay.  Miro signed the letter ‘Tony”(one of his aliases).  Miro was one of a small number of people likely to have knowledge of the contents.  Matching content with what’s outside the letter. Crnyi was one of the coconspirators.


Notes on Authenticating writing, p. 985

1. Misspellings.  Writings can also be authenticated by characteristic misspellings (eg., “approuch”[sp], for approach).

2. Recorded voice. 

3. Letterhead. 


Problem 13-B, Land sale contract, p. 986

Quiet title suit.  Land sale contract is offered as an exhibit.

How could someone authenticate a land sale contract from 1966 which has been held in the property records office of the county courthouse under FRE 901(b)?


901(b)1– 3, 7-8. Esp. (7)-(8).

901(b)(1)-a witness to the execution of the will.

            (2)—a non-expert opinion on handwriting.

            (3)—expert on handwriting; or have the jury compare the handwriting with specimens which have been authenticated.

            (7)—this is a document which is authorized to be filed, and it was in fact filed, so it can be admitted.

            (8)—its can ancient document.  In a condition that doesn’t create suspicion; is found in a place it’s expected to be.


D. Other exhibits, p.


(a) Photograph -- Problem 13-D-- the, p. 991

P wants to offer a photograph of the intersection where the crash happened, taken one month afterwards.

Ask P if he recognizes it, how he recognizes it, where it is a depiction of. 

CN: Needn’t be the photographer who took the picture?  but there are some foundational requirements of any witness. 

Establish that this particular witness

o       is familiar with the scene, and say that it

o       fairly and accurately depicts of the scene as he knows.

New signs.  Does the presence of new traffic signs render it inadmissible?  No, if the witness can account for the changes; the scene as it existed at the time of the accident and the scene as it exists today.  In civil cases, parties often stipulate to exhibits.


 (b) Telephone Conversations


Incoming calls.  Pool, p. 992

DEA agent Starratt received a call from someone calling himself  “Chip”, D’s nickname, but the conversation was not recorded, he never met ‘Chip” and never made any voice comparison with D.  He identified him only thru the caller’s self identification.

R: A telephone call out of the blue from one who identifies himself as X may not be, in itself, sufficient authentication that the call in fact came from X.  While circumstantial evidence may be used to support the prima facie standard of voice admissibility, there is not sufficient evidence to support the conclusion that agent Starrat actually heard D’s voice.  The fact that the caller identified himself as “chip’ is not prima facie evidence that it was D.

CN: With respect to an incoming call, the proper foundation is voice recognitionSelf identification is not enough.  Though it is possible to authenticate it with circumstantial evidence.


Authenticating telephone calls, p. 993

1. Voice recognition. The evidence would have been admitted if Starrat were able to recognize D’s voice, but how familiar does a witness have to be with a callers’ voice before being allowed to testify to the identity of the caller? twice is insufficient, three (3) times is sufficient.


3. Outgoing calls. what foundation does 901(b)(6) require?: witness will have to testify that he went to the directory, took a number from the directory and called that number and that the person who answered the phone was the person who was listed in the telephone directory.


Self Authenticating exhibits—FRE 902, p. 994

EX: Death Certificate Problem 13-I,

Walter died in a car accident.  The insurance claims it was suicide and so refuses to pay death benefits, it only covers accidental death.  To prove the cause of death, she offers a copy of the death certificate.  The original is in the Cook County; a certified copy of a copy maintained by the clerk’s officer in Chicago.

First, she offers the copy certified copy of a public record.

Certified Copy of a public record. FRE 902(4): Why isn’t it self authenticating? A copy is self authenticating under (4) only if it also complies with subsection 1, 2.  (1) won’t apply because its not under seal, but (2) applies.  If the second document is not attached then it might not be able to come in.

Under seal?  902(1)?  But 902(2)?  the seal on the second certificate will compensate for the lack of the seal on the document in question.  Is there still a failure to meet 902(2)?  The second certificate is defective because it doesn’t assert that Bundy’s signature is genuine, so it’s not self authenticating.


But it might still be authenticated under 901; call Emily Bundy: she is a person with knowledge. 901(b)(7) get the lawyer or the clerk that works for the lawyer, to testify that the document is from the public office where items of this nature are kept.  901(b)(1) just requires testimony that a matter is what it is claimed to be.


Conflict of laws: Rules regarding authenticating documents is pretty procedural, so under the Erie decision, federal courts are not required to follow this state law.  FRCP 44(a)(1)—even though it doesn’t satisfied FRE 902(2), it does satisfied the FRCP, so it should satisfied the admission requirements.


Notes on Self-Authenticating exhibits, p. 997

1. New York Times? 902(6) – news papers and periodicals; Webster’s dictionary?

Sears catalogue& candy bar wrapper 902(7).  Gov map, officer publication.  City Council Minutes? 902(4) maybe if they are certified.

2.  Commercial Documents. FRE 902(9).


Burdens of Proofs and presumptions, p. 767

1. Pretrial Burdens (pleading, pretrial statement), p. 768


2. Trial Burdens.

Burden of Production-shifts.  Party will lose if he does not offer sufficient evidence to enable a reasonable person to find in his favor.  Succeeding in the carrying the burden of production does not shift the burden to the adversary, though the adversary may lose if he does not offer any rebuttal evidence.

Burden of persuasion--never shifts. Party can only win if evidence persuades the trier of the existence of the facts that he needs in order to prevail.


3. Presumption—shifts the burden

a. Sources and nature of presumptions

An unopposed presumption controls. decision on the point in question.

b. How they work in One-sided and contingent Situations, 775-776

The presumption controls decision because there is no counterproof.


Problem 10-A, p. 776

Glen’s harpsichord was damaged in moving.  The moving company, Atlas, claims that it damaged before they moved it.  Glen has evidence that it was in bad condition when it was returned to him.  So there is dispute as to how it was damaged.

If there were no presumptions, the plaintiff introduced enough evidence of negligence?  no.  The heart of his case was that the mover acted negligent.  But Glen is not in a good position to have that evidence.

Enter the presumption, the bail of goods presumption.  If the goods were in good shape when received by the bailee, Atlas, and in bad condition when delivered to bailor, there is a presumption of negligence.

Basic facts.  For every rebuttable presumption there are some basic facts that will have to be introduced.

·        goods be in good condition when received by bailee. 

·        damaged when retrieved by the bailor

·        rebuttably presume that the moving company was negligence and caused the damage.  Without the presumption, P would suffer a directed verdict because he doesn’t have any evidence of negligence or causation.  Without this presumption the case cannot go to the jury.


State of the Evidence.  the basic fact of the piano’s condition when picked up in New Haven? What’s the evidence?  Keenan played the Harpischord before it was moved, and he can testify that the piano was not in a good condition.


CN: The bailee is the one in the position to have evidence concerning causation and negligence. The basis facts that give rise to the presumption:  with respect to every presumption, you have to look at the basic facts, and the presumed facts.

Basic facts: Bailor delivered the goods undamaged to bailee and retrieved them in a damaged condition.  These facts have to be found by the jury to exist, then the jury must presume the presumed facts: bailee was negligent.

Plaintiff would suffer a directed verdict if it weren’t for the presumption.  The presumption benefits the plaintiff because he can avoid a directed verdict by providing enough evidence to go to the jury.


What kind of evidence does the plaintiff have to produce for it to go to the jury?

IF there is clear and convincing evidence, the judge must instruct the jury that because there has been no rebuttal evidence, the jury must find that the presumed facts—since that basic facts are undisputable.


But here the basic facts are not indisputable because reasonable minds could differ given the items of evidence.

Does the plaintiff have enough evidence to go to the jury? yes, because he has facts upon which reasonable minds could differ. Plaintiff has adduced sufficient evidence, even though its Glen’s own testimony.


If Plaintiff moves for a directed verdict, there is no cogent and compelling evidence which would warrant a directed verdict for plaintiff.  D is producing evidence rebutting the basic facts: that the piano was damaged before the move.

The presumed facts: negligence and causation.  D has no evidence rebutting the presumed fact.  They would have to show that they were not negligent. 

what instruction should the judge give the jury with respect to the elements of the case?: if the jury finds that the harpsicord was undamaged when shipped, they must find that D was responsible for the damage.  This shifts the burden of going forward with the evidence to the party opposing the evidence.

Burden of proof (persuasion): something that doesn’t shift from one party to another, this is an instruction that is given in any case, at the risk of reversible error based on how it is phrased.

Burden of production: burden of coming forward with the evidence, and this can shift from one party to another, the jury is usually not instructed on this one.  This is administered by the judge alone.


At the outset, both the burden of proof and the burden of production are on the plaintiff.  But how does it shift to the party opposing the presumption?

Once the plaintiff produces sufficient evidence of the basic facts, D suffers the risk of an adverse judgment, because the jury must follow the judge’s instruction that if it believes P’s basic facts, it must find the presumed fact.  That is how the presumption operates to shift the production burden.


The burden of proof (persuasion) remains with the plaintiff and never shifts.

What if D introduces evidence that nothing uneventful happened during the trip and that he handled the piano properly?


Thayer, bursting bubble.  the presumption disappears and the jury is free decide what they wish.

Substantial evidence approach. presumptions have continuing effect unless the evidence is substantial.  Would the driver’s testimony be substantial enough? probably not.  If it is not substantial, the jury is left with the same instruction: if they find the basic facts to be true, they have to find the presumed facts to be true as well.


Under either theory, even if the presumption disappears, for any reason, the plaintiff may or may not get to the jury on the evidence on the whole depending on the strength of the evidence.


rebuttable presumption

permissive conclusion

mandatory conclusion

Inferences are not required to be drawn, this distinguishes inference from a rebuttable presumption, because if there is no rebutting evidence, the conclusion must be drawn if they determine the existence of the basic facts.


c. How they Work in the “in Between” situations, p. 778


1. Bursting Bubble.--the presumption shifts in favor of the party against whom it operated, the burden of coming forward with the evidence and not the burden of persuasion, i.e., the bailee offers evidence that fire damaged the goods.

“Your presumption was destroyed by the mere introduction of the evidence. ...The mere introduction of the evidence wipes out the total effect of the presumption.” 

2. Reformist approach.  Morgan approach—It should be a shift in the burden of persuasion, not production.


3. FRE 301 and modern practice. The preliminary draft said: “A presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.”  But FRE 301 is more like the bursting bubble approach.  CN: the advisory committed argued for the reformist approach, but congress rejected this.

Looking at the introductory clause, “ absent the existence of another theory, the bursting bubble will be used.”  These various theories of presumption have currency in all jxs.


Problem, 10-B, p. 781

Mason died at age 49 of a head wound inflicted by a rifle shot while alone in the basement of his house. Vera, his wife, wants to collect on his life insurance policy.  Insurance company claims it was suicide.  Claimant (Vera) bears the burden of pleading that death was an accident and bears the burdens of production and persuasion on that point.

CN: The policy covers only accidental death.  Here, P has the burden of proof (persuasion), the risk of nonpersuasion, the burden of production.  Initially the production burden is upon the widow.  There are some items of evidence that suggest the death was accidental:  lack of soot on face, suggesting the nozzle was more the 12 inches away; the gun had accidentally discharged before; he was clutching a cigarette lighter, so he only had one hand; he was happy not morose.

Insurance company’s produces evidence:  The gun that discharged accidentally was different gun, he had marital difficulty.  the insurance company moves for a directed verdict.  Could P easily suffer a directed verdict?  Yes, P’s evidence suggesting accident is pretty weak. The evidence suggesting suicide is strong.

CN: The Insurance Company’s evidence tends to rebut the presumption; it is sufficient but not indisputable – cogent and compelling

Jury Instruction: This will depend on the various theory applied in the jx.


Without a Presumption:  Can she avoid a directed verdict, and get it to the jury based on this evidence?  Many judges would have doubts and grant a directed verdict, reasoning that no reasonable jury could find that this death was accidental.  There’s strong evidence of suicide though not clear and convincing.

With Presumption:  upon proof of a sudden violent death, the presumption is that death resulted from accident rather than suicide.

Thayer approach (bursting bubble): the insurance company has introduced evidence: there would be no instruction regarding the effect of the presumption.  Would D enjoy a directed verdict?  yes.  This is sufficient evidence, and in a Thayer jx the presumption disappears, so the plaintiff will not even get to the jury. 

Substantial evidence approach, p. 782, nt 2a.  That the presumption will disappear unless the evidence is substantial.  Unless the evidence is a very high quality, the widow will not get to the jury, but if that kind of evidence is not shown, then the plaintiff will get to the jury.  A presumption survives the introduction of counterproof, and is rebutted only by counterproof of high quality – ‘substantial’ or “uncontradicted’ evidence, or counterproof that is undisputed or ‘clear and convincing’.  Even counterproof sufficient to support a finding for the adverse party does not burst the presumption altogether, so satisfying the burden of production does not get the adversary out from under.  The presumption, reduced in force, now protects an inference from extinction – in other words, it takes the case to the jury and allows it to find the presumed fact.

Here, The counter-proof is merely counter-evidence, not clear and convincing evidence, so it’s not substantial.  So the presumption would take this case to the jury.  The instruction given to the jury: one court held nt 5, p. 784-5, the court told the jury that it should exercise commonsense regarding the human repulsion against self-destruction.

What if D had introduced a suicide note?  This would make the presumption disappear.  Then you wouldn’t have a presumption; the case wouldn’t get to the jury.  With the presumption gone and with this evidence of the suicide note, she should no get to the jury.  She has not produced sufficient evidence of accidental death, and a jury would not be allowed to decide the case.

Morgon jx. the presumption doesn’t only shift the production burden but also the burden of persuasion.  How does the production burden shift?  If the plaintiff has the burden of persuasion regarding death, she has the burden of proof, but she’s aided by a presumption: the production burden shifts to the party opposing the presumption.  It will suffer a directed verdict unless it produces some rebuttal evidence.

Shifting burden of persuasion: The shifting of the burden of persuasion, from the plaintiff to the defendant will be manifest through the jury instructions.

What would be the instruction in a Morgan jx?:  They must find that death was accidental unless D persuades you that death by suicide was more probable than not, by a preponderance.


f. State presumptions in Diversity Cases—FRE 302, p. 799

in federal courts, State law controls the ‘effect’ of presumptions relating to ‘a fact which is an element of a claim or defense as to which State law supplies the rule of decision.” Suggesting that presumptions are ‘substantive’ for Erie purposes.

FRE 302—a federal diversity will look to the laws of the state when applying its presumptions, because presumptions are considered substantive.

In a diversity case, FRE 301 will be set aside and they will use the presumption of the state


Judicial Notice—FRE 201, p. 843

FRE 201—adjudicative facts: facts which would otherwise go to the jury to be proved.  It is a substitute for proof, a means by which facts can be established without evidence.  It’s a time saving matter.  It makes calling witnesses unnecessary, and makes a finding of fact unnecessary because it’s in the scope of judicial notice. The rule distinguished between political and adjudicative facts.  Read ACN

·        Adjudicative facts.  facts that normally go to the jury.

·        Political facts: go to the constitutionality of statutes. 

·        Legislative facts: judicial notice of legislative facts is not regulated.

The kinds of facts subject to judicial notice are matters within the average person within the community.  If it’s not known to the ordinary person with the ordinary jurisdiction, or by looking at encyclopedias or dictionaries, then . .. .  If they are capable of verification. 


Opportunity to be heard: Whether its proper for a matter to be subject to judicial notice may require the calling of witnesses.

EX: whether smoking causes cancer was held not to be the subject matter of judicial notice.

the tenor with which it is taken

Jury Instruction:

Civil action: jury must accept as conclusive.

Criminal action: jury may accept as conclusive, but need not accept any fact which is judicially noticed.


Evaluative facts: those that help the judge and the jury understand testimony and other evidence, such as slang, a nod, the meaning of words, ‘human nature’ physical laws, e.g., engine failure and plane crash, causation.  No need for instruction, though they are sometimes told that they may use their own life experiences.


Judicial Notice of Adjudicative Facts, p. 845

EX: Dry Pavement

My Answer: It is a fact not subject to reasonable dispute and is capable of accurate and ready determination.  Because it has been requested, it is mandatory though the opposing counsel has the right to a hearing.

CN: what is the evidence being used for?  Is the hearsay objection sufficient to prevent the judicial notice, non-authentication?  Why even ask that judicial notice be taken, when he has the weather record that there was no rain fall in Indianapolis?  The advantage it that the jury must accept it as true, it’s established as conclusory, there can be no testimony to the contrary.

Authentication: is the weather record self-authenticating?  no.  But these evidential requirements would not have to be satisfied if the court takes judicial notice.  Compliance with rules of evidence is not necessary for a writing to serve as the basis for judicial notice. 

What if the Plaintiff supplies the court with the weather record and the Defendant claims it is a phony weather record?  The Court may require some proof that it is genuine.  If there is a question as to the reliability of the evidence presented, then the court may require more...

Kinds of facts: those capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questions.  If there is a question raised concerning its genuineness, the court may look for evidence.

FRE 104—whether a matter is subject to judicial notice is for the court to decide. 104(a) objection based on hearsay are not appropriately made.  Admissibility of the evidence is determined by the court, which doesn’t really apply because in JN no evidence is being admitted; however, the last sentence regarding privileges.

But the plaintiff is asking not only the court take JN that the pavement at this particular intersection was dry.  Is this appropriate?  Why would this not be properly noticed? because it could have been wet for reasons other than rain, which means that it not subject to ready determination by a source which cannot be reasonably questions.  If there are factors other than rainfall which might cause wetness, then it could have been dry.

When the information offered is not being offered as evidence, but to help the court decides whether this is a matter subject to judicial notice, then the rules of evidence won’t apply.


EX:  11-D.  TV guide

D claims her ___ was watching a game during the time of the robbery.  Prosecutor wants to introduce a TV guide to show that there was no football game being played at the time of the robbery.

First Question: Is this an adjudicative fact?  one which otherwise would go to the jury? (i.e., Facts concerning the parties, who, what, where, why,) p. 850, examples of adjudicative facts.

What about just offering the TV guide into evidence, could it be done?  It’s a writing which means its hearsay, and it doesn’t fall into any exception.  But the prosecutor would like to use it as a basis for the court to take JN.


Does it fit 201(b)(2)—it’s certain that that game was played or not played.  Is this a matter which is capable of accurate and ready determination?  There are questions of the accuracy of the TV guide, programming is subject to change, there are channels not listed in the TV guide, games can be televised which are not listed in the TV guide.


Whether the game was played will not be the subject of JN if we want to use the TV guide as the basis for it.  The prosecution is asking that JN be taken, Which is mandatory if a party request it, and provided with necessary information.

We’re using the TV guide only to persuade the court, it cannot be introduced as evidence because its hearsay.


11-E.  Oil Embargo.

CN:  Should the court take judicial notice of the oil embargo?  It’s a matter of history and not subject to reasonable dispute.  Historical facts can be established readily and accurately from sources whose reliability cannot reasonably be questioned.


11-F. Asbestos and cancer.

Will the plaintiff be able to get the court to take JN that asbestos causes cancer?  In 1985 the appellate court reversed a JN that asbestos causes cancer, but that was based on the medical knowledge at that time.  If judicially noticed, then the asbestos companies cannot introduce contrary evidence.

The “tenor of the matter sought to be noticed” can be a very important question.  The hearing: “parties entitled to a timely request on the propriety of taking JN, and if so, what exactly will the court be noticed, the tenor of the notice.

When Judge Parker made the notice, he had a hearing and days of testimony were taken to determine whether judicial notice should be taken.


Personal knowledge of the judge cannot be a basis for taking judicial notice. Gereau, p. 849

D is asking the court for a new trial.  The court will have to decide whether there was misconduct during the jury deliberations.  Did the matron say something improper.  The judge takes testimony from the attendant and the juror.  The judge chooses to believe the matron over the juror.  The judge had personal knowledge that the attendant needed the job and wouldn’t say any thing that would jeopardize her job. In a murder case, there is some question as to whether the juror freely assented to the verdict of guilty.  One juror, Cappin, testifies that the Jury matron Foye spoke with them during deliberations encouraging the jurors to speed up their deliberation.  Foye denies the conversation.  The trial judge, though finding both women to be credible witnesses, chose to believe Foye rather than Cappin because he knew that Foye ‘was grateful for the opportunity to earn extra income as a jury matron.”

Held, the judge’s reliance on his personal, subjective belief about the needs and motive of Matron Foye was an improper ground for rejecting Cappin’s equally credible testimony.   To base this fact finding on personal knowledge was in effect taking judicial notice of an extra-record, adjudicative facts.

Judicial notice is proper only for matters beyond reasonable controversy, which are common knowledge or capably of immediate and accurate determination by resort to easily accessible sources and indisputable accuracy.

CN:  With respect to 201(b), the judge’s personal knowledge doesn’t fall into the categories.  The person will have to offer testimony and subject themselves to cross examination.


6. Mandatory notice.  Judicial notice is mandatory under FRE 201(d) on request by a party if the court is supplied with the necessary information.”


7. Examples of adjudicative facts:

1.      The Democrats control the political offices of St. Luis

2.      many federal employees take vacations during year end holiday period when mails are heavily burden resulting in slowdown of officer operations and retarded delivery

3.      women dominated the teaching force in NY city’s lower schools

4.      KKK is a white supremacy group whose policies are implemented by acts of terror and intimidation.

5.      Southern Comfort is an intoxicating liquor excessive amounts of which can cause death.


C. Judicial Notice in Criminal Cases

No JN on appeal in criminal casesJones, p.

D is convicted of unlawful interception of interstate calls.  But the conviction was set aside by the trial court because prosecutor failed to prove an element of the case, because Bell’s status as a common interstate carrier hadn’t been established.  The trial court granted D’s motion for acquittal because the state had failed to prove that Bell was a common carrier providing interstate transmission of communications” which was an element of the federal eavesdropping statute.

The Prosecutor appeals, asking that JN be taken of Bell.  The ACN to 201 (f) states that JN may be taken at trail or on appeal.  And 201(f) does not distinguish between criminal and civil matters.  Under 201(g) however, JN in a civil case is conclusive, which in a criminal trial the jury is not bound to accept the judicially noticed fact and may disregard it if it so chooses.  The legislature believed that preserving the traditional prerogative to ignore even uncontroverted fact in reaching a verdict maintained the Sixth Amdt right to a jury trial.  The jury in a criminal case could not pass upon facts which are judicially noticed if this notice were take for the first time after his had been discharged and the case was on appeal.

CN: Though the comments says that JN can be taken on appeal, the appellate court should not take JN of an adjudicative fact without the jury.  Post trial judicial notice is not available in criminal cases tried with a jury.


E. JN of Legislative Facts, p. 858

CN:  Judicial notice of legislative facts is invisible because it’s not regulated by 201. ACN to 201—(Adjudicative facts are facts which would normally go to the jury, i.e., who, what, when, where); legislative facts are the policy behind statutes, and often brought to the attention of the court through briefs.  As in Muller where, Mr. Brandeis’s brief.

Muller v. Oregon, p. US Supreme Court

The Court looks to the statutes of many other countries which show that it is in the interest of society to restrict the number of hours a woman is allowed to work to 10.  “When a question of fact is debatable and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long continued belief concerning it is worthy of consideration.  We take judicial cognizance of all matters of general knowledge.”

CN:  court looks to the policy reasons behind limiting women’s working hours, because of women’s critical role in society.

If we used the criteria for adjudicative facts, they have to be indisputable, the policy behind laws are often the subject of dispute.  Because of the requirement of indisputability would preclude their application under FRE 201, since 201 applies only to adjudicative facts and has the requirement of indisputability.  If a fact is determined to be legislative it needn’t be indisputable, because the procedural protections afforded by FRE 201 do not apply.  There’s no right to a hearing on the propriety nor the tenor of the fact noticed.

If noticed, will it be binding on the jury?  yes, In a criminal case, the rule that a JN be not binding, this doesn’t apply to legislative facts.


Habit and Routine Practice, p. 500

FRE 406:  Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.


the difference between character and habit?

“Character” is evidence of a general disposition with respect to a general trait; habit has specificity, and regularity.  The specificity of the habit gives it more probative weight.

“Habit designates a regular practice of dealing with a particular kind of situation with a certain type of conduct, or a reflex behavior in a specific set of circumstances.”  “Habit describes particular behavior in a specific setting, and it is by nature at least regular if not invariable, so it has greater probative value in proving conduct on a particular occasion than does evidence of more general propensities.”


Problem 5-M, Death on the Hwy, p. 501—FRE 406

CN: Teel, decedent, was heading west and D was traveling north... a car on a county road turns into the path of an oncoming car.  This kind of accident rarely occurs unless the driver was negligent.  Finney didn’t have the right of way.  But Teel could have been contributorily negligent by speeding.  It’s also possible he was in the wrong lane at the time of the accident.


Teel estate seeks to prove that Lance was exercising due care.  Witnesses Budge and Frese are prepared to testify that Lance was “a good, careful driver.”

CN: If D was a careful driver it would help to prove that D was not contributorily negligent.  it’s important to the plaintiff to get this testimony in, because its probably all he has.

Evidence of carefulness or carelessness is too general, which makes it character or disposition evidence, which FRE 404 prohibits.

Finney estate objects that the proffered evidence “is just proof of character, which cannot be admitted to show conduct on a particular occasion.”


Answer: this appears to be a general statement about his behavior, not a specific routine.  Therefore, the objection should be sustained.


Notes on habit evidence in negligence cases, p. 503

1.  Habit is ‘reflex behavior’ which is ‘semi-automatic, or “mechanistic.”

Volition.  The greater the volition of a particular behavior the less it is habit.

Sharpe—Admitting evidence that he “habitually disregarded” the warning to wear seatbelts, but excluding evidence of ‘occasional disregard of warnings not to drink and drive.” 

Regular Church attendance: too voluntary an act, not sufficiently automatic. 

Evidence of physical abuse from the past.  Adv. Committee disapproves of the use of prior assaults: its not sufficiently reflexive, it’s too deliberate.

Brett v. Berkovits—in sexual misconduct and malpractice suit against lawyer, excluding proof that he had “prior relations with clients.” too voluntary and not sufficiently automatic. 

2. What further description would you want Budge and Frese to provide regarding Lance’s driving habits?—that he was habitually cautious in poor visibility. 

CN: Since the critical issues are whether he was speeding or driving in the wrong lane, you want testimony that he drives at or below the speed limit and that he never strays over the center line.

Barton—admitting testimony on decedents ‘customary driving speed over a period of five years, along the ‘flat’ leading southerly into the curve where the accident occurred; offered to prove that car driven by him crossed center strip there.

3. crossing a certain street , evidence of habit? Or crossing at a certain place?  Does evidence that she stays in the cross walk amount to habit evidence? yes.  Glatt—it would be relevant to prove he was not in the cross walk when struck by a car.

5. Drinking habits? Proof that a victim habitually passed out from drunkenness in a particular parking lot as evidence that D knew where to find him.

CN: Reyes—if D is in the habit of being drunk and its being offered as evidence that he was drunk on this particular occasion. yes.

Loughan—What if plaintiff’s employer can testify that he routinely carries a cooler of beer on his truck, drink on the job to the point of generating complaints from customers, and admits to drinking beer at some time during a normal day? yes; Admit.  Drinking on the job as evidence of customer complaints?


Problem 5-O, Was he served, p. 504

CN: it necessary for the prosecution to show that there had been a prior deportation.  He’s being charged with illegal entry after previous deportation.  To prove prior deportation, prosecutor will have to show that D was served with a warrant.  There had been a warrant on the prior case which had D’s thumb print.   Normally the agent signs it, but not this time.  the prosecutor doesn’t know who he is because he didn’t sign it.  But we still have to prove that there had been a warrant served on the D for the prior deportation.  Govt calls a deportation officer.  He wants to testify the procedure followed in serving a warrant.  Why would his testimony be relevant in this case?  We’re seeking to show habit or organizational routine as a basis of showing that there had been conformity with the routine.  But this particular agent had never executed a warrant or served a warrant, should that prevent him from testifying?  It doesn’t make any difference whether the witnesses has carried out the procedure as long as he knew that others carried it out ....he need only have personal knowledge.


Defense voire dire:  defense has interrupted the prosecutor’s examination, to show that this particular witness doesn’t know what he’s talking about.  So testimony on direct is never furnished because there’s a basis for showing that this witnesses doesn’t know what he should.  Whether to grant this defense voire dire is discretionary to the court.  The court may allow the testimony and then just tell the jury to disregard the testimony, but the defense would rather that the testimony never get to the jury.

The basis of the witness’s knowledge was hearsay, he didn’t personally practice this procedure, he had heard about it from others.  Or if he had personally observed this procedure, 602 requires personal knowledge.  So, if he heard it from the agents and he himself had personally observed.  But he didn’t, so its just  hearsay.  It doesn’t matter that he didn’t personally engage in the practice.  But he has not himself personally observed, he only goes on what he’s been told.


Notes on Organizational Custom and practice—FRE 406, p. 505

1.  Should proof of organizational routine to show the doing of an act be more readily admitted than proof of individual habit? Yes, because an organization is more likely to be consistent overall, acting pursuant to policy and there is less risk it will be character evidence.

CN: Which is more persuasive?  Habit?  or organizational routine?  organization routine might be more persuasive because of the incidents which attend the routine: there are manuals and guidelines, discipline training.


2. If the question is whether a physician or dentist warned his patient of the hazards of a dental or medical procedure, should the court admit the evidence that she always gives such warnings?- habit of  person? routine of an organization?

CN:  This is an example of a classification problem.  An individual is carrying on a business or profession.  What a doctor tells a patient doesn’t fit the definition of habit, i.e., semi-volitional.  Arthur—behavior by professionals is akin to organizational routine.

3. The issue is whether a letter rescinding an agreement was posted.  When there are basic facts concerning basic stamping and addressing, this creates a rebuttable presumption of delivery of the notice.  The problem is that we don’t generally remember whether a particular letter was stamped and posted.  How can you get someone to testify that they stamped it, and posted it?  So how will you established these basic facts with respect to the delivery of the letter?  Introduce evidence of organizational practice.  get testimony regarding the organizational routine, and then use it to infer conformity with organizational routine.

No, this should not suffice to prove mailing.


5. Should evidence of industrial practice be admitted on the question of standard of care?  Industry practice can be used to prove standard of care in negligent cases.  evidence that D doesn’t do what others do should be taken into account, it faults the D from not learning from others in the industry.


Remedial Measures—FRE 407, p. 506

FRE 407—Subsequent remedial measures:

The rule is grounded on a mix of relevancy and policy considerations:

Public Policy.  two justifications for excluding evidence of subsequent remedial measures to prove culpability:

1) subsequent conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence,

2), the social policy of encouraging people to take or at least not discouraging them from taking, steps in furtherance of added safety.


Tuer, p. 507

He was originally scheduled for surgery on nov 9, but because he experienced some chest pains they moved up the operation.  He was on Hepperin, but they took him off the drug the day of the surgery so it wouldn’t be in his system, But another patient require emergency surgery.  He has a heart attack, he dies next day.  Hepperin keeps the blood from clotting thereby reducing heart strain, but the risk is that in surgery, if the doctor punctures an artery the blood with flow.

while waiting for coronary surgery Mr Tuer was given an anticoagulant.  Hours before the surgery, pursuant to protocol, the anticoagulant was discontinued so it wouldn’t be in his blood during surgery.  Because of another emergency his operation was postponed; he went into cardiac arrest and died.

The hospital then changed its protocol with respect to discontinuing the anticoagulant treatments, and the treatment is now continued until the patient is brought into the operating room.

Plaintiff claims that the change was not a remedial measure because the defense claimed the prior protocol was correct; secondly, she claims is entitled to prove the change to show that continuing the treatment was ‘feasible.’

Feasibility407(b) exempts subsequent remedial measure evidence form the exclusionary provision of Rule 407(a) when it is offered to proved feasibility, if feasibility has been controverted.  But what is meant by ‘feasibility’ and when is it “controverted”?

The feasibility of a precaution may bear on whether the D was negligent not to have taken the precaution sooner.

Expansive view: ‘feasible’ means more than that which is merely possible, but includes that which is capable of being utilized successfully.


            Here the feasibility was not controverted: the doctors admitted they could easily have renewed the treatment, but the protocol was based on professional judgment that the risk of having lower amount of the drug in his system during surgery outweighed the risk of leaving it in.  Restarting treatment was not unfeasible, but rather not advisable.

Impeachment. subsequent remedial measure evidence is not ordinarily admissible for impeachment if it is offered for simple contradiction of a defense witness’ testimony.  Therefore, it is not admissible.

CN:  Here it was not an improvement or remedial measure, just a change in protocol regarding the administration of the drug.  This is not a repair, not fixing a busted pipe.  But the rule 407 can encompass almost anything: discharging an employee, changes in policy or protocol. 


FRE 407 doesn’t reach evidence to prove ownership, control, or reasonable evidence of feasibility, if controverted.  Like FRE 105, evidence may be barred for one reason but allowed regarding another kind of evidence. 


ownership or control. D may deny he has responsibility for the accident.  Nevertheless he made repairs.  It’s Unlikely that someone would fix a property he didn’t own. 

Impeachment:  D might testify that the product was the safest it could be.  Then subsequent remedial conduct could be used to impeach.

Feasibility:  The rule insists that feasibility has to be controverted

EX: D testifies that it’s impossible to make a change that would prevent similar accidents, “its not feasible.”  Defense lawyers need to caution witnesses not to make exaggerating claims that no remedial measures were possible. Then Subsequent remedies will be admissible to prove feasibility.


In Tuer the court held that the exceptions for feasibility and impeachment don’t apply:  they have abroad meaning and a narrow meaning. 

Merely choosing a better alternative doesn’t involve controverting testimony nor evidence that it was unsafe.


Tuer’s death caused the hospital to change its protocol.  The original procedure was to discontinue use of the drug long enough before surgery to prevent the risk of excessive bleeding.  Now: continue until patient is wheeled into the surgery room.  On the old rule, the patient’s life is put at risk before surgery, but it was overcome by the danger of bleeding during surgery.

Hospital challenged the admissibility, which the court granted as long as the feasibility is not challenged. Because feasibility had not been controverted, the court of appeals upheld the exclusion of the evidence.

The dr. defended the protocol—he explains the reasons for discontinuing Hepperin, continuing it would be wrong, and raised more risks during surgery than going without it before surgery.  He says that under no circumstances would he allow a patient to undergo surgery while on hepperin.

The Court favors a narrow construction on the ‘feasibility’.

Broad Construction: p. 510—Anderson: A woman was raped in a motel room, and after the rape the motel installed peep holes in the doors.  That opened up the issue of feasibility.  The motel told police that it decided not to install them earlier because the peep holes would give people a false sense of securityheld the motel controvert feasibility, and so counterproof of remedial measures was allowed.

Narrow construction: Here, Dr testified that keeping hepperin in during surgery would raise more risks than eliminating it before surgery, but the court takes the narrow view; feasibility not controverted.


Notes on subsequent remedial measures, p. 513

1. the courts read “impeachment” narrowly.  But does the court read these narrowly to achieve a broad protective purpose?  Yes.  Would a large urban hospital hesitate to change its protocol just because it was admissible as evidence?  But a hospital is probably more concerned with more litigation and avoiding other punitive damages, and the jury perhaps hears evidence that the hospital is doing things differently.


2. Product liability.

(a) Strict liability cases.  California rule in Ault: the public policy reasons for keeping subsequent remedial measures are not valid in cases where you have a mass producer: he is not going to be discouraged from making repairs just because the evidence is introduced when he will risk innumerable other lawsuits if he fails to make the repair, ‘simply because the evidence of adoption of such an improvement may be admitted in an action founded on strict liability for recovery on an injury that preceded the improvement.

CN: Texas follows the Ault.  Texas subsequent remedial measures are admissible in cases which turn on strict liability.

FRE 407—it can’t be used in a products liability case based on strict liability.  But the texas rule is the opposite.  Ault held that this evidence was admissible in products liability cases, because mass producers are well advised of the law, regardless of evidence law, a rule of exclusion would simply  “shield against potential liability.”

 (b) Amendment to 407 makes clear that such evidence will be excluded in strict liability cases.

(c)  States often decline to apply the state counterpart to FRE 407.


CN: what if a suit is brought alleging both products liability and negligence?  Limiting instructing.  The jury would have to be told only to use it in the strict liability claim, but not in the negligence claim.

In a jx which excludes liability in both strict and negligence claim, limiting instruction needn’t be given because the evidence will only come in under one of the instructions such as feasibility or impeachment.


3. Erie Doctrine.  Could state and federal rules produce different outcomes?  Supposed a Texas plaintiff brings a products liability case in a Texas court, suing a non Texan.  D is a mass producer of goods, and removed to a federal court in texas.  We’d expect the FRE would apply, but we also have the tx statute which says that remedial measures are admissible to prove strict liability.  Will the court sitting in diversity apply the federal or the Texas rule?

Outcome determinative is one reason.  The difference in outcome suggests that the state rule ought to be applied.  Then we look to see if the Texas rule applies because it’s a substantive rule, not procedural, means to affect primary conduct.  So is it substantive?  If the rule is intended to affect primary conduct, how people conduct their business affairs. So the rule is substantive, and so the federal court should follow state law.  the state has adopted a rule which makes this evidence admissible in products liability cases.


Settlement Negotiations, p. 516

1. Civil Settlements.  FRE 408—bars proof of civil settlements, offers to settle, and ‘conduct or statements made’ during settlement negotiations, when offered to prove ‘liability for or invalidity of the claim or its amount’.  This goes partly to relevancy, because a payment of a small sum does not tend strongly to prove liability, though a large sum may.  It also rests upon public policy, to encourage settlement.


Problem 5-p.  Two potato, one potato. 408

P applied herbicide and sues D because his crop failed. Several conversations occurred during the course of the year. 

1. “D will back up its product.”

2. “Don’t worry, we’ll take care of you.”

3. “Just tell us the damages and we’ll bill the company,”


My answer: should be admissible because it is not relating to the offering or promising to furnish a valuable consideration in compromising a claim which was disputed as to the validity or amount . . . Nor is it evidence of conduct or statements made in compromise negotiations.

            The statements were used to sell the product in the beginning, to reassure Perrin when he began to have doubts and to back up its previous assurances.  At no time did a negotiation or compromise take place.


CN: if the offer of compromise occurs before a claim has been asserted, then FRE 408 doesn’t apply.  The policy is to encourage settlement, if there is a dispute.  But if there is no dispute, then there isn’t any reason to exclude the evidence.  Absent a claim, people are just talking business.  Even a probability of dispute is not enough to trigger the protections of FRE 408.

When a dispute begins:

Making a demand, or filing a formal claim; suit need not be filed. Moreover, D must dispute the claim either with respect to validity or to amount.  Thus, if D concedes liability and there are offers to compromise, the there is no dispute and the rule doesn’t apply.  A mere offer to pay will be admissible.


Notes on Settlement offers, p. 517


2. Third parties.  While driving a car, Plaintiff and Passenger are struck by a car driven by D, causing injuries.  Plaintiff and Passenger sue D; Passenger settles his claim while Plaintiff goes to trial.  Can P seek to prove that D was negligent by offering proof that he paid Passenger money to settle his claim?  If D calls Passenger as a witness, can P cross examine Passenger on the fact of settlement?  no, not to prove liability or invalidity.

CN: should an offer of compromise made by D to a third party within the exclusionary rule?  The policy rule for excluding the evidence is so strong that even evidence of third parties is inadmissible.

If you’re trying to prove the bias of the witness it will be admissible.  If the driver had paid the passenger and then the passenger testifies, this will be admissible.


Proof of Payment of medical expenses, p. 522

FRE 409

This rule is particularly useful for an insurance carrier, which anticipates both liability and a possible dispute over amount, to advance sums necessary to compensate the claimant while still maintaining the position that it is not liable for the full amount claimed.


Insurance Coverage, p. 522

FRE 411:  Insurance used to show negligence, because why would you buy it if you weren’t careless, or special caution.  It is excluded on ground of relevancy, and because a jury might be more likely to grant an award if they thought the insurance company would pay for it.

The jury can learn about it despite the FRE 411 prohibition, through the voire dire questions, and through ‘inadvertent’ referring to the opposing counsel as common carriers.


What is Hearsay? p. 123

Definition: out of court statement that is offered to prove the matter asserted.  It is inadmissible unless there is a hearsay exception.  It can be either a writing or oral statement.  A ‘Statement’ is a statement made other than while testifying at trial.

Absence of cross examination.  The declarant was not subject to cross examination when he made the statement.  If speaker says, “The car ran the red light,” the speaker was not under oath or subject to cross examination.  While the witness can be cross examined; he is testifying “I heard him say this statement.”

Absence of demeanor evidence.  The person who personally testifies is observable to the jury, his tone of voice, whether he’s fidgety. 

Absence of oath.  The oath is important to solemnize the statements. 


1.      misperception

2.      faulty memory

3.      misstatement, ambiguity, faulty narration.

4.      insincerity.


Hearsay exceptions, p. 185

Four groups of exceptions:

1)      Prior statements by witnesses, 801(d)(1).  Here the declarant is a witness at trial and subject to cross examination.  See p. 152-3 

a.       Saporen—The cross examination is deferred cross examination. “The chief merit of cross examination is not that at some future time it gives the party opponent the right to dissect adverse testimony.  Its principle virtue is in its immediate application of the testing process.”

b.      Wigmore: “Here, however, the witness is present and subject to cross examination.  There is ample opportunity to test him as to the basis for his former statement.  The whole purpose of the hearsay rule has already been satisfied.”

2)      Admissions by a party opponent.  FRE 801(d)(2).  Statements offered to prove what they assert regardless whether he could be produced at trial or give testimony. 24 exceptions in FRE 803.

3)      Unavailable witness 804(a).  five exceptions in 804(b).


A. Exceptions –Declarant Testifying, .p. 186

1. Prior Inconsistent statements, p. 186

Rule 801(d)(1)(A) amounts to a compromise: three conditions are met:

1) witness must now be cross-examinable concerning the prior statement.

2) statements must be inconsistent with his present testimony.

3) it must have been made under oath in a prior proceeding’ or ‘deposition’. (think ‘turncoat’ where an informant changes his testimony at the last minute.  The govt expects his testimony at trial will track the testimony he gave the police.

Federal rules: It’s not any inconsistent statement, but one given under oath subject to penalty of perjury. (made with the turncoat in mind).  Moreover, a witness’s statement must be inconsistent with the trial testimony.  Finally, it must have been made at a trial or other proceeding.  And the witnesses must be cross examinable regarding the past statement.  It can come in for its substantive effect, and for its impeachment effect.


“Other proceeding,” Smith, p. 187

RULE: ‘Subject to cross examination’ means at trial, not when the statement was made.

W is the state’s key witnesses. She made her first statement under oath, in the stationhouse, naming Nova as the assailant.  Victim made a written statement in which she named Mr. Smith as her assailant.  At trial, however, she named a different man as her assailant.  Trial court allowed her prior inconsistent statement to be used as substantive evidence, ruling it was not hearsay under 801(d)(1)(A).  After D was convicted, the judge changed his mind, granting a new trial, reasoning that 801(d)(1)(A) did not authorize the statement’s admissibility as it was not given in a ‘proceeding’.

R: The prior statements need not have been subject to cross examination at the time made.  Here, the victim testified that she made the prior statement; the guarantee of truthfulness was met since it was made before a notary, under oath and subject to penalty for perjury, and the victim/witness wrote it in her own words. 

Finally, the statement was given as one of four methods of establishing probable cause, the other four of which would clearly constituted ‘other proceedings”: statement under oath to a grand jury, an inquest proceeding, or to magistrate, in which case the statements would have been admissible as substantive evidence.

Held, the evidence was properly admitted.  verdict reinstated.


The “right to cross examine” means that at trial, not when the statement is made, because it might be given at a grand jury where there is no right to cross examine.  So the rule covers other proceedings where there is no right to cross examine at that time. 

Under the common law, it was a hearsay statement and could not be used to prove the matter asserted.  Though he was subject to cross examination, it wasn’t as meaningful because it was deferred, so it was inadmissible. 

FRE modifies this.  Because if the statement falls within 801(d)(1)(a), (b), or (c), it can come in for its substantive effect. 



(1) Cross examinable.  This is an easy requirement to satisfy at trial.  She wasn’t cross examinable at the time the statement was made, but she is cross examinable concerning the statement at trial.

(2) Trial, hearing, or other proceeding.  State court holds that the stationhouse interview was a proceeding, as long as it was a statement made under oath.  This differs from the federal courts.


Notes on prior proceedings, p. 191

2. Most federal cases exclude stationhouse declarations.  It’s not a proceeding because it’s not a formal setting when just talking to the FBI agents.  Would the Smith court have admitted the evidence if made in her home?


3. If a ‘stationhouse’ interview is not a ‘proceeding,’ do only judicial proceeding qualify?  What of an agency proceeding? statements given to an immigration agency in the Border Patrol Stations were admissible because:  “The immigration proceeding before Agent Pearce bears many similarities to a grand jury proceeding: Both are investigatory, ex parte, inquisitive, sworn, basically prosecutorial, held before an officer other than the arresting officer, recorded, and held in circumstances of some legal formality.  In fact the immigration proceeding provides more legal right to the witness than the grand jury: the right to remain silent, the right of counsel and the right to have the interrogator inform the witnesses of those rights.  Castro-Ayon.

CN: the immigration proceeding is found to satisfy the ‘proceedings’ requirement.


4. Preliminary hearing, examination hearing, grand jury is a ‘proceeding’ under 801(d)(1)(A).  Because both the prosecutor and the accused will have representation at the preliminary hearing, they will both have a prior opportunity to cross examine the witness at the preliminary hearing itself.


Loss of memory is “inconsistent” statement. Problems 4-A. “I got amnesia.” p. 192.

in June 1999, at a grand jury proceeding, Breen gives a detailed account of an armed robbery (with Barlow (and Zigler)) that took place on March 29, 1999.  At trial he claims the 5th, and he is immunized.  Then he claims he can’t remember the robbery or the grand jury proceeding, though he can remember being at a Corrections Center.  He says he was under the influence of Valium while in custody.  The prosecutor argues that Breen’s lack of memory is ‘feigned’ and so the position at trial is inconsistent with his detailed grand jury testimony in June, and offers the transcript into testimony under FRE 801(d)(1)(A).

Counsel for Barlow objects:

CN: witness must be at this particular trial and subject to cross examination.  The prosecution’s star witness says he can’t remember the robbery, nor the grand jury proceeding.  The statement to the grand jury is offered up as a prior inconsistent statement.

If we can get it in under 801(d)(1)(A), it can be used for what it says and can be used as proof of elements in a crime.

But there must be inconsistency to bring it in. Here he is saying “I can’t remember” but not saying anything directly opposed to what he said previously.

CN: loss of memory is sufficient to be a prior inconsistent statement.

He must be cross examinable, but what if he can’t remember the robbery or testifying before the grand jury? What if he can’t remember the robbery but not appearing before the grand jury?  He needn’t be cross examinable about the subject only about the testimony.  So even though he can’t remember the robber, he can remember the grand jury, so he can be cross examined.

Held, he was sufficiently cross examinable because of the things he could testify to at trial.  He testified that he had been a burglar most of his life and that the gov’t put him in a witness protection program and he’s dependent on drugs. in Carrol, he was able to answer the questions of his own credibility.  This is a close case.  He is cross examinable about his prior memory.  So the cross examinable requirements doesn’t mean that full testimony is required.

Memory loss and cross examination, p. 194

1. the word ‘inconsistent’ in FRE 801(d)(1)(A) does not include only statements diametrically opposed or logically incompatible.  Inconsistency may be found in evasive answers, silence, or changes in position, as well as a purported change in memoryIf a witness has testified to certain facts before a grand jury and forgets them at trial his grand jury testimony falls squarely within FRE 801(d)(1)(A).


2. Feigned.  Federal cases agree that feigned lack of memory is inconsistent, but have not held that lack of memory must be feigned.


3. Prior identification.  In Owens the Supreme Court held that the cross examination requirement can be satisfied even if the witness has forgotten the events (addressing FRE 801(d)(1)(C) regarding identification, as the lack of memory makes him unavailable as a witness under 804)

CN: the “cross examinable” requirements applies to all the exceptions.  Owens is a prisoner, prosecuted for beating a guard with a metal pipe.  The guard is beaten so badly that he can’t remember whether he saw the attack.  He couldn’t remember who came to visit him in the hospital.  But he could remember that an FBI agent came to the hospital and at that time he was shown an array of photo’s and he picked out the one who did the beating.

Here, he was relying on FRE 801(d)(1)(C)—prior identification.  The FBI agent came to trial and says “I went to the hospital and showed him an array of photos and he picked out the D.”  Though the guard remembered this, he could remember being attacked.  So he’s not subject to cross examination about it.  Is the cross examinability satisfied? yes, because the defense will be able to delve into the circumstances, ...even though he can’t remember the underlying event, he can remember making the statement. So you needn’t remember the underlying even, if you can recall making the statement.


4. What if he can’t remember testifying to the grand jury?  DiCaro held that were a witness suffers total memory lapse concerning both the prior statement and its contents he cannot be considered subject to cross examination.  Though in

Dicaro, he couldn’t remember the underlying event ...


2. Prior consistent statements, 801(d)((1)(B), p. 196

Three conditions:

1)      witness cross-examinable at trial “concerning the prior statement.”

2)      statement must be “consistent” with his prior present testimony

3)      offered to rebut a charge of recent fabrication of improper influence or motive.

CN:  There must first be a charge of recent fabrication or improper motive.  Then and only then can the prior statement be introduced.  The determination of whether such a charge has been made is determined by the judge.  just contradicting or introducing prior inconsistent statements might be grounds.


Limitations. deferred cross examination is not as effective as contemporaneous cross examination, because a falsehood may “harden and become unyielding to the blows of truth’ struck by the cross examiner.

Two points of difficulty:

what kind of attack on a witness raises a charge of ‘recent fabrication or improper influence or motive”? 2) what prior consistencies tend to ‘rebut’ such an attack? 

EX: If witness A says on Day 1 “David was driving within the speed limit.” Then on Day 20, David influences A to make statements in his favor.  Then at trial A testifies that “David was driving within the speed limit.”  Then the cross examiner says, “Didn’t David bribe you?”  The first prior consistent statement can be used to rebut such an attack (repairing or rehabilitating the witness) only if uttered before the supposed ‘influence or motive’ came into play.  Had she uttered the ‘prior consistent statement’ for the first time on Day 30, ie, after David talked to her, it would confirm that her testimony at trial was the result of David’s influence.


FRE 801(d)(1)(B) permits substantive use of a prior consistent statement.

trace the source of the motive.  In criminal cases, witnesses are often themselves subject to prosecution, so their statements would be post motive.  Even if they give positive testimony, it may be suspect because D may have been a friend, so both defense and prosecution witness may make post motive statements which cannot be used at trial.

EX: TOME, p. 199

D is convicted of sexual abuse of daughter.  She was six at the time. the defense atty on cross asked her if she was motivated by a desire to live with her mother in these allegations of abuse.  The prosecution provides the testimony of other witnesses, not the child’s testimony, the baby sitter, mother, doctor.  A.T.’s prior consistent statements were admitted under FRE 801(d)(1)(B) on the theory that they refuted the claim that “wishing to live with her mother” motivated her testimony, even though her motive to fabricate arose before she made the statements.

R: Held, the prior consistent statement must be made before the ‘motive, or influence’ came about.  801(d)(1)(B) permits the introduction of  a declarant’s consistent out of court statement to rebut a charge of recent fabrication or improper influence or motive only when made before the charged recent fabrication or improper influence or motive.

The FRE 801(d)(1)(B) embodies the common law requirement that the statement has to have occurred before the motive to fabricate arose.


3. Prior statements for Identification—FRE 801(d)(1)(c), p. 210

Prior trial identifications from a lineup are considered more trustworthy than in court identifications.  FRE 801(d)(1)(C) creates a hearsay exception for previous statements of identification, made by a witness ‘after perceiving’ the subject, provided that the witness is subject at trial to cross examination ‘concerning the statement.”

Wade-Gilbert doctrine—–pretrial statements of identification obtained in post-indictment lineups where the defendant is denied counsel are per se excluded from FRE 801(d)(1)(C).


Prior identification. FRE 801(d)(1)(C)--Motta, p. 211

A cashier was robbed at gun point.  She described D to a sketch artist who made a composite sketch.  She then picked him out of a photo-array of pictures.  When she was shown the array of photos she made a statement: “He’s the one.”  She then identified him at a preliminary hearing. She said  “He’s the one.” the same thing she said when she looked at the photos.  At trial, she confirmed her prior identifications and pointed D out.

R: The composite sketch constitutes hearsay, but should be admitted under the exception for prior identification if it complies with FRE 801(d)(1)(C).  FRE 801 allows hearsay of prior identification if:

1) the declarant testifies at trail and is subject to cross examination concerning the subject matter of his statement, and

2) the statement is one of identification of a person made after perceiving him. 

Here the sketch has met all of these requirements and should be admitted.

CN: Why does this require a hearsay exception?  If it is being used to prove the matter it asserts there must be a hearsay exception.

In court identification.  If she made an in-court statement why does she need to use the other statements?  Because they corroborate the in court identification.  Why does it require the out of court statements?

See p. 210: the circumstances under which the in court statements are made are highly suggestive; the identification made at a lineup is often made directly after the crime and there’s less time lapsed in which the witness could have forgotten.  If the lineup is highly suggestive then it can’t be used in court.


Application of FRE 801(d)(1)(C), p. 214

1. Adopting the sketch.  The Cashier, not the sketch artist, saw the robber, so only the Cashier can make a statement that fits within FRE 801(d)(1)(C).  So how can the sketch be viewed as the Cashier’s statement?

CN: the artist authenticated the sketch.  She had described the robbery to the sketch artist, and then said “he’s the one.”  The sketch itself is a statement made other than while testifying.  When she looked at the sketch and said, “that’s what he looked like,” then she was adopting the sketch

Nonverbal acts intended as assertions are hearsay.  Why must the sketch itself fall in the hearsay exception?  Because nonverbal acts can be considered a ‘statement’  if intended as an assertion. 801(a)(2)

2. Mustn’t both the cashier and the sketch artist be cross examinable? [sketch artist to authenticate; cashier to show the prior identification is consistent]

CN: the artist’s testimony is not necessary for 801(d)(1)(C) to operate. 

3.  Could the officer in charge of the lineup (at which the cashier made the identification) testify at trial, or does FRE 801(d)(1)(C) require that she testify to it?  CN: his testimony is welcome, as long as she also testifies, because then she will be cross examinable.  FRE 801(d)(1)(C) only she must be subject to cross.

4. “. . . after perceiving.”  The Rule contemplates a situation where an eyewitness picks someone out of a lineup.  But what if after seeing the person, he comments to a friend “Tom Jones did it.”?  Ingram held that statements by friends of D identifying him as person captured on surveillance film of crime fit exception.

No need for a second showing.  It’s not generally necessary for there to be a second showing.  It’s a statement made upon perception, including voice.

5. “subject to cross examination concerning”.  What if she can’t remember what he looked like?  Would this satisfy the cross examination requirement?

What if she can remember going to the lineup, but cannot identify D as the culprit in court?  Owens held that the cross examination requirement is satisfied despite ‘assertion of memory loss’ which is ‘often the very result sought to be produced by cross examination, and can be effective in destroying the force of the prior statement.”

6. Even if the cashier now testifies that D was not the one who robbed her, her prior statement picking him can be admitted as positive proof that he did it. 

7.  What if the cashier sees the police officer arrest D, runs up and says ‘he’s the one who robbed me”?  Then at trial, six months later, she can’t remember him, but says “the man I pointed out was the culprit.  I never let him out of my sight”?  The officer testifies that D is the one she pointed out.  Is this hearsay?


Admission by party-opponent—FRE 801(d)(2), p. 216

1. Individual Admissions, p. 218

Problems 4-B. Fire in the Warehouse

Carter: owner—statement used as evidence.

Martin: plaintiff

Dugan: negligent employee


Notes on individual admission, p. 219

1.  Under the ACN the declarant need not have personal knowledge when he spoke.

Dog bite cases: the dog owner said or admits afterward that her dog bit victim, even though the owner didn’t see it happen.  Held, admissible.

2. Compare FRE 804(b)(3)Statement against interest.”  The admissions doctrine carries no ‘against interest’ element.  Therefore, the statement need not be “I ran the red light’ but could also be, “I honked.”  It therefore covers even a denial of wrongdoing.  But the ‘statement against interest needn’t be uttered by a party opponent.

3. Conclusory statements.  “It was all my fault” in an auto accident; the ‘premises were safe and proper’ in a job related injury case.  Strickland—admissions ‘need not conform to statements the witness could make on the stand in his own behalf.”

4. Drunk declarant Walker—declarant though drunk had sufficiently his wits about him to ‘knowingly and intelligently waive his rights.”

Sutton—admitting incriminating remarks despite conflicting evidence on whether he was conscious when he made them.

5. Injured or hospitalized declarant.

Finnerley—admit statement though made during critical care.

Aide—only if declarant were in a coma would the statement be excluded.


Problem 4-C. Street Skirmish, p. 222

Parker and Whalen get into a fight on the street.  Whalen strikes P with a bottle.  The police arrest Whalen.  Whalen pleads guilty, admits to hitting P with the bottle and waives his rights to a trial.

Parker brings a civil suit against Whalen.


Notes on Prior guilty pleas, p. 223

1. Usually such pleas are admitted in later damage suits arising from the incident.

2. Traffic violations.  Some states allow guilty pleas for traffic violations to be admitted as evidence in civil suits.  But Statutes in some states prove that pleas of guilty to traffic infractions are not admission of guilt or fault.  What if the person ticketed sues the other party, can the other party use the  plea against the ticketed person? no.  What if the person ticketed simply sends in a check?  Some statutes provide that you don’t have to appear for a traffic violation unless someone was injured.  What if D mistakenly just sends in a check without making an appearance even though someone was injured.


Jury instruction inadequate for multiple defendants.  Bruton, (US SCt), p. 224

Evans confessed: “Bruton and I committed the robbery.”  Joint trial. 

Jury instruction: The statement is hearsay against Bruton and could not be considered against him as it would violate his right to Confrontation; the statement could only be used against Evan.

R: a jury cannot be relied upon to ignore a confessor’s confession of guilt should it be found to have been made involuntarily.

Held, the jury instruction is insufficient to protect Bruton.

CN: The evidence cannot be used against Bruton because it’s Evan’s statement.  There is an exception for the party who makes a statement but it can be used only against the party who made the statement; because Evans was not cross examinable because he didn’t take the stand. 

NOTE: Coconspirator exception allows statements by one to be used against the other, if it was made in the furtherance of the conspiracy, ie. prior to arrest.  But here it’s admissible only against Evans because it was not made in the furtherance of the conspiracy.

Ability to cross examine.  The fact that they are codefendants isn’t what makes the statement by one cross examinable by the other.  Bruton couldn’t cross examine because Evans he didn’t take the stand, took the 5th amdt.  The only way you can cross examine Evans is if Evans takes the stand.

What if Evans had taken the stand?  His confession still wouldn’t be admissible  against Bruton.  An “admission” is only admissible against the speaker.  But it does make a difference if he takes the stand, because it wouldn’t make it constitutionally inadmissible.


Instructions. A jury instruction will be inadequate.

The jury will be told that the statement is admissible only against Evans.  The important difference would be that Evans took the stand.  What are the prosecutions choices?  Sever the case, try them separately. 


CIVIL CASES (no right to confrontation.)

801(d)(2)(A)--Problem 4-D.  His Master’s Car, p. 228

Napton is an employee of Ace.  Napton runs over O’Brien at work.  Later he is fired.  He tells O’Brien that the ‘brakes just failed’ and “I was speeding,”

CN: Each statement by the ee will have to be tested as to each of the defendant’s as to admissibility.

First statement: “the brakes just failed.”  This suggests the employer did not properly care for the car.  Regarding Ace, is Napton’s statement an individual admission within the meaning of FRE 801(d)(2)(A)?  The individual admission is only Napton.... if it’s a representative’s individual admission, which knocks it out of the hearsay exception.  What keeps the admission inadmissible ...  Napton made the statement after he was no longer working. 801 (d)(2)(D)—covers statements made during the existence of the relationship.

Statement 1. “the brake failure”—this is admissible as an individual.    

With respect to Ace, it is relevant because Ace has a responsibility to kept up the trucks he downs, but still hearsay, this inadmissible.  With respect to Napton, it is not hearsay but it is not relevant because it’s not his job to maintain the brakes; Ace ’s responsibility to maintain the brakes; so this statement is inadmissible as to Napton the employee.  Its’ not a 801(d)(2)(A)—and it was made after the employee was fired.  There’s a basis for keeping it out with respect to all parties.

statement 2:  “I was speeding.”

-Admissible against Napton, because if he was speeding it is relevant as to Napton.  Also, it is his own admission.  There’s no hearsay objection.

--Is it relevant to Ace?  Yes; under respondeat superior.  The statement is relevant as to the employers.  If it’s admissible with respect to Napton, does it fall into a hearsay exception.  This is Napton, not Ace’s individual admission.  It’s a post employment statement, so not under 801(d)(2)(D).  Will the court be prevented from admitting this because of the 6th amdt right to confrontation? no, It’ a civil case.

FRE 403—this can be the subject of  a limiting instruction.  The statement that he was speeding is very relevant.


Notes on Bruton and the problem of admission in multiparty situations, p. 228

1. In both Bruton and His Master’s car a statement by one D fits FRE 801(d)(2)(A) when offered against the person who spoke, but not when offered against a co-party.  Confrontation Clause does not apply in civil suits, and therefore such a claim wouldn’t apply in Master’s Car.

4. When two or more Ds are charged with crimes, and one has made a spillover confession implicating himself and one of the others by name, what options does Bruton leave the prosecutor?—Sever the trials.


2. Adoptive admissions—801(d)(2)(B), p.230

EX: “Were you speeding?”  “Yes.”  The meaning in the words of inquiry is so absorbed in the meaning conveyed in the word of response that it is fair to conclude that the answering party conveyed the combined message of both statements.  But there are close calls.


Silence + more Hoosier, p. 230

D was present and silent while his girl friend told Rogers about the money they had at the hotel room.  D never denied it to Rogers.  Earlier, D had told Rogers that he was going to rob a bank, which he was found guilty for.  Being present and silent, without more, is not enough to make it an admissible.  Here there was more:  “adoption can be inferred by his failure to deny a statement by a trusted friend.”  His friendship would motivate him to correct the statement if it weren’t true.  The court has to look at all the circumstancesHeld, admissible under 801(d)(2)(B) as an admission, as ‘a statement of which the party has manifested an adoption or belief in its truth.” 

CN: The statement is being used to show that they had money in the motel. And their affluence after the robbery is used for the bases of the inference that he had committed the robbery.  This is substantive evidence, but she’s not a party, so why isn’t it inadmissible under the hearsay rule?  Her statement becomes his statement by his adoption of it. 

Silent Admissions, p. 231

1. What ‘more’ is there on the record to make it seem that Hoosier adopted his girlfriend’s statement?  “D has previously trusted Rogers sufficiently to tell him he was going to rob a bank, there is little likelihood that his silence in the face of these statements was due to ‘advice or counsel’ or fear that anything he said must be used against him.

2. Silence in contract law.  Hypo: you receive an offer in the mail that if you don’t reply you are bound. the offeror cannot create his own acceptance.

If a subcontractor sends to the general contractor periodic invoices relating to a particular project, and the contractor makes periodic payments, do the invoices become admissions adopted by the contract?  Yes, because it’s unlikely that the contractor would continue to pay if the invoices were incorrect.

4. Adoption by the govt.  What if the govt submits the affidavit of the law enforcement officer in support of a warrant application?

Morgan –D tried to prove that it was the landowner’s son was the one dealing drugs by introducing an affidavit prepared in support of a search warrant, where a police detective had averred that a reliable informant told him that the son had access.  Held, the affidavit should be admitted.  “The statements of fact or belief in the officer’s affidavit represent the position of the govt itself, not merely the view of the agent.”


Post Miranda Silence inadmissible impeachment evidence.  Doyle v. Ohio, p. 233

The defendants change their story at trial. Claiming that Barnell threw the money at them to set them up.  They could have told this to the police when they were arrest, but they didn’t.  The prosecution wants to use their silence for impeachment evidence to show that they’re not credible. 

Held, Silence after someone has been given Miranda warnings may be nothing more than the arrestees exercise of these Miranda rights, and may not be used to impeach.
SCt: they may have just been exercising their due process rights.


Notes on Silence as admission, p. 236

1. Doyle forbids the use of post-arrest/post-warning silence by the accused where he testifies to an innocent version of events.

CN: What if D’s don’t testify, but call an eyewitness who testifies that he saw a frame up.  Then if the prosecution brought in evidence about the silence it would only be impeaching the eyewitness.  If you can’t use the silence for impeachment evidence, then it shouldn’t been used for a greater purpose, ie, prove of the matter asserted.

4. What if the Ds had testified at trial that they did tell arresting officers that Barnell had framed them by throwing the money at them in effort to make them look like sellers?

CN: Could the prosecution then counter the testimony with evidence that Ds said nothing after the arrest.  Ds are trying to say that the story they’re telling now is the story they’ve told all along.  Here, the prosecution would only be showing that they didn’t tell this to the police.


3. Admission by Speaking Agents—801(d)(2)(C), p. 239.


Admissions in judicial proceedings.  Problem 4-F, p. 240

Grider, driving a school bus driver, runs over Albert.  The parents sue Grider on negligence, they sue Standard Bus on strict liability, stating in their complaint that ‘the mirrors in the vehicle were so positioned that a full and complete view of the area within the path of the bus was not discernable by a person positioned in the drivers’ seat.”  They allege that the driver was negligent because he didn’t see the boy in front of him.  Then they amend their claim, to include a claim that the bus had a design defect.  But the plaintiff’s lawyer erred, and Standard Bus wins summary judgment because the parents sued the wrong bus company.

At trial against Grider, Grider’s atty invokes 801(d)(2)(C) and obtains permission to read to the jury the allegations about the mirrors appearing the in now-dismissed second lawsuit. Verdict for Grider.  Parents appeal that the second complaint should not have been read to the jury.

CN: Even though dismissed, the driver’s lawyer wants to use it as an admission regarding the position of the mirrors.  He wants to read it aloud to the jury, which he can do under 801(d)(2)(C).  Atty’s are agents of their clients.

Does it preclude them from introducing evidence that they had an inobstructed view?

Judicial admissions (viable pleadings) cannot be controverted by evidence. 

Ordinary admissions (superceded pleadings) can be controverted by evidence.


Notes on admissions in judicial proceedings, p. 240

1. Requests for admission, not admissible.  Pleadings from prior lawsuits, as well as pleadings superceded by amendment in the pending suit, are generally admissible against the party who filed them; as are answers to interrogatories, whether filed in a prior or the pending action.  But not an ‘admission’ filed in response to “requests to admit”  because FRCP 36(b) provides that such an admission is for the purpose of the pending action only and is not an admission for any other purposes and may not be used against him in any other proceeding.

CN: the admissions in a request for admissions can only be used in the pending suit.  Why not in some other suit? Because a party may be unlikely to make such an admission if it could be used in other suits.

2. Testimonial admissions.  Assume Grider has a defense to the negligence claim if the mirrors did not let him see in front of the bus.  The parents take the stand and testify that they noticed that the mirrors didn’t permit such a view, would they automatically lose their claim against Grider?

CN: If the plaintiff claims the driver had an unobstructed view, this is called an testimonial admission.  if the driver moved for a directed verdict, they would lose, their admission that the driver had an unobstructed view.  But these are not binding.  On the strength of this testimony alone, D would not be entitle to a directed verdict.

Pleading in the alternative.  plaintiffs are allowed to plead with this degree of inconsistency. Yes; Rule 8(e) FRCP. 


4. Admissions by Employees and Agents, p. 241

FRE 801(d)(2)(D)—permits statements by employees against the principle or employer.

Government employees.  Statements made by public employees have traditionally not been admissible against the government, because 1) such people do not have the same sort of personal stake in the outcome of any dispute as private employees have, and 2) agents cannot bind the sovereign.

“Against interest” not required.  The admissions exception does not require that it be against interest. 

Reliability not required. The admissions exception is admissible because the party is present at trial and will be able to explain or deny it, not because its reliable.

Admitting Dialog.  If you’re at a party and have a conversation, and a person makes a statement in the course of the conversation.  How can you justify admitting your statements?  Under the admissions exception, it will be admissible for its truth.  But what about the person with whom the person was speaking?  The other person’s statements will be admissible to make the plaintiff’s statements make sense; but not for what is asserted in the statements.  The other person’s statements are not even hearsay because they’re not being offered to prove that matter asserted.

Personal Knowledge not required under 801(d)(2)(D).  Wild Canid Research Center, p. 243

Suit against the Research Center and Mr. Poos, a director. 

1. Poos written statement: “Sophie bit a child what came in our back yard.”

2. Poos oral statement: “Sophie bit a child that day.”

3. At a director’s meeting, (Poos not present): ‘discussion about the legal aspect of the incident of sophie biting the child.”

TC: held, inadmissible because Mr. Poos had no personal knowledge of the facts, and therefore, the first two admissions were based on hearsay, and the minutes of the board meeting was the subject of the same objection. Mr. Poos wasn’t there when the boy got bit.  But lack of personal knowledge goes to the weightIt doesn’t make a difference that the declarant lacks personal knowledge, or that the statement might be made in conclusory terms, that will not be a basis for not admitting it.

Held, the note is not hearsay; therefore admissible against Poos because it was his personal statement of which he had manifested his adoption or belief in its truth.

But are they admissible against the Wild Canid research Center?

This was a 801(d)(2)(D) situation, because Poos has physical custody of Sophie, and his conclusions and opinions were accepted as a basis for action by his principal.

Hearsay within hearsay.  FRE 805.  A statement of hearsay within hearsay is admissible if each part of the statement falls within an exception to the hearsay rule.  But a statement based on the personal knowledge of the declarant of facts underlying his statement is not the repetition of the statement of another, and thus not hearsay, merely opinion.


Neither 805 nor 403 mandate that Rule 801(d)(2)(D) require that the declarant have personal knowledge of the facts underlying his statement. 

Held, the two statements made by Mr. Poos were admissible against Wild Canid Research Center.

Minutes: admissible under 801(d)(2)(C) because the directors had the authority to include their conclusions in the record of the meeting, and thus admissible against Wild Canid, but not Mr. Poos, who did not attend. But the corporate minutes should have been excluded under FRE 403.

Held, applying the spirit of FRE 801(d)(2), FRE 403 does not warrant excluding the Mr. Poos statements as against himself or Wild Canid. 


No Authorization. The statements by Poos are not admissible under 801(d)(2)(C) because Poos is not authorized to make statements about Sophie.  Like a truck driver who gets into an accident, it cannot be received as an admission he is authorized to make.  The truck driver is not authorized to make statements about accidents.  Just like Poos isn’t authorized to make statements about Sophie. 

Matter within the scope of employment.  His statements are admissible under 801(d)(2)(D).  He’s employed by the Center to take care of the wolf; it relates to a matter within the scope of his employment, Sophie bit someone while in his care, and he was speaking about her in a representative capacity.

Individual admission.  Is it admissible against him individually?  yes. The statement related to a matter within the scope of his employment, so will it be usable against him in his own capacity under 801(d)(2)(A).


Problem 4-G. “I was on an Errand for my boss.” p. 248

30 minutes after a collision the driver, Rogers, says to the other driver


“I’m sorry this happened.  I was making a delivery for Farmright, and got distracted for a moment trying to read the purchase order on my clipboard.”

Farmright Inc. avers that Rogers was not acting within the scope of his employment.

At trial, Story invokes FRE 801(d)(2)(D), which requires that the statement concern a matter within the scope of employment.  Must Mr. Rogers have speaking authority to make this statement?  No; under d2D, you needn’t show speaking authority, only that he was speaking within the scope of his employment

See FRE 104(a) and (b). (the condition that he was an agent within the scope of his employment must be established by the jury).

CN: P must establish agency and negligence to recover as against Farmright.  His statement shows agency, a fact in issue. It is therefore relevant to agency.  It is also relevant to negligence, because he expresses regret at having been distracted.  Who decides agency?  It’s a mixed question of law and fact, but it will be decided by the jury.

Under 801(d)(2)(C), you have to show that he was authorized to speak on behalf of Farmright. Here the statement runs against the interest of both the ee and er.


The employer objects on grounds that ee’s statement was not made within the scope of his employment.  He might not have been on the job, or on a frolic.  

a preliminary fact at issue of his agency should be decided by the judge, under 104(a).

But the judge determines the question of admissibility, whether the statement comes in or not.

Who decides agency?

Coincidence decisions            Judge, 401(a)                           Jury

                                    requisites for admissibility          substantive element


If the judge finds agency, the judge must not tell the jury of this, because the jury’s decision must be independent.  But the jury can find that there is no agency, even if the judge has found there to be agency for purposes of admitting the statement.  Ordinarily, a judge’s finding under FRE 401(a) is final, but not when it’s a mixed question of law and fact.  What if the judge finds no agency, could the jury still find for the plaintiff? yes, because the jury can find contrary to what the judge finds that there was agency.


bootstrapping”: using the statement to prove the conditions upon which its admissibility depends.  d2D allows the statement to prove the condition that allows for its admissibility if there is other evidence.


5. Coconspirator Statements, p.249

This allows statements made by one member of the conspiracy against any other.

FRE 801(d)(2)(E)—Coconspirator statements are only admissible if:

(1) coventurer--conspiracy; a joint venture, needn’t be criminal;

(2) made during the course of the venture; an arrest will terminate it: if D is arrested, any statements made by D or any other conspirator is no longer usable against him,

(3) furtherance—the statement has to further the conspiracy.

Applies in both civil and criminal cases.  The judge will determine whether these predicate facts exist, under 104(a) because they are preliminary.  He’s not determining guilt or innocence, if it’s a criminal trial, then its determined by the jury.  The judge makes final determination, not to be second guessed by the jury.  The same evidence will be passed upon by the jury.  This is the problem of coincidence, such as in agency.


Bootstrapping: the statement itself may be considered by the judge to determine whether the predicate facts exist.  the contents can be considered but are not alone sufficient to establish the existence of the conspiracy.  The judge’s determination is final.


Conspiracy—801(d)(2)(E).  Bourjaily, p. 252

RULE: A judge may consider the statements themselves in order to determine the predicates facts of their admissibility, as long as there is other independent evidence.

A. The judge, not the jury, decides whether the exception applies:

B. Standard:  preponderance. 

Therefore, when the preliminary facts relevant to FRE 801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of evidence.

EX: D was going to sell him cocaine and Lonardo would find someone who would buy the drugs.  There was a phone conversation about the cocaine.  Each one of Lonardo’s statements may itself be unreliable, but taken as a whole, the entire conversation between Lonardo and Greathouse was corroborated by independent evidence.

CN: Why are the out of court statements by Lonardo admissible against Bourjaily?  Because Lonard was conspiring with B at the time the statements were made.  The judge can consider the statement but should look to independent evidence.  Independent evidence: Bourjaily was there in the car to buy the drugs, the money and the cocaine in the car: it’s not necessary to rely on the statements alone.


Notes on Procedural Problems, p. 259

1. Under Boujaily, the judge decides pursuant to FRE 104(a) whether the coventurer, pendency, and furtherance requirements are satisfied.  The preponderance standard applies, and the court may consider the statement itself in determining the predicate facts.  Preponderance applies to all the questions determined by the trial judge under FRE 104a), whether they relate to hearsay exceptions, claims of privilege, or anything else.


4. Evidentiary hearing. Bourjaily addresses how a court determines the predicate facts, but not when it does so. 


Evidentiary Hearing.  The Fifth Circuit held that the trial court should hold a James hearing to resolve threshold issues, preferably before admitting coconspirator’s statements.  The judge need not hold one of these hearings. 

Admit provisionally.  If there is slight evidence that the predicate facts exist, he can admit it provisionally, subject to the showing by the prosecutor that he link it up to the predicate facts.  if the prosecution doesn’t connect it up, then he has to give a jury instruction.  If the judge finds that the jury won’t be able to follow a limiting instruction, then the judge must declare a mistrial.


Problem 4-H.  Drugs across the Border, p. 262

A, B, and C are being prosecuted for drug offenses.  They’re charged with conspiracy to buy drugs.

Bud says: “Arlen put up money for the drugs and he knows how to price them.”  Bud’s statement is relevant with respect to Arlen, but also it is relevant with respect to the declarant, Bud, ; it shows guilty knowledge. it is admissible against him as an individual.  Why is the prosecutor trying to get it in under the conspiracy exception?  Without the hearsay exception it would be admissible only against Bud. 

Three predicate facts.  Show the conspiracy existed, between the speaker and the Defendant, 2, the statement happened during the conspiracy.  If the statement is “Bud went south to make the buy,” they want to use it against Bud.  Both of their statements show guilty knowledge about the conspiracy.

Bootstrapping.  But is there evidence independent of the statements of Bud or Arlen’s involvementIndependent evidence for Bud: Bud has associated with Carol, and he’s making a trip to Columbia. 

Independent evidence of Arlen’s involvement? yes.

Standard of proof: Preponderance.

In furtherance of the conspiracy:

“Arlen fronted the money”.  IF you could show that it was used to give confidence to those who might otherwise have backed out, but otherwise its just a statement of past history.  an example of something Arlen could have stated in furtherance: “I’ll put up the money.”  “I’ll find the buyers.”

Arlen’s statement to Don “Bud has gone south to make the buy.”  Don was a potential customer, so it furthers the conspiracy.

Pendency. Is the conspiracy ongoing at the particular time?  Yes.

“I regret Arlen, he’s a real creep.  Can he keep up his end.”  This is made in Connie’s presence and is arguably just a narrative.  probably not in the furtherance of the conspiracy.

Carol:  “Bud made the buy” made to the cops after she’s been arrested.  As to her the conspiracy was over when she was arrested.  If she starts confessing and implicating other’s then it’s not in furtherance and therefore not admissible.

Could the prosecution admitted it against her in a joint trial if she doesn’t take the stand?  As an admission it is only usable against her. if she doesn’t testify there is a Bruton problem.  If Carol didn’t testify and you wanted to use the statement only against her, it implicated others who can’t cross examine her, so it violates their Right to Confrontation.


Unrestricted Exceptions: Availability of Declarant immaterial.

1. Present Sense Impressions 803(1) and excited Utterances 803(2), p. 266

Immediacy -- present sense impressions under FRE 803(1).


Excitement -- excited utterance under FRE 803(2).  There has to be a startling event and the declarant has to been under the influence of that startling event.


Present sense impression.  802(1).  Nuttall, p. 267

Florence is suing her husband’s employer, under the Federal Employer’s Liability Act, for requiring her husband to work despite objection that he was ill.

Nuttall had a telephone conversation with his boss in the presence of his wife.  Florence heard her husband speak into the phone that he was ill and ‘why are you making me come in when I feel so bad;’ Then after he hung up the receiver he said to his wife “I guess I’ll have to go.”

Florence must show that 1) the man was under pressure and 2) he felt compelled to go to work, i.e., someone was forcing him to go to work.  Both parties to the conversation are dead.

R; Knowing that Nuttall’s boss was talking to him on the phone we think that the words Nuttal used at the time and his statement immediately afterward tend to show that the was being forced to go to work.  Florence heard her husband characterize the statements of his boss at the very moment he heard what his boss had to say and immediately thereafter.  CN: He’s stating his reaction to what the employer is doing. Such characterizations, since made substantially at the time the event the described was perceived, are free from the possibility of lapse of memory on the part of the declarant.  This contemporaneousness reduces the likelihood of conscious misrepresentation.  Therefore, the statements should be admitted into evidence.

CN: What if she listened in on another telephone, could she testify under 801(d)(2)(A)—a statement by a representative?  If she heard the boss make a statement she could have testified to that.  But she only heard one side of the conversation.  Here, we’re concerned about the husband’s statements, and so we need a hearsay exception.

The statement is being used to show 1) that he was put upon and 2) that he felt compelled to go to work.

Usually, the ‘perceptions’ are visual, but the exception is not limited to visual and can be auditory.

Immedicay requirement10-15 minutes is too longThe immediacy requirement is destroyed.  The speaker must have no time to reflect. 1-2 minutes would be ok.

H later makes a statement to a fellow worker O’Hara:  “I wasn’t feeling well, but I was forced to come to work.”  Can this be used?  No, because it’s not contemporaneous, as it goes to show the er put pressure on ee;  but it can be admitted to show his feelings, because when he says it to O’Hara it is contemporaneous with is feelings.


Notes on present sense impression, p. 270

2. Other cases decided under FRE 803(1):

a)      caller tells bystander what party on distant end had just said; held, immediacy requirement satisfied because statement was made ‘no more than a few seconds’ after call.

b)      immediately after hanging up phone, declarant said “Oh mom, what am I going to do?  That sounded just like Butch”; held, admitted over objection that it was impossible to tell whether declarant meant Butch was calling or that the caller was saying something Butch would say.


3.  identify criminal assailants. – admitting murder victim’s statement

EX: “Hey, Timo, what’s up?” utter as victim greeted assailant just before being shot.—murder victim tells caller that ‘some guy’ had come to his door.

4. observations of vehicles prior to accidents, e.g.:

1) Houston Oxygen “there goes Billy Joe Acreman” and “they won’t last long at that rate of speed.”  The statement must be immediate and by the person who made the perception.

2) referring to another car, automobile passenger said “they must have been drunk” and “ we ‘ll find them somewhere on the road wrecked if they kept that rate of speed up.”  Admissible even though it was a conclusory statement.  There is no startling event, but the statement is made immediately upon making the observation, that ‘at that rate their going to wreck.”

CN: Perception passed on smell.  If you have someone run to a wrecked car to help a victim, and says “He must have been drunk.” the perception can be based on smell.


Excited Utterance. FRE 803(2). 

·        the speaker is stressed,

·        no time for reflection. 


In response to a questionIron Shell, p. 271

Officer Marshall asked Lucy a single question: what happened?  Lucy told her that “He tried to rape me.”  Marshall made the interview around 45 to 75 minutes after the assault.


·        lapse of time between the statement and the assault;

·        made in response to questioning;

·        age of the declarant;

·        physical and mental condition of declarant;

·        characteristics of the event and

·        subject mater of the statements.  

Here, one hour is not too long.  Her youthfulness will reduce the likelihood of fabrication.

The single question “what happened’ does not destroy the excitement necessary to qualify under this exception.  Nor does the lapse of about an hour, esp. where declarant is a young child.

Held, no abuse of discretion for the trial court to find that Lucy was under stress of the attack when she spoke to Marshal, considering the shocking nature of the assault and the age of the declarant.

CN: What if Marshall asked Lucy a series of questions.  It probably wouldn’t be considered an excited utterance. 

If specific questions were asked then the answers would be more likely the product of reflection, the spontaneity would be lacking.

What if the questions were very leading? Then the answers would be the product of the questions which suggest the answer the interrogator is looking for.


Notes on excited utterances, p. 276

1. Age.  What if Lucy had been 27 instead of 9?  CN: The brutality of the event would probably cross age lines.

3. Time lapse.  What if the time lapse had been 12 hours instead of 45 to 75 minutes?


Problem 4-I,  “I felt a Sudden Pain,” p. 278

After lifting a 30 gallon drum, he comes home and says that he felt a sudden pain.

How relevant?  it goes to prove a fact which is properly provable;  whether the pain was work related. His statement explains where he was and what he was doing when he first felt the symptoms.  He worked alone, so there would not be a witness.


Held, without the statement there was insufficient evidence that the death was work related.  The Texas Court on which this case is based, didn’t allow it as an excited utterance.  But there would have to be startling event, which was the sudden chest pains.

How could D argue that 803(2) cannot be relied upon to admit the statement.  He’s on the job, and at 10am he’s back home making this statement. He saw a doctor and he found no evidence of heart failure.  What proof is there of the startling event other than the statement itself?  This is bootstrapping, and unlike coconspirator exception, the excited utterance exception doesn’t allow for bootstrapping, i.e., using the statement itself to make the determination of whether there was an excited utterance.


ACN—p. 131 of FRE. 

Circumstantial evidence of a startling event, that he experienced pain on the job? 

He came home early, which he never does, and then

he went to a doctor, his blood pressure was elevated. 


2. State of Mind exception—803(3), p. 279

In an extortion case, fear is an essential element; in IIED, mental distress is an essential element.  In establishing a ‘domicile’ a person’s intent to remain in that location is an ultimate issue.  Whether or not a testator intended to leave property to an individual, might depend on his intent, and statements of intent can be relevant to determine. Often used in personal injury cases to determine pain and suffering.

Risks:  ambiguity, insincerity, but no risk of faulty memory because the exception deals only with then existing feelings, not past feelings, .

Risks of misperception: if it’s a statement of what one observes then there is a risk of misperception, but the statement is of one’s feelings , the risk of misperception is slight.

Four distinct uses: To prove the declarant’s

a)      then-existing physical condition

b)      then-existing mental or emotional condition

c)      later conduct and

d)      facts about his will.

a. A then-existing Physical condition, p. 280

In personal injury suits the exception is regularly invoked for statement describing aches and pains.  It doesn’t matter whether declarant speaks close in time to the injury or onset of ailment, so long as his words describe how he feels as he talks.  These statements are admissible not only when spoken to a physician but also to a spouse or friend.

b. Then-existing mental or emotional Condition, p. 280

When a mental state of  a party is in issue, the exception paves the way for use of his own out of court statement.  The exception is also available for the mental state of non parties when it is in issue, e.g.,  suits for loss of business good will.

But it applies only to statements of present mental state.  what the declarant says on Wednesday about his mental state on Monday does not fit the exception. CN: the mental state as revealed by his statement on Monday could reveal how he felt a few days earlier, on Saturday.  It might also bear on how he felt after he spoke.


Utility: used to prove mental states in by statements of the opposing partyThe “admissions exception” is not available where one party wishes to use his own statements to prove his own mental state, but under 803(3) you can.  A criminal defendant might use the exception to use his own statements, but he wouldn’t be able to use the admissions exceptions, but under 803(3) he can use his own statements to prove mental state.

There’s a problem when the statement proves both mental state and the acts to be proven at trial.  But the exception doesn’t allow the statement to prove an act or event, only the state of mind.


In “fact laden” statements, people may purposefully disclose state of mind by speaking in factual terms, but it may communicate his inclinations nevertheless.

EX: A is suing Dun, alleged that it issued a false credit report that caused Prudential to refuse to lease a building to him. A describes at trail a phone conversation with Rance at Prudential who tells him that pursuant to Dun’s report, there’s no way they will rent to him.  Held, We are concerned here only with Rance’s reasons for refusing rental.  this is admissible because there are no problems with memory and perception of the declarant to be tested, therefore A’s recollection of the statement is as a likely to be correct as Rance’s recollection.  Rance was disclosing his own state of mind.


Problem 4-J.  “He says he’ll kill me.” p. 283

Quade is dead; Neff is on trial.  Quade’s friend Roy wants to testify to a conversation they had:

“Neff is after me.  He says he’ll will me and my family if I don’t pay protection.  I’ve already paid 5k, and I’m trying to steer clear of him, and I need to help but I just don’t know what to do.”

Neff objects.

Three different scenarios.

Extortion: it can be inferred that he’s frightened.  If you read the exception narrowly, he would have to say “I’m frightened of D.”  But a direct assertion is not required.  Fact-laden statements can convey a mental state.

(NOTE: the admissions exception don’t apply; because there would have to be proof of what Neff said.  Quade could testify, but he’s dead.  What about Roy?  Quade told Roy what Neff said.  So without in court testimony about what Neff said, the admissions exception won’t apply.)

Extortion’s elements, (1) victim’s fear, and (2) D did something to cause him to be afraid.

The statement is direct evidence that D caused the fear in Quade. “D is after me, he’ll kill me.”  To what extent is D’s conduct covered by the state of mind exception?  The statement cannot be used to show the acts or events which Neff did.  It can only be used to reveal the declarant’s mental state.  Unless it falls under the admissions exception, which it does not, the statement cannot be used to show acts or conduct by Neff.

Judge’s choice: exclude the statement under FRE 403, or admit it subject to a limiting instruction, “ the statement can only be used to show fear, not the part to show threats.”  Fear is an essential element of the crime and his own words are the best evidence of it.


Murder:  Used to show fear in a murder case, the statement is not relevant because it’s not an element of murder.  But the threat does show intent.  (NOTE: can the state of mind exception be used to prove intent?  yes, but the threat involves facts, which the state of mind exception doesn’t cover.  But can the statement be use to show fear under the state of mind exception?  Is the fear part of the statement relevant to a murder case?  The fear suggests something about what the D did to create that fear; 

it could be used circumstantially to infer something about D’s conduct;  This will depend on a series of inferences, as Neff did something to cause Quade to be frightened.  It shows a hostile intent on the part of the person making the threat, and then that the person who had that intent, acted upon it.  But is that inference strong when based on fear?  No, the inference of guilt is not strong because there are a whole series of intermediate inferences.  some of the inferences are strong but the series is only as strong as its weakest link.  The fear could have been based on something other that D’s threats.  It’s within the exception to the extent that it shows the victim’s fear, but not within the exception to the extent that it shows acts.

Judge’s choice: exclude the statement under 403 because it shows things which are inadmissible, or allow it with a limiting instruction, ‘to consider the statement only to the extent that it shows fear on the part of the victim.’ He must balance the risk of  misuse by the jury against the statement’s worth. Most courts exclude these statements under 403.  Because it only has marginal value.  It’s too difficult for the jury to use it only as to the victim’s mental state, a not as to what D did.


Murder but self defense:  Quade’s statement shows fear.  How is this relevant?  The victim’s fear suggests that he was not the first aggressor.  Fear on the part of the V tends to refute the defense that the victim was the first aggressor.  Is the statement within the hearsay exception? yes, to the extent that it show’s fear, but not to show what D did.

Judges Choice: exclude the statement, under FRE 403, or allow it subject to a limiting instruction.  Use the statement only as it relates to the victim’s fear, not as it shows D’s conduct.  The risk of misuse is great. But there is considerable probative worth.  The prosecution usually succeeds in admitting these statements.


Notes on proving state of mind by fact laden utterances, p. 283

2. If Neff is simply charged with murder, is the victim’s fear of D still an element? Is it relevant?  Probably not; even if he said “I am afraid of D.” Especially, when it describes another’s conduct.


3. Shepard, p.284. S Ct held that a statement by a dying wife accusing her husband of trying to kill her – “Dr. Sheppard has poisoned me”—did not fit the dying declaration exception.  D used his wife’s statements to show she had an unhappy life and wanted to commit suicide; the state could have introduced evidence to rebut this, but not to blame the husband for the death.  The prosecution argued that it shows the speaker’s will to live making the likelihood of suicide improbable.  The statement shows what the D is alleged to have done, not really the victim’s mental state. A jury instruction will not suffice, especially when the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.  The evidence faced backward...it spoke to a past act and to an act by someone not the speaker.”

CN: how could this fit into the mental state exception?  It refers to acts by Dr Sheppard.  Held, the exception cannot be used to prove past events.  Fact laden statements may be used to the extent they prove the mental state, but not past acts.”

Compare: “I don’t want to die of poisoned liquor.”  This is different from “my husband poisoned me.”  This suggests the liquor contained poison.  That fact that the liquor contains poison looks backwards which is not permitted under the exception.


803(3)—The exception doesn’t include statements of memory or belief to prove the memory or belief.  They don’t want this exception to be used to look backward and prove past events.

EX: In a traffic case.  “D ran the red light.”  Is this a hearsay statement offered for its truth?  Yes.  What if the proponent says this statement is within 803(3) that the declarant remembered that D ran the red light or believes he ran the red light?  you can’t avoid the hearsay rule by taking a simple assertion of fact and say that it’s an expression of memory or believe.  This would be backward looking; using the statement to prove belief or memory but to prove past acts.


c. Subsequent conduct, p. 285

Then-mental state to prove subsequent actions, by speaker and third person.

Hillmon, p. 286

John Hillmon died and her wife sued Mutual to recover the 10k life insurance proceeds. John was accidentally shot by his friend, Brown.

There was evidence that the man found dead at the campsite was Walters, who wrote to his sister and fiancée telling them he intended to set off with Hillmon.

“I intend to leave Wichita for Crooked Creek with a certain Mr. Hillmon.”

R: The letters would tend to corroborate that Walters was with Hillmon and Crooked Creek, and are the natural and perhaps only evidence of his intent. The letters were competent evidence that, shortly before he went away, he had the intention of going, and of going with Hillmon, which made it more probable that both that he did go and that he went with Hillmon.


p. 288:  Narrow interpretation: to show the speaker’s intent.

Broad interpretation: to prove the third party’s actions.

Can the statement be used to prove that Walter went west?  or that he went West with Hillmon. 

Permissible backward looking aspect: it shows they planned to do something and they met to make that plan.

Inferences: that they planned to take the journey, they planned on taking the journey, that Hillmon also intended to take the journey.  But they necessarily depend on Walters’ memory or belief which is not permitted by the state of mind exception.


State of mind to prove actions by third parties.  Pheaster:--deals with the two schools of thought.

Francine and Doug are witnesses, friends of larry.  They will testify that Larry told them “I was leaving Sambo’s to meet Angelo” in the parking lot for some free marijuana.” D is on trial for ransom and kidnap.

Under the state of mind exception, hearsay is admissible if it bears on the state of mind of the declarant and if that state of mind is an issue in the case.

Hillmon does not require that the state of mind of the declarant be an actual issue in the case: the state of mind of the declarant is used inferentially to prove other matters which are in issue.  The doctrine provides that when the performance of a particular act by an individual is an issue in a case, his intention (state of mind) to perform that act may be shown.  When the hearsay tends to show that the declarant intended to do something, it can also be used to show that he intended to do something with another person.  The statement “I’m going to meet Angelo in the parking lot to get a pound of grass” says something about Larry’s intention, but also about Angelo’s intention, which has nothing to do with Larry’s state of mind.

While the FRE 803(3) was not intended to allow evidence to be admitted to show the future acts of another person, we cannot say the trial court erred.


Alcalde--the victim makes a statement to friends:  I’m going to meet Frank this evening.”  Later she was found dead.  This was used to prove Frank in the victim’s presence that night.

CN: broad: the state of mind exception can be used to prove what Angelo did, that Angelo was the last person to see Larry.  Pheaster reads Hillmon broadly.  “Thus the declarant should be dead or unavailable.”  ACN, it is leaving undisturbed the Hillmon rule, only to prove the acts of Walters.

But the rules intended to prohibit the use of these rule to use memory or belief.

Also, the House judiciary committee wanted to limit the Hillmon doctrine to render the intent by the declarant admissible only to prove his future conduct, not the future conduct of another person.


d. Facts about Declarant’s will, p. 299

A special 803(3) exception for wills: you can use statements of memory or belief.    It’s as if there is no hearsay rule in wills cases.  It related to his will.


“My family member’s put pressure on me to leave them something.”

There is no bar to show his earlier state of mind. It’s a past act or event which relates to his will.  Past state of mind is admissible.

The testator is deceased he can’t testify.


Statements of memory or belief relating to declarant’s will. 803(3). Problem 4-L. Daniel’s Will

Daniel’s natural son is Frank; adopted son is Ike, the son of his second wife Helen. Allegations of undue influence.

His will leaves “half to Helen, half to my son.” 

Who was his son?  Issue: When did he write the will?  It would make a difference because he would be subject to more undue influence if he wrote it while he was on his death bed or earlier, than when he was stronger.


October Daniel says to Jim: “Ike is a good kid and I’m going to take care of him.”  the wills clause of 803(3) is not necessary for this statement, because it represents his then existing state of mind.  Can be used to show he acted upon his intent when he made the will.

November statement.  “I’m going to do my will this weekend.”  This is a Hillmon statement, offered to prove future conduct.

January:  “I’m taking care of my son Ike.” ßrelevant to intent in November.

If the judge finds that the will was written in November, then how is this statement in January relevant to memory about his will. his intent to favor Ike in January; argue that the same intent existed in November, because the state of mind is not fixed in time.  If he had an intent to benefit Ike in January, then that same intent could have existed earlier. p. 281:  If you say on Wednesday that you’re in pain, then it is inferable that you were in pain several days earlier, and several days later. So if he favored Ike in January it is relevant to show his earlier intent.


What if the judge finds that the January statement, expressed November intent.  Would this require the wills clause of 803(3)?  Unless the wills clause applies, 803(3) won’t let this in.  What is the past fact sought to be proven?


What if this was not a wills case, but someone was seeking to introduce the statement that “Frank is earning enough.  He has substantial assets.”  Could Daniel’s out of court statement be used to prove that Frank was earning enough and that Daniel knew that he was earning enough?  no. Under 803(3).  Statements of memory or belief cannot be used unless it’s a wills case.  Saying that “I know that Frank is earning enough” is a statement of memory or belief, even though it might have to do with the state of mind.


3. Statements to physicians—FRE 803(4), p. 301


When abuser is member of household, it’s pertinent to diagnosis or treatment. Blake, p. 301-- The trial judge allowed Dr. Bowers to testify concerning what the victim stated during her sexual assault examination, including the victim’s statements identifying Blake, her stepfather, as the perpetrator, pursuant to FRE 803(4).

R: in situations involving physical or sexual abuse of children, statement made by a child victim to a medical professional may be admitted.

Foundation is established by a two part test

1. the declarant’s motive in making the statement is consistent with the purpose of promoting treatment of diagnosis.

2. the content of the statement is reasonably relied on by a physician in treatment or diagnosis.

Held, that foundation what properly set.  The age of the victim goes to the weight of the evidence.

CN: I: whether the statement identifying the abuser is pertinent to diagnosis or treatment—injuries, pain, symptoms.  Risks of faulty memory or misperception are minimal. 

Medical history.  803(4) permits the introduction of past symptoms, even backward looking statements, e.g.,: “My back started hurting a week ago.” 

Identity of the assailant. The doctor said that the identity of the assailant is important for knowing what type of damage has been done. Victims of sexual abuse will suffer psychologicallytreatment will vary depending on whether the abuser is a member of the household.  Treatment may require the victim be removed from the household.

CN: Some decisions approve of the use of statements of identification used by small children.  It can be important to know the identity of the wrongdoer.  But there is not the same assurance of candor. 


Notes, p. 305

1.  Dr. Bowers testified that she asked questions “to help direct my exam” and ‘understand as a physician what 16 year old patient’s emotional state was.”

two problems with the broad view of the exception

1. ACN: “statements as to fault do not ordinarily qualify. e.g., “I was struck by a car” but not that the car ‘was driven through a red light.”

2. “diagnosis” and “treatment” are not concepts that readily embrace steps like removing a child from an abusive home, and physicians are not experts on remedies of this sort.

Sometimes statements are made to non-treating physicians.  What result under 803(4)?  “diagnosis or treatment” this changes the common law rule that it be only for treatment.


5. Treating physician.  unless you have a dr who is going to treat you, the statement should be kept out.

FRE 702 and 703 allow experts to testify to opinions even though their opinion is based on evidence which is itself inadmissible.  Testimony is often given by non treating doctors as experts. The framers thought the if statements can be based on expert opinion, then it would be futile to bar their use as substantive evidence because the jury could hear these statements anyway.

6. What if the doctor doesn’t testify to treatment or diagnosis ... The doctor who is called to testify would like to testify as to statements made to him by the treatments.  He was consulted for diagnoses or treatment. The doctor is not presenting any of her own opinions.  You could argue that the doctor is just a conduit for hearsay statements and this will not be permitted?  If the patient doesn’t want to take the stand but just makes a bunch of statements to the doctor and get them in.

7. Location—generally excluded. Statements that describe the place were the injury began.  “I felt a sudden pain out at the oil rig.”  Many courts exclude such statements because the doctor only needs to know the nature of the injury, not the place of the injury occurred.  Editors argue that it is pertinent for the patients to describe the location of where it occurred and should come in.

8.  Speaker not patient.  The rule doesn’t require that it be the patients itself as long as the speaker has some useful in formation which is .... what if it’s a old patient who can’s speak very well so some else might make it.


4. Past recollection Recorded, 803(5)

Here, the witness must be on the stand, to lay the foundation

The four requisites to admit the evidence:

1) once have had personal knowledge of the

2) insufficient recollection to testify fully

3)  made or adopted by the witness

4) fresh in the mind of the declarant when the statement was made.



Read into the evidence.  “If admitted, the memorandum may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.”  The reason is that the proponent has produced a witness who doesn’t have sufficient recollection to testify now; had the proponent produced a witness that could recall, the recorded evidence could not have been received as an exhibit.  Should a person who produces a witness who can’t remember have the benefit of getting the evidence to the jury? This would give an advantage over those who do come up with live witnesses who can testify.

When D can’t remember what happened, but he made a writing right after the event happened.  When a witness takes the stand, there might be an attempt to refresh recollection, because it’s possible that showing a witness a writing might jog the witnesses testimony. 


Scott, p. 311

F: Tackett had a conversation with D prior to his arrest, about which she made a signed statement which was admitted as evidence.  Before the introduction of the evidence she was questioned as to whether her memory was better when she wrote the statement than now, to which she answered yes. D talked to his girl friend just before his arrest for shooting someone.  She was cooperative with police before trial and gave them a written statement that D had stopped by the theater saying D has just stole a car and shot someone.  Then at trial she says she couldn’t remember exactly where D said to her.

R: Requirements of ‘past recollection recorded.”  The statement consists of fact of which the witness has firsthand knowledge; the written statement was the original memorandum made near the time of the event while the witness had a clear and accurate memory of it; the witness lacked a present recollection of the words used by D in the conversation; the witness stated that the memorandum was accurate.

CN: Could the statement be made under 801(d)(1)(A) as a prior inconsistent statement?  Probably not because it’s not inconsistent.

What about admitting the statement for impeachment purposes? yes, but not as substantive evidence.   If it comes in under 803(5) then it can come in as substantive evidence.

Here the prosecutor did not try to refresh memory, but just introduce the evidence.  It’s apparent to the prosecution she became a turn coat witness and if she get the opportunity to testify, she’ll have the opportunity to say that she can’t remember.


But the prosecutor really doesn’t want her to give live testimony, because she’s a hostile witness.


This exception cannot be used without the testimony of the declarant.


5. Business RecordsFRE 803(6), p. 318

Four elements to the exception

1.      Regular business; regularly kept record.  only if each person involved in its preparation was acting in the regular course of business activities.

2.      Personal knowledge of source. One person may be the source but the person writing it up is another person.  A police officer at the scene of accident takes down statements of the witnesses.  The persons who report to a police officer do not have a business duty to report to the officer, so the bystanders do not satisfy the business record exception.  Their statements might be covered in another hearsay exception.  There must be a second exception. Because the officer has a business duty, his statements are.  But the statements by a bystander could come in under another exception, such as presence sense impression, or excited utterance.

3.      Contemporaneity.  The information was recorded at the time of the act or event.

4.      Foundation testimony.

Medical records are another source that could be covered by this exception. Because the person who prepared the records has a business duty to record the evidence.  803(4) will combine with 803(6) to allow the out-of-court-statements to come in.  If the evidence is used only to prove that he was speaking, say to prove that he wasn’t unconscious, then no exception is requirement because its not hearsay.  The fact that he was speaking could show that he was unconscious at the time.


Source of information.  Petrocelli—803(6), p. 320

James had hernia surgery by Gallison and sues for mal practice for a cut nerve.  Gallison performed the first surgery, Swartz the second. Two statements by other doctors were excluded as evidence:

Dr. Schwartz: “During the course of that surgical procedure, the left nerve was severed.”

Different physician: “Hernia will heal but very worried about pain from transected femoral nerve.”

Can these statements come in under FRE 803(6) under the business record exception? no.

Held, no, because of the complete absence of any indication as to where this information came from.  If the entries were merely relaying what Petrocelli (patient) told the reporting physicians the matter would not be admissible solely under 803(6) because it requires that the information in a business record be “transmitted by a person with knowledge” acting “in the course of a regularly conducted business activity.”  This would include nurses or doctors, but not patients, as it is not part of a business routine.

Moreover, , the reports could have been misconstrued by the jury as a definitive opinion testimony the most critical issue in the case, whether the nerve had been severed. FRE 403

Admitting the statement under FRE 803(4) as patient history, would have to required an jury instruction that the statements were admitted for their truth solely as matters related by the patient or a member of his family, not as a professional opinion.  But they did not argue this.

CN: Gallison performed the first operation, and Schwartz performed the second operation. What couldn’t Swartz have personal knowledge?  Schwartz performed the second operation, but he wouldn’t have been able to observe a cut nerve.

There’s an absence of proof that someone with the business duty reported the information.  Also, the source or informant must have a duty to report it and he have personal knowledge.

What if the husband or wife had told Swartz that Gallison has severed the nerve.  They don’t have a business duty, though they may have personal knowledge.

How it could come in:

1) if the entry into the report is based on Gallison telling Schwarts that he cut the nerve?  Gallison would have personal knowledge, and the first surgeon has a business duty to tell the second surgeon, so it would be admissible.

2) Gallison’s statement could also be admitted as an admission by a party opponent under 801(d)(2)(A).  Could we say that Gallison is under a business duty to tell Dr. Swarz?  But its also an admission by a party opponent.

3) statement made for medical diagnosis or treatment under 803(4). Notes 9, p. 310: What about statements by one physician to another concerning a patient?

4) Good Samaritan statements.  ? note 8, p. 310; What if Dr. Gallison had told Beverly, the wife, that he cut the nerve and then she told it to Dr. Swarts?  Could 803(4) cover that statement?  Does it make a difference that it was the wife and not the patient: she’s making the statement on his behalf, and it’s pertinent.  This would be triple hearsay: each would require a hearsay exception.

first: Swarz’s statement that the nerve had been cut. 803(6).  Gallison said he cut the nerve. 803(4). 


Notes, p. 325

3. CN: Comes home and complains that he felt a sudden pain.  Then he goes to the Dr and says, “I felt these sudden chest pains while at the job, and the doctor records this statement in a medical record.  The record says: “the patient says . . .”

First the husbands statement. can this be covered with 803(4)? Some courts say that the dr doesn’t need to know where the injury occurred, it’s not reasonably pertinent to diagnosis or treatment.

Could the business records exception be used to prove that he did make the statement, though not to prove the statement?  803(6) but he may not have a business duty record statements not pertinent to diagnosis or treatment.  So the doctor’s link in the chain may not be covered.

4. Changing the facts

a)      Assume James Petro tells Dr. Swarts he felt no pain until 5 months after the original operation, when he was doing weightlifting exercises, and Dr. Swarts records this information.  Could Dr. Gallison offer the Swarts record against  Petrocelli using 803(6) and 801(d)(2)(A)?

b)      Assume that Dr. Swarz phoned Dr. Gallison about Petrocelli and wrote down that Gallison said the nerve was severed in the original surgery.  Could this be offered by Petrocelli against Gallison using FRE 803(6) with FRE 801(d)(2)(A) or 803(4)?

c)      What if Dr. Gallison forwarded to Dr. Swarz  a copy of Petro’s patient files, and Swarz copied down the information into his own record?

5. Suppose Dr. Swarz wrote in his report “Examined patient—left ilioinoguinal nerve severed or damaged, apparently in an earlier procedure.”  Admissible?

6. What if Petro consulted Swarz after the suit had commenced?


6. Public Records—803(8), p. 333

Clause (A)—mundane documents describing ‘activities of the office or agency.”

Clause (B)—matters observed by public officials, subject to certain restrictions.

Clause (C)—factual findings from official investigation.


Evaluative report admissible in civil cases.  Baker, p. 334

Slabach collided with a car {Valiant} at an intersection and Baker is being sued for negligence. 

Sgt. Hendrickson prepared the police report, which was entered into evidence stating:

Apparently the Valiant entered the intersection against a red light, and failed to yield the right of way and that both drivers were preoccupied.

R: 803(8)(B) provides for “matters observed pursuant to duty imposed by law as to which matters there was a duty to report;” A police report is ‘a public record and report.”  The direct observations and recorded data of his investigation which were placed in the report are matters observed.

The finding that the Valiant ran the red light was a ‘factual finding’ under 803(8)(C).  “evaluative reports” are within the meaning of “factual findings.”  The “factual findings” admissible under FRE 803(8)(C) may be those which are made by the preparer of a the report from disputed evidence as contrasted to those facts which are “matters observed pursuant to duty imposed by law as to which matters there was a duty to report’ called for under FRE 803(8)(B).

Trustworthiness: ACN four factors:

1) the timeliness of the investigation (it had been made minutes after the accident);

2) the special skill or experience of the official (officer an expert in accident reconstruction);

3) whether a hearing was held and  the level at which conducted (no hearing was made, but this is not required under the Rule) and

4) possible motivational problems (no indication of improper motive).

Held, the officer’s factual finding that the light was red was admissible.

CN: the officer didn’t observe the accident, but he was on the scene just after the accident.  The accident report contains his observations at the scene of which vehicles were traveling in which direction, and his conclusions of what happened.  He made observations concerning the location of the vehicles after the accident with a description of the scene, he used a vector analysis, and an interview of the truck driver.  Hendrickson testifies, not about fault but about the scene.  Appellate court says that 803(5) doesn’t apply because he would have to have an ‘insufficient recollection” and he obviously had sufficient recollection because he just testified.  If it had admitted it under 803(5) then you can’t take the writing as an exhibit only read it to the jury. 

But it could be admitted under 803(8). Investigating accidents are proper activities of police officers (A).  Under (B) he was performing his duty to report his observations.  This would also apply to weather observations; or treasury reports; license plate numbers at border crossings.  The report said that the Valiant didn’t have the right of way because it had the red light.  He didn’t observe this but he made a conclusion about it based on his interviews and observations.  This must be covered by Clause (C), as a conclusion based on an officer’s investigation. –this includes safety studies of products, causes of airplane crashes.—the officer interviews the truck driver in the hospital, he admits that the sun was in his eyes, but the oncoming traffic was coming through the intersection, they weren’t stopping which they would have done if there had been a red light.  Did this play a part in the officer’s conclusion? Yes.

NOTE: would the report be admissible under 803(6)? no; he was a record keeper,  he had a duty to report and he did record.  But the truck driver had not business duty to furnish the information to the officer; Hendricks visited him in the hospital.  The source has to be under a business duty.

In Petrocelli the statement would be inadmissible under this because the patient has no duty to inform the doctor.

Slabach is an outsider statement.  The officer’s conclusion can be admissible under 803(8), but not under 803(6) because we can’t cover the link in the chain.

Reliance on outsiders’s statements is permitted under 803(6) because those who have a duty to report them are believed to . . .


public records in civil cases, p. 340

1. To what extent does the officer’s report fit 803(8)(B)? to what extent 803(8)(C)?

CN: The truck driver tells the officer that he “had a green light.”  Does 803(8) allow use of the report to prove that the light was green?  No, because it doesn’t provide a means of proving the truthfulness of the statement.  It can only be used to prove that the statement was made, and the basis of the officer’s conclusion.  If the officer concludes based on his investigation that he had a green light, then the statement goes to the officer’s determination.

803(8) can be used to prove that a statement was made, but not the truth of the statement. 

Experts: Experts can’t just come to court and parrot hearsay statements, though they can use the hearsay statements as a basis for their expert opinion.

Is the truck driver’s statement an excited utterance?  where does 803(8) come in then.  You have to prove that you made the statement.  Either Slabach could take the stand or use the report.

2. Baker applies the public records exception rather than the one for business records.  Could Baker be decided in the same way under the business records exception contained in FRE 803(6)?  or is 803(8) better.

3. Should “factual findings” be construed to include interpretive conclusions like there officer’s?


CN: These police reports are often based on outsider’s statements by people who might be suspected, or under pressure to confess.  Could the criminal defendant offer a police report?  Clause C specifically allows the D to use factual findings. Reports containing findings based upon factual observations are contained in Clause B, so it can’t be based upon an outsider’s statement, because they are not matters observed.  In Clause C applies to investigative findings which may be based on outsider’s statements, then the use restriction in Clause C . . .


Evaluative reports inadmissible in criminal casesOates, p. 342--- The govt sought to prove that the ‘white powdery substance’ was heroin with a handwritten worksheet and an official report prepared by Milton Wienberg, a customs chemist. The govt was going to call him to the stand but he was sick that day.

R: The worksheet fails the requirements of  FRE 803(8).

FRE 803(8)(C)—permits use of public records against the government, not against the accused.

FRE 803(8)(B)—permits use of “matters observed by police officers and other law enforcement personnel”, which includes any employee of the govt with law enforcement responsibilities, “excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.”

concern is that D’s right to confrontation not be impinged.

The legislative history shows that FRE 803(8)(B) and (C) meant that those provisions had the effect of rendering absolutely inadmissible against Ds in criminal cases the ‘police reports’ of item (B) and the ‘evaluative reports’ of item (C).  This would not make sense if the statements could then be included under 803(6). Congress intended to make evaluative and law enforcement reports absolutely inadmissible against Ds in criminal cases.

FRE 803(6)—must not be interpreted to circumvent the prohibition set out in 803(8)(B)-(C).

CN: Weinberg was the chemist who analyzed the substance and says so in his reports, buts he’s unavailable at trial, so another chemist authenticates it. First they conclude that Weinberg was law enforcement because the customs service defines his job as “law enforcements.”  The terms “law enforcement personnel” reaches employees of agencies which have law enforcement duties. 

Independent contractors. But law enforcement agencies sometimes contract out their chemists;  Should this be included in the term law enforcement personnel? On the one hand, they’re still working for the govt.  if a govt agency delegates its responsibility to private persons, then they should be regarded as law enforcement personnel.

Govt claims it should be admissible notwithstanding the language of 803(8).  Normally the hearsay exceptions are each considered to be independent basis for exclusion or omission.

The State argues to admit under 803(6) as a business record; business which are defined to include institutions.  This would be a way of circumventing the use restriction in 803(8).  The limitations of 803(8) wouldn’t mean much if they could get it in under 803(6).


NOTES on using other kinds of public records in criminal cases, p. 349

2. 803(5) if the declarant could testify in court and lay the foundation for the exception that he has insufficient recollection, but that the report contains the knowledge he once had, then it could be used.

A report regarding border crossings, illegal crossings, of the license place vehicle crossing, this is a routine matter, not an adversarial matter.  This is not like a report that D was casing the store planning the robbery.  In those circumstances we have situations where 803(8) the use restrictions will prevent it; but some courts think that those reports should be allowed anyways allow as Declarant is available.


Declarant unavailable—FRE 804, p. 352


1. The Unavailability requirement.

Under 804(a), the witness does not need to be physically unavailable – just his testimony needs to be unavailable. It includes

lack of memory, 804(a)(3)

refusal to testify 804(a)(2).

 privilege (plead the 5th).

illness, death, infirmity. 804(a)(4). 

unavoidable absence. 804(a)(5)

Availability it is a question for the judge under FRE 104(a).


(1) Unavailability—former testimony.  Problem 4-M, p.

D is charged with smuggling cocaine into Porto Rico.  At trial, the prosecution is offering a deposition of one of Jane Shell, who was arrested after a plan flight from Peru; there was evidence that she and a confederate had drugs.  Jane is arrested because she had the drugs under her cloths; while she’s in custody, a deposition is taken and then she’s released and she returns to Australia.

Unavailable to testify: the prosecution must show she’s unavailable because the govt wants to use 804(b)(1), which is the exception for former testimony; but declarant must be unavailable.  What does unavailable mean? 804(a). Someone can be physically present at the trial but still be unavailable under FRE 804(a): lack of memory; refusal to testify; or claiming the 5th. 

Here, she is not physically present, but that doesn’t necessarily mean she’s unavailable.

“Procuring attendance.  804(a)(5)— if the proponent of the statement makes her unavailable, then she’s not unavailable.  

How important is she to the govt’s case?  She important because there were no drugs on the D, only on her.  And her presence may also be important to D, he might be able to discredit her, by showing on cross examination that she wasn’t working with him; then he’s not guilty and that her testimony at the deposition was false because she might have a motive to incriminate him.  The more she can blame him the more she could divert blame from herself.  The jury could see her demeanor and evaluate for themselves if she’s telling the truth.

The declarant’s unavailability depends on whether govt acted reasonably; whether or not it acted reasonably in letting her go; whether they tried to get her back.  Consider:

·        flight risk

·        option to charge her with a crime when first caught

·        Detention, under the Material Witness Statute.

·        seize her passport 


Depositions in criminal trials.  The use of depositions in criminal trials is not favored, they require “exceptional situations.”  See FRCP Rule 15 (allowed).  Where the govt expects her to take off and they have the depositions . . . if that were the situation and the court knew about it, should the court allow the deposition to be taken in the first place?  The govt is justified in taking deposition only if it intended to take reasonable steps to get her back if she takes off.


Good faith effort to obtain a witness required FRE 804(b)(1).  Barber v. Page, p. 359

Preliminary hearing: WoodsàBarber

Jointly represented, no cross examination.


Trial: Barber tried; Woods in federal prison, 225 miles away (Tex). 

            Wood’s transcriptàBarber

The state made no effort to obtained Wood’s presence at trial.

R: Merely being outside the jurisdiction doesn’t make a witness unavailable.


·        writ of habeas corpus ad testificandum under federal statute 2241

·        Federal Bureau of Prisons will allow a prisoner testify at a state trial. 

·        If in another state, Uniform Witness Act

Held, a witness is not ‘unavailable’ for the purpose of the exception for the confrontation clause unless the prosecutorial authorities have made a good faith effort to obtain his present at trial.

Confrontation Clause: satisfying the hearsay exception doesn’t necessarily satisfy the confrontation clause.  The right to confrontation is a trial right, and cannot be waived absent a knowing relinquishment of rights.  Therefore, whether or not Barber cross examined Page at the preliminary hearing would not have waived his right to confrontation at trial.

Failure to cross examine Woods at the preliminary hearing was not a waiver of the right to confront him. The right to confrontation is a trial right and does not depend on what happened at the preliminary hearing: it includes both the opportunity to cross examine and opportunity for the jury to weigh the demeanor of the witness.


2. Former Testimony Exception—804(b)(1), p. 362

I. Prior proceeding.  This includes testimony from a former trial, depositions, preliminary hearings, as well as administrative hearings.  Need only be a “prior proceeding,” not a ‘judicial’ proceeding.

II. Cross examination.  The party against whom the testimony is offered needs to have had ‘an opportunity or similar motive’ to cross examine.”  If there is not sufficient motivation (incentive) to cross examine in the prior proceeding then it may not be admissible.

N.B.: “Former testimony” exception in 804(b)(1) requires a prior chance to cross examine the declarant, while the exception for “prior inconsistent statements” (801(d)(1)(A)) requires a present chance to cross examine the declarant “concerning his previous statement.”

III. Prcedure. The court reporter that took the testimony takes the stand and reads the transcript into the record. The opponent must be present at the previous trial and the present trial.

1. This exception can be confusing because former testimony may be used at trial under other exceptions, such as refreshing recollection.  How might that occur?—if a witness is forgetful.  Then he reads his previous testimony and let him testify based upon independent memory. 

2. Another way to use prior testimony is if a witness testifies differently at the former trial than now; use to impeach.  If it satisfies 801(d)(1)(A), then it can also be used for it’s substantive effect.

3.  If the declarant is in the first trial as the party opponent, then it can come is as an admission under 801(d)(2)(A)

CN: “Former testimony” falls under the definition of hearsay in 801: A statement made other than while testifying at the hearing at which the statement is offered.”  the element of demeanor observation is absent in this present case, even though the judge and jury in the first case could.

Also, there is the consideration of the two separate trials or proceedings. 


1.      declarant unavailable at present trial.

2.      opportunity for cross examination at the prior proceeding

a.      criminal case: “the party against whom the testimony it is now offered,”

b.      civil case: “a predecessor in interest



same party


successor in interest

3.      similar motive.  The court has to determine what the motive to cross examine would be similar in both the prior and present proceeding.


Civil—predecessor in interest.  Lloyd v. Am. Export Lines

Al and Lloyd had a fight on board a ship owned by Am Ex Lines.  Am Ex claims Al started it, Al claims Lloyd started it.  Lloyd sued Am Ex under the Jones Act, and Am Ex impleaded Al. Lloyd testified at Coast Guard hearing, to determine whether Lloyd’s license should be suspended; both Al and Ll testified under oath.  Am Ex appeals claims error to exclude Lloyd’s former testimony.

I.          Lloyd is unavailable.

II.         Did Al or a “predecessor in interests” have the “opportunity and similar motive to develop the testimony by direct, cross, or redirect examination as required under 804(b)(1)? yes; there was sufficient community of interest shared by the Coast Guard (CG) in the hearing and Al in the civil trial.  Al is seeking to vindicate his private interest in recovering for his injuries; the CG sought to vindicate the public interest in safe merchant marine service.  The nucleus of operative facts were the same. Both had an interest in determining culpability: Lloyd’s intoxication, his role as aggressor, and prior hostility toward Al.

Held, there existed sufficient opportunity and similar motive for the CG to develop Lloyd’s testimony at the former hearing to justify its admission against Al at the later civil trial, under FRE 804(b)(1).

CN:  this is a civil proceeding so there is no insistence that the same party had the opportunity to cross exam, but he must have been a predecessor in interest.  Lloyd sued Am Export Lines, which impleads Al, who in turn counter-claims against Am Export.

the Present proceedings involved the question of who was the initial aggressor. American Export offers the testimony by Lloyd because he was not present.  THe Coast Guard tried to show that Lloyd’s papers should be revoked because he was drunk and started the fight.  Who is the declarant? Lloyd.  Am Export is trying to introduce Lloyd’s testimony, which suggests that Al started the fight.

Assume Al had no opportunity to cross examine at the prior hearing: Is it still possible that the testimony be introduced against him?  yes, as long as the CG was a predecessor in interest with a similar motive.

Differing Views of who is the predecessor in interest:

Aldistert:  the Coast Guard is a predecessor in interest because there was a community of interest as between the CG and the present defendant.  It is seeking to maintain the greater public interest of keeping the seas safe.  This interpretation sort of renders unnecessary the “interest” requirements, and focuses on the “motive.”

Cf. Stern: Coast Guard isn’t the predecessor in interest because there was no privity, which requires that when there is a judgment against one, it is attributed against another.  But the concept of privity is murky and shouldn’t be introduced into law.


Notes on Prior Cross examination requirement, p. 371

2.  Former criminal testimony used in civil trialWright:  Partners JB and JC Wright lost their building to fire and sue their casualty carrier to recover for the loss.  The carrier calls Eppler as witness, expecting that he will testify that JB Wright conspired with him to burn the building.  But Eppler claims the 5th and refuses to testify.  In a prior prosecution of JB Wright for alleged arson, however, Eppler testified to a conspiracy, and the carrier offers a transcript of that testimony.  Held, the transcript is admissible against both JB and JC Wright.  “JB’s opportunity to cross-examine the witness in the criminal case on the same issue, and with the same interest and motives that JC would have in this civil case, satisfies the rule of substantial identity of issues and parties and opportunity for satisfactory cross examination.”

CN: A witness testified at the criminal trial for arson , saying that JB got him to set the fire.  Now the two brothers are suing the insurance company to pay on the policy.  The witness claims his privilege and refuses to testify at the civil trial.  Can the insurance company us his former criminal trial testimony be used against both the brothers in a civil case.?

What result under FRE 804(b)(1)?  Would it be admissible against JB?  Yes, at the criminal trial, JB had the opportunity to cross examine the witnesses, with the motive and interest similar to the one in the civil case.  When seeking to use this testimony not only against JB but against JC, then there is a relevancy problem—what does JB’s wrongdoing have to do with JC’s right to recover insurance?  It goes to insurance law, which holds that even an innocent partner cannot recover insurance on a building which is willfully burned by his co partner.

I.          Similar motive and interest?  JB had a strong interest to cross examine the witnesses at the criminal trial which is similar to JC’s in the civil trial.

II.         Predecessor in interest? admitting the former testimony against JC, he has to be a predecessor in interest.  Predecessor in interest requirement depends on how it is defined.

Aldisert : p. 368 “If it appears that in the former suit a party having a like motive to cross examine about the same matters as the present party would have, was accorded an adequate opportunity for such examination, the testimony may be received against the present party.”  This essentially read the “motive” requirement out of the stature.

Stern:  Privity.  murky concept.

Not only are they brothers, but partners: they bought the business together, they purchased insurance together.  In the criminal prosecution, the fact that JB was a co-partner makes no difference for the criminal proceeding. 


Dying Declarations—804(b)(2), p. 373

The exception applies only to statements “concerning the cause and circumstances” of impending death. It applies to both civil and criminal cases.

To fit within the exception, the statement must:

·        while believing death is imminent,

·        concern the cause or circumstances of the death,

·        only homicide cases and civil case.


Notes on Dying declaration, p. 374

1. In ones last moments the impulse might be to be truthful, but it also might be the time to tell a lie.

2. How to determine whether declarant had a belief of imminent death?

CN:  There might be statements made by the declarant.  “Please take care of my baby!?”  Or there might be more objective evidence, e.g., the nature of the wounds, said to a priest or a physician.

3. Whether declarant believed he was about to die is decided by the judge.

5. How imminent must the prospect of death be?  There must be a “settled hopeless expectation” that death is near at hand,”


4. Declarations Against Interest—804(b)(3), p. 376

Reason: Thought to be trustworthy on ground that a person is unlikely to state facts harming his own interest unless they are true.

Objective test: The statement has to be really against the interest of the declarant; because the declarant is not present, the judge can’t ask him if he thought it was against his interest, the test is objective, that of a reasonable person.

Civil casesFactors to consider:

1. Context. This is critical.  If Todd was hounding Sam to “pay back the 5k you owe me,’ and Sam said “I owe you 1k.”  While Sam’s statement concedes a debt, if it is made to reduce his obligation, it is not against his interest, as least with respect to a claim above 1k.

CN: Donovan—‘er wants to get the statement by his employees that “we haven’t worked that much” to prove that he paid them sufficiently.  But is this statement disserving?  They are essentially saying that “we don’t have money coming to us.”  We look not only to what the statement facially says, but what’s behind it.  The speakers were illegal Phillipinos living in the US without greencards.  Held, statements not against interest. 

2. Conflicting interests--further one interest and impair another: courts applying the exception could either

(a) exclude statement because the interests cancel each other, or

(b) determine whether the statement was predominantly disserving or self-serving, and admit or exclude accordingly.

CN: Demasi.  The daughter made withdrawal and the parents sue the bank saying the withdrawals were not authorized.  the bank wins.  Then the bank has mother sign an affidavit so she can get the rest of her money back, saying that she and her husband had allowed the daughter to make the withdrawals.  Then the mother dies.  Then there is a retrial.  Is this a statement which has a self serving and a disserving aspect?  Which one predominated?  Disserving because the statement will be potent evidence against her?  Or self-serving because she wants to the balance of the account?  She had already lost at the trial level, she just  wanted her money back. “the disserving interest of the statement was that the withdrawal had been made by her or with her knowledge.”  But the court finds that the interest which was the upper most in her mind was that by signing the document she would obtain the 70K which she would not otherwise have made.

3. One way interest. Where the interest of the declarant was to aim high (owner trying to sell his motel), the statement should be admissible to show the maximum; where the interest of declarant was to aim low (taxpayer) his statement should be admissible to show the minimum.

CN: Sometimes there is an interest to overstate, and sometimes to understate.  If an owner is trying to sell a piece of property, he might say that it can make a million dollars a year, his motivation is to set the higher figure, he’s not likely to understate the figure. When the speaker’s interest is to maximize then this statement can be used to prove the upper limit, i.e., not more than a million. 

4. Circumstantially adverse facts.

CN: A Warehouse burns down.  The owner sues the business that leases the building for he damages caused by the fire.  One of the employees said “we went to the warehouse to smoke and drink.” Are there other possibilities?  801(d)(2)(D)?  it is not a matter concerning the scope of the employment.  But against his interest?  yes. because he has admitted that he was smoking in the building. He could get fired for this.

5. Declarant’s understanding.  The exception only helps to pick out reliable statements if declarant understood his own interest and how the fact or statement could affect them.  courts exclude statements uttered by persons who lack the necessary information.

CN: A tavern owner owes taxes on the cabaret.  The tavern owner said “we allow dancing at our tavern.”  Is this adverse if he didn’t know about the tax on cabaret establishments.  The exception only applies if the statement was against interest: He has to understand his own interest and how the statement would run against his interest.

6. Effect of later events.  Some courts insist that the against interest requirement is not satisfied where a statement becomes damaging to declarant in the light of later unexpected events.

CN: D is sued under the Dramshop.  Someone stumbles out and says that he just drank 6 Martini’s.  Then he gets in a wreck.  Even though the accident hasn’t yet happened, he should be able to foresee that there is a risk of harm.

7. Conclusory remarks.  Two cars collide.  One driver says to the other, “I’m sorry, lady, but you pulled right out in front of me,” and she replies “Yes, I know.  It wasn’t your fault.”

CN: If we receive a statement couched in the form of an opinion, we won’t have the speaker there to clarify it.  But if it is excluded, then you have nothing at all on the topic. With the admissions exception the party is at trial and can testify.  Under the “against interest” exception, the declarant is not available.


b. Criminal cases --- statements implicating the accused

Narratives, use only self inculpatory portionWilliamson, p. 381

Harris told the DEA officer that the cocaine found in his car was bought from a Cuban, he was to make the delivery in Atlanta for Williams.  Harris refused to testify but his statements to the DEA were admitted against Williams.

R: FRE 804(b)(3) does not allow admission of  non-self-inculpatory statement, even if they are made within a broader narrative that is generally self-inculpatory. A statement is not self inculpatory just because it is part of a fuller confession, and this is especially true when the statement implicates someone else.

collateral statements, are not admissible, if not against the declarant’s interest.

Held, Harris’s statement can not admissible in its entirety.  But parts were admissible, such as knowing that he had cocaine in his suitcase.  But the parts implicating Williams did not subject Harris to criminal liability.  Each statement must be analyzed separately.


-- co-conspirator exception?  no. If there is a post-arrest statement, then it is not made during the pendency of the conspiracy, because the arrest terminates the conspiracy, and post arrest statements will not qualify.

-- Statement against interest exception? This requires that he be unavailable, and he refused to take the stand.  If both Harris and Williams were codefendants, would Harris’s statement have been admissible against Williams? no, because he’s not unavailable

--- admissions exception?  No, Harris’s statement cannot be used against Williams; only against himself; it can only be used against the person making the statement.

Cf. the declaration against interest: this can be used against someone other than the declarant.


Here, Harris gave a broad narrative of what happened. Some parts might have been against interest, some self serving, some neutral.  Majority couldn’t decide which parts were against interest.  But there are some generalizations.

Kennedy’s approach: take the statement as a whole.  Get the whole statement in because part of it is disserving.  804(b)(3) allows the admission of some collateral statements.

Majority approach: use only the parts that are against interest.  The collateral statements which are neither against interest or self-serving are going to be excluded.  Broad narratives must be broken down into their component parts.  All justices have doubts about statements from a suspect: even if he’s admitting fault.  Majority will not take the position that any statement made by a suspect in custody will not be covered by the rule, given what the suspect has to gain from cooperating with authorities.  Much will depend upon the context of the remark.


Notes on Williams and statements against Penal interest that implicate the accused, p. 390.

1. Williams essentially holds that FRE 804(b)(3) does not reach associated statements – those that are merely related to against interest statements (“collateral”). This statement must itself be against an interest.


E. The Catchall Exception –FRE 807, p. 405

Hearsay that does not fit any of the other exceptions may nevertheless be trustworthy and necessary.

2. proof of exonerating facts, p. 407

Weaver, p. 407

Mary Weaver was convicted of first degree murder for the death of 11 month old Melissa Mathes.  The mother is the declarant. She told people at the diner that the baby hit her head on the coffee table.  But how are we going to prove the statements?  Can the affidavits by the five ladies be used to prove this? 

The sole question is the trustworthiness of the statements. Factors to consider:

1.         the declarant’s (mother’s) propensity to tell the truth

2.        whether the statements were made under oath

3.        assurance of declarant’s personal knowledge

4.        the time lapse between the alleged event and the statement by the Declarant concerning the event

5.        motivations of the declarant to make the alleged statements.

6.        corroboration, reaffirming or recanting the statement by the declarant, credibility of the witness reporting the statement and availability of declarant for cross examination.

Here, the witnesses were credible, the declarant was available to testify, close proximity in time; declarant had firsthand knowledge of the substance of the statements, statements were unambiguous and explicit, statement was made in response to an open ended question, made to more than one person, a similar account was made on more than one occasion, it was corroborated by objective medical evidence.  None of the affiants personally knew either the declarant or the defendant.

CN: There’s two hearsays.  The affidavit says that the mother says.  What the mother says is covered by a hearsay exception as a statement against interest.  But the affidavits themselves are hearsay, for which there had to be an exception.  All five of the women testified as to what the affidavits are.  The affidavits themselves are inadequate to prove what the mother said.  But if the women testify, then there’s only one hearsay for which there is an exception.

            Court emphasizes that the mother is available to testify and did testify; this will be considered in determining the admissibility of this statement.  This is significant because If she’s on the witness stand this will be a means of testing her. Court finds that the three women are very credible, but are we focusing on the credibility of the three women?  The ladies are asserting that the mother made the statements; this is an in court assertion that can be tested through cross examination.  The real concern is the mother’s credibility.

Was the statement against interest?  If this were against her interest , would it weight in favor of trustworthiness?  Yes, because the fact that the baby fell back and hit the coffee table while it is in the mother’s care, it could be against interest.  But then why can’t we enter it under the statement against interest?  Because she is available and testified in all three trials.  Even if the mother’s statement couldn’t be covered in FRE 807, could this statement still work its way into the trial? to impeach.

What about 801(d)(1)(A)--? No, has to be made at a prior proceeding.

If used to impeach, could D argue in closing argument, that the baby suffered trauma the day before she died? this would be improper.  All they can use it for is to say that the mother said the baby didn’t hit its head, yet she made a statement contrary to this testimony.


When is a statement hearsay ? p.145

Under FRE 801, when offered to prove the truth of the matter asserted.

A statement is not hearsay when offered for another purpose, such as:

1 impeachment,

2 verbal acts,

3 effect on listener or reader,

4 verbal objects

5 circumstantial evidence of state of mind, and

6 circumstantial evidence of memory or belief.

CN: Sometimes you have to know the substantive law which relates to the statement.

Verbal Acts:  EX: p.186: There is a suit for conversion by plaintiff’s bank for conversion of corn.  The issue is whether it was plaintiff’s corn.  It depends on how the tenancy is terminated at the end of the seasons. Under the substantive law, the tenant’s statement resulted in endowing the plaintiff with the sole ownership of the portion of the court.  The utterance alone severs the co-ownership.  “Mr. Lord, there’s this big bin, and half of the corn in it is mine and half is yours.”  Just the utterance of these words severs the co ownership.  Saying “this is you’re half of the corn? is used to prove ownership.  Exactly what was said is of crucial importance, but the witness is on the stand and can be cross examined. But the statement itself is not offered for its truthfulness, only to test whether a jury hearing those words would reasonably believe that they severed a the ownership and worked a partition of the goods.  “Whenever the mere utterance of certain words, independent of their truth and regardless of the declarant’s subjective intent, is consequential under the substantive law, the hearsay rule is not violated.  Such declarations are called verbal acts.”

EX: Defamation. “That man is a lousy lawyer.”  The statement is not offered to believe the statement is true, but because it’s a statement of independent legal significance, and the jury finds that it is defamatory, then the legal relationship between the parties has changed.  The statement therefore is not hearsay.  The subjective intent of the speaker is immaterial.

 (1) Impeachment.  Problem 3-C.  “The blue car ran a Red light.” p. 145

Bystander testifies that the blue car (Burton’s) ran the red light.  Burton wants to ask Bystander if he told the insurance adjuster that the blue car had the green light in its favor.  He’s made contradictory statement about the color of the light, one in court and one out of court.  The prior statement has relevance on two issues in the case: 1, to show that D did in fact have the green light, and also to impeach.

To prove the matter spoken.  The speaker is in court as Plaintiff’s witness; if he’s subject to cross examinations, why can’t it be used as substantive evidence? This is hearsay because the cross examination that can be made here is called deferred cross examination.

Saporen, p. 154—prior statements made by testifying witnesses are still hearsay, because the kind of cross examination that can be conducted is not a substitute for real cross examination.  Stone says that his statement may have hardened . . . 

To Impeach: used to show that the statement was made, .. Since the jury isn’t being asked to believe that the prior statement was true, it doesn’t matter that there is deferred cross examination.


(2.1) Verbal Acts--criminal. Problem 3-D. “Any way you like”

Undercover agent at a message parlor. 

Masseuse Debra: “Whether I was interested in a good time”

Agent: “that depends on when and where and how much.” 

Masseuse: “the cost depends on what you want, but I’m real versatile, and you can have it any way you like, honey.”

CN: If she has engaged in solicitation, then it might be inferred that D operated the message parlor as a place of prostitution.  Is the jury being asked to believe that she does sex for money? then it is hearsay.  But if the proponent can identify a single non hearsay use, then it is not hearsay.   It is not being offered to prove the truth of the matter, no one cares whether she is versatile and really wants to see him again.

Solicitation requires a verbal act (‘do you want to do it?”) so her statements don’t depend on her credibility.  The point is: do her words add up to solicitation?

Content of her words: this is important because it’s a jury question of whether a reasonable person hearing those words would believe they were being solicited.  It suffices that we have the auditor who we can cross examine. 

What if “intent” were an essential element to solicitation, could the statement be used to show intent? Her statement implies her willingness to do sex for money, so if specific intent was an element, we’d say that the hearer would need some evidence independent other statement.  You can’t use a statement of intent to prove intent.


1)      Other crimes requiring verbal acts:

a)      perjury,

b)      obstruction of justice,

c)      drug dealing,

d)      where the words themselves have independent significance.

“I want to sell you some heroin” doesn’t have to be true to be solicitation.

(1)   Robbery: man walks up to you with a gun and says “Do you have any spare change? Don’t worry about the gun, I’m cleaning it.”  The jury has to hear exactly what was said, because it has to decide whether there has been a taking by force or fear.  The truthfulness of his statement isn’t at issue, nor his subjective intent.


(2.2) Verbal Acts--civil. Whose Corn?  Problem 3-E. 

Lord’s testimony: “tenant’s statement to Lord: C pointed out the corn in the crib and said “Mr. Lord, this double crib of corn is your share for this year, and it belongs to you.”

CN: the tenancy continues until there is a partition, and the partition can occur either by physical division or by verbal agreement between the parties.  Just the making of the statement can work to transfer possession.  “This double crib is yours” has independent legal significance.  It looks like hearsay because it addresses the matter at issue.  But it also has a significance independent of it.  The Bank is being sued for conversion.  Landlord defaulted on a loan and the bank seized the corn, its security interest.  The landlord is offering it to prove ownership.  It’s not offered to prove what it says, but to prove the legal relation between the parties, that the legal effect of the statement was to create ownership.

Exact content of the statement can make a difference, because the trier of fact had to determine whether a reasonable person would believe it had transferred ownership.  Hearsay has to do with cross examination, and here we can cross examine the auditor.  But the subjective intent of the speaker doesn’t matter, so the speaker doesn’t have to testify.  we need to know what the auditor heard.


Bank’s testimony: “Tenant’s statement to bank: “When we came out to see about selling the corn, Cartwright told us that the corn in the double crib was his.”

CN: The statement to the bank officer, there is no independent legal significance because the tenancy has already been determined.  The statement made to the bank officer does not have independent significance.  The only possible relevance is to prove what it says, but then it is hearsay.


(3) Effect on Hearer or reader. Problem 3-F, p. 147

Al was hurt in an explosion when he got too close to the leak.  Forest showed up and said “I’m Forest from the gas company.”  Al shows Forest the leak.  Forest then lights a cigarette, causing an explosion, hurting Al. Al sues the Gas company for Negligence.  Gas company counter-sues for contributory negligence. Al offers Forest’s statement to show agency and that Al acted reasonably.  Hearsay?

My answer: it is hearsay to prove Forest is an agent; not hearsay to prove that Al acted reasonably.

CN: To hold the Gas Company liable he will have to show negligence on the part of Forest, but also agency.

Issue 1: To prove agency: The statement is a direct assertion that agency exist, when he says “I’m from the gas company.” the statement “Take me to the pipe.” Which is circumstantial evidence.  Using the statement to prove agency would be using it to prove what it says, therefore it’s hearsay.

Issue 2: To prove reasonable behavior. ‘I’m not contributorily negligent because I just did what the guy asked him to do.”  It’s not offered for the truth of what it says, it’s used to show the affect on the listener.

Limited Admissibility. FRE 105The Gas Company would invoke FRE 403, as confusion of issues. But the statement is very important to Al and many courts would admit it with a limiting instruction.


Warning.  “Done step on the ketchup.”  186, Lilly handout:  P slips in the store and sues the supermarket for negligence. D wants to have a cashier testify that she made a statement just before the lady slipped. “Don’t step on the ketchup!”  This has a non-hearsay aspect to show warning, thus to show contributory negligence, if she proceeded despite a warning.  The credibility of the declarant is not at issue. The truthfulness of the assertion is not at issue.

188: P tire blew out, and wants to use a statement by a service station attendant, Knowledge.  “Your brakes are bad.” if this is offered to prove his brakes are bad, then the statement can’t be used.  If the car owner said it himself, then This might be an admission by a party opponent, but would it be hearsay otherwise?    It could also be used to show that the car owner was aware of the condition.


Out of Court statement offered for its truth, p. 127

Can be either an oral or written assertion, verbal or nonverbal assertions.  The intent is important: not only what is expressed but also what the ‘declarant’ implies

Implied assertions.  Problem 3-A,  Three see a Robbery

Lissner spoke with three people just after a bank robbery.  Higgins was the bank robber.  

Express assertion: Plaintalk said “Higgins did it.”  Any statement is hearsay if it is a direct assertion of a fact in issue.  The fact that we can cross examine Lissner doesn’t allow use to get to the sincerity of the declarant.

Implied assertion:  Sirchev: “Higgins walked out of here carrying money bags.”  Literally, this statement asserts what it says, but it implies that he robbed the bank.  the inference is only relevant if true.

Implied assertion.  Oblique: “They should put Higgins away and throw away the key for this.”  This is not used to prove that Higgins should go to jail, but it’s still hearsay because the declarant intended to imply that Higgins rob the bank.  the concerns about the declarant’s perception, memory and sincerity.


1. What is a “Statement”?

a. Assertive Conduct

Risks: misperceptions, faulty memory, ambiguity, and insincerity.

801(a) embraces nonverbal conduct of a person, if it is intended by the person as an assertion.  Therefore nodding, shaking the head, shrugging shoulders, pointing, etc., are hearsay.


b. Nonassertive conduct.

Not intended as an assertion, not hearsay.  Problem 3-B.  Phillip can’t see the traffic light because a Kenwood truck is blocking his view.  The Maserati revs his engine.  The truck pulls forward.  Phillip shoots into the intersection and is broadsided by Hillary.  At trial, Phillip wants to introduce evidence that the truck pulled forward.

One scenario: the truck pulled forward to trick the Maserati so he will pull forward.  Here the truck is trying to send a message.

Non-verbal conduct can be hearsay if it is intended as an assertion.


Second scenario: the truck driver didn’t intend to trick the Maserati.  If the judge determines that there was no intent to communicate on the part of the truck driver?  Then it wouldn’t be hearsay under FRE 801. 


·        the driver thought the light was green

·        thus, the light was green. 


hearsay dangers :

Mistake.  It is possible that the truck driver thought the light was green but was mistaken. 

Misperception. There is a danger of misperception.

Ambiguity.  someone’s actions don’t signify what he really believed.  Is there any ambiguity as to what the truck driver did?  Maybe his foot slipped off the clutch.  Without him being there to testify there is the risk that this won’t come out.

Faulty memory.  the lapse of time.  In the case of a hearsay statement we are worried about the memory of the declarant.  Here, there’s no risk of faulty memory.

Insincerity. If there isn’t any intent to say anything and the truck driver wasn’t trying to send a message, then the risk of his insincerity is diminished.  The risk of insincerity attach only when it is intended.

ACN__801—p. 118: “Admittedly evidence of this character is untested


Wright v. Tatham, p. 129

Should the letters be admitted to show Marsden was competent to write will? No.

Whether the contents of these letters are evidence of the fact to be proved that the actual existence of the qualities which the testator is by implication stated to posses?

held, proof of a particular fact, which is not of itself a matter in issue, but which is relevant only as implying a statement or opinion of a third person on the matter in issue, is inadmissible in all cases where such a statement or opinion not on oath would be of itself inadmissible.  Here, the letters are offered only to prove the competence of the testator. they were properly reject, as the mere statement or opinion of the writer would have also been inadmissible.



EX 1: p. 133: Sea Captain. Issue was the vessel seaworthy: the captain looked over the ship and then brought his family on board. Dangers: Misperception: maybe he didn’t correctly perceive the leaks in the ship.  Faulty memory: maybe he saw the leaks but then forgot about them.  Insincerity: no risk of insincerity because no intent to communicate.


Ex 2: Family of the testator, taking the same precautions in his absence as if he were a lunatic.  The family put him in an asylum.  The evidence would be offered to prove that this family believed that he was not of a sound mind offered up to prove that their belief was true.


EX 3: Electing someone to high office.  Evidence offered up for the inference that they believed he was of sound mind and further that he actually was of sound mind.


EX 3: conduct of Physician who permitted a will to be executed by a sick testator. Offered to show that testator was competent.


Letters to Marsden: they may have not perceived him correctly, they may have forgot of his imbecility, and insincerity.  The words weren’t intended to communicate a belief that Marsden was competent, nonetheless the words implied that Marsden was competent.  The risks

faulty perception.  the writers may not have noted how strangely Marsden acted the last time they saw him.

Faulty memory.  there was an interval between the time they observed him and the time they wrote the letter.

Ambiguity.  Yes, the writers might have known that marsden was incompetent but wrote these anyway to bolster his spirit, or they may have never really intended to do business with marsden.


Under 801?  The letters are non assertive conduct not intended as an assertion, therefore there are not hearsay and are admissible.


Cain v George, p 137. 

Family rents a hotel then sues the hotel for wrongful death of one of the family members, from the fumes.  There is testimony from the owners of the hotel that there were many other guests of the hotel who never complained of the gas heater.  Failure to complain:

Is it verbal or non verbal? -- nonverbal.

Is it assertive or non-assertive? -- non assertive conduct.

Two step process:  Trier of fact is asked to infer

·        that the customer’s thought that the heaters were working properly,

·        that the heaters were in fact working properly.

This would be admissible under 801, because it’s nonassertive nonverbal conduct, and can be offered to prove that the heaters were working properly.


Misperception. customers may not have noticed that the heater was working properly.

faulty memory. yes.

Ambiguous. may have been silent because they thought it would be futile to complain, so silence doesn’t indicate satisfaction.

Insincerity.  danger of deception is low.


Indirect hearsay. Check, p. 140, Informant, Cali, refused to testify.  Spinelli was a detective who hired Cali to get close to Check, who was involved with selling drugs. 

Check tells Cali: I wanted the money up front,  that he would provide a sample of an ounce of cocaine and the meeting would occur tomorrow.  If Cali were willing to testify, could he testify to these out of court statements by Check. Yes, as an admission by a party opponent.

What if Spinelli had eavesdropped, could he then testify as to what Check said? Yes, he would have personal knowledge and as long as he overheard them then Spinelli could testify to them.

Could spinelli testify that Cali said that Check said? no. This is double hearsay.


The prosecutor asked Spinelli “Without telling us what Mr. Cali said to you, what did you say to him?”.

A: I told him I won’t front the money.  I didn’t get my sample.

Held, Spinelli was serving as a transparent conduit for the introduction of inadmissible hearsay information obviously supplied and emanating from the informant Cali. 



“I am napoleon.” this would be hearsay to prove he’s napoleon, but not to show insanity.

Employment discrimination case.  “Women just don’t make good managers.” This isn’t offered to prove it’s true, only to show discrimination.

Non-hearsay, state of mind.  Problem 3-h. Anna Sofer’s Will, p. 150

She dies as a result of the accident.  H brings a wrongful death suit against the bus company.  Husband sues for wrongful death of Wife, killed by D.  H can recover for loss of companionship and expected income.  Damages are based on expected income and loss of companionship.  She’s a dentist with significant income.

Defendant offers Wife’s will to show H would have no reasonable expectation of future financial benefit; and to prove the quality of companionship.  The will leaves him $1 along with words of deep dissatisfaction with the marriage.

CN: D wants to show that he couldn’t have expected very much income.  Moreover, living with her had she lived would not have been very satisfactory.

Argument that it’s hearsay:  There’s a match between what she’s saying and what the D is trying to prove.  Her assertion is that she doesn’t love her husband anymore.  This was held to be circumstantial non hearsay evidence.  We know the exact content because it’s in writing.  But doesn’t the statement depend exactly what is said?  yes.  Had she talked about a happy marriage, then the statement could not be considered non-hearsay.  But the statements do not need to be truthful, they can be used whether true or not.  She says he’s selfish and irresponsible, even though he’s not, it still show’s how she feels toward him.


Problem, 3-G.  Eagle’s Rest Bar & Grill, p. 148

Three Defendants are accused of selling drugs.  What needs to be proved is that they lived at 600 Elm street and sold at Eagles Bar and Grill.


Book of matches: From Eagles bar found in possession of Seaver.  This connects him to the place where drugs were sold.  Who is the declarant?  The commercial artist? the bar?  The matchbook came from Eagle’s, not because it says so, but because circumstantially, they are more likely to come from Eagle’s than any other place.  As such, it is not hearsay, the words are only elements of a physical description, the jury wouldn’t be asked to decide any truthfulness of the declarant.


Mug found at Elm street.  There are nonhearsay arguments that can be made with respect to the mug.


CN: The prosecutor is trying to show an association between these co defendants.  Barmaid knows Nichols, but not Seaver.  But she’s often seen Nichols in the bar with someone. Although Seaver is a D in the courtroom, she can’t identify him as the man seen with Nichols.  But she does remember that there was once an officer who came to the bar and at that time, Nichols being there with the man he was often seen with, and she tells this to the officer.  But the officer is in the court room and he can testify as to who she pointed out.  At trial she can’t remember that it was Seaver, but she does remember pointing a man out to the officer.  The officer’s in court testimony that the man she pointed to at the bar was Seaver, the officer’s memory hasn’t failed. The officer can testify that the person pointed out to me, is the man sitting next to the defendant today.  You have live testimony from each.


EX: Blind man thinks he’s being pick-pocketed, turns and holds the pick pocket to the ground until an officer comes, and says “this is the person who robbed me.” At trial both the officer and the blind man testify what happened.  The blind man will testify that he told the officer “this is the man who tried to rob me.”  Without relying on the blind man’s statement “this is the man who robbed me,” can you established that this man was who robbed him; you have the policeman’s testimony that the man he arrested is the man in court today, and the blind man would testify that “the man who robbed me is the one I pinned to the ground.”  Now you have live in court testimony the established identity.  Officer says: that man that I arrest is in court today.


Methods of Impeachment:

1.      bias, motivation, or corruption

2.      defect in his sensory or metal capacity

3.      disposition to be untruthful.

4.      showing witness made a prior inconsistent statement

5.      contradicting the witness


A. Nonspecific impeachment, p. 586

The ability to show bias on the part of the prosecution’s witness has been held to be part of due processes and confrontation clause rights. 


Abel, p.588--Ehle participated in the crime and plead guilty.

State calls Ehle, testifies: D committed the robbery.

Defense calls Mills, testifies: “Ehle told me he planned to implicate D falsely, in order to receive favorable treatment from the govt.” CN:  this is covered by a hearsay exception:  State of mind. FRE 803(3), it shows intent.

State’s cross examination of Mills.  Membership of the organization.  Mills is discredited because he’ll be biased in favor of D, because they’re in the same gang.  But the creed also shows bias under FRE 608(b)(1) we’re trying to impeach the witness himself, using specific instances of the witness’s conduct which are probative of his character for untruthfulness, this can be brought up on cross examination. The specific instances of conduct is “his membership in the gang whose creed requires its members to lie for each other.”  But Mills denies any knowledge of this secret organization; this sets up the need to impeach him.

State recalls Ehle (as an impeaching witness), testifies: “Mills is a member of a prison gang whose tenets are to perjure for each other.”

CN: This is called extrinsic evidence. Ehle upon recall, states that Mills, Abel and himself were members of the gang.

Should the prosecution be allowed to recall Ehle and what could he testify to upon recall, what kind of extrinsic evidence should he be able to testify to?

Held, evidence showing that Mills and D were members of a prison gang was sufficiently probative of Mills’ possible bias toward D to warrant its admission in to evidence.  It was within the courts discretion to admit it.

R: Bias goes to relevancy, because a successful showing of bias on the part of a witness would have a tendency to make the fact to which he testified less probably than it would be without such testimony.  Not only did Mills and D belong to the same organization, it is a type of organization which espouses lying.

CN: Would it be possible to give Ehle’s testimony with extrinsic evidence, merely to show untruthfulness.  Under 608(b)(1) there’s a bar of using extrinsic evidence of specific instances of conduct...you can only cross examine the witness, you won’t be able to present any evidence of someone on direct to establish the impeaching fact.

If extrinsic evidence for a disposition for lying is inadmissible under 608 (b)(1), what rule justifies using the same evidence to show bias? When there are multiple purposes, a limiting instruction must be given under FRE 105.


It won’t be admitted to show untruthfulness, only bias.


The nature of the organization will determine whether there is a propensity to lie and has penalties for noncompliance.


6. Inconsistent statements—chance to explain. When a party used prior statements by a witness to impeach on the theory that they are inconsistent with his present testimony, the FRE 613(b) allows extrinsic evidence of such statements only if the witness under attack has a chance to explain.


Problem 8-A, The hired gun, p. 596

If you hire an expert, and you bring up the fact on direct, does it prevent the cross examiner from asking the expert about getting paid to testify?

Are there limits?  Asking not only about the per diem rate, but the total amount expected, the continued employment with the hiring party.

Here, the cross examiner wants to know how much he has earned for testifying for the auto industry.  What is you’re total income from testifying? Some courts will not approve of this kind of cross examination.


Notes on Cross examinating the paid witness, p. 597

1. There is a split authority on asking how much you will make on the entire project.

2. Govt witnesses are also paid sometimes, such as under the Witness Protection Program.

3. If the witness for the prosecution is in the witness protection program, should the defense be able to bring this out? yes, but there might be some danger in this.  This might suggest that the defendant is such a dangerous person that the witness requires protection from him.


2. Sensory and mental Capacity, p. 597

Eyesight, hearing, drug use, alcohol influence at the time, hospital stays,

CN: If there is something that prevents the ability of the witness from making an accurate testimony, e.g., a defect on mental or physical capacity.


1. not covered in FRE, but common law acts as a gap-filler.

2. You can call witnesses to testify and present evidence on that matter.  But the other side can also rebut this with counter evidence. 

3. There could also be a court ordered examination from a psychiatric examination.  The Rules of Procedure, authorize the court to order a physical and mental examination for capacity of the parties, for good cause shown.  But nonparties, no court has ever entered such an order.

5. Experts routinely testify on the reliability of eyewitness identification.


3. Character for “truth or Veracity,” p. 600

Three ways: cross examination of non-conviction misconduct, convictions and use of character witness. 608, 609, FRE 611.

Opinion and reputation for character


a. Cross examination on Non-conviction misconduct—FRE 608

Some questions can be so damaging regardless of the response, that there generally must be a preliminary showing of some basis for the questions.  But FRE 608 does not require notice so there is no assurance that the basis will be examined in advance.  There is a bar against extrinsic evidence of specific instances of conduct, unless its on cross and it deals with veracity.

If the target witness has produced character witnesses to testify of the target witness’s truthfulness in their opinion.  But these character witnesses can then be cross examined on specific instances of conduct that bear on the veracity of the target witness.

608(b) regulates cross examination.  The bad acts and specific instances must bear on veracity.  They bear on veracity only if they involved falsehood or deception.  The witness may have done a lot of bad things, but it cannot be brought in unless it bears on veracity.  Drug use, adultery, connections to the criminal world.

What is allowed? you can’t waft in unwarranted innuendo into the jury box.  You have to have a good faith basis, such as cheating, fraud, perjury, making false statements on affidavits, resumes, tax returns.
”Did you  ever steal anything at work?” this is a dragnet question which is not sufficiently narrow and will not be allowed.  Acts of theft which involved deception.

The Cross examiner must have a good faith basis for believing that the acts actually occurred.

Defendant can try to keep it out with a motion in limine, but most courts would rather rule on it at the time it is raised.


Murphy v. Bonnano, p. 602

Facts:  D is seeking to cross examine his own wife (who is suing him for battery).

Trial judge refused on relevancy grounds to permit cross examination of Elizabeth about prior instances of conduct reflecting poorly on her veracity as a witness, to wit: a false financial statement of a property as collateral for a loan, insurance fraud, and threatening to sue a doctor of sexual harassment and assault when he demanded repayment of a loan he had made her.




(1) Didn’t you submit a financial statement for Car Doctor in connection with a loan transaction when you knew nothing about the value of the Car Dr. CN: she probably got the information about the value from her husband.


(2) Didn’t you submit an insurance claim in connection with two car accidents, collecting $33k and $5k for nonexistent injuries. CN: this is what FRE 608 allows, but this runs head on into FRE 404, of the use of character evidence to prove conduct.  Prior unsuccessful claims that have occurred in a factually different setting cannot be used to show ....but now we are using it to show that she has a disposition for untruthfulness.


nt 5, p. 604: Can you question a witness about false statements can be proper even if the matter lied about cannot be proved.  An extramarital affair doesn’t bear on veracity, but the lie about it will be admissible


Lying abut the results of a lie detector test: It’s not proper to inquire about the results of the lie detector tests, because they are inadmissible, but if you lie about the results of the test, this might be properly inquired into.

6. No extrinsic evidence can be used to prove up the nonconviction misconduct.


b. Proving Prior Conviction, p. 612

FRE 609 allows for cross examination about (1) convictions for crimes punishable by death or imprisonment in excess of one year, and (2) convictions for felonies or misdemeanors involving dishonesty or false statements.


Lipscomb, p. 617

609(a)(1) admit evidence of prior felonies only if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant.

609(b) allows a felony conviction more than 10 years old to be admitted only if the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

Held, the court has discretion to determine when to inquire into the facts and circumstances underlying a prior conviction and how extensive an inquiry to conduct.


Applying FRE 609(a)(1).  Problem 8-B, “Hit the Deck.” p. 624

Bank robbery case.  Three witnesses. All had been convicted of bank robbery within the past 5 years.

Dß”testifies against D”--<E


F testifies for D.

Balancing factors:  One of the witnesses is also a Defendant, and the standard of admissibility will be different.


609(a)(1) deals with crimes not related to dishonesty or false statement. 

609(a)(2) deals with any crime related to veracity (fraud, perjury, et.), admissible without any balancing. 

Court will look on the face, some look behind it.  Does a bank robbery conviction deal with dishonesty or false statement? Robbery is generally considered in the low end of the scale.

Elmo: a witness other than the defendant, so the standard of admissibility is 403 “the probative value has to be substantially outweighed by prejudice.” This favors the admissibility of the conviction. It will be excluded only if the prejudicial effect substantially outweighs the probative value.

Under 609 the prejudice only has to outweigh, not substantially outweigh. So it can only be admitted if the probative value exceeds prejudicial effect.  The standard for defendants favors exclusion.  Farr is a defense witness and the admissibility is subject to 403.


Notes, p. 624

1. Robbery is less probative than crimes involving deception or stealth.  The age of the defendant and the age of the conviction will also bear on the probative-ness.  If the present crime is the same as the prior crime, there is more prejudice.

ii)       Gordon factors:

(1)   the nature of the conviction,

(2)   its recency or remoteness,

(3)   whether it is similar to the charged offense,

(4)   whether D’s record is otherwise clean,

(5)   the importance of the credulity issues,

(6)   the importance of getting D’s own testimony.


3.  Different standards.  D is prejudiced when his own witness is impeached with his own prior conviction.  When defendant himself is impeached by a prior felony, the standard differs from the one that applies when defense witnesses are impeached.

4. Bringing out priors on direct. Courts allow a party to disarm an expected attack by bringing out prior convictions during direct.

5.  Details.  Details and underlying circumstances of the prior crimes is usually not admissible.


Applying 609(a)(2), p. 627 Problem 8-C. “The Plaintiff is an ex con.”

P sues D for hitting him with his car.  P testifies.  P has prior convictions for manslaughter and forgery.


My answer: only the forgery can come in.  Manslaughter doesn’t relate to dishonesty or a false statement, as required under 609(a)(2).

CN: Impeachment has a limited purpose of showing untruthfulness.

Timing. the age of the conviction can influence the courts decision. But 609(a)(2) says that the conviction shall be admitted if it’s a crime involving dishonesty and may be admitted without any balancing.  It doesn’t matter that it’s a felony or misdemeanor if it is a crime of dishonesty then it comes in under 609(a)(2).

Lipscom says that all felonies bear on credibility.

Standard for the manslaughter: FRE 403.

There’s no discretion to exclude the forgery conviction.

Notes, p. 627

Crimes involving dishonesty:

yes: perjury, fraud, forgery.

 no: violence, prostitution, drunkenness, narcotics

2. While 609(a) contains discretionary language (“subject to Rule 403”, “if the court determines that the probative value outweighs the prejudicial value.”), 609(b) does not contain discretionary language and is mandatory.

3. Theft. Usually not admitted.

4. Looking behind the elements of the crime.

5. lesser included offense, e.g., conviction for petty larceny (misdem’r), when D commits embezzlement (felony).


Problem 8-D, “Five time loser,” p. 629

On trial for assault.

--Falsifying a hotel register. this falls under 609(a)(2)(dishonesty), not 609(a)(1) (felony or death conviction).  It makes no difference that it’s a city ordinance.

--drug conviction for selling marijuana (felony).  No similarity. Not too old (two years). Numerosity:  D can argue: the dissimilarity makes this irrelevant.  Drug offenses have a low relevancy to credibility. Gov has the burden of proving probative value exceeds the prejudicial effect.

Motion in Limine: bring a pretrial motion to exclude his convictions. D can argue that there’s a great need for his testimony and if they allow the priors then he might elect not to testify.

--grand larceny.  Absent deception or stealth, most courts hold that theft offenses don’t relate to veracity.  therefore 609(a)(1).

Which ranks higher on veracity relevance: marijuana or grand larceny? larceny.

Which has a greater similarity with the present conviction.  Both are dissimilar.

Recency? (4 years old) not presumptively inadmissible.

--armed assault.  a crime of violence.  It would have to come in under 609(a)(1).

Age.  8 years old.  Similarity.  very similar.  relevancy: low.

--forgery. 609(a)(2) is it automatically admissible? it’s 12 years old, so presumptively inadmissible. What the measuring point: date of conviction or date of release from conviction?  If you look at the end point of the sentence then it is less than 10 years old, so it would be admissible without balancing.


c. Character witness—608

Impeachment with a prior inconsistent statement, p.638


Opportunity to explain or deny.  Applying 613(b).  Problem 8-F, p. 640

Welch told Murphy that he hadn’t seen anything.  This is inconsistent with the testimony that he had seen the striking.  Could it be admitted as substantive evidence. no, because it was not made under oath as required by 801(d)(1)(A).

Timing: best to do it on cross.

Here, D doesn’t question him on cross about the prior inconsistent statement.

Instead, D calls an officer, --extrinsic evidence—to impeach him.  Must you first cross examine the witness you intend to impeach before introducing extrinsic evidence of the prior inconsistent statement?

Extrinsic evidence cannot be brought in unless the witness has an opportunity to explain or deny, so he doesn’t have to be crossed first.

What if Welch has already left the court room, so he can’t deny his inconsistency.  If welch can easily be recalled, then Welch will have an opportunity to explain or deny the inconsistency.

What if Welch had gone home and could be returned only through a subpoena?  Courts hold that the risk should be on the impeaching party, where the subpoena would be unnecessary had he asked him on cross.  if there is difficulty in obtaining a subpoena, then the judge might have to strike the extrinsic evidence. Either he shouldn’t be allowed to present the extrinsic evidence; and if he had then it should probably be stricken.

So, if the witness cannot be recalled, then the impeaching party should not be allowed to impeach Murphy, because the opportunity to explain or deny is too important to not honor it.


2. Case law is pragmatic.  Courts need discretion to deal with this problem.  But we should put the risk on the impeaching party for allow the witness to explain or deny.


Impeaching hearsay declarants.  FRE 806 allows hearsay declarants to be impeached as though they had testified at trial. 

EX: Get evidence of Waldo’s hearsay statement that D ran the red light.  D can introduce evidence that Waldo has a forgery conviction.  But how do you give him an opportunity to explain or deny a statement when he’s not in attendance.  “In the case when a witness is impeached with a prior inconsistent statement, he is not subject to the requirement that the declarant may have been afforded an opportunity to den or explain.”


Who May impeach? FRE 607: The credibility of a witness may be attacked by any party, including the party calling the witness.


Morlang Rule.  It would be an abuse of 607 for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the D in hope that the jury would miss the subtle distinction between impeachment and substantive evidence.  Impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.

EX. Webster, p. 642:  W was convicted of aiding and abetting a bank robbery.  State called King to testify against Webster. King’s testimony exculpated W.  Then the gov introduced a prior inconsistent statement given to the FBI inculpating W.  Under FRE 607 you can impeach your own witness.  Had the govt known that King would give testimony inconsistent with his prior statements, then it would have been guilty of abusing 607.  But there is no evidence the govt knew.

R: NO BAD FAITH.  The prosecutor asked to examine King outside the presence of the jury because she didn’t know what he would say, but this was denied.  Therefore, the prosecutor did not put king on the stand knowing he would give no useful testimony.

CN:  “Primary purpose rule.” the govt can impeach its own witness, but cannot call a witness to the stand when its primary purpose is to impeach him.  Danger when a jury is told that it’s only to impeach, the jury will use the statement for substantive evidence.


What if there was a need for a new trial because there was a hung jury.  Govt calls King, in the original and in the new trial, and both times he gave exonerating testimony and both times it impeached him.  But since it impeached him in the first trial, it knew that he would not give useful testimony.


Will impeachment be allowed only where the impeaching party was surprised by the testimony?  No, it should be allowed even when it suspects that a witness will give some helpful testimony and some harmful, but it expects to testify ,. . . so even if the govt isn’t surprised by some helpful testimony, if can still call the witness.


Impeaching with Silence.


Post-Miranda warning silence cannot be used to impeach. Doyle.


Pre-arrest-pre-Miranda silence to impeach ok.  Jenkins, p. 653


Post arrest, pre-Miranda silence okWeir, p. 658.  D stabbed Buchannan to death in a parking lot in a pool hall.  The police come to his trailer house.  They didn’t give him Miranda warnings until he was in the squad car, because he was getting dressed, during which time he was silent.  D testifies that he acted in self defense, victim came at him.  On Cross the police ask him about the fact that he didn’t say anything after the arrest.  He was under arrest while he was dressing and during that time he didn’t say anything about self defense.  Had the police given the warnings immediately, then they wouldn’t have been able to question him about this his silence under Doyle.  But because the govt has not induced his silence by giving the warnings, he can be questioned on this.  But the D is in a double bind: if he speaks without questioning, it will be used against him, if he remains silent, his silence will be admissible to impeach him.


Post arrest, pre-Miranda statements can be used to impeachHarris, p. 646

D takes the stand in his own defense and testifies that he didn’t sell the undercover agent heroin on Jan 4, but rather on Jan 7 sold bags containing baking powder, intending to make $12.  The state introduced a stationhouse statement made before he was Mirandized which partially contradicted D’s direct testimony. 

Held, Statements made in a custodial interrogation before Miranda warnings were given can be used for impeachmentThus, statements made in violation of Miranda can be used to impeach, not as an admission as a prior inconsistent statement.  Because it’s not being used as an admission for substantive evidence, it is allowed.


EX: D is charged with murder that occurs during a gang fight.  D is arrested and makes a statement on the day of the crime identifying the perpetrator.  On the day of the arrest he admitted that the perpetrator’s hair was redish-brown.  The statement is blocked by Miranda.  If he testifies at trial that his hair was black, then he can be impeached.


EX: D calls a friend to testify on his behalf that she observe that his hair was black.  Is this defense testimony subject to impeachment by using the statement in violation of Miranda?  Its clear that if the defendant is testifying, then the statement can be used against him for impeachment.  But when the state is using the statement of the defendant to impeach someone other than the defendant, it has a tendancy to impeach only if it is taken as proof of the matter it asserts, so it would be inadmissible.



2. Contradiction, p. 660


Like inconsistent statements, contradiction refutes a witness on specific points (“I saw the accident when I was coming out of the drugstore” when the drug store was closed), though standing alone it is indefinite in failing to explain why the witness erred or lied.

Three kinds of counter proof:


Problem 8-G, p. 665

RULE: You can’t impeach on a collateral matter.  This is a rule against contradiction with extrinsic evidence, i.e., counterproof.  Counterproof is only admissible on a matter that counts.  So what’s collateral, what really counts and what doesn’t count.

D is charged with a robbery that took place in Seattle on July 14th.  He has an alibi witness that testifies that he was in Portland, on July 14, “D was in my restaurant.”

On cross, the restaurant owner says that D was not only on the restaurant on July 14th, he came in everyday for weeks before July 14th.  So there are two parts to the restaurant owner’s statements: that D was in his restaurant on July 14, and that D was in his restaurant every day before July 14th.


On rebuttal, defense calls the police officer who knew D.  He had talked to D late in June, and the officer recalls that during a conversation D told that D had been in Seattle for two or three days.  So how would the officers testimony contradict the second part of the owner’s testimony, who said that D was in his restaurant for weeks prior to July 14th. D objects that this is contradiction on a collateral matter, because D’s whereabouts on the weeks prior to July 14 is not at issue.

If, apart from contradicting the owner’s testimony, does D’s presence in Seattle prove anything relevant then it would be useable.  Prosecutor argues that it is relevant to show that D was preparing for the robbery.  Held, this was too far in advance, it doesn’t go to a substantive point and therefore cannot be contradicted.  But contradictory evidence is admissible on another point, if it tends to prove a point that the entire testimony of the restaurant owner was  a lie, if it shows that the restaurant owner could not be mistaken.


First, assume the officer’s testimony can be credited.  Then look at the testimony sought to be contradicted. if the extrinsic testimony can be credited, that would mean that part of the owner’s testimony was untrue.  It means that D’s visits to the restaurant were not continuous and uninterrupted; the owner could not have  seen D in his restaurant every day.  But he could still have been true that he saw D in his restaurant on the day of the robbery, July 14th.  The fact that D had been in Seattle before the robbery, doesn’t mean he was there on the day of the robber. SO the officer’s statement will be excluded.


Waiters testimony: I’ve never laid eyes on D.  This would show that D was not in the restaurant on July 14 and on the days prior to the robbery.


Problem 8_H, p. 673--“Have you ever sold drugs before?”

The jury may believe that he acted in accord with his propensity, so it is impermissible because D hasn’t raised the issue of his credibility.

405 has to be read in its entirety, the first sentence says only when witness on direct testifies as to conduct, only then can questions re specific instances of character conduct would be permitted.


If this question is asks, and before he has a change to object, D blurts out “no!” The prosecutors question on cross was improper, because there hadn’t been character evidence raised on direct.  Even a perjured denial shouldn’t be admissible because doing so would allow the prosecutor to circumvent the rules of evidence.  By excluding it, we are letting the witness to get away with testifying falsely.


Suppose on direct D testified that he didn’t do the drugs in question, but never done drugs before.  Is it proper now to question him on cross examination?


Yes; because although he didn’t intend to open the door, he’s giving himself an endorsement, which is improper. The proper form is to use opinion or reputation testimony.  So, questions on cross will be allowed.


Is this impeachment on a collateral matter?  Is this a matter that is independently relevant? yes, if D introduces evidence as to his predisposition not to sell drugs, and if it goes unrebutted then the jury is left only with his testimony.




US v. Medical Therapy, p. 679

D is charged with filing false medical claims.  Russell is the key witness who was D’s secretary, but she’s not completely clean.  D charges her with embezzlement. She claims that she took the money in repayment.  she’s a witness that the state needs to repair credibility.


On Direct: If she had a clean record, would it be proper for the prosecutor to ask her if she’s had an run ins with the law? No, it would be improper. Because an attack as not be made on her character yet.  The Rule of bolster, 608(a)(2) (“evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence.”)


Direct: But she has convictions.  The calling party raises her criminal history by the state (as long as this history will be coming in anyway, it is better to disclose them yourself.). 


Cross: Defense attorney goes over her convictions again.  Is it proper to replay this material?  The fact that the prosecutor brought it up on direct does not deprive the cross examiner from replaying the material.


the state to rehabilitate her called two witnesses as to truthfulness.  D claims there wasn’t an attack on character because they were the same convictions covered on direct, therefore this is not an attack on her character.


What if she discloses her convictions on direct, then there’s no questions on cross, can the state then call witnesses to ‘repair’ her character? no, because there was no ‘attack’ on her character.


Had D attacked Russel’s veracity .. how was her veracity attacked on cross?  There’s questioning about her convictions as well as extrinsic evidence,; two witnesses are called to testifying about embezzling the doctor and stealing from patients.


Then, State can repair the testimony.


NOTE that these witnesses are not testifying to reputation or opinion, but specific instances of conduct. Doesn’t this violate 608(a)’s prohibition against introducing extrinsic evidence of specific instances of conduct? You’are limited to opinion or reputation evidence.  Is there a permissible purpose toward which extrinsic evidence might be introduced?  These might show the motivation (bias) to testify against this doctor.  There’s no prohibition against using specific instances of conduct to show bias.


Doesn’t calling the two witnesses involved impeachment on a collateral matter?  Bias is a matter that can be shown with extrinsic evidence, its’ not collater, its too important.



Opinion and Expert Testimony; Scientic evidence, p. 691


SEE notes in text book for

PROBLEM 9-B, p. 695



Expert Witness, p. 699

Judges Dutygatekeeper—find reliability:  702—when it’s permissible to introduce expert testimony.  The trial court is charged with the duty of excluding unreliable expert testimony.  This gatekeeping function applies to all expert testimony.  Thus, the judge must make a determination under 104(a) that the expert testimony is reliable.  The proponent has to establish by a preponderance  that the testimony is reliable, not that it is correct.


Experts can’t get around 702 using 701—not based on scientific, technical or other specialized knowledge within the scope of Rule 702.  This is to prevent expert testimony under guise of lay testimony but not subject to the reliability requirements of 702.  Now all expert testimony must be channeled through 702.


Disclosure requirements.  This is also does to prevent circumvention of expert witness disclosure requirements required under the the Rules of Civil procedure.


EX: State is saying that D’s conduct is consistent with drug traffickers.  They are presenting expert testimony, as law enforcement officers. So it can’t come in through 701. We could argue that it’s rationally based on their perception,; but we won’t be able to get around 702, because it’s specialized. So it must be subject to the reliability and the disclosure requirements.

EX: we have a lay witness who is able to testify that a certain substance appeared to be blood, but then he says that the bruising around the eyes is indicative of skull trauma.  The part about the blood doesn’t depend on specialized knowledge, so it is admissible 701.  But the part about trauma to the skull is expert testimony and must be subject to the reliability requirements of 702 and the disclosure requirements.


Bases of expert knowledge. 703.

1.      Firsthand knowledge

2.      Facts learned at trial:

a.       listening to the trial then give his opinion

b.      information conveyed in a hypothetical question

3.      Outside Data: even facts inadmissible at trial. Can testify that this inadmissible evidence formed the bases of his opinion. But this is subject to their probative value substantially outweighing their prejudicial effect.

a.       McCollum: D is on trial for bank robbery, his defense is that he was drugged, threatened and hypnotized.  He chooses not to testify.  He calls a forensic hypnotist.  The Dr then testifies to certain statements made by D during the interview.  D offered a video tape of the conference with the hypnotist.  Trial court excluded it, because it is offered as the bases for the expert’s opinion, and there is a risk that it will be used improperly by the jury.  He’s offering it as the bases for the hypnotists opinion, but the jury might take the statements made by D during the evidence for substantive evidence.  This is what is contemplated by the last sentence of 703, that the probative value doesn’t exceed its prejudicial effect.

b.      Wright v. Mosss:  p. 704.  Upholds the receipt of the interview.  It shows the phychiatrists in his interview, it will be permissible for the psychiatrist to testify on .  The statements are not admissions, so they can’t be used for their substantive effect.

4.      Parrotting opinions.  Inadmissible statements as bases of knowledge.  Problem 9-C. “the tube came out.” p. 705

5.      Dr Joan Key basis her opinion on a medical chart written by Dr. Nirmel.  What are the possible bases of that opinion? she is an expert and has expert knowledge in general,  She also has some first hand knowledge.  She also read the chart, the information entered by the neurologist. Judge will have to decide if the expert has a reasonable bases, whether she has her own independent opinion, or is she just parroting the opinion by Nirmel.  If she’s just parroting what she’s been told , then she’s not giving her independent opinion.  Here she’s saying that she thought the tube came out during surgery because that’s what Nirmel wrote.  Held, evidence excluded.

6.      NOTE. 4.


Atty Client Privilege, read thru 871-886

1.      encourage free flow of communication

2.      full disclosure

3.      If as a lawyer , ask your client questions unfavorable to your client, then lawyer would himself have information that he would be required to disclose those facts.  In helping the lawyer represent the client, he would also have to turn around an tell the information to the prosecution.

4.      in civil cases, opponent can examine the adverse party.  Plaintiff can call Defendant in his case in chief and therefore can get at the evidence.

5.      Suppose a civil plaintiff asked defendant, “isn’t a fact that you ran the red light.” If D had previously told his lawyer that he had ran the red light, could he invoke the privilege? no. The plaintiff can’t ask D what he told his lawyer, but asking the client what he did at the intersection is not privileged, only the communication to the atty.

RULE 501

·        Civil cases in diversity, applies state privileges

·        Federal question and federal criminal cases, the courts can develop their own common law, but they can look to the rejected federal rules for guidance.

Problem, 12-A

McNary was convicted on circumstantial evidence that he murdered his wife.  Gallo Calls McNary’s atty.  Gall confesses the crime of murder to his atty that he didn’t commit the robbery because he was at McNary’s house killing his wife and daughter.

Hearsay issues: out of court statement, “I killed them” this is being offered for its truth.  Gallo’s statement is offered by McNary’s lawyer.

804(a)(1)—statement against interest, he is unavailable because he had the 5th amdt.  This is a third party confession.

Right to produce exculpatory evidenceChambers—a third party confessed to the murder that D is accused of, and D tried to use it.  Held, the constitutional right to D to present exculpatory evidence will trump hearsay law.  There’s a due process right to present evidence. Chambers dealt with hearsay, not atty client privilege. 

Right not to take the stand.  But the right to present evidence will not supercede a witness’ right to stay off the stand.

Here, Gallo is the holder of the atty-client privilege, and can excluded it in any proceeding.  There is a conflict here between McNary’s right to produce exculpatory evidence, and Gallo’s right to atty client privilege.

BALANCING TEST. Court must assess the importance of a privilege against the interests underlying the privilege.  Court must decide whether to compel disclosure or devise some remedy.  Here, the court would try really hard to find in favor of McNary because murder is such a serious charge, he’s been sentenced to death, the evidence with which he’s been convicted is circumstantial, and it’s plausible.  But Gallo has the 6th amdt right to counsel, and introducing the evidence might violate his right to counsel.  Judge may impose a right for McNary to use it, but not for it to be used in prosecution of Gallo.  Why wouldn’t this be satisfactory to Gallo?  Because now the prosecution will focus its investigation against him.


Only professional services.  Problem 12-B, 877

Atty’s client is about to jump bail.  Govt is asking the atty whether he advised his client of the time and place of trial?  This in and of itself doesn’t mean there’s no privilege.  The privilege applies whether it is said by the client to the atty, or the atty to the client.  The privilege also extends to legal advise, regardless of whether there was a confidential communication.  But here, the privilege doesn’t apply.  There’s no privilege that attaches when atty isn’t providing professional legal services.  Atty isn’t providing professional advise when he tells client that the time and place of trial is such and such.  He is just serving as a conduit of information for the court.  The time and place of the trial doesn’t involve .  Atty is simply providing a notice function.  When atty is acting as an accountant or investigator, then the communications are not protected.


I.        Observations of conduct not covered.  PROBLEM, 12-C

A.     Client walks in drunk, and atty cuts interview short because it wouldn’t be productive.  Client leaves, gets into an auto accident.  In suit for wrongful death, atty is called to testify on client’s conducts.

II.     Assertive conduct is covered.:  nodding, pointing.

You could argue that the observations that D was rambling and incoherent, but this observation was made while client was speaking.

III.   Testifying on competence to stand trial. (nt 1) These observations will be based on what client said, so may be covered.

IV.  Testifying to client’s physical appearance. (nt 2) Demeanor, things observable by anyone, so not covered by privilege.

If client had said, I’m late because I had a few drinks. This statement wasn’t made for the purpose of obtaining legal advice. Nevertheless, some courts say it’s privileged.

V.     Documents not created for obtaining legal advice—no privilege.  Problem 12-D, Transferred Tax Records, p. 881

VI.  Documents are transferred in pursuit of legal advice.  But the documents were not created for seeking legal advice.  They are ordinary business records.


VII.            Documents created for obtaining legal advice—privilege attaches.  When are documents transferred to the lawyer, protected by the privileged?  If she specifically created the documents for legal advice.  The lawyer might ask the client to put the facts in writing.  Then it would be protected.


Fruit or instrumentalities of crimeMeredith:   D tell lawyer where the wallet is.  Lawyer finds it and turns it over to the police without telling them where the wallet came from. 

If Scott himself had delivered the wallet to the atty, then the privilege would attach and the lawyer would not have to disclose where he got the evidence; the evidence is privileged, protected by the atty client privilege. 

Atty would still have to turn it over to the police.  If an atty receives either the fruits or instrumentalities of a crime, he is obligated to turn it over to the police.


Knowledge from direct result of a confidential communication.  What if Schenck looked at the wallet looked at it, then put it back of the barrel.  Then the lawyer would know of the location, which he learned from his client, and this knowledge is privileged.


Here, the location, and the evidence, is not privileged. No privileged attaches if he conceals it, tampers with it, even if it’s damaging.

Policy: Removing it impedes law enforcement, and deprives the police of the opportunity to find it in that location, the very location of which is incrimination.


4. Required Confidentiality, p. 887


Accountant send Client to atty—not privilege.  What if D tells the accountant that she’s hasn’t filed a tax return in 5 years because she hasn’t had time.  She asked the accountant whether he thinks she needs a lawyer.  He says yes.  The statements made to the accountant are not privileged.


Lawyer send Client to Accountant—privielged.  But if D goes to atty first, and the atty sends D to see an accountant, then it is privileged.  Kovel


Statements through an interpreter are privileged, so statements made ‘through an accnountant’ should also be privileged.


If the report is not based upon communications from the clientCondemnation case.  Are the appraisers statements privileged?  Where the client has information that is important for the lawyer to have requires communications requiring full disclosure.  But the communications between the expert hired by the lawyer, does need encouragement to freely communicate with the lawyer, because he’s already being paid by the lawyer.  But work product doctrine would apply.


b.  Joint representation, p. 891


Two or more clients seek representation by the same atty.

EX: insurance case.  Insurance company appoints atty to represent its insured.  the atty represents both the insurer and the insured.


PROBLEM, 12-E.  A Failure Venture, p. 892

Thomas and Samuel got to atty, Almond, to form a partnership.  Samuel says the chips are not up to US standard.

1. Civil suit. Dissatisfied customer sues. Lawyer is depose, can he testify about the  quality of the chips imported from Asia? no, these are communications between joint clients and the atty.  Normally the presence of a third person destroys confidentiality.  Joint clients are within the class of persons who can be present during the time that confidential statements are made. This includes legal aids, accountants, etc, who help interpret the communications.

2. EXCEPTION: Civil sue between joint clients.  Samuel sues Thomas.  Can Samuel testify as to what Thomas said to the atty? yes.  If the joint clients have a falling out, their communications are no longer privileged as against themselves.

Reason.  Intent—they never intended the communications be confidential from each other.

Advising the clients of the risks.  If there is a falling out as between yourselves, there is no privilege.


3. PARTIES WITH COMMON INTERESTS—SEPARATE REPRESENATION.  Samuel and Thomas are prosecuted by the govt for evading customs inspections. Now S and T are individually represented.  During a strategy meeting, Samuel says, you were supposed to be an expert on customs and taxes.”  Thomas replies “I carried out that end and handled it as well as anybody could.”  Samuel wants to get this statement into evidence.  It’s relevant to show that Thomas was to blame because he was in control of that end of the business.  Is it privileged? they’re not jointly represented.  But generally, there is a privilege recognized. 

Reason.  Why have a privilege for clients who are separately represented? Without the protection, the lawyers representing clients with interests in common would be reluctant to get together and make collaborative efforts.

note 2 :  normally, the present of the outsider destroys the privilege.

note 4: communications which Client expect subsequent disclosure—no privilege. EX: information intended to be included in tax return.  Also, information intended to be included in bankruptcy proceedings, or application for citizenship,.  even if no subsequent disclosure is ultimately made.

Reason.  The privilege goes to intent.

The Corporate Client. 897

Not all corporate employees is covered by the privilege. An expansive privilege would cast a cloak of secrecy around corporate communications.  Would extending a privilege to lower level corporate employess make more frequent disclosures to the counsel?  No, they are paid and hired to communicate and will does so anyway.  What about generally circulated documents? no privilege.


The Control Group Test AbolishedUpjohn, p. 899

This would limit privilege to the top few, the controlling members.  THIs is a group that is too limited to encourage full disclosure


1. the communications are part of a corporate purpose fo secure legal advice for the corporation.



4. The communications were in fact kept confidential.

But doesn’t require the communication be at the direction of the superior

Subject matter test Harper & Row v. Decker, p. 898.  Has the employee been directed by his superiors to make the communication.  Privilege attaches.


1)      Client Identity not privileged, p. 909

a)      General Rule: Client’s identity is not covered by the atty-client privilege, because it’s not a confidential matter made to give legal services only a preliminary matter.

2)      Exceptions.  

a)      Identity is privileged-Baird.  Baird was a tax atty, he gave some of his client’s documents to accountant.  He wrote the check for amounts due from undisclosed taxpayers.  If his clients were persecuted, then they could claim part payment. After receiving the check, the IRS compels Baird to disclose his clients.  Held, privilege upheld, because disclosure would implicate the client for the advise that was sought.  But was Baird hired to give legal services or just ot write a check?

b)      Legal advice exception. If disclosure would implicate the client in the very matter for which the client hired the lawyer.

c)      Last link exception. Client identity disclosure is privileged if it makes the last link in a string of evidence leading to the client.  Here, the facts that the clients named is incriminated...

d)      Confidential communications exception.  Identity is protected if disclosure of identity  would normally be protected (some hold this is the only proper exception)

e)      Durant.  Atty called to testify before the GJ.  US Atty wants to know who wrote the check. Durant refused to give the name of his client.  D claims that there was no

i)        Exception, p. 915.  Atty reports illegal misdeeds or misconduct by some third person on behalf of an anonymous client.

ii)       No duty for atty to defy a court order.  12-f The reluctant lawyer, p. 921

(1)   Walters is called before the grand jury, he is a real estate lawyer the client had employed.  He his asked questions regarding the communications between Client Kastin and Lawyer Walters.  Lawyer says that his is protected by the privilege. The court orders that the privilege doesn’t apply and the atty must testify.  But it’s the client who is the holder of the privilege.  But the lawyer has an ethical duty to claim the privilege on the client’s behalf.  Does the lawyer have an obligation to defy the court order.

(2)   A lawyer may reveal confidences when ordered to by a court.  If the court improperly ordered him, then it can be decided on appeal.

(3)   What protection is there for the client if the atty can be ordered to testify?

(4)   Pearlman doctrine.  p. 921.   Client may intervene and take an interlocutory appeal.  In light of the possibility that there would be disclosure of privileged material, the client may seek interlocutory appeal.

(5)   Future Crime or Fraud.  Phelps, p. 916. Client tells his lawyer that he intends to fabricate a defense to the charge of DWI.  The lawyer withdraws from the case.  Second lawyer takes this client to trial and successfully wins using perjured testimony.  But then the govt learns of the perjury and indicts D.  GJ calls the first lawyer who testifies what his client told him.  At the pretrial hearing, the court rules that this communication was privileged.  Held, the communication made for the purpose of committing a crime are not privileged. Client argues that the privilege shields past crimes, not future crimes.  Held, as long as the communication was made before the crime was made, then its not privileged. 

(6)   Communication--------perjury----------investigation, no privilege.