Outline – Evidence

1. Introduction
a. What is evidence law?
i. Rules governing proof of facts at trial
ii. Purpose: FRE 102: to administer proceeding fairly, eliminate unjustifiable
expense and delay to ascertain the truth
b. Most trials concern/reconstruct past events
c. How to get the truth
i. Testimony of live witnesses
ii. Tested by cross-examination
d. Limitations of witness testimony
i. Cognitive error (no glasses, forgot, etc)
ii. Bias
iii. Insincerity
iv. How to overcome these:
1. By cross-examination
a. Can bring out limitations of perception and memory
b. Can bring out relationships of witnesses to parties
c. Expose insincerity (by probing the witness)
d. There is a difficulty of witness responding to unanticipated
questions
2. Upside of cognitive error:
a. Witness surprise and fatigue can lead to the truth
e. Williamson v. State: (p. 69)
i. This case illustrates some of the different kinds of evidence that can be admitted
at trial
1. Detective evidence
2. Scientific evidence
a. Did not alone prove beyond a reasonable doubt
3. Confessions
ii. Corpus delicti rule:
1. Old: you can’t convict somebody of murder unless you have a body
2. Now: if you base a conviction on a rescinded confession, you need to
show independent evidence that corroborates the events
3. In this case, the Appeals Court ruled that the corroboration by the
witnesses was enough to satisfy this requirement
f. Historical background of FRE
i. Common law until 1975, then codified by Congress who modified the draft from
the advisory committee
ii. Restyling Amendments in 2011 to clear up the language
g. How to interpret a federal rule
i. First, read the rule
ii. Second, examine the legislative history
iii. Third, case law
h. Only thing not governed by FRE is privilege law (still common law)
i. In Oklahoma the FRE got adopted for this (the part that congress did not enact)
2. Raising Objections

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a. Objections to form (these are generally curable):

i. Ambiguous, confusing or intelligible (FRE 611a)
ii. Argumentative question (FRE 611a)
1. “Are you kidding?”
iii. Asked and answered (FRE 611a + 403)
iv. Assumes facts not in evidence (FRE 611 + 611a)
1. “When did you stop beating your wife?”
v. Multifarious/compound question (FRE 611a)
1. “Where was he and what was he doing and where were you?”
vi. Harassing the witness (FRE 403 + 611a3)
vii. Leading question (FRE 611c)
1. You are suggesting an answer to the question
2. These are permissible on cross and as foundation
viii. Calls for narrative (FRE 403 + 611a)
1. Very general question
2. “What do you know about this lawsuit?”
ix. Misquoting the witness (FRE 611a)
x. Calls for speculation
1. “Is it possible that Mr. Jones met Mr. Smith before?”
xi. Not responsive
1. Objection by the examining attorney to the response of the witness
b. FRE 103 –
i. Error needs to be preserved for appellate review
ii. Two types of errors a judge can make:
1. Excluding something that should have been included
2. Including something that should have been excluded
iii. 103 (a)(1)
1. Objection must be timely
2. If not raised at first possible moment, it is waived
3. Jerden v. Amstutz (p. 81)
a. Medical malpractice action
b. Evidence in controversy:
i. Expert testimony for the plaintiff
ii. Ground for the objection: that expert knew the standard of
care in that area was not shown
c. Ruling: the objection was not timely made
d. Timeliness of objection matters because it could have been cured
4. How to make a timely objection:
a. Be fast on your feet
b. Anticipate objections
c. Motion in limine
i. Civil cases: Insurance (proof of insurance not admissible)
1. Pre-trial conference is a good time to do so
ii. Criminal: prior convictions
iv. 103 (b)
1. Wilson v. Williams (p. 84)

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a. Prison guard attack case; plaintiff a cop killer; civil action by

prisoner against the guard
b. Evidence in controversy: the prior conviction of killing a cop
i. This evidence tended to prove that he was not a credible
witness and probably the aggressor
c. => You have to prove the case at hand and not use pattern
d. => it is permissible to show character for truthfulness (eg. Life
sentence shows lack of credibility)
e. if the jury is likely to misuse the evidence, it can be completely
excluded
f. The plaintiff had a motion in limine but the trial court denied it
g. Plaintiff did not object during trial but instead told the jury why the
plaintiff was in custody
h.  If motion in limine definitive you do not have to object again to
preserve the error. But if it is a provisional/conditional ruling, then
you have to renew the objection in trial to preserve the error (now
103b)
i. in OK: even with motion in limine, you still have to object at trial
v. 103 (d): Preventing jury from hearing inadmissible evidence
1. if it happens: motion to strike and instruction to ignore it, or else mistrial
2. Anderson v. State (p. 90)
a. Evidentiary Harpoon
b. Facts: Officer blurts out that defendant was a prison escapee
c. Court held it was a harmless error because it did not affect the
verdict
vi. 103 (a)(1)(B): objection needs to be specific
1. general objection examples:
a. “whoa, whoa, whoa”
b. incompetent, irrelevant and immaterial
2. error has to affect a substantial right of a party (therefore not be harmless)
3. Haddad v. Lockheed (p. 92)
a. Evidence in controversy: ex-wife’s testimony
b. Court did not exclude ex-wife’s testimony but the error was
harmless so it couldn’t be appealed
c. Some errors are never harmless:
i. Constitutional right to a fair trial
ii. Criminal: harmless beyond a reasonable doubt
iii. Civil: apply a more probable than not standard
d. Some cases disagree with this
e.  Not all error will give rise to a new trial
vii. 103 (e): Plain error
1. no objection is needed if it is a plain error and affects a substantial right
2. Wilson v. Williams: plain error has to be clear but still cause a miscarriage
of justice
viii. 103 (a)(2): Responding to objections – offer of proof
1. kind of like laying a foundation

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2. offer of proof is a prerequisite to appellate review

a. sometimes a trial judge won’t be able to rule on admissibility
without knowing what the evidence is
b. an offer of proof can come from a representation by the attorney,
or
c. it can come from witness testimony outside jury presence
d. you need it when there are prerequisites…
i. eg admissibility of similar accidents in slip and fall cases to
show negligence
e. you need to establish foundation
3. Inselman v. S&J (p. 97)
a. Facts: landowner v. oil company claiming pollution of landowner’s
property
b. Evidence in controversy: refusal to admit evidence of defendant
purchasing and polluting neighboring property
c. Laying foundations
i. Eg: personal knowledge requirement
1. Rule against second hand testimony
ii. Routine for laying foundation:
1. Do you know who shot the sheriff?
2. How do you know?
3. Who shot the sheriff?
iii. Same idea for tangible evidence
1. Prerequisite for admissibility: that it is connected to the case
iv. Amount of foundation is judgment call, it depends on whether opposing counsel
objects
d. FRE 105 – limited admissibility
i. Often something can be admitted for one purpose but not another
ii. Limiting instruction is given to jury
1. Eg: prior conviction is admissible to show the defendant is lying but not to
show that he is guilty (in criminal cases)
2. Sometimes it does not work because juries consider it anyway
iii. Gray v. Maryland (p. 99)
1. About limits on limiting jury instructions
2. Confession of co-defendant during joint trial
3. Generally, you cannot admit it against a co-defendant because the jury can
see through it (Bruton)
4. In Richardson, all reference to a co-defendant was redacted so you could
not tell there was a co-defendant in the confession
a. This was perfectly fine and admissible
5. Redaction (just blank out defendant’s name) was too crude in this case
6. Sometimes limiting instructions do not work and you have to exclude the
evidence entirely
3. Relevance
a. If relevance of evidence is in doubt, it should always be admitted
b. Reasons for relevance limitations:

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i. Efficiency
ii. Confusing to the trier of fact
c. Rule 401: Definition of logical relevance
i. Relevance to what?
1. Relevance is a rational type of issue (not an absolute concept)
2. Is a gun always relevant in a murder?
ii. Probative value (401(a))
1. Does it have any tendency to make existence of that fact more or less
probable than without the evidence?
a. Matter of logic, not of law
b. Logical relevance is a weak test “A brick is not a wall”
iii. Materiality (401(b))
1. Is the fact of consequence to the determination of the action?
a. Criminal: elements of the crime
b. Civil: what is in the pleadings
2. Illustration of materiality:
a. King Solomon story
i. 2 women and only 1 baby, both claiming to be the mother
ii. How is it relevant to the decision?
iii. This is more of a custody case than maternity dispute
b. Union Paint
i. Paint drums (2 drums, only 1 opened with bad paint)
ii. Didn’t want to pay for second drum because first was
defective
iii. Appellate court let the evidence in
iv. => pay attention to what the material issues in your case are
c. Fuentes
i. Defendant admitted liability in wrongful death
ii. Relevance of Defendant’s blood alcohol and distance
victim was thrown in dispute
3. Tendency to prove:
a. Two types of evidence:
i. Eyeball witness (direct evidence) (not necessarily more
reliable)
ii. Circumstantial evidence (requires an inference)
1. Examples:
a. Witness sees defendant flee from scene:
i. Direct evidence of flight
ii. Circumstantial evidence of guilt
b. Testa (p. 107)
i. Jury instruction: they can infer that the records were
harmful because Walmart destroyed them (this is an
adverse inference instruction)
ii. Jurors can draft inferences without instruction to do so
iii. How does an inference work?
1. Destruction of records  records were harmful

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c. Dillon (example of chain of inferences)

i. Evidence of flight admitted
1. Reasoning: the wicked flee, the righteous are bold
(not always the case though)
ii. Use of evidence of flight depends on confidence in four
inferences:
1. Defendants behavior to flight
2. Flight to consciousness of guilt
3. Consciousness of guilt to consciousness of guilt for
crime charged
4. Consciousness of guilt for crime charged to actual
guilt
d. Marles v. Texas
i. Probative value of soiling underwear?
ii. What is the prejudicial impact?
e. Chain of inferences examples
i. Letter to victim
1. Letter  victim loves defendant’s wife
2. Love of wife  defendant was jealous
3. Jealousy  motive
ii. Self-defense if victim killed before
1. Victim killed X  defendant knew that
2. Knowledge  defendant had reasonable fear of
victim
3. Reasonable fear  self-defense
iii. Knapp v. State
1. Evidence of X’s old age
2. X dies of old age  defendant knew of X’s death of
old age
3. Knowledge  defendant’s fear not reasonable
4. No reasonable fear  no self-defense
iv. Sometimes it helps to break down a big leap of inferences
to baby steps
v. Sherrod v. Berry
1. Facts: civil rights action – police shooting of
robbery suspect
2. Evidence in controversy: that defendant was
unarmed
3. Evidence allowed in at trial; reversed on appeal
because it was not relevant
4. Material issue: Did the police officer act reasonable? (but:
reasonable under the circumstances as he saw them, not as
they turned out)
5. It would be relevant to credibility of officer if he had talked
about victim being armed or appeared to be armed

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6. In Knapp there was more of a direct contradiction of

defendant’s testimony had been told that the victim had
killed X
d. Rule 402: Rule of logical relevance
i. All relevant evidence is admissible
ii. “Except as otherwise provided”
e. Rule 403: Legal relevance (discretionary rule)
i. This is an example of “except as otherwise provided”
ii. Although relevant, evidence MAY be excluded if:
1. It costs too much to prove:
a. Undue delay
b. Cumulative evidence
c. Confusing the issue
d. Unfair prejudice
e. Misleading the jury
iii. Involves balancing probative value and other factors
iv. Gives trial judges a lot of discretion
v. Old Chief
1. Facts: prosecution for possession of gun after felony conviction
2. Evidence in controversy: judgment identifying the former felony
3. Defendant stipulates that he had a felony (not wanting to say what it was)
4. Trial court admitted felony; Supreme Court reversed
5. Rule: government is allowed to tell full story but exception: if element of
crime is a status
vi. U.S. v. Thomas
1. Evidence in controversy: tattoo of guns
2. Relevance:
a. Shows defendant’s awareness of guns
b. That he liked guns
c. Absence of mistake about guns
3. Prejudicial impact:
a. (everyone knows about guns)
b. defendant had propensity (tendency to behave in a particular way)
for guns
c. (has nothing to do with possession)
d. Propensity is an unfair prejudice ground
vii. Wyott v. State
1. Drunk driver passed out in car in parking lot
2. Defendant wears no pants, passenger wears no shirt
3. Relevance: no normal person who is sober does this
4. Prejudice?
4. Character Evidence
a. Over time, general relevance rules hardened for recurring situations
b. Logically relevant in most cases but usually excluded on legal relevance grounds
c. Examples of character traits:
i. Honesty/dishonesty

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ii. Violence/non-violence
iii. Chastity/promiscuity
iv. Mental competence/incompetence
d. When character is directly in issue:
i. You can use reputation, opinion, evidence of specific acts
ii. Examples:
1. Crime of seduction – chastity (character of victim)
2. Negligent entrustment – carelessness
3. Libel – truth as a defense and measure of damages
4. Child custody
5. Damages for loss of consortium
6. Entrapment
7. Continuing threat for death penalty (eg. Williamson case)
e. Rule 404: Character is not admissible as circumstantial evidence to prove conduct on
specific occasion
i. Exceptions for criminal cases (404(a)):
1. (a)(2)(A): Character of defendant if offered by the defendant
(“Defendant’s Mercy Rule)
a. plaintiff cannot introduce first, but can rebut it
2. (a)(2)(B): character of victim if offered by defendant
3. (a)(3): character of witness (under FRE 607-609)
a. in all cases (civil and criminal)
b. for impeachment
f. Rule 405: Means of Proof
i. If you come under exception where you can use character, you can use reputation
or opinion but not specific instances
ii. Specific instances only when the character is in issue
1. => these two came from Michelson case – CL only allowed reputation, not
opinion
iii. Michelson
1. Rationale for rule against the use of character evidence because it could
weigh too heavy on a jury and prejudice them (p. 138 para. 2)
2. Facts: prosecution for bribery. Defense: entrapment
3. Defendant called five character witnesses
a. Permitted under FRE 404(a)(2)(A)
4. Evidence in controversy: Prosecution: “Did you hear about stolen goods”,
A: “No”
5. Under FRE 405(a) this would be permissible
6. Note: the jury instruction that jury should not assume that an arrest
occurred
7. Note: the inquiry is not allowed if the past event did not actually occur
8. Note: reputation testimony was allowed at common law but not opinion
testimony
9. Note the form of the questions: “Have you heard?”
10. Note: questions can go to arrests, not limited to convictions
iv. U.S. v. Smith

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Outline – Evidence

1. Form of evidence of a victim’s character concerned here

2. Facts: prosecution for witness retaliation
3. Evidence in controversy: exclusion of victim’s misdemeanor conviction
for domestic battery and theft
4. The victim’s character is admissible under FRE 404(a)(2)(B)
5. It was admissible but still excluded because form was limited by FRE 405
because it cannot be a specific instance unless it is an element of the claim
a. Only reputation or opinion testimony could have been used here
v. Thomas v. State
1. Prosecution of robbery after former felony
2. Concerns rules for cross-examining character witnesses
3. Defendant called brother and sister as character witnesses. On cross of
defendant, prosecutor asked about defendant’s other robberies and assault
4. Also, prosecutor called the detective to testify about defendant’s
involvement in other robberies
5. This is not permissible under §2405, but it was only harmless error in this
case
5. Other Crimes (FRE 404(b))
a. It is not allowed to use other crimes to prove character
b. Admissible to prove other things (eg motive, opportunity, etc)
c. When you use this in a criminal case, you have to give notice to the accused
d. This is really an example of multiple use for evidence
e. This is separate from character evidence because you are not offering evidence of
character
f. You are proving something specific and because of that it is not limited to opinion or
reputation, proof of specific acts is allowed
g. FRE 405 does not apply to FRE 404b, only to where character is in issue which it is not
under 404b
h. US v. Sabean
i. Prosecution of doctor for tax evasion and health care fraud
ii. Evidence in controversy: incestuous relationship with daughter
iii. The evidence in controversy was supposed to show motive, had special relevance
to complete the story of the crime and prove scienter
iv. You have to account for unfair prejudice (FRE 403) which has to be weighed
against probative value
i. Illustrations:
i. Motive
1. Proof of one crime to establish motive for another crime
2. Example: murder of witness for prosecution
ii. Opportunity
1. An act can provide opportunity for another crime
2. Example: prior theft of key to premises in burglary prosecution
iii. Intent
1. Proof of prior act helps establish intent
2. Example: multiple checks on overdrawn account to show intent to defraud
in a prosecution for passing a bad check

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iv. Preparation/Plan
1. One crime may be part of an overall scheme
2. Example: theft of a getaway car to prepare for bank robbery
v. Knowledge
1. One act can be used to show defendant’s knowledge in subsequent crime
2. Example: prior drug possession used to show knowledge of drug in drug
possession prosecution
vi. Identity
1. One crime can identify defendant in other crime
2. Modus operandi / signature of the crime
3. Use proof of one crime to show the accused was perpetrator in another
crime
vii. Absence of mistake/accident
1. Prior incidents may show that a result was not a coincidence
2. Example: US v Woods: evidence of other children that suffocated like the
present case (Woods had previously suffocated 9 other children)
viii. Modus operandi: signature of the crime. Like the bad guys in home alone always
leaving the water running.
j. US v. Stacy
i. Prosecution for meth production
ii. Evidence in controversy: prior arrest for possession of meth
iii. Trial court admitted the evidence and gave limiting instructions as to intent and
knowledge, not on propensity
iv. 7th Cir. Says it was error (but it was harmless)
v. What did the possession of meth tend to show:
1. Probative of intent to use pseudoephedrine to make meth
2. Knowledge of process
vi. But to show this, the trier of fact would have to use propensity which you cannot
do because that’s character evidence
vii. Even if FRE 404(b) is satisfied, it is still not admissible because of FRE 403
viii. A lot of times prior bad acts going to intent or knowledge will be unfairly
prejudicial because they show propensity
ix. But in this case it was harmless error because there was other evidence of guilt
k. US v. Siegel
i. Prosecution for various fraud, and murder of Watkins
ii. Evidence in controversy: frauds involving her three previous husbands, daughters
and others
iii. The trial judge refused to admit because it was inflammatory and would take too
much time
iv. The appeals court reversed
v. Grounds: other crimes were intrinsic to the charged crime because they were
necessary to complete the story of the crime
vi. Sometimes courts use the term “inextricably intertwined” to justify admissibility
1. Motive: murder to cover up the fraud
2. Showed modus operandi – her pattern of committing fraud
vii. The trial judge abused his discretion (according to the appeals court)

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l. US v. Green
i. Inextricably intertwined is criticized in this case
ii. Prosecution for attempted possession with intent to distribute cocaine
iii. Evidence in controversy: defendant had threatened to kill an undercover agent
with dynamite
iv. Ground for admissibility: inextricably intertwined
1. If defendant’s conduct was part of the crime, it is not another crime
2. “Res Gestae” was a forerunner for inextricably intertwined
v. 3 problems with “inextricably intertwined” standard
1. it creates confusion
2. it is unnecessary
3. it is overbroad (almost anything could be the same crime)
vi. Alternative test
1. Evidence allowed in if
a. It is directly probative of the crime charged, or
b. Uncharged acts facilitate the crime charged
2. Applied to facts here:
a. Threat to kill did not prove crime charged or facilitate it, they were
not connected
b. But it was admissible under FRE 404(b) for motive
vii. Most courts still use the inextricably intertwined standard
m. Udemba v. Nicoli
i. Civil case illustrating open-endedness of FRE 404(B)
ii. Bad acts can be subsequent as well
iii. Civil rights violation by two police officers
iv. Evidence in controversy: subsequent arrest for striking his spouse
v. Theory of admissibility:
1. Relevance to damages because the plaintiff claimed damages for mental
anguish from false arrest
vi. Emphasizes the trial judge’s discretion on evaluating FRE 403 bounds
n. Huddleston v. US
i. Possession and selling of stolen goods in interstate commerce
ii. EIC: DF had sold other stolen property
iii. Standard of proof for admissibility of evidence
iv. Who decides admissibility of evidence
1. In general, the court decides (FRE 104)
v. Standard of proof?
1. It doesn’t say, but the judge has to be satisfied (appears to be more likely
than not)
vi. Evidence in controversy: defendant had sold other stolen property
o. Special rule for Conditional Relevance (FRE 104(b))
i. Exception to FRE 104(a)
ii. Jury decides relevance of evidence
iii. But judge decides whether there is sufficient evidence for a reasonable jury to
find relevance
iv. Example: admissibility of letter

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1. Letter only relevant if written by Y

2. Jury decides if Y wrote the letter
3. Judge rules on admissibility
v. This is a low threshold
6. FRE 412-415
a. FRE 412: Rape Shield
i. Special case of character of victim (FRE 404(a)(2)
ii. Traditionally defendants in rape cases offered evidence of victim’s past sexual
history
iii. Amounted to abuse of victims
iv. So, FRE 412 was adopted in federal courts and rape shield statutes have been
adopted in many states
v. FRE 412 has limited application in federal courts
vi. Most rape cases do not go to federal courts but stay in state courts
vii. You cannot get into the victim’s sexual predisposition, UNLESS…
viii. Exceptions:
1. Criminal cases (only specific instances)
a. If offered to show source of semen or injury
b. For consent only if the prior sexual behavior was with the accused
c. If required by the Constitution
2. Civil cases (different from 403 bc the default rule is that evidence comes
in)
a. If probative value substantially outweighs prejudicial impact
b. It favors exclusion
c. You cannot go into reputation unless the victim has put it
controversy
3. You have to give notice if you use these
ix. Judd v. Rodman
1. Suit for wrongful transmission of herpes
2. Plaintiff filed a motion in limine to exclude
a. Prior sexual history
b. Employment as nude dancer
c. Breast augmentation surgery
3. Trial court let the evidence in (and denied the motion in limine)
4. Appeals court affirmed the ruling
5. Relevance of sexual history?
a. Source of herpes
6. Relevance of employment?
a. Damages issue
7. Relevance of breast surgery?
a. She did not object to it under FRE 412, so the error was waived
x. US v. Platero
1. Facts: prosecution for aggravated sexual assault; defense: consent
2. Evidence in controversy: the victim’s relationship with the companion
who was not her husband
3. Evidence was not allowed in trial – reversed on appeal

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4. Relevance of the evidence: it goes to motive for the victim and companion
to make up a story against the defendant to cover up their affair
5. Constitutional right to confront the victim overrides rape shield
6. Grounds for admissibility: 6th amendment confrontation clause
7. Who decides whether there was an adequate foundation?
a. Old rule: judge’s call by preponderance of the evidence
b. New rule: the jury makes the call; conditional relevance issue for
the jury to decide if there was sufficient evidence for a reasonable
jury to find that there was an adequate foundation
b. OK Statute 2412
i. Substantially less protection for the victim than federal statute
ii. No protection for victims in civil cases
iii. Evidence is admitted if:
1. Offered for other purposes besides consent (in FRE it’s only for course of
semen, and injury)
2. False allegations of sexual offenses
3. Sexual acts with others in the presence of the accused
iv. Collins v. State
1. Prosecution for rape and kidnapping
2. Evidence in controversy: victim’s history of prostitution
3. Defendant’s argument for admissibility
a. Credibility
b. Required by Constitution
4. The Court of Criminal Appeals confirmed the conviction
c. FRE 413-415 (OK has adopted these)
i. Added in 1994
ii. Allows for similar crimes to be admissible in sexual assault cases
iii. FRE 413: for sexual assault
iv. FRE 414: for child molestation
v. FRE 415: civil cases involving sexual assault or child molestation
vi. Rationale for admissibility:
1. In most cases the main issue is consent by the victim, rather than the
identity of the perpetrator. So there is a lesser danger of police rounding
up the usual suspects
2. The defendant’s prior sexual assault is especially probative on the consent
issue
vii. US v. Rogers
1. Prosecution for attempting to entice a minor to engage in sexual activity
and use of the internet to attempt to transfer obscene material
2. Evidence in controversy:
a. 2001 conviction for solicitation of a minor
b. 2005 conversations with a 14-year-old
3. 7th Cir. Held it admissible under FRE 413
4. In contrast to FRE 404, FRE 413 allows propensity evidence to be
admissible

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5. But the Court also held that courts must still consider the danger of unfair
prejudice under FRE 403
7. FRE 406: Habit and Routine Practice
a. In contrast to character evidence, habit evidence is admissible to prove conduct on a
particular occasion
b. Reason for admissibility: habit is more reliable because it is more consistent than
character
c. Habit includes a business custom
i. Example: mailing a letter by secretary
d. Habit is normally proved through specific instances rather than opinion evidence
e. Characteristics of habit
i. Number of repetitions
ii. Uniformity of response
iii. Involuntary reflex
f. Examples of habit from the advisory notes
i. Not admissible of habit
1. Temperance (drunkenness)
2. Other assaults
3. Religious observances/ ”habits”
ii. Admissible of habit
1. Business transactions with other persons
2. Proof that the decedent was the pilot on previous flights to show he was
the pilot on the flight that crashed
iii. Key factors are the adequacy of sampling and the uniformity of the response
g. Perrin v. Anderson
i. Civil rights case against cops (OHP) who shot decedent
ii. Evidence in controversy: testimony of prior violent encounters with decedent by
police
iii. Trial court admitted it as character and habit
iv. The appeals court says it doesn’t work as character evidence
v. Character of victim is only admissible in criminal cases, but appeals court says it
can come in under FRE 406 habit
vi. 5 incidents are normally not enough for habit, but here there were 8
vii. Standard applied: “regular practice of meeting a particular kind of situation with a
certain type of conduct”
h. Wacker v. State
i. Are driving habits admissible?
ii. Facts: defendant is trying to blame sister for drunk driving
iii. Evidence in controversy: Evidence that sister drives drunk often and wanted to
prove that the sister was the driver, not the defendant
iv. Habit or character?
1. Test: volitional decisions, regular practice, “person’s regular practice of
meeting a particular kind of situation with a specific type of conduct”
2. Significant factor is the degree of volition required
a. The more thought, the more likely it is character
b. The more reflexive, the more likely it is habit

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v. Conclusion: The sister’s drinking and driving was not a habit because it involved
volitional decision
8. Subsequent Precautions and Compromise
a. FRE 407 – Subsequent remedial measures
i. Not admissible to prove
1. Negligence
2. Culpable conduct
3. Product defect
4. Need for warning
ii. But it is admissible to prove other things
1. Impeachment
2. If disputed:
a. proving ownership
b. proving control
c. proving feasibility of precautionary measures
3. Rationale:
a. relevance
b. policy choice to not discourage people from making repairs
4. But: exceptions may still discourage repairs, because the rule is not
airtight
b. FRE 411 – Liability Insurance
i. Liability insurance cannot be used in general to prove liability
ii. But it can be allowed in for other purposes, for example:
1. Proving a witness’ bias
2. Agency
3. Control
iii. Rationale: to encourage people to get liability insurance
iv. Kurz v. Nebraska
1. Action about a snowstorm cattle escape
2. Evidence in Controversy: cattle previously escaped and defendant erected
snow fences
3. Admissible?
a. Court says yes because the manager testified that snow fences
would not have made a difference
i. Used as impeachment
ii. Used to show feasibility of precautionary measure
v. Harrison v. Sears
1. Facts: Joiner, the plaintiff injured and lost finger
2. The plaintiff claimed that his fingers slipped inside the machine when he
tried to turn it off
3. Sears expert testified that the defendant stuck his fingers in there
intentionally
4. Evidence in controversy: Sear’s subsequent remedial measures of
changing the design of the jointer

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Outline – Evidence

5. The trial court didn’t allow it in and the appeals court affirmed because
FRE 407 allows it but it is still subject to the balancing test of FRE 403,
otherwise the exception would swallow the rule
c. FRE 408 – Compromise
i. Evidence of offers/acceptance of compromise is not admissible
ii. That also includes statements made in compromise negotiations
iii. There is an exception for statements made in compromise negotiations if offered
in a criminal case and the negotiation is related to a claim by a governmental
entity
iv. There has to be a dispute
v. Admissible for other things, such as
1. Proving witness’ bias or prejudice
a. Example: Mary Carter agreement: multiple defendants; settlement
with defendant1 provides for $200k to be reduced to the extent that
the plaintiff recovers more than $500k from defendant2
2. Negating a contention of undue delay
a. If statute of limitations passes because of negotiations
3. Proof of effort to obstruct criminal prosecution
d. FRE 409 – Offer to pay expenses
i. Evidence of offer to pay medical expenses is not admissible to prove liability
ii. That does not include property damage
e. FRE 410 – Plea bargaining
i. Guilty pleas are admissible
ii. Guilty pleas that are withdrawn and nolo contendere pleas are not admissible
iii. Exception: to prove perjury or if the defendant introduces part of a statement, the
prosecution can introduce the rest of it
iv. Rationale: probative value may be strong and it is excluded because of public
policy favoring settlement
f. EEOC v. Gear Petroleum
i. Issues: scope of compromise negotiations and exception of general rule of non-
admissibility
ii. Facts: age discrimination claim filed against employer
iii. Evidence in controversy: two letters from the defendant’s lawyer talking about
mandatory retirement at 65
iv. Were the letters part of the compromise negotiations?
1. The trial court ruled they were and appeals court affirmed
2. Reason: Compromise Negotiations are going hand in hand with
investigation of claims by the EEOC
v. Were the letters admissible for impeachment?
1. Impeachment is not listed, but the law is open ended
2. Admission for impeachment must be balanced against improper purpose
to establish liability
9. FRE 201 - Judicial Notice
a. Easiest method of proof
i. No proof at all
ii. Normally a judge decides the law, juries decide the facts

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Outline – Evidence

iii. Judicial notice involves taking certain factual issues away from the jury
b. Adjudicative facts are facts of a particular case that go to the jury
c. Legislative facts are facts that have relevance to legal reasoning and the lawmaking
process
d. Adjudicative facts
i. Facts generally known within the trial court’s jurisdiction
1. Example: the sky is blue
ii. Can be readily ascertained from sources that have indisputable accuracy
1. Example: calendar, almanacs, maps
e. Beardsley v. Irving
i. Action to recover damages on warranty on a horse
ii. Issue: validity of the contract
iii. Question in case: Was March 6, 1906 a Sunday? (Because no contracts were
allowed to be made on Sundays)
iv. Jury found the contract enforceable but the appeals court said it was a Sunday and
therefore the contract was unenforceable and reversed
f. Procedure for Judicial Notice (FRE 201 (d)-(f))
i. Court can do it on its own
ii. Court can do it on a motion by a party
iii. The opposing party is entitled to be heard
iv. It may be taken at any time
1. But pre-trial conference is a good time for this in civil cases
v. Jury instructions
1. Criminal: jury can find the fact true without proof or it can find it not true
2. Civil: conclusive
vi. US v. Bello
1. Prosecution for assault in a prison
2. Issue: was the prison located inside the US?
3. The court took judicial notice that it was in the US but left the ultimate
decision to the jury
g. Judicial notice on laws
i. Federal courts
1. Take judicial notice of all federal and state laws
2. Other laws are determined under FRCP 44.1 (eg foreign laws)
ii. Oklahoma courts
1. OK Statute title 12 § 2201
2. Mandatory judicial notice for all state and federal laws
3. Judicial notice may be taken of private acts of Congress, municipal
ordinances, and foreign laws
4. Hishaw v. OKC
a. Judicial notice of municipal ordinances discussed
b. The Court of Criminal Appeals refused to take judicial notice of a
municipal ordinance that was not included in the record on appeal
h. Legislative facts
i. Like laws
ii. Discussed in the Advisory Notes to FRE 201(a)

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Outline – Evidence

iii. They do not have to be indisputable

iv. This is not really an evidence topic
v. Examples:
1. Legislative history is factual information used in interpretation of the
purpose of the laws
2. Hawkins
a. Issue was whether to overrule the common law rule that one
spouse could not testify against another
b. Supreme Court refused to do so because it would destroy
marriages
3. Equal protection analysis
a. Apply strict scrutiny for a suspect class or fundamental rights
b. Rational basis test for others
c. How do you know if you have a suspect class or fundamental
right?
4. Brown v. Board of Education
a. Are separate educational facilities inherently unequal?
b. To answer the question, the Supreme Court examined a number of
social studies
5. Muller v. Oregon
a. Brandeis brief case
b. Oregon passed a women’s labor statute which prohibited more
than 10 hours of work a day for women
c. Was it constitutional under Lochner v. NY which struck down a
similar law for men?
d. Brandeis presented a number of reports described in the footnotes
on p. 230 to show that the differences between men and women
required a different rule for women
e. The reports were not introduced into evidence, but were instead
submitted in the Brandeis brief
f. Note the archaic factual conclusions that the court reaches about
the differences between men and women
10. Competency
a. Distinguish competency from privilege
i. Competency: witness is/is not qualified to testify
ii. Privilege: witness is not required (or allowed) to disclose a confidential
communication
b. Competency objection should be raised as soon as grounds are known
c. Historical background:
i. Old restrictions:
1. Infamy – convicted felons not competent
2. Interest in litigation
a. Prohibited parties from testifying
b. Dead Man’s Act (witness against dead man)
3. Religious belief
4. Marital relationship

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Outline – Evidence

a. Rationale: to protect marriage

b. Distinguish from privilege for confidential communications
d. FRE 601 – Who is competent
i. Everyone is competent unless otherwise provided
ii. Preserves State competency rules in diversity cases
e. FRE 602
i. Qualification on FRE 601
ii. Requirements of personal knowledge elements:
1. Observation
2. Recollection
3. Communication
f. FRE 603
i. Requirement to take an oath or affirmation
ii. Implies that the witness must understand the oath
iii. This can weed out some children and very insane persons
g. FRE 604
i. Interpreters must swear to true translation
h. Child witnesses
i. No set age limit, but children under 5 may have trouble distinguishing fantasy
from reality
ii. 18 USC § 3509
1. special competency examination for child victims and child witnesses to
crime
2. for other witnesses, competency examination takes place in front of the
jury to allow jury to evaluate the competency in order to decide what
weight to give the testimony
iii. OK 12 §2611.2-2611.12 authorizes trial judges to use alternative methods for
taking testimony of a child witness
iv. US v. Allen
1. Prosecution for sexual abuse of 12-year-old
2. Defendant challenged competency of the victim to testify
3. The conviction was affirmed
4. She had retardation and fetal alcohol syndrome but the court determined
she was still fine to testify
5. 10th Circuit establishes a presumption of competency for children
6. mental capacity goes to weight and credibility of the testimony, rather than
competency of witness
7. although victim was mentally retarded, prosecution established that she
knew the difference between truth and lies, that she was supposed to tell
the truth and that she would be punished if she lied
8. The jury judged her credibility
i. FRE 605 – Judge cannot testify in own case
i. No objection is required
ii. Lillie v. US
1. The judge conducted an investigation of the scene of the accident
2. Appeals court: this was an abuse of discretion

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Outline – Evidence

j. FRE 606 – Jurors cannot testify in own case

i. FRE 606 (a)
1. Jurors cannot testify in own case
ii. FRE 606 (b)
1. Juror may not impeach a verdict
a. Exceptions exist for
i. extraneous prejudicial information
ii. outside influence
iii. mistakes in entering the verdict on the verdict form
b. Policy: to keep trial lawyers from attacking jury after the trial
iii. Pena v. Colorado
1. Criminal prosecution of a Hispanic for sexual assault
2. During the deliberations one of the jurors made a number of racist
comments
3. Several jurors disclosed the racist comments to defendant’s counsel who
prepared affidavits for them
4. Defense counsel sought a new trial which the judge denied under FRE
606(b)
5. The appeals court affirmed, but the Supreme Court reversed under the 6th
Amendment
a. FRE 606 (b) bars testimony from jurors about deliberations with
some exceptions
b. Under Tanner v. Warger, a verdict may not be impeached for most
kinds of juror misconduct (like using drugs or lying about a bias)
c. But racial bias is different under the 6th Amendment
k. Competency of attorneys
i. Lawyers are not incompetent, but have an ethical prohibition if they testify at trial
because of conflicting duties
1. Duty of witness – to tell the truth
2. Duty of attorney – advocate
3. Jury might get confused by conflicting roles if the attorney was both
witness and advocate
ii. ABA Rule 3.7
1. Lawyer may not be witness and advocate
2. Exceptions
a. Uncontested
b. Related to the value of legal services
c. Substantial hardship on client
3. A lawyer can be an advocate if a member of their firm is a witness –
unless doing so would create conflict of interest between the client and the
firm
4. Cartier case
a. Trademark infringement suit
b. The plaintiff designated a lawyer as a representative for a
deposition
c. Did this violate NY’s 3.7?

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i. No, but it may prevent the lawyer from serving as trial

counsel if his deposition is offered or he is a witness at trial
5. PiE 12.2
a. In state court: judge acted properly, up to judge’s discretion
b. Motion to strike should be overruled because it was a question for
the jury whether she had personal knowledge or not
6. PiE 12.4
a. (A): Prosecutor should be testifying but be disqualified from being
counsel on this case
b. (B) Should the judge testify? The judge should be disqualified
from the case as a judge
11. Authentication
a. A foundation is required for admission
b. There may be additional requirements, such as exception to hearsay rule
c. Showing a connection of evidence to the facts of the case
d. FRE 901(a)
i. Requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter
in question is what is claims to be
ii. Advisory Notes:
1. Don’t presume a document is what it appears to be
2. In general you need a witness to authenticate it by connecting it to a
material issue in the case
iii. Procedure to authenticate documents
1. Have it marked by court clerk or at pre-trial conference
2. Give it to opposing counsel and judge
3. Request permission to approach the witness
4. Show the document to witness and lay foundation
a. Do you know what Exhibit is?
b. How do you know?
c. What is it?
5. Move for admission into evidence
6. Once it is admitted, it can be shown to the jury
e. FRE 106
i. Rule of Completeness
ii. If you admit part of a document, the opposing party can introduce the remainder
f. Alternatives to authentication
i. Stipulation
1. Encouraged by trial courts
ii. Request for admission (FRCP 36(a)(1)(B))
iii. 12 OS 3009 Exception for medical bills
1. person who receive the bill can authenticate the bill
2. This is just Oklahoma, not federal
g. FRE 901(b)
i. Procedures for authentications
ii. Testimony of witness with personal knowledge

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Outline – Evidence

1. Example: chain of custody

2. Often used in criminal cases to authenticate items not distinctively
recognizable, such as drugs
iii. Fixico case
1. Grand larceny case
2. Theft of building supplies from a home
3. Issue: How do you know the items in photo were stolen?
4. Chain of custody is one method:
a. This would involve taking an inventory of stolen items when they
were first recovered and keeping tabs on them until trial
b. This provides proof that the evidence introduced at trial is the same
as that which was recovered
iv. FRE 901(b)(2) – Non-expert opinion in handwriting
1. Conditional relevancy: sufficient evidence that jury could find it authentic
2. Example:
a. are you acquainted with X’s signature?
b. How are you acquainted?
c. Is this X’s signature?
3. extensive showing is not required under conditional relevance standard –
FRE 104(b)
4. familiarity cannot be acquired for litigation
a. Gilhooly case
i. Embezzlement case
ii. Defendant tried to cash checks he wrote on his employer’s
account
iii. The employer identified the signature
v. FRE 901(b)(3) – comparison by handwriting expert or trier of fact
1. Comparison requires introduction of handwriting sample that is not itself
relevant to any material issues in the case but which can be shown to be
written by X
2. Then expert or trier of fact makes comparison to the relevant document in
issue
3. Use of expert is preferred to reliance on trier of fact
vi. FRE 901(b)(4) – Distinctive characteristics
1. Circumstantial evidence
2. You infer authenticity in some way
3. Example: Reply letter doctrine
a. A writes letter to B – I offer to sell Blackacre for $50k
b. B writes back – I agree to buy Blackacre for $40k
c. A writes back – sold
d. If A wants to prove the contract of sale, A will have to authenticate
B’s letter. How does A know B’s letter came from B?
e. B’s letter may be authenticated by the surrounding circumstances,
because A’s receipt of the letter after sending A’s first letter to B is
circumstantial proof that the letter came from B. This is based on
the inference that A’s letter probably got to B

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Outline – Evidence

4. US v. Vayner (p. 254)

a. Prosecution for transfer of a false ID document
b. Defendant was a forger who created a false birth certificate for a
Ukrainian citizen living in Brooklyn so that he could avoid military
service
c. Evidence in controversy: printout of a webpage for defendant’s
profile on VK.com (Russian Facebook), this had information that
corroborated the Ukranian’s testimony
d. Was this website properly authenticated>
i. No because there was no evidence that would permit a
reasonable conclusion that the webpage was created by
defendant or on his behalf
e. Some showing was required for a reasonable juror to conclude that
the printout was the defendant’s profile on VK.com
vii. FRE 901(b)(5) – Opinion about a voice
1. Mostly for phone conversations
2. Similar to authentication by non-expert opinion
3. …
viii. FRE 901(b)(6)
1. For phone calls
2. Analogous to reply letter doctrine
3. If witness places a call to a particular number and the person on the other
end either identifies himself or there is other circumstantial evidence, the
call is authenticated
4. But there is no authentication if the witness receives a phone call and a
voice on the other end identifies himself
ix. FRE 901(b)(7) – Public Record
1. Requires proof of filing in public office
2. You need a witness to testify that the document was there
x. FRE 901(b)(8) – Ancient Document
1. Admissibility based on unavailability of alternatives and unmlikelihood of
long term fraud
2. 20 years is usually the age required
xi. FRE 901(b)(9) – Process/System
1. Example: X-rays or computer printout
2. State v. Haight-Gyuro (p. 259)
a. Silent witness theory
b. Defendant was identified by surveillance video
c. The video was authenticated under FRE 901(b)(9) by process by
which it was made
d. It is referred to as the “silent witness” theory
xii. FRE 901(b)(10) – Methods provided by statute or rule
xiii. This list is not exhaustive
h. FRE 902
i. Self-authentication
ii. Long list of items

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Outline – Evidence

iii. Generally public documents

iv. Reason for self-authentication is so that keepers of public records will not have to
come to court all the time
v. Generally, you need some sort of certified copy or seal to satisfy FRE 902
1. In contrast FRE 901(b)(7) requires witness testimony
vi. Newspapers and periodicals, trade labels are also self-authenticating
1. Example: Baby Ruth candy bar
i. FRE 903
i. Subscribing witness testimony
ii. Example: wills: in order to introduce a will you need your witnesses to come in to
authenticate the will
iii. Testimony of a subscribing witness is not required unless it is required by the
laws of that jurisdiction
iv. …
v. There is an exception for self-proving wills in most states
1. Will is self-proving if subscribing witness’ signature is notarized
2. See 84 OS 55
12. Best evidence Rule
a. FRE 1001 – Definition
i. Original writing, recording or photo is required if you are trying to prove the
content of the writing, recording or photo unless there is an exception to the rule
ii. Writings or recordings are defined broadly
iii. Photo includes x-rays and video recordings
iv. An original is the writing itself and any counterpart intended as an original (a
counterpart means there are multiple originals)
1. Example: contracts with multiple copies
v. Then every party can bring their own copy (counterpart) to court to enforce it
vi. Original photo includes negatives and prints made from them
vii. For computer data, any printout is an original
viii. Duplicate: A copy made by electrical, mechanical or chemical means
b. FRE 1002
i. You need an original, not a copy
ii. Important point: only applies when proving the contents of a writing, recording or
photo
1. Example
a. Attorney offers photo of locomotive
b. Objection: best evidence
iii. US v. Workinger
1. Prosecution for tax evasion by dentist
2. Evidence in controversy: transcript of a tape recording of an interview
with the defendant (the original tape was destroyed)
3. Majority says that exception in FRE 1004 applies because the original is
unavailable (the best evidence rule does apply but there is an exception)
4. Concurrence: the best evidence rule does not apply because they weren’t
proving the content of the tape but what was in the interview
5. BER Triangle

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Outline – Evidence

Writing

Testimony NO BER Conclusion

iv. The rule does not apply

1. to prove an event even though a written record is made (see triangle)
2. to prove a payment of debt. Testimony that the debt was paid is allowed
without receipt
3. to prove earnings of a business. Don’t need to bring in accounting records
4. to prove absence of entry in records. Don’t need to bring the records
5. to identify a photo as a correct representation of events a witness saw
6. Examples where rule does not apply:
a. Lopez case
i. Prosecution for Immigration violation
ii. Evidence in controversy: testimony of a border patrol agent
about the search of a database for the defendant’s filing of
an immigration form
iii. Court decided the best evidence rule did not apply to
testimony about what was not in a database
b. Smith case
i. Prosecution for accepting a bribe
ii. Evidence in controversy: accounting records offered to
show amount of federal funds received without any
supporting documentation
c. US v. Buchanan
i. Something written on a chattel is not a writing
ii. Prosecution for distribution of cocaine
iii. Evidence in controversy: numeric inscription on a safe that
contained lease for premises where cocaine was found
iv. Court decided that best evidence rule did not apply because
the safe was not a writing. Instead it was a chattel
v. Similarly, in US v. Duffy the court decided that best
evidence rule did not apply to a laundry mark on a white
shirt that was found in a suitcase in a stolen car
vi. Also, in Yamin v. US, the best evidence rule did not apply
to a false trademark on a counterfeit watch
v. The rule does apply if an event is sought to be proved by a written record
1. To show copyright violations
2. Surveillance photo to prove the identity of bank robber
3. Photo of defendant in an indecent act
4. X-rays
5. Examples where rule applies:
a. Workinger case

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Outline – Evidence

b. Star Wars case (copyright infringement)

i. Evidence in controversy: plaintiff’s reconstruction of
originals of Garthian Striders that were drawings made
after the movie came out
ii. The original drawings made before the movie were
required to prevent fraud on the court
c. US v. Bennet
i. Prosecution for importing marijuana
ii. Prosecution offered testimony of a customs officer about
readings on a GPS to show that a boat had been in Mexican
waters
iii. The court required the GPS or a printout from it, as
opposed to the officer’s testimony
vi. Exceptions to Best Evidence Rule
1. Generally, you can avoid problems with Best Evidence Rule if you are
aware of them in advance
2. FRE 1003 – Duplicates
a. Duplicate is defined in FRE 1001(4) as a copy made by
mechanical, electrical or chemical means
b. Duplicates are admissible as originals, except
i. If there is a genuine question as to authenticity of the
original, or
ii. It would be unfair not to require an original
1. Example: Toho Bussan case at end of advisory note
(p. 253) where the copy was prepared for purposes
of the litigation
c. FRE 1004 – excuses for not having original
i. Original was lost or destroyed, unless it was in bad faith
ii. Not attainable by judicial process
iii. Original is in possession of opponent
iv. Writing is not important – only a collateral issue
d. FRE 1005 – Public Records
i. Like deeds or judgments, etc
ii. Use certified copies instead of original
e. FRE 1006 – Summaries
i. Allowed for voluminous exhibits
f. FRE 1007
i. Estoppel where opposing party admits content of writing
g. FRE 1008
i. Division of function of judge and jury
ii. Judge decides whether an exception to the rule applies
iii. The jury decides whether an original ever existed or the
copy is accurate (conditional relevance)
13. Burden of Proof
a. Distinguish from admissibility
b. Civil standards

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Outline – Evidence

i. Preponderance of the evidence

ii. More likely than not
iii. Greater weight of the evidence
c. Criminal standards
i. Beyond a reasonable doubt
ii. US v. Glass: it’s self-explanatory
d. Clear and Convincing evidence standard
i. Used for civil cases where there are particularly substantial interests involved
ii. Intermediate standard
iii. Examples: termination of parental rights and fraud
iv. In Grogan, the SCOTUS ruled that the normal preponderance of the evidence
standard applied with respect to proof of fraud for purposes of non-
dischargeability of a debt in a bankruptcy case
v. Either of these is unconstitutional under prior case law
e. So only mandatory presumptions affecting the burden of producing evidence and
permissive presumptions are constitutional
f. Corpus Delicti Rule for Confessions in Criminal cases
i. Under the CL version of the Corpus rule, a confession would not be sufficient to
satisfy proof beyond a reasonable doubt
ii. The rule is based on the unreliability of confessions
iii. The Corpus rule has been rejected by the USSC. The standard is whether a
confession is reliable and a confession is reliable if it is supported by substantial,
independent evidence
g. US v. Niebla-Torres (p. 288)
i. Prosecution for conspiracy to possess marijuana with intent to distribute
ii. Evidence offered against the DF? Testimony by border patrol agents about the
DF’s confession
iii. The Corpus rule requires independent, tangible, corroborating evidence of the
gravamen of the offense apart from the confession. It doesn’t require evidence of
every element of the crime, though.
iv. The Court held the requirement was satisfied by a variety of circumstantial
evidence of the conspiracy to smuggle marijuana across the border. P 291, under
2.
h. Other Corroboration Requirements (pp. 294-295)
i. Okla 692- murder prosecutions
ii. Okla 742- accomplice
iii. Okla 743- false pretenses
iv. Okla 744- seduction
v. Rape cases- corroboration required only where the victim’s testimony is
untrustworthy
i. Two Meanings of Burden of Proof in Civil Cases
i. Burden of persuasion
ii. Burden of producing evidence
j. Burden of Persuasion
i. A tie-breaking rule for the situation where the evidence is exactly 50/50. If this
occurs, what is the jury suppose to do?

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ii. While this may happen only rarely, the judge needs to give the correct instruction
in every case, just in case it does happen.
iii. How do you tell which side has the burden of persuasion on a particular issue?
Case law. In absence of case law look to (1) the party who is seeking to sustain an
affirmative; (2) pleadings, (3) who has the best access to information? (4) whose
contentions are the most out of the ordinary?
k. Burden of Producing Evidence
i. Jury control device
ii. What should the judge do if neither side offers any evidence on a particular issue?
iii. Take the case away from the side with the burden of producing evidence.
iv. Sometimes burden of producing evidence will shift from one side to the other
v. How much evidence is sufficient to satisfy the burden of producing evidence?
l. Reid v. San Pedro Railroad
i. Facts- Farmer sued the railroad for death of a cow
ii. Issue- Did the cow go through the gate the farmer left open or the hole in the
fence the railroad caused?
iii. Court ordered judgment NOV for the railroad
m. Presumptions in Civil Cases
i. Three ways to satisfy burden of proof: (1) Direct evidence (eyeball witness); (2)
circumstantial evidence (indirect proof based on inferences); (3) Presumptions
ii. Two types of presumptions: conclusive and rebuttable
n. Conclusive Presumptions
i. A conclusive presumptions is really a rule of law in disguise
ii. Proof of Fact A, establishes Fact B conclusively, and it cannot be rebutted
iii. What this means is that proof of fact B is not required
o. Examples: David v. Wanda (p. 298)
i. Facts- PL brought a paternity action against a married couple to establish that the
PL was the father of the child
ii. Conclusive presumption of legitimacy in Okla. Stat. tit. 10 §1, 3- a child born to a
married couple is presumed to be the child of both of them, and this presumption
may not be disputed if they rear the child for 2 years
p. Rebuttable Presumptions
i. More common that conclusive presumptions
ii. See def. in Okla Stat. 12 § 2301(1)- a rue of procedure which means that when a
basic fact exists the existence of another fact must be assumed
iii. Example- Okla 58 § 9441 (p. 297)
iv. Mailing of a letter… you presume they receive it in course of ordinary mail. Or if
you haven’t heard from a person in 7 years… you presume they are dead.
q. FRE 301
i. A presumption affects only the burden of producing evidence and does not affect
the burden of persuasion
ii. For diversity cases, apply the state law on presumptions
r. Lupyan (p. 301)
i. Facts- the PL sued her employer under the FMLA, which allows employees 12
weeks of leave each year for medical reasons

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ii. The FMLA requires employers to give employees individual written notice of
their rihts under the FMLA, and the PL alleged that the employer had not given
her written notice, The PL needed the notice so that she would know that she had
to return to work after the allotted 12 weeks of leave.
iii. The employer submitted affidavits showing its customary practice of mailing the
FMLA letter to the PL, but the PL denied that she had ever received the letter.
iv. The trial court granted summary judgment for the employer, but the COA reverse.
v. Under the mailbox rule, there was a presumption of receipt from proof of mailing.
vi. Then the burden of producing evidence shifted to the PL to rebut the presumption.
vii. The COA held that the PL’s denial of the receipt rebutted the presumption, and
this created an issue of fact.
viii. In this case, the burden of persuasion was on the PL. See note 4 on p. 306.
s. St. Mary’s (p. 307)
i. Application in Title VII- how do you prove intent to discriminate? Direct
evidence? Most common was is with a presumption.
ii. Presumption for Title VII (p. 308, under heading II). PL offers proof that he is
black, was qualified for the position, he was demoted and discharged, and a white
man filled position.
iii. This produces a rebuttable presumption- racial discrimination employment.
iv. The presumption places burden on DF employer to produce evidence of a
legitimate, nondiscriminatory reason
v. Under FRE 301, the burden of persuasion remains on the PL to prove intent to
discriminate by a preponderance of the evidence
vi. Application of FRE 301 to these facts…
vii. In this case, the employers explanation for demoting the PL was that he violated
many rules
viii. The TC found that the employer’s explanation was not the real reason that PL was
demoted because other employees has rule violations and they had not been fired.
ix. But the TC also found that the PL had not satisfied the burden of persuasion that
there was intent to discriminate on a basis of race.
x. So the SC affirmed the TC judgment.
t. Okla 12 § 2303 (p. 312) divides rebuttable presumptions into 2 categories
i. Where the basic fact has any probative value of the presumed fact… Then both
the burden of producing evidence and burden of persuasion are shifted.
ii. Where it does not… only the burden of producing evidence is shifted (like in FRE
301)
u. Example of category 1: Goodrich (p. 313)
i. Facts- workers comp case. PL had earlier injury in 1977 (16% disability). After
second injury in 78 PL had a 34% disability.
ii. Issue- How much was PL disabled immediately before the 78 injury?
iii. Presumption- no change since previous adjudication of disability.
iv. Effect of presumption (last p)- shifts both burned of producing evidence and
persuasion
v. Example of category 2:

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i. Cali labor code § 3708- if an employer does no pay into the workers comp fund,
and an employee gets injured on the job, the employer is presumed negligent and
the negligence was the proximate cause of the employee’s injury.
ii. Purpose of the statute- to give employers an incentive to make payments into the
workers comp fund
w. Criminal Presumptions
i. Different terminology used for criminal presumptions than civil
ii. 4 categories of criminal presumptions: (1) conclusive (2) mandatory that shifts
burden of persuasion (3) mandatory that shifts burden of producing evidence (4)
permissive presumption
x. Criminal Presumptions: Illustration Okla 21 §1713(2) (p. 316)
i. Receiving stolen property statute
ii. Presume knowledge that property is stolen from failure to make reasonable
inquiry
y. Constitutionality of Presumptions: Sandstrom (p. 317)
i. Facts- prosecution for deliberate homicide
ii. To prove intent, use presumption that a person intends the ordinary consequences
of his voluntary acts
iii. Conviction reversed, because of violation of the 14 amendment that state must
prove every element of the crime
iv. What category of presumption was involved? Either a conclusive presumption or
a mandatory presumption that shifts the burned of persuasion. Either of these is
unconstitutional under prior case law.
v. So, only mandatory presumptions affecting the burden of producing evidence and
permissive presumptions are constitutional
z. Ulster County case (p. 321)
i. Gun control statute/prosecution for possession of firearms in a vehicle
ii. Conviction was based on statutory presumption that all persons in the vehicle had
possession of the firearms
iii. The presumption in this case was a permissive presumption, as made clear by the
jury instructions
iv. Permissive presumptions require only a rational connection as applied to the facts
of the case between the evidence offered and the fact sought to be proved to be
constitutional
aa. Mandatory presumptions affecting the burden of producing evidence
i. These may be constitutional, but only if judged on their face, the inference is
supported in the run of cases beyond a reasonable doubt (see p. 321 top and 323
top)
ii. Example of mandatory presumption affecting the burden of producing evidence
1. In federal drug cases, there used to be a requirement of importation to get
into federal court
2. Prosecutors relied on a presumption to satisfy this requirement
iii. Leary v. US (p. 321, n. 17)
1. The defendant was found with small quantity of marijuana in his car at the
Mexican border

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2. The defendant admitted possession, but denied that he knew it was

imported
3. The court instructed the jury that the defendant had the burden of
explaining possession to the satisfaction of the jury
4. The conviction was reversed because the presumption was irrational.
There is no factual basis for presuming that marijuana is from a foreign
country
5. In contrast, a presumption that heroin is from a foreign country would be
upheld because heroin does not grow in the US (Turner v. US)
bb. Permissive presumptions
i. A permissive presumption is merely an inference, and it is constitutional as long
as it is rational
ii. An inference is characterized by a jury instruction that the jury may find, but is
not required to find, that the fact in issue follows from the fact that was proved
iii. US v. Cota-Meza (p. 324)
1. Prosecution for possession of cocaine with intent to distribute
2. Issue: was the jury instruction on the presumption of constructive
possession proper?
3. Ruling by 10th circuit
a. The instruction was proper because it was permissive instruction
b. Also, there was a rational connection between the fact proved (sole
possession of the van) and the fact presumed (constructive
possession of the cocaine)
iv. Oklahoma:
1. 12 OS 2304(C): only permissive presumptions are allowed
v. Similarly, the proposed FRE 303(c) would have allowed only permissive
presumptions
vi. Conclusion:
1. Only permissive presumptions and mandatory presumption affecting the
burden of producing evidence are constitutional
2. Jury instructions determine which kind of presumption it is
vii. Give instruction to jury about permissive presumption
14. FRE 701 - Lay opinion testimony
a. policy behind this exclusion of most opinion testimony from lay witnesses
i. trier of fact is supposed to draw its own conclusions based on facts from witnesses
ii. for issues where no special expertise is required, jury is as capable of drawing
conclusions as the witness
iii. where special expertise is required, jury is as capable of drawing conclusion as the
witness
iv. where special expertise is required so that the jury cannot draw its own
conclusions without help, a qualified expert is necessary
b. How to separate facts from opinion?
i. See advisory notes (p. 149) – it’s a practical impossibility
ii. It is really a matter of degree with facts being a more specific and concrete
description while opinion is more general
iii. Example: Defendant was drunk at the time of the accident

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1. This is a conclusion
2. You can make it factual by breaking the conclusion down to the specific
details that lead to the conclusion
c. Examples of permissible lay opinion:
i. The defendant was drunk
ii. It smelled like gun powder
iii. Estimate of speed
iv. Authentication of voice or handwriting
d. Requirements:
1. Rationally based on first-hand knowledge of witness
2. Helpful to a clear understanding of the testimony of the witness, and
3. Not based on scientific knowledge
e. US v. Kaplan (p. 327)
i. Prosecution for Insurance fraud
ii. Evidence in Controversy: That Kaplan had knowledge of the fraud
iii. Problem with this evidence: mental state/conclusion:
1. The opinion of the witness was speculative, because it was not rationally
based on his perceptions
f. Clifford v. Commonwealth (p. 332)
i. Drug trafficking case
ii. Issue: Who made the sale?
iii. Evidence in Controversy: Testimony from a police officer who was listening to a
wire that a man who sounded like a black male made the sale
iv. Can a lay witness identify a person’s race without seeing the person?
g. US v. Yazzie (p. 337) (rationally based opinion example)
i. Prosecution for statutory rape
ii. Defendant admitted intercourse, but claimed that victim looked like she was 16
iii. Defendant testified that she smoked, drove a car, used makeup and looked mature
iv. Defendant also called other witnesses, but trial court refused to allow them to give
their opinion about whether she looked over 16
v. Court of Appeals reversed because the victim was a year older by time of trial and
it’s hard to put into words what it means to looks over 16
h. Robinson v. Bump (p. 340) (rationally based on witness observation)
i. Wrongful death action involving a semi crash
ii. A car passed a semi (Bump) and almost hit 3 cars coming the other way
iii. The 1st car (Dickins) braked, causing the second car (Harris) to go out of control
and crash into the semi
iv. Then the semi ran over the plaintiff in the third car (Robinson)
v. The jury found that the driver of the semi was not negligent
vi. Witness in the car (Battle) in the back of the car that passed the semi testified that
the driver of the semi was “in total control” until the second car (Harris) crashed
into the semi
vii. The verdict for the truck driver was affirmed because it logically followed
i. Hirst v. Inverness Hotel (p. 342)
i. Negligence action against hotel for failure to protect a guest from a rapist
ii. The defendants called the president of the Hotel’s security company

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iii. He testified that there was no way that alleged incident could have been prevented
iv. The court of appeals reversed and sent for re-trial because the opinion was not
based on his own perception and because it was not helpful because it was only
self-serving conclusory opinion that amounted to no more than choosing up sides
j. Tampa Bay Shipbuilding (p. 346)
i. Civil action to collect for repair work
ii. The plaintiff offered testimony of employees on reasonableness of the charges
iii. The court discussed the 2000 amendment to FRE 701 which excluded lay
testimony based on specialized knowledge
iv. The testimony appears to be based on specialized knowledge, but there’s support
in the advisory notes for admitting testimony of business owners about matters
relating to their business
15. Expert witnesses
a. FRE 703 and 705 are very similar
b. FRE 704 and 706 are not important
c. When would you use an expert witness?
i. Generally, in medical malpractice cases
ii. Exception if malpractice is obvious
iii. Also in other areas
1. Economists
2. Engineers (eg product liability)
d. Advantages of using experts
i. No personal knowledge required
ii. Developed skill at testifying – professional witness
iii. In Oklahoma, testimony can come in by videotape
e. Liberal use of expert testimony was the most significant change of federal rules
f. Rationale: in our modern scientific age, courts should take advantage of the specialized
knowledge of experts
g. Downside: can also lead to abuse with questionable experts (junk science)
h. FRE 702
i. Requirements
1. Qualified
2. In area of expertise
3. If expert testimony will assist the jury
4. If the testimony is based on sufficient facts
5. If the testimony is the product of reliable principles, and
6. The witness has applied the principles reliably to the facts
ii. Middleton (p. 352)
1. Rape prosecution against father of victim
2. 14-year-old child testifies against father
3. on cross, defendant’s attorney brings out that victim had recanted original
statement to police and said she lied to get out on her own
4. then the prosecution called two social workers to testify that it is common
for family rape victims to change their story because of heavy emotional
pressure

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5. this was permissible under FRE 702 because most people are not familiar
with family rape and they don’t know how victims behave
6. Therefore, it is helpful for jurors to hear expert testimony
iii. US v. Brinson (p. 355)
1. Prosecution for sex trafficking in federal court in the Northern District of
Oklahoma
2. The trial court permitted the prosecution to call a police detective as an
expert on prostitution
3. The appellate court affirmed because the testimony was helpful to the jury
because the detective’s testimony provided general information about the
prostitution trade that most jurors would not be familiar with
iv. US v. Mejia (p. 358)
1. Racketeering prosecution against the MS-13 in Long Island
2. Trial court permitted the prosecution to call a police investigator to testify
about the background of MS-13
3. The appeals court reversed because much of the officer’s testimony did
not require specialized expertise but was instead factual and within the
grasp of the average juror
v. Stollings (p. 362)
1. Table saw accident – products liability
2. Evidence in controversy: testimony of expert on cost/benefit analysis of
installing an automatic breaking system on power saws
3. Trial court excluded the testimony because the testimony was not reliable
because it depended on an assumption about the effectiveness of automatic
braking that the trial court believed was unreliable
4. The appellate court reversed because the role of the trial judge is limited to
the criteria in FRE 702, and the jury should be allowed to decide on how
effective the automatic braking would be
vi. Specht (p. 365)
1. When can an expert on the law be used?
2. Civil rights action based on allegedly invalid search of plaintiff’s home
and office
3. Plaintiff called a legal expert to testify that the search violated the
plaintiff’s constitutional rights because it was an unreasonable search
4. Reversed on appeal
5. The judge is supposed to be the expert on the law in the room
6. If the judge does not know the law, attorneys can supply arguments and
briefs
7. Legal experts may be allowed in a few areas (eg. Foreign law, specialized
areas like trademarks and antitrust law)
16. Opinion on the ultimate issue – FRE 704
a. Common law rule was that the expert could not testify on the ultimate issue because it
would invade the province of the jury
b. FRE 704 rejects the common law rule
c. FRE 704 (b) was enacted in response to the trial of John Hinckley for attempting to
assassinate president Reagan

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i. FRE 704 (b) prohibits testimony on whether a defendant was insane under the
M’Naghten rule
ii. But it would allow testimony about psychoses and neuroses
d. US v. Boyd (p. 371)
i. Prosecution for possession of crack cocaine with intent to distribute
ii. Prosecution called a police expert to testify about the defendant’s intent based on
the circumstances surrounding his arrest
iii. Conviction was reversed on appeal on account of FRE 704(b), because it should
have been up to the jury alone to draw the inferences from the circumstances
surrounding the arrest
e. Qualifications of experts
i. Experts can be qualified through knowledge, skill, expertise, training or education
ii. US v. Carswell (p. 373)
1. Prosecution for drug possession of cocaine with intent to distribute
2. Defense called an expert on drug abuse
3. The trial court refused to allow the expert
4. Affirmed on appeal, but the appellate court said it would have affirmed if
the trial court had allowed the expert to testify too
iii. Underlying basis of expert opinion
1. The common law limited the basis for expert opinion to two sources
a. Personal knowledge
b. Presentation at trial
i. Hypothetical question if supported by admissible evidence
ii. Facts proved by other witnesses that the expert saw testify
2. Hypothetical question (list all assumptions Exp. based opinion on)
a. This was the most common method
b. Advantage
i. It isolated the assumptions on which the opinion was based
c. Disadvantages
i. Question had to include all the assumptions in it
ii. Abused by lawyers
iii. Artificial because experts do not arrive at opinions by
setting up hypotheticals
d. Hypothetical questions are no longer required under FRE 703
e. Experts may rely on inadmissible evidence as long as experts in
the field would rely on facts on which opinion is based
17. FRE 705
a. Expert may give the opinion without disclosing the basis for it (ie. The underlying facts)
b. But basis of opinion may be brought out on cross-examination
c. The basis of the opinion cannot be offered on direct, unless the court determines its
probative value substantially outweighs its prejudicial effect (FRE 703, last sentence)
d. Problems with the FRE approach
i. Jury may not be able to see the basis of expert opinion
ii. Cross to get at the basis of the opinion may result in disclosure of inadmissible
evidence
e. Gong v. Hirsh (p. 376)

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i. Medical malpractice suit (after death)

ii. Claim was negligent Prednisone prescription for COPD, plaintiff then got
perforated ulcer
iii. Plaintiff sought to introduce letter written by a doctor to request medical records
from the decedent’s employer that contained an opinion about the cause of the
decedent’s disability
iv. The appellate court ruled that an expert would not reasonably rely on such a letter
to form an opinion about the cause of the decedent’s disability because the letter
was not based on the doctor’s diagnosis of the decedent
v. In addition, even if the doctor’s opinion would be admissible, that does not mean
that the letter on which it was based is admissible (FRE 703)
f. Procedure for qualifying expert
i. Voir dire to develop expertise (and impress jury)
1. Education
2. Publications
3. Experience
4. Special honors
ii. Jury may not appreciate qualifications though
iii. Offer of stipulation
1. To prevent expert from showing off qualifications
2. Expert’s attorney is not required to accept offer of stipulation
g. Attacking an expert on cross
i. Attack qualifications
ii. Attempt to show bias
1. Doctor, how much are you getting paid for your testimony?
iii. Prior inconsistent statements
iv. Contradictory expert opinion
1. Either another expert
2. Or a treatise
v. Change the facts that the expert relied on
vi. Generally, you need an expert to assist in crossing an expert witness
18. FRE 706 – Court appointed expert (not in Okla)
a. Trial court can appoint its own expert
b. Problem: how to pay for court appointed expert?
c. Not provided for in Oklahoma Evidence Code
19. Scientific Evidence
a. Frye Standard
i. 1923 case involving a polygraph
ii. court of appeals adopted the general acceptance test for admissibility of expert
opinion
iii. this required a consensus within the scientific field before admission of scientific
evidence
b. Daubert (p. 380) (did adoption of FRE change the Fry standard? Unclear)
i. Product liability case against the manufacturer of Benedectin
ii. Defendant moved for summary judgment on grounds that there is no evidence that
Benedecitin causes birth defects

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iii. Plaintiff presented 8 experts who concluded that bendectin causes birth defects
iv. The trial court granted summary judgment under the Frye test but the supreme
court reversed
v. The supreme court decided that Frye had been displaced by the FRE
vi. That was enough to reverse, but the majority added some general observations in
dicta about the new standard to be used
vii. The majority says to consider the following factors (p. 383 under C)
1. Has the scientific theory been tested?
2. Has it been subject to peer review and publication?
3. For scientific techniques, what is the known or potential rate of error and
what are the standards for controlling the technique’s operation?
4. Is there general acceptance of the theory?
5. (general idea: show reliability)
c. Kumho Tire (p. 386)
i. Does Daubert apply to non-scientific expert testimony?
1. Yes, but the specific factors in Daubert do not necessarily or exclusively
apply to all experts
ii. Facts
1. Products liability suit involving the failure of a tire
2. The plaintiffs had an expert on tire failure who concluded that the tire
failed because of a defect in the tire, rather than misuse of the tire by the
plaintiffs
3. The trial court excluded the expert testimony under the Daubert criteria,
but the court of appeals reversed
iii. The court of appeals ruled that Daubert did not apply to a non-scientific expert,
because Daubert was concerned with scientific evidence only, rather than all
expert testimony
iv. The Supreme Court reversed the court of appeals
v. The factors listed in Daubert were not intended to be rigidly applied to all experts,
not even all scientific experts
vi. For example, peer review might not be applicable to non-scientific experts
vii. However, the general concept of gatekeeping based on an assessment of the
reliability of the expert testimony is applicable to all experts
viii. Finally, the Supreme Court emphasized the trial court’s discretion to determine
reliability in light of the particular circumstances of the case, and that it should
not be reversed except for an abuse of discretion
ix. Now, amended Rule 702 supersedes this case law, but is still called Daubert
standard
x. Oklahoma follows Daubert, some still follow Frye
d. Christian v. Gray (p. 394)
i. Oklahoma Supreme Court adopted the Daubert cases
ii. The trial court excluded an expert’s testimony regarding causation because there
was not baseline data on plaintiff’s pulmonary functions prior to exposure to the
chemicals at the circus
iii. The supreme court reversed and remanded because there was no showing in the
record that baseline data was required by experts

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e. Examples of uses of scientific evidence

i. US v. Semrau (p. 399)
1. Wouldn’t it be great if a machine could measure whether a witness was
telling the truth?
2. Facts
a. Prosecution of doctor for medicare fraud
b. Defendant claimed that his billing decisions were made in good
faith
c. To support his defense, he offered the results of a fMRI lie
detector, which involves a different technology than the polygraph
to measure a subject’s brain activity
3. The trial court rejected the fMRI tests under Daubert, and the 6th circuit
affirmed
4. The fMRI testing procedure appeared to satisfy the Daubert requirements
for testing of the theory and peer review
5. The main problem seemed to be with determining the error rates for the
testing in the real world (beyond the laboratory)
6. While this court rejected the use of fMRI testing, other courts might
eventually accept it
ii. Hypnosis – Borawick v. Shay (p. 406)
1. Hypnosis is a competency issue, rather than a scientific evidence issue
2. The problem is whether a witness who has gone under a trance can
thereafter testify in court
3. Different courts take 4 different approaches
a. Some allow hypnotically refreshed testimony to be admitted
subject to the jury’s determination of the credibility of the witness
b. Some have a per se rule that hypnotically refreshed testimony is
not admissible
c. Some allow hypnotically refreshed testimony if particular
procedural safeguards are satisfied
d. Others use a case by case approach
iii. Eyewitness ID – US v. Stevens (p. 413)
1. This involves expert testimony by psychologists on the unreliability of
eyewitness testimony
2. Facts:
a. Prosecution for aggravated sexual assault and robbery on a military
base. Victims identified the defendant in a lineup
b. Defense: some other dude did it – defendant called Dr. Penrod to
support the mistaken ID defense
3. 6 areas of testimony offered (p. 414)
a. cross-racial ID
b. weapon focus
c. effect of stress
d. suggestiveness of wanted board
e. relation back of later ID’s to first ID
f. lack of correlation between confidence and accuracy

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4. Trial court allowed testimony on #1a-c, but not #d-f

5. Reversed on appeal because of the trial court’s exclusion of #f
iv. Chemical causation
v. DNA
f. Experiential Experts
i. Primiano v. Cook (p. 419)
1. Does Daubert apply to medical testimony?
2. Facts
a. Products liability action against a manufacturer of an artificial
elbow that was implanted in plaintiff’s arm
b. The artificial elbow wore out in less than 8 months
3. The plaintiff’s expert testified that the artificial elbow was defective
because it should have lasted longer
4. The trial court excluded the testimony under Daubert
5. The 9th Circuit reversed on the grounds that the expert was qualified to
give his opinion because of his experience as a doctor
ii. US v. Herrera (p. 424)
1. Is the use of fingerprint evidence consistent with Daubert?
2. Fingerprint isn’t as scientifically supported as DNA evidence
a. Fingerprint involves matching fingerprints to each other on the
basis of visual evidence
b. There’s no error rate ever given
3. But fingerprint evidence doesn’t have to be infallible in order to be
admissible
4. Fingerprint evidence is a lot better than eyewitness testimony for example
5. So courts continue to reject most challenges to the admissibility of
fingerprint evidence
20. Demonstrative Evidence
a. Physical evidence other than the real thing
i. Eg: photos, mockups, models, charts, graphs, video, blackboard drawings,
computer models, skeletons, medical illustrations
b. Since demonstrative evidence is not the real thing, its relevance is only to augment the
testimony of a witness
c. Foundation required
i. That it will assist the witness in communicating to the jury
ii. Example: photo
1. You don’t need the photographer or developer to authenticate the photo
2. Any witness who is familiar with what the photo is supposed to show can
authenticate it
3. Photo may be excluded if it is inaccurate or faked
d. Day in the life films
i. Bannister v. Noble (p. 429)
1. Useful for showing daily routine of accident victim
e. Video animations
i. Robinson (p. 432)

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1. Expert witness used a video animation of a grade crossing accident to

show that the car did not drive around the railroad gates because it was
struck at a perpendicular angle
2. Note cautionary instruction of trial court (p. 434)
f. Gruesome Evidence
i. Issue: may be distracting and is subject to FRE 403
ii. Shell v. Perrin (p. 437)
1. Personal injury of child who lost eye
2. Plaintiff pulled out a glass eye and showed it to the jury
3. Affirmed because defendant should have thought of that before knocking
little girl’s eye out
iii. Melvin Belli story
1. Personal injury attorney
2. Used lots of demonstratives
3. Cable car case: artificial leg
iv. US v. Gaskell (p. 439)
1. Prosecution’s expert shook a baby doll to demonstrate how the defendant
shook his daughter
2. Conviction reversed, because demonstration was not accurate and more
prejudicial than probative
v. Ritchie v. State (p. 443)
1. Evidence offered in murder trial: enlarged photo of autopsy of child’s
brain and skullcap
2. Generally, gory photos are admissible: but this one lacked relevance
3. Prosecution also offered a “before picture” of the victim
a. Inadmissible because no probative value
b. But: see 12 OS 2403. This statue was overruled.
g. Uses of demonstrative evidence
i. US v. Cox (p. 446)
1. Mockups of pipe bombs were admissible
2. Letting them in the jury room during deliberations is discouraged
ii. Pfaff v. State (p. 448)
1. Replay of videotape during jury deliberations
2. Permissible if the videotape was non-testimonial, but not if the videotape
was of testimony of a witness
21. Cross-examination
a. How to attack evidence the other side has introduced
b. “the greatest legal engine ever invented for the discovery of truth”
c. Irvin Younger (Youtube)
d. Lawson (p. 451)
i. Burglary prosecution
ii. Police had caught Bellamy at the burglary, but the defendant had escaped
iii. At trial, Bellamy testified for the defense that the defendant had not been with
him during the burglary
iv. When the prosecution attempted to cross-examine Bellamy, he answered a few
questions but then he claimed the fifth amendment

40
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v. The trial court granted the prosecution’s motion to strike the testimony of the
witness because of the lack of opportunity for cross-examination on account of
witness claiming the fifth amendment
22. FRE 607: who can impeach a witness
a. Purpose: to overrule common law
b. Anybody can impeach a witness. It’s better to prepare your witness.
c. But usually not a good idea to impeach your own witness
23. FRE 611
a. FRE 611 (b): scope of cross examination
i. Shouldn’t go beyond subject matter of direct examination
ii. Limited to impeachment
iii. Rationale for rule
1. Person calling witness gets to present story their way (see notes p. 136,
first paragraph)
2. Orderliness of presentation
iv. Subject to trial court’s discretion
v. US v. Lara (p. 455)
1. Prosecution of the almighty Latin King Nation for racketeering
2. One of the defendants testified to a carjacking on direct
3. The prosecution’s cross covered other crimes by the defendant and a letter
he had written about his girlfriend being a snitch
4. The appellate court explained how these related to the subject matter of
direct because they related to the defendant’s denial that the carjacking has
anything to do with the Latin King’s racketeering
5. And it added that the trial court has discretion to allow cross beyond the
scope of direct
b. FRE 611 (c): leading questions
i. Permitted on cross, not on direct
ii. What is a leading question?
1. Where you put words in the mouth of the witness, or suggest the right
answer to your question
iii. Exceptions to rule against leading questions on direct:
1. Preliminary matters
2. Child witness
3. Hostile witness (they don’t have to be angry, they just have to be adverse)
4. An exhausted witness
5. A biased witness
iv. What is the effect of sustaining an objection?
1. Example: Isn’t it true that the traffic light was red when the defendant’s
car went through the intersection? Objection, leading.
2. The objection here doesn’t do much good though because the damage is
already done. Better question: what color was the traffic light?
v. Three M (p. 458)
1. Illustrates an exception to the rule allowing leading questions on cross
2. At trial, the plaintiff called one of the defendants (Ahrend)
3. Because the defendant was adverse to the plaintiff to ask leading questions

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4. Then the defendant’s attorney sought to ask the defendant leading

questions on cross
5. The trial court refused to allow it and the Oklahoma Supreme Court
affirmed because it was technically direct because the defendant examined
his own witness (advisory notes p. 138, 2nd paragraph c)
24. FRE 614
a. Court can call own witnesses or examine them
b. This doesn’t happen much
25. FRE 615: Rule of sequestration
a. Excluding witnesses from a courtroom
b. OPUS case (p. 463): Susanna and the Elders story
i. Logic: make sure they don’t hear each other’s stories so that they can be more
truthful
c. Exceptions:
i. Party or party representative
ii. Person essential to presentation of case (eg. Expert)
iii. Person authorized by statute
iv. Oklahoma: victims
d. Opus case (p. 462)
i. Construction dispute. Defendant was property owner who hired a general
contractor to check up on the plaintiff’s performance of renovation on defendant’s
apartment complex
ii. The plaintiff invoked the rule and the trial court excluded the general contractor
iii. The defendant appealed, claiming that the general contractor should not have been
excluded because he was the defendant’s expert witness and the only witness for
the defendant
iv. The expert witness should have been excluded because he did not come within the
exception according to the appellate court
e. Application of FRE 615 to witness prep
i. Only states that the court can order the exclusion of witnesses
ii. The rule does not clearly address this
26. Impeachment
a. Summarized in Behler (p. 466) – see chart on p. 471
b. Foundation (incapacity)
i. Perception
ii. Memory
iii. Communication
c. Veracity (show that the witness is a liar)
i. Contradiction on other matters (collateral/non-collateral rule)
ii. Bias
iii. Character for dishonesty (FRE 608)
iv. Prior convictions (FRE 609)
v. Prior inconsistent statements (FRE 613)
d. Attacking the foundation
i. Example:
1. Witness testifies that the traffic light was green

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2. You may attack the ability of the witness to perceive the traffic light by
asking the witness if he was wearing his glasses and how far he can see
without them
ii. US v. Pryce (p. 473)
1. Defense sought to cross prosecution’s witness about his history of past
hallucinations
2. On direct, the witness testified to his involvement in a drug ring
3. Since the testimony covered only the month of December, the trial court
limited the defense to asking about hallucinations during December (as
opposed to September)
4. The appeals court reversed and held that the defendant could ask about
hallucinations in September because they were relevant to the ability of
the witness to perceive reality in December
e. Attacking memory and communication
i. Memory
1. Ask witness about other events that occurred at the same time as the event
that is the subject of direct to bring out that memory is poor
2. Example:
a. Witness testifies light was green
b. Ask witness what he had for breakfast that day
c. Then argue if he can’t remember breakfast, how could he
remember the traffic light?
ii. Communication
1. Yasser story from North Carolina attorney general
a. Massage therapy, prostitution
b. Misunderstanding
f. Impeachment by contradiction
i. Example
1. Witness testifies on direct that traffic light was red
2. On cross, ask the witness what color the car was that went through the
intersection. Allowable?
3. What if the witness testifies that the car was blue? Can you prove that it
was really white with orange pin stripes?
4. What is the relevance of the color of the car? Witness memory
5. What is the cost of presenting this evidence? You could confuse the jury.
ii. This illustrates the problem of impeachment by contradiction on collateral matters
iii. State v. Oswalt (p. 476)
1. Prosecution for robbery and first-degree burglary
2. Defense: alibi: defendant claimed he was in Portland, Oregon, when the
robbery took place in Seattle
3. Issue: Where was the defendant on July 14?
4. The defendant called an alibi witness to testify that the defendant was in
Portland on July 14
5. On cross, the prosecution asked the witness whether the defendant had
been in Portland for the two months before July 14, the witness testified
that he had been

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Outline – Evidence

6. Then the prosecution called a police officer to testify that the defendant
was in Seattle on June 12
7. What is the relevance of the testimony of the officer? If Alibi witness was
wrong about June 12, it means he could be wrong about July 14
8. Test used by court for admissibility (p. 477)
a. At CL: Could the facts as to which error is predicated have been
shown in evidence for any purpose independent of the
contradiction?
b. Justification for the rule
i. Confusion of the issues
ii. First witness may not be prepared to answer questions
about extraneous matters
g. Impeachment by bias
i. Includes prejudice, corruption, motive to falsify
ii. Although bias is not listed as a ground for impeachment, its use is well
established
iii. Illustrations of evidence of bias:
1. Relationship of witness to the case
2. Financial interest in the outcome
3. Association with at party
iv. Braden v. Hendriks (p. 479)
1. Products liability action against Ford
2. Ford called employee as witness
3. The plaintiff sought to ask the witness about his salary
4. Not allowed by trial court and affirmed on appeal as harmless error
5. Discussion of the use of bias for impeachment on p. 478, para 3
v. US v. Keys (p. 481)
1. Prosecution of inmate for carrying a weapon in prison
2. Defendant called two inmates to corroborate the defense
3. Prosecution sought to prove that the defendant was a member of the Crips
Gang,
a. One use: that he knowingly possessed a weapon
b. Other use: defense witness lied because they were afraid of him
4. Under FRE 403, the trial court must balance the good and bad uses
5. Note discussion of US v. Abel, another prison gang membership case
a. In Abel, both the defendant and witness were members of the same
gang
b. But they don’t have to be for proof to come in
6. Also note that extrinsic evidence may be used to show bias (p. 482, n. 2)
vi. Davis v. Alaska (p. 485)
1. Robbery prosecution
2. The safe was found near where the witness lived, and the witness
identified the defendant
3. At trial, the defense sought to establish that the witness identified the
defendant in order to divert police suspicion from himself

44
Outline – Evidence

4. On cross, the defendant’s attorney asked the witness if he had ever been
questioned by the police before
5. Objection to this was sustained because the prosecution had obtained a
protective order against any reference to the witness’ juvenile convictions,
pursuant to an Alaskan Statute
6. SCOTUS reversed on grounds of violation of the 6th amendment’s right to
confrontation
a. In all criminal prosecutions, the accused shall enjoy the right to be
confronted with the witness against him
b. Supreme court held that this means that the defendant should have
the right to bring out the fact that the witness had a motive to lie
c. You can’t generally confront a witness about their juvenile
conviction UNLESS the Constitution comes in aka right of
confrontation and it deals with the motive of the witness.
h. FRE 608: Evidence of character
i. Recall FRE 404(a)(3)
1. Exception to the rule against proof of character as circumstantial evidence
2. Involves character of witness for honesty
ii. Paragraph (a): authorizes use of opinion or reputation testimony
1. Character evidence may also be used to rehabilitate a witness but only if
the character of the witness has been attacked
2. Authorizes use of a character witness to testify to the character of another
witness for dishonesty
3. Illustrated by McMurray (p. 492)
a. After defendant testified on his own behalf, the prosecution called
a rebuttal witness who was asked whether she would believe the
defendant’s testimony under oath based on her opinion of the
defendant’s truthfulness
b. Court of appeals held this was allowed under FRE 608(a)
4. Evidence of truthful character is admissible only after the character of the
witness has been attacked. Example: Martinez, p. 491.
a. The DF appealed from a conviction on the ground that the TC
didn’t allow him to offer evidence of his character of truthfulness.
b. The COA distinguished between attacking the specific testimony
of the witness (evidence of truthfulness is not allowed) and an
attack on the general character of the witness (evidence of
truthfulness is allowed).
c. For example, evidence of prior convictions is an attack on the
general character of the witness, but evidence of bias is not.
iii. Paragraph (b): inquiry into specific instances of dishonest conduct, but no
extrinsic proof
1. 2003 amendment dealt with limiting the exclusion to specific instances of
character, rather than credibility
2. so specific instances of contradiction, bias, prior inconsistent statements or
mental capacity are not excluded (subject to FRE 403)
3. inquiry into specific instances is allowed, but no extrinsic proof

45
Outline – Evidence

4. US v. Manske (p. 494)

a. Prosecution for cocaine trafficking
b. The defendant sought to impeach a witness who testified against
him by asking about past acts of witness intimidation by the
witness
c. Trial court ruled that witness intimidation is not probative of
truthfulness but the appeals court reversed
d. Note that the witness intimidation may have affected the credibility
of other witnesses
i. FRE 609: Impeachment with convictions
i. Common law: felons lacked capacity
ii. Convictions are admissible if:
1. (a)(1): they are felonies and the witness is not the accused, or
2. (a)(2): they are felonies, the witness is the accused and the probative value
of the convictions outweigh their prejudicial effect, or
3. (a)(2): they are crimen falsi (crimes of false statement)
a. Examples: perjury, criminal fraud, embezzlement, false pretenses
b. But not ax murders
c. Basically only dishonest crimes
iii. (b): staleness rule
1. 10-year time limit
2. subject to reverse balancing, notice required
iv. (c): effect of pardons
1. conviction is not admissible
v. (d): juvenile adjudications:
1. not admissible
2. but see Davis v. Alaska (motive to falsify case)
vi. (e) pendency of appeal
1. admissibility is not affected by pendency of appeal (a pending appeal is
still a conviction)
vii. Crimen falsi
1. US v. Brackeen (p. 497)
a. Prosecution for bank robbery
b. Defendant testified and prosecution sought to introduce prior
convictions for bank robbery
c. Trial court ruled that they could not come in under FRE 609(a)(1)
because of balancing but let it in under FRE 609(a)(2) as crimen
falsi
d. The appeals court reversed because bank robbery is not a crime of
dishonesty because it does not involve deceit
e. A thief is different than a liar
viii. Balancing of felony convictions
1. US v. Alexander (p. 500)
a. Prosecution for bank robbery
b. Defendant sought to exclude prior convictions for residential
robbery and possession of crack cocaine

46
Outline – Evidence

c. The trial court admitted prior convictions and the appellate court
affirmed
d. Neither of the crimes came under FRE 609(a)(2) – on account of
Brackeen
e. Instead, they were admitted under FRE 609(a)(1); 5 factors that
signified balancing the probative value w the prejudicial effect:
i. Impeachment value of prior conviction
ii. Time of prior conviction
iii. Similarity between prior conviction and crime charged
(prejudicial effect)
iv. Importance of defendant’s testimony
v. Centrality of defendant’s credibility
f. In applying the factors, the court decided:
i. Both prior convictions were relevant for impeachment
ii. Residential robbery had similarity to the crime charged
iii. But it was outweighed by the other factors
ix. Details of the crime
1. US v. Osazuwa (p. 503)
a. Prosecution for assault on prison guard
b. During his direct, the defendant testified that he and been
sentenced to only one day for his bank fraud conviction
c. On cross, the prosecutor asked the defendant about the details of
the bank fraud conviction, including about how it was for identity
theft
d. The appellate court reversed the conviction because of this
e. The general rule is that the scope of inquiry for prior convictions is
limited to the fact of conviction, the general nature of the crime,
and the punishment, and inquiry into collateral details is not
allowed (p. 509, 2nd paragraph under B)
f. There is an exception if the defendant opens the door by offering
potentially misleading testimony about the crime
i. But that exception did not apply, because the defendant did
not offer any misleading testimony
ii. Also, the specifics of the crime could not come in through
the back door of FRE 608
x. Dilemma for criminal defendants (if the conviction is admissible, how much
details can be disclosed?)
1. The fifth amendment protects a criminal defendant
a. If the defendant takes the stand, the prosecution may introduce
prior convictions
b. Problem: prejudicial impact
i. Even though the prior convictions are admitted for
purposes of impeachment, the jury might mistakenly
consider them proof of guilt
ii. Consequently, a defendant with prior convictions may
decide not to testify

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Outline – Evidence

2. Luce v. US (p. 511)

a. Prosecution for possession of cocaine
b. The defendant filed a motion in limine under FRE 609 to exclude a
prior conviction for possession of a controlled substance
c. After the trial court denied the motion, the defendant decided not
to testify in his own defense
d. After the defendant was convicted, he appealed on the ground that
the prior conviction should have been excluded
e. The supreme court held the error was waived by the defendant’s
failure to take the stand
i. The harm to the defendant was speculative because the trial
court might have changed its ruling of the defendant took
the stand
ii. Also, the prosecution might not have offered the prior
conviction
f. The holding is summarized: to raise and preserve for review the
claim of improper impeachment with a prior conviction, a
defendant must testify (p. 512)
3. Warren v. State (p. 509)
a. A minority of states have rejected Luce
b. These states require an offer of proof of the accused’s proposed
testimony and a showing that the accused would have testified but
for the trial court’s ruling on the motion in limine concerning the
prior conviction (p. 512, second paragraph)
j. Prior statements
i. Prior statements are generally not admissible to prove that they are true, but
inconsistent statements may be offered for purposes of impeachment
ii. Common law approach:
1. Rule of Queen’s case (advisory notes
2. Requires cross-examiner to first show the prior statement to the witness
before asking about it
3. Rule 613 dispenses with that
iii. FRE 613
1. (a): dispenses with common law courtesy, except that the statement must
be shown to opposing counsel on request
2. (b): allows extrinsic evidence of the prior statement (if the witness denies
it) as long as the witness is given an opportunity to explain it at some point
3. the effect of FRE 613 is to streamline the procedure for use of prior
inconsistent statements
iv. Technique for impeachment
1. Ask the witness to repeat the false statement
2. Ask a vague question about whether the witness ever made a contrary
statement
3. Ask increasingly specific questions to zero in on the inconsistent statement
4. If the witness does not admit the statement, then offer extrinsic evidence
5. Often used with deposition transcripts

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Outline – Evidence

6. Caution: use only if the impeachment is meaningful, not solely to impress

your client
v. US v. Harris (p. 514)
1. Prosecution for obstruction of justice
2. Prosecution called witness (Durand) who testified that the defendant made
a false statement to the FBI
3. The defense counsel sought to impeach the witness with a prior
inconsistent statement. The trial court refused to allow extrinsic evidence
under FRE 608(b)
4. The appellate court reversed, because extrinsic proof of prior inconsistent
statements is allowed under FRE 613(b)
vi. US v. Schnapp (p. 517)
1. Arson prosecution
2. Prosecution called a witness (Schuhmacher) who testified that the fire was
deliberately set
3. The trial court refused to allow the defendant to testify about a prior
inconsistent statement of the witness and the appellate court affirmed
4. FRE 613(b) provides that extrinsic evidence of a prior inconsistent
statement is not admissible, unless
a. The witness is given an opportunity to explain the statement, or
b. The interest of justice so requires
5. Defense counsel should have asked the witness about the prior
inconsistent statement during cross
6. Therefore, it was within the trial court’s discretion to not allow the
defendant to testify to the prior inconsistent statement of the witness
27. Rule against Hearsay
a. FRE 802
i. Hearsay is not admissible
ii. Subject to 23 exceptions in 803, 5 exceptions in 804 and 1 in 807
iii. Also exceptions in FRCP and FRCrimP
b. The common law rule originated in England in around 1600
c. Justifications for the Rule (p. 171-72 Advisory Notes)
i. Out of court statements are not under oath
ii. Jury cannot see the demeanor of out of court declarant
iii. No opportunity cross
d. Problems with hearsay
i. Keeping track of two different actors
ii. Difficulty of cross
e. But some hearsay is reliable
i. The approach of the common law was to create exceptions
ii. The advisory committee considered abolishing the rule against hearsay in favor of
a reasonableness test but the advisory committee decided against it because
1. Rigid rule is easier to apply
2. Jury might give hearsay undue weight if it was admitted
3. Confrontation clause may require exclusion of hearsay for criminal cases
4. Judges and lawyers have already learned the rules

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Outline – Evidence

28. Definition of Hearsay

a. FRE 801(c): An out of court statement offered for the truth of the matter asserted
i. Two questions in deciding whether the evidence is hearsay
1. Is it an out of court statement?
2. Is it offered for its truth?
b. Emich Motors Case (p. 176 subdivision (c))
i. Suit against GM for wrongful cancellation of plaintiff’s franchise
ii. GM offers letters of complaint from customers saying the dealer is a moron to
rebut that the cancellation was wrongful
iii. The court held it was not hearsay because they were not offered for the truth of
the matter but to show the cancellation was valid
c. Examples from the Trial Notebook (p. 267)
i. A bystander said the traffic light was red
1. Hearsay use v. non-hearsay use
2. Non-hearsay: used to show he was awake
ii. The mechanic tells the pilot that the rudder was not working
1. Not hearsay if offered to show that the pilot had notice of the problem
with the rudder
iii. John, this if for you (gift or loan)
1. Not hearsay when supporting either a loan or a gift
2. What was said had legal significance
iv. The defendant said the plaintiff was a thief
1. Offered in case of slander
2. Not hearsay because he was not trying to prove he was in fact a thief
d. US v. Boyd (p. 522); example of NOT hearsay
i. Prosecution for being an accessory to carjacking
ii. One element of the crime is knowledge of the predicate offense (ie carjacking)
iii. Evidence in controversy: video of Boyd’s interview in which he stated what
Davidson had told him about Davidson committing carjacking and other crimes
iv. Not hearsay because it was offered to proof that Boyd had knowledge of predicate
offense
e. US v. Leonard-Allen (p. 524)
i. Prosecution for money laundering
ii. Evidence in controversy: Stern’s explanation for the reason Leonard-Allen gave
him for purchasing the CDs for her (p. 523)
iii. Not hearsay because it was not offered for the truth of the matter asserted but to
explain what Stern was thinking
iv. The conviction of Stern was reversed
f. Fireman’s Fund (p. 527)
i. Declaratory relief action brought by liability insurer
ii. Issue: Did the “fellow employee” exclusion in the policy avoid coverage for the
defendant’s claim?
iii. The insurer offered deposition testimony of the decedent’s supervisor that the
decedent was going on the plane to clean the company apartment. If so, there was
no coverage under the policy

50
Outline – Evidence

iv. Evidence in controversy: defendant offered prior inconsistent statements by the

supervisor
v. Not hearsay because it was offered for impeachment
g. Ries Biologicals (p. 530)
i. Suit on guarantee of payment of a debt
ii. Evidence in controversy: the oral guarantee by the defendant
iii. No hearsay because words of guarantee have legal significance outside from truth
iv. The fact that the words were said creates a guarantee
h. Crawford v. Tribeca (p. 531)
i. Suit for fraud and violation of TILA (truth in lending act)
ii. Evidence in controversy: 34 loan documents
iii. Not hearsay because the loan documents have legal significance to prove the
plaintiff entered into a contract and they show that the defendant provided TILA
disclosures to the plaintiff
i. US v. Smith (p. 533)
i. Prosecution of state legislator for bribery involving government programs
receiving federal funds
ii. Evidence in controversy: tape recording of conversation with an informant (Pete)
iii. Not hearsay because it was offered to prove there was a bribe, not for the truth of
the conversation (Statements in there)
iv. Words of contract are not hearsay
j. State v. Cunningham (p. 535)
i. Prosecution for deliberate homicide
ii. Evidence in controversy: statements of victim about how tough the victim was
iii. Not hearsay because the statements were not offered for their truth but instead
they were offered to show the defendant’s state of mind – why he believed he
needed to use a knife to protect himself from the victim (Self-defense)
k. State v. Smith (p. 538)
i. Prosecution of defendant for sexual abuse of his 5-year-old niece
ii. Evidence in controversy: defendant’s testimony that his father told him that the
detective said that his parents would lose their home if defendant contested the
charges
iii. Not hearsay because it proves that the defendant had a motive to confess falsely in
order to protect his parent’s home
l. People v. Green (p. 540)
i. Murder and kidnapping prosecution
ii. Evidence in controversy: witness testifies that the victim told her over the phone
that she told the defendant she wanted an annulment and he said he would kill her
if she left him; voice from the grave convicting the DF
iii. Hearsay because the non-hearsay use was outweighed by the hearsay use
iv. The prosecution argued that it was relevant to show she didn’t consent to
accompanying the defendant later that day
m. Is it a statement?
i. FRE 801(a) defines a statement as: an oral or written assertion OR nonverbal
conduct of a person intended as an assertion
ii. Examples of assertive conduct:

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1. Pointing, nodding, communicative gestures

2. People v. Brunson (p. 543)
a. Blinking code that victim used to tell the priest that the defendant
did not shoot her
iii. Other issues:
1. What about animal statements? Not hearsay.
a. Bloodhounds. See Buck v. State, 138 P.2d 115 (Okla 1943)
2. What about machine statements?
a. The thermometer read 98.6 degrees
b. US v. Lizzarraga-Tirado (p. 545)
i. Google Earth coordinates and digital “tack” on a google
earth satellite image
ii. Not hearsay as long as they were automatically generated
by a computer
3. What about the absence of statements?
a. Silver (p. 548) Nobody complained about the temperature.
b. The absence of a statement is not a statement and therefore not
hearsay
iv. Nonassertive conduct
1. This is the major problem area
2. Wright v. Tatum (p.553)
a. Evidence in controversy: letters asking advice from testator.
Offered to prove he was competent.
b. Sea captain boards a ship with his family after checking it out
thoroughly
c. Offered to show that the ship was seaworthy
d. This was hearsay because the evidence is an implied assertion by
the captain
e. This case was rejected by FRE
v. FRE 801(a)(2)
1. The nonverbal conduct must be intended as an assertion
2. See advisory notes p. 173, first paragraph under (a)
3. The test for nonverbal conduct is the intent of out of court declarant which
may be difficult to determine
4. US v. Zenni (p. 550)
a. Prosecution for bookmaking
b. Evidence in controversy: callers attempting to place bets during
search of defendant’s premises
c. This was not hearsay because the calls were not intended as an
assertion
d. Instead, they were intended for placing bets
e. Also, the calls were not offered for their truth
5. US v. Summers (p. 555)
a. Bank robbery prosecution
b. Evidence in controversy: “How did you guys find us so fast?”
c. Whether this is an assertion depends on the declarant’s intent

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Outline – Evidence

d. In contrast, in US v. Jackson (p. 557), the court ruled that the

question “Is this Kenny?” was not an assertion
e. The appellate court ruled on p. 558 that the declarant intended to
make an assertion, as opposed to seeking information
29. FRE 801(d)(1) Not hearsay – declarant-witness’ prior statement
a. Prior witness statements are not hearsay if:
i. The witness testifies at the trial or hearing and is subject to cross AND
ii. (A) the statement is a prior inconsistent statement and was made under oath at a
prior trial, deposition, or before a grand jury, OR
iii. (B) the statement is a prior inconsistent statement offered to rebut a charge of
recent fabrication, OR
iv. (C) the statement is one of identification
b. Rationale:
i. A judgment more of experience than logic
ii. Prior witness statements are hearsay under an assertion oriented definition
iii. But under a declarant-oriented definition and the policy of emphasizing the lack
of opportunity for cross as the justification for the hearsay rule, they should not be
hearsay
iv. The compromise of FRE is to exclude some prior witness statements but not all
c. FRE 801 (d)(1)(A)
i. Prior inconsistent statements are not hearsay if they are offered for impeachment
purposes
ii. Also allows them in as substantive evidence
iii. Advisory committee: to let all inconsistent in for their truth
iv. US v. Torrez-Ortega (p. 560)
1. Is witness subject to cross at hearing?
2. Prosecution for conspiracy to distribute marijuana and cocaine
3. Prosecution calls a witness who refused to testify
4. The prosecution the offers grand jury testimony of the witness
5. A witness is not subject to cross if they refuse to testify
6. Contrast with California v. Green and US v. Owens, p. 561
a. If they don’t remember they are subject to cross. Or if they start to
answer questions they are subject to cross.
v. US v. Knox (p. 563)
1. Is the prior statement inconsistent? Inconsistent= contrived.
2. Mail fraud prosecution involving fake auto crashes
3. Defendant’s sister and his second wife had previously implicated him at
their change of plea hearings
4. At trial the two witnesses had amnesia
5. Memory loss is considered an inconsistent statement
6. Issue 1: could they be subject to cross concerning their prior statements
that they could not remember? – Yes
7. Issue 2: was their testimony “inconsistent” with statements? – Yes because
the amnesia was contrived
vi. US v. Dietrich (p.565) 801(d)(1)(A) example
1. Was the prior statement given at a hearing?

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2. Prosecution for counterfeiting

3. Witness had given police a written sworn statement that the defendant had
shown her a number of counterfeit $100 bills and asked her to pass them
4. This was not admissible because it was not made at a proceeding
5. But it could be used for impeachment (n. 3, p. 567)
6. (defendant waived the objection and there as no plain error)
d. FRE 801 (d)(1)(B)
i. Prior consistent statements are admissible if
1. The witness testifies at the trial or hearing and is subject to cross AND
2. The statement is consistent with trial testimony AND
3. Is offered to rebut a charge of recent fabrication (or rehabilitation)
4. 4th Requirement from Tome v. US (p. 571)
a. Statement must have been made before there was a motive to
fabricate
ii. Rationale:
1. Repetition of a statement does not make it more true
2. But if the opposing party is challenging the veracity of the witness by
accusing the witness of bias, a prior statement that corroborates trial
testimony has some probative value if the statement was made before the
witness had a motive to lie
iii. US v. Kootswatewa (p. 567)
1. Prosecution for aggravated sex abuse of a minor
2. At trial a law enforcement officer testified to statements the victim made
to him shortly after the abuse occurred
3. The trial court admitted the testimony and the appeals court affirmed
a. Officer’s testimony was admissible to rebut the defense counsel’s
suggestion made in her opening statement and cross of the victim
that the victim had fabricated her story of sexual abuse to avoid
being disciplined by her mother
b. The defense argued that the testimony rebutted only one motive for
falsification and also that the testimony was not really consistent
with the victim’s testimony
e. FRE 801(d)(1)(C) Identification of a person
i. Rationale:
1. Earlier identification is probably more reliable than in court ID (adv.
Notes p. 177-178)
2. Complicated legislative history
ii. US v. Cardena (p. 570)
1. Racketeering prosecution for possession of firearm by felon
2. Evidence in controversy: testimony of officer about a kidnapping victim’s
(Avila) identification of the defendant
3. Officer’s testimony was allowed as long as the victim was a witness who
testified
30. FRE 801(d)(2) Admissions
a. Admissions treated as non-hearsay because results from adversary system
i. This rationale does not extend to vicarious admissions

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Outline – Evidence

b. Statement has to be offered against a party and is

i. The party’s own statement OR
ii. A statement by someone else that he has adopted OR
iii. A statement by and authorized agent OR
iv. A statement by an agent or employee concerning a matter within the scope of
agency or employment OR
v. A statement of a co-conspirator
c. Admissions are too frequently overlooked by students (likely on exam!)
d. FRE 801 (d)(2)(A)
i. A party’s own statement
ii. No requirement of trustworthiness or personal knowledge (adv. Notes p. 180 last
paragraph)
iii. Justification: a party against whom the admission is offered has a chance to
explain the admission
e. FRE 801 (d)(2)(B)
i. Adoptive admission
1. A third party’s statement that is adopted or acquiesced in by a party is an
admission
2. Advisory Note: “When silence is relied upon, the theory is that the person
would, under the circumstances, protest the statement made in his
presence, if untrue”
ii. Graybar v. Sawyer (p. 573)
1. Suit on personal guaranty
2. Evidence of guaranty: letter by plaintiff’s employee to defendant that
confirmed the guaranty (p. 574, n. 1)
3. Under the circumstances one would expect a prompt denial if there was no
guarantee
iii. US v. Ward (p. 575)
1. Prosecution of married couple for conspiracy to rob a bank
2. Wife was a bank teller who helped out with the robbery
3. The husband gave the cash from the robbery to his sister and she turned it
over to a friend for safekeeping
4. Evidence in controversy:
a. When the husband found out that his sister didn’t have the money,
they went over to the friend’s house
b. The sister then said “That’s the money they got when they robbed
the bank”
c. The husband said nothing
5. The trial court admitted the statement as an adoptive admission and the
appellate court confirmed
6. (this case is similar to PiE 13-1(L)
7. Note: it was probably error to admit the husband’s adoptive admission
against the wife, but the objection was waived
f. FRE 801(d)(2)(C)+(D) admissions by an agent or employee

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Outline – Evidence

i. Party may have a legitimate need to cross an agent or employee and so the
rationale for defining these as admissions is different than if you’re dealing with
the actual statements of a party
ii. Common law recognized statements by an authorized agent, but not others
1. Example: truck driver makes admissions after traffic accident
2. The rationale is based on respondeat superior. If an employer is liable for
the torts of an employee why not their admissions as well.
iii. Brookover (p. 578) split of authority
1. Medical malpractice action against hospital
2. Evidence in controversy: nurse’s statement to victim’s father
3. First issue: proof that nurses were hospital employees
a. Held: the issue was waived by failure of defendant to object
4. Second issue: personal knowledge
a. Nurses had no personal knowledge
b. Split of circuits on this issue, but this court decided not to require
personal knowledge of employee concerning facts of the
statements
c. Weinstein urges personal knowledge should be required for
vicarious admissions
iv. Staheli (p. 582)
1. Wrongful termination action
2. Evidence in controversy: plaintiff’s testimony of statement by accounting
professor that the university chancellor had a grudge against him
3. Statement by accounting professor was a statement of an employee and it
was offered against a party
4. But it was not admissible under FRE 801(d)(2)(D) because it did not
concern a matter within the scope of the accounting professor’s
employment
g. FRE 801(d)(2)(E) co-conspirator admissions
i. Statements made during the course and in furtherance of the conspiracy
ii. Based on analogy to partners in crime
Also, necessity because conspiracies are secret
Frequently arises in criminal cases
iii. US v. Lindemann (p. 584)
1. Wire fraud prosecution involving assassination of horses with life
insurance
2. Evidence in controversy: testimony of Burns (who electrocuted the horse)
about statements by Hulick and Ward that the defendant wanted burns to
kill the horse
3. Issue: Was there a conspiracy?
4. Standard used: Preponderance of the evidence
a. Under FRE 104, the statement can be considered as evidence of the
conspiracy
b. But it must be corroborated by other evidence

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Outline – Evidence

c. See 1997 Amendment to FRE 801(d)(2) that added the last

sentence, which also requires independent evidence of a
conspiracy
iv. US v. DiDomenico (p. 587)
1. What is the scope of a conspiracy?
2. Prosecution of the Chicago mob – a classic conspiracy
3. Evidence in controversy: testimony of a turncoat member of the street
crew (Jahoda) concerning statements by Bellavia concerning murder of a
bookmaker (Smith)
4. The statements were clearly admissible against Bellavia but were they also
admissible against the other members of the mob?
5. Whether the statements were admissible turned on whether they were
made in the course of an ongoing conspiracy, or whether they were made
to cover up an earlier, completed conspiracy
6. The 7th Circuit held that Bellavia’s statements were made in the course of
the ongoing conspiracy to extract street taxes from the independent
bookmakers, and thus they were admissible
31. Exceptions to the Hearsay Rule
a. Need for exceptions to rule against hearsay
b. Historical development was case by case, ie haphazard
c. Distinction between FRE 804 and FRE 803 exceptions is unavailability of the out of
court declarant
d. 804= unavailable out of court declarant
e. FRE 804
i. (a): unavailability defined:
1. witness claims a privilege
2. witness refuses to testify
3. witness cannot remember
4. witness is dead or too ill to testify
5. witness is not subject to subpoena
6. witness is not unavailable if the party offering hearsay statement procured
the absence of the witness
ii. FRE 804 (b)(1)
1. most justifiable of the exceptions
2. former testimony exception
a. needed if first trial is reversed and you need to have a second trial
and your prize witness dies in the meantime
b. the trial transcript is hearsay but it will come in under this
exception
3. technique for reading transcript of former testimony
a. use two people
4. Authentication: FRE 902(1): self-authentication
5. Elements:
a. Unavailability of the out of court declarant
b. Testimony given at an earlier trial or deposition

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Outline – Evidence

c. Party against whom it is offered (or predecessor in interest in a

civil case) had an opportunity and similar motive for cross
6. Barber v. Page (p. 589)
a. Prosecution of two defendants for robbery
b. At the preliminary hearing, Woods turned on Barber and testified
against him
c. At the time of trial, Woods was in federal prison in Texarkana
d. The trial court allowed the prosecutor to introduce the transcript of
the preliminary hearing under the former testimony exception
e. SCOTUS reversed because of violation of Confrontation Clause in
the 6th Amendment
f. In order for the transcript to be admitted, the prosecution had to
show unavailability
g. This required a good faith effort to obtain the attendance of the
witness at trial
Note that the Supreme Court’s ruling applies regardless of what the
state evidence law is
7. Wahl v. State (p. 594)
a. Facts- murder prosecution. DF sought to introduce grand jury
testimony of Hardwick.
b. Recall the Williamson case and the preliminary hearing testimony
of Gore
c. Was the grand jury testimony admissible?
d. Unavailability of Hardwick: the TC rules that there had not been a
sufficient showing made because the defendant had not sought
assistance from the State to locate Hardwick.
e. Similar motive: The TC ruled that the state did not have a similar
motive to cross-examine Hardwick at the grand jury. The Alaska
SC noted a split of authority on this issue among the federal court.
It decided that the motive was similar enough.
8. Horne (p. 598)
a. This case deals with the use of former testimony against a different
party in a civil case
b. What is a predecessor in interest?
i. See p. 219, second full paragraph
1. At common law, a predecessor in interest was
limited to a narrowly defined privity – a previous
landowner
2. The advisory committee decided to remove this
limitation, and its version is described at p. 220
3. But then the judiciary committee restored the
limitation
ii. Courts interpret it differently
c. Asbestos case against Owens Corning and other asbestos
manufacturers

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Outline – Evidence

d. The defendant was allowed to introduce a 10 year old deposition of

a witness taken in another case brought by other claimants
e. The appellate court basically read the predecessor in interest
limitation out of the rule
f. The 3rd, 6th and 8th circuits also take the same position
g. It is allowable as long as similar motive in the cross
iii. FRE 804 (b)(2): dying declarations
1. Elements:
a. Unavailability
b. Prosecution for homicide or a civil action
c. Statement made while declarant believed death was imminent
d. Statement concerns the causes or circumstances of impending
death
e. Note: declarant does not have to actually die
2. Justifications:
a. Necessity
b. Reliability
i. Impending death substitutes for solemnity of the oath
ii. But dying person may not be fully competent
iii. Listeners are not apt to challenge statements of dying
person
iv. Dying person may have ulterior motives
3. Shephard v. US (p. 599)
a. Murder prosecution
b. Evidence in controversy: wife’s statement to her nurse that “Dr.
Shephard has poisoned me”
c. Wife collapsed two days before she made the statement, seemed to
recover and then died the following month
d. The trial court admitted the statement but the supreme court
reversed because “the patient must have spoken with the
consciousness of a swift and certain doom”
iv. FRE 804 (b)(3): declarations against interest
1. Elements:
a. Unavailability
b. A reasonable person in the declarant’s position would have made
the statement only if it were true
c. Because the statement, when made, was so far contrary to
i. The declarant’s pecuniary or proprietary interest,
ii. OR to invalidate the declarant’s claim against someone
else,
iii. OR to expose the declarant to civil or criminal liability
d. Special rule: A statement offered in a criminal case must be
corroborated if it tends to expose the declarant to criminal liability
2. Pecuniary/proprietary interest
a. At common law, this had a restrictive meaning

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Outline – Evidence

b. Pecuniary interest: acknowledgement of ownership, eg X owns

Blackacre
c. FRE 803(b)(3) expanded the exception to cover other interests
3. Contrast with admissions
a. Admissions
i. Statement of a party
ii. No unavailable requirement
iii. Rationale: not hearsay because there is no need for cross
b. Declaration against interest:
i. Not a statement of party
ii. Unavailability required
iii. Rationale: based on the supposed reliability if a statement
is against interest
4. US v. Ojudun (p. 604)
a. Prosecution for violations of supervised release
b. EIC: statements Gray made to detective Medina after this arrest
that implicated the DF in a bank fraud scheme
c. The TC admitted the statements by Gray under 804(b)(3) as
declarations against interest, but the COA reversed.
d. 1 problem with Gray’s statements was that part of them were
against Gray’s interest and a different part involved the DF
e. Another problem was that there were not corroborating
circumstances to clearly indicate the trustworthiness of the
declarations against interest.
v. 6th Amendment Right to Confrontation
1. “In all criminal proceedings, the accused shall enjoy the right to be
confronted with the witnesses against him”
2. Incorporated into the due process clause of the 14th Amendment and
therefore it is applicable to the states
3. Reconciling the Confrontation Clause with the Hearsay Rule
a. Three alternative interpretations of the Confrontation clause (p.
609, A)
i. No out of court statement may be used unless the defendant
can cross the out of court declarant, OR
ii. The defendant has the right to attend the trial and watch the
witness testify to the out of court statements
iii. Something in between
b. The two extreme alternatives differ from the Hearsay rule with all
its exceptions
i. Are the Hearsay exceptions consistent with the 6th
amendment?
ii. Does the 6th amendment incorporate all the hearsay
exception?
iii. If it does, then the Hearsay exception cannot change
c. Note the 6th Amendment is one-way. It applies only in favor of
criminal defendants, not prosecutors or in civil actions

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4. Ohio v. Roberts (p. 611 cited by Crawford)

a. This case provided a general framework for confrontation analysis
b. Hearsay could be used against an accused if
i. It fell within a firmly rooted hearsay exception, OR
ii. It contained particularized guarantees of trustworthiness
c. Firmly rooted hearsay exceptions
i. Examples: former testimony, business records, excited
utterances
ii. Not firmly rooted: present sense impressions, declarations
against penal interest
d. Particularized guarantees of trustworthiness
i. Focus was on reliability, rather than credibility
ii. Unpredictable, inconsistent application
iii. Also it did not stop core confrontation violations (see p.
613)
5. Crawford v. Washington (p. 610)
a. This case overruled the Roberts line of cases
b. Prosecution for assault and attempted murder
c. Evidence in controversy: the spouse’s tape-recorded statement to
the police that negated self-defense, because she said the victim
did not have a weapon in his hands (p.611)
d. Grounds for admissibility?
i. Part of wife’s statement implicated her as an accomplice
(wife led the defendant to the victim’s apartment)
ii. State court’s confrontation clause analysis
1. It did not come within a firmly rooted hearsay
exception
2. But it did have particularized guarantees of
trustworthiness
e. SCOTUS reversed
f. The Court adopted a new standard for confrontation clause
analysis
g. It makes two propositions (p. 611, above and below B)
i. The primary object of the confrontation clause is
testimonial hearsay
ii. Testimonial statements are not admissible unless the
witness is unavailable and the defendant had an opportunity
for cross
h. What are testimonial statements? (p. 610)
i. Example: An accuser who makes a formal statement to
government officers
ii. Ex parte testimony at a preliminary hearing
iii. Statements take by police in the course of interrogations
(what Crawford case involved)
i. Statement of Crawford’s wife was therefore testimonial, and hence
not admissible under the confrontation clause

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vi. Due Process Rights of criminal defendants

1. In addition to the Confrontation Clause, the Due Process clause can also
raise evidentiary issues
2. Green v. Gorgia (p. 615)
a. This case followed Chambers v. Mississippi
b. The defendant sought to introduce evidence of an out of court
statement
c. The statement would have been admissible as a declaration against
interest under FRE 804(b)(3), but it was not admissible under the
Georgia Declaration against interest exception, because it was a
declaration against penal interest
d. The Supreme Court held that the statement had to be admitted
regardless of the Georgia hearsay law because of due process of
law
vii. FRE 804(b)(6) Forfeiture by wrongdoing
1. Added in 1997
2. Rationale for the exception
3. Also recognized by common law
4. Giles v. California (p. 617)
a. Murder prosecution
b. The prosecution alleged that the defendant shot his girlfriend,
Brenda Avie
c. Evidence in controversy: statement that the girlfriend had made to
police three weeks before the murder
d. Theory of admissibility
i. California law provided a hearsay exception for statements
describing the infliction of an injury to the declarant if the
declarant is unavailable
ii. This is similar to FRE 804(b)(6), except that the FRE
covers a statement offered against a party who engaged in a
wrongdoing that was intended to procure the unavailability
of the declarant
e. Did the admission of the girlfriend’s statements violate the 6th
Amendment?
f. These statements were testimonial
g. The court noted that it previously had acknowledged two
exceptions to the general rule that the sixth amendment prohibits
admission of testimonial statements
i. Dying declarations
ii. Forfeiture by wrongdoing
h. The dying declaration exception clearly did not apply
i. Whether the forfeiture by wrongdoing exception applied depended
on the defendant’s intent for killing his girlfriend – ie whether or
not it was to procure her unavailability as a witness
j. The Supreme Court remanded for the lower court to decide
k.

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f. FRE 803
i. FRE 803(1) Present Sense Impression (911 calls)
1. Elements
a. A statement describing an event
b. While the declarant was perceiving it
c. Or immediately thereafter (within seconds)
2. Rationale: the declarant has not time to think up a lie
ii. FRE 803(2) Excited utterance
1. Elements:
a. Statement relating to startling event
b. Made while declarant was under stress
c. Stress can last a while
2. Rationale: declarant’s mind is distracted by the stress and therefore cannot
think up a lie
iii. Spontaneous Exclamations (FRE 803(1) and (2))
1. Requirement of personal knowledge
a. See advisory notes p. 191
2. Exceptions are easy to criticize
3. Originated from “res gestae”: lawyer Latin for things done
4. These are seen in car accidents and domestic violence cases
5. 911 calls are usually present sense impression
iv. US v. Boyce (p. 624)
1. This case criticizes the present sense impression and excited utterances,
especially the concurring opinion
2. Prosecution for being a felon in possession of a firearm and ammunition
3. Evidence in controversy: statements by the mother of the defendant’s four
children to a 911 dispatcher
4. Requirement for present sense impression listed in 2nd paragraph on p. 626
a. Statement must describe an event without calculated narration
b. Personal knowledge of declarant, and
c. Statement must have been made while perceiving the event
5. Requirements for the excited utterance exception on bottom of p. 626
a. Startling event
b. Statement made under stress
c. Statement relates to startling event
d. Personal knowledge of declarant
6. What about spontaneity? Not necessary – see n. 4 on p. 626
v. US v. Mitchell (p. 628) (example of laying a foundation for these exceptions)
1. Robbery of armored truck at check cashing store
2. Evidence in controversy: anonymous note in getaway car
3. The trial court admitted the note, but the appellate court reversed because
there was no foundation to admit the note and no showing that the writer
of the note had personal knowledge or showing that the note was written
under stress of startling event or while looking at the license plate
vi. Davis v. Washington (p. 632) clarifies questions left unanswered by the Crawford
case

63
Outline – Evidence

1. This case addressed the question of how the confrontation clause applies
to out of court statements that are not testimonial
2. Two cases
a. Davis
i. 911 call by victim asking for help as victim’s husband was
leaving
b. Hammon
i. Statement taken by police from victim of domestic abuse
after the abuse occurred
3. The 911 call in Davis was not testimonial because it was about ongoing
emergency
4. The statement to police was testimonial because there was no ongoing
emergency but statement after the fact
5. The 911 call was admissible but not the statement to the police
6. The Roberts reliability test did not apply at all
vii. FRE 803(3) state of mind
1. The most subtle and confusing of the hearsay exceptions
2. Rationale: compare the two statements
a. I hate Yasser
b. Yasser is a liar and a thief
c. The first statement would be hearsay if offered for its truth, but the
second would not be hearsay if offered to show hatred
d. The state of mind exception corrects the discrepancy
3. The state of mind exception arose out of res gestae (statement surrounding
the event)
4. When is it relevant?
a. Examples: mens rea in criminal cases, malice in fraud cases, etc
b. Victim’s state of mind:
i. People v. Bunyard (p. 640) didn’t fit within exception
1. Murder prosecution
2. Evidence in controversy: statements by victim to
witness that defendant would kill her
3. It was not relevant because it was not an element of
the crime but admitting the statements was harmless
error
ii. Lamb v. State (p. 642) came under the exception
1. Murder prosecution
2. Evidence in controversy: witness statements that
decedent told them the defendant had previously
battered her and she was afraid of him
3. Relevance: testimony showing ill feelings between
spouses has been established as relevant in a
spousal homicide case
5. Admissibility of state of mind evidence to prove conduct
a. Even if the declarant’s state of mind is not in issue, can evidence of
state of mind be offered as circumstantial proof of conduct?

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b. That if the declarant had a particular state of mind, the declarant

more than likely acted in conformity with that state of mind
c. Example: can proof that the declarant hated the victim be used to
show that the declarant later killed the victim? Yes – that’s what
proof of motive is all about
6. Hillmon (p. 645) 1 of the 2 leading cases
a. Here proof of the declarant’s state of mind is allowed to prove
future conduct
b. Suit on a life insurance policy
c. Issue: Was Hillmon dead?
d. Plaintiff offered a dead body, but the defendant claimed it was the
body of Walters
e. Evidence in controversy: letters written by Walters to his family
that he went to Crooked Creek with Hillmon
f. The trial court would not admit the letters, but the Supreme Court
reversed and held they were admissible as circumstantial proof that
Walters acted in conformity with the intent expressed in the letters
to go to Crooked Creek with Hillmon
g. “The letters in question were competent not as narratives of facts
communicated to the writer by others, nor yet as proof that he
actually went away from Wichita, but as evidence that, shortly
before the time when the evidence tended to show that he went
away, he had the intention of going, and going with Hillmon,
which made it more probable both that he did go with Hillmon and
that he went with Hillmon than if there had been no proof of such
intention.” (p. 646)
7. Shepard (p. 651) 2nd leading case
a. Here the Supreme court put a limit on the use of state of mind
evidence
b. Murder prosecution
c. Evidence in controversy: “Dr. Shepard has poisoned me”
d. Not admissible as dying declaration. So the prosecution came up
with the argument that the evidence was admissible to rebut the
defendant’s claim that the victim committed suicide (p. 652, 3rd
para)
e. The Supreme Court concludes this argument is outweighed by the
prejudicial effect of the statement: “The reverberating clang of
those accusatory words would drown all weaker sounds” (p. 649)
f. Main grounds for excluding the statement are on p. 649
g. Hearsay evidence of state of mind is admissible if state of mind is
in issue
i. Eg. Alienation of affections, pain and suffering in personal
injury actions
h. Also, admissible to prove future acts as in Hillmon
i. But that is as far as it goes

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i. “declarations of intention, casting light upon the future,

have been sharply distinguished from declarations of
memory, pointing backwards to the past. There would an
end, or nearly that, to the rule against hearsay if the
distinction were ignored”
ii. Also, “the testimony now questioned faced backward and
not forward. … What is even more important, it spoke to a
past act, and more than that, to an act by someone not the
speaker. Other tendency, if it had any, was a filament too
fine to be disentangled by a jury.”
8. Elements:
a. Statement of declarant’s then existing state of mind
b. But not a statement of memory or belief to prove the act
remembered or believed (Shepard)
c. Exception for wills
9. US v. Joe (p. 655)
a. Murder prosecution. Defendant admitted the killing, but denied the
intent to kill
b. Evidence in controversy: testimony of doctor concerning victim’s
statements that the defendant raped her and she was afraid of him
c. The appellate court ruled that the victim’s statement that she was
afraid of the defendant was admissible under the state of mind
exception
d. But not the part about why she was afraid (because he threatened
to kill her) or that he had raped her, because these statements were
statements of a memory or belief
e. See also note 4, which addresses whether the victim’s statement
can be used to show the defendant’s intent
10. State of mind as proof of actions of other persons
a. See House Committee report on p. 192
i. State of mind evidence can be used to show declarant’s
future conduct, but not the conduct of another person
b. US v. Persico (p. 653)
i. Prosecution for murder and witness tampering
ii. Evidence in controversy: testimony of victim’s wife about
how he was going to meet the defendant in Brooklyn
iii. In US v. Delveccio (p. 657) the court held that evidence of
an out of court declarant’s state of mind could not be
offered to show that a third person met the out of court
declarant unless there was independent evidence that the
third person met the out of court declarant
iv. Here there was no such evidence
v. However, the court distinguished Delvecchio, because the
evidence of the victim’s statement of intent was offered to
show that he went to Brooklyn to meet with the defendant
as opposed to show that the defendant met him

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vi. So, Persico was closer to Hillmon than to Delvecchio,

because it involved the use of evidence of an out of court
declarant’s state of mind to show the declarant’s future
conduct, instead of a third person’s conduct
11. Exception for wills
a. FRE 803(3) expressly permits statements of memory or belief if
they relate to the declarant’s will
b. Rationale in advisory notes at p. 193 is based on the necessity of
obtaining the testator’s out of court statements, and their likely
reliability
viii. FRE 803(4) statements of physical condition
1. Elements:
a. Statements made for purposes of diagnosis or treatment
b. That describe medical history or past symptoms
c. But only of reasonably pertinent to diagnosis or treatment
2. Discussed in Advisory Notes p. 193
a. Rationale for admissibility: reliability
b. Limitation of reasonably pertinent to diagnosis or treatment
i. Example: patient’s statement that he was struck by an
automobile, but not the part about the automobile going
through a red light
c. FRE 803(4) extended exception to cover diagnosis as well as
treatment
3. US v. Kootswatewa (p. 664)
a. Prosecution for sexual abuse of 11-year-old girl
b. Evidence in controversy: victim’s statements to a nurse practitioner
after the abuse occurred
c. The court held that the statements were admissible under FRE
803(4)
d. The victim made the statements to the nurse as part of the sexual
assault examination for purposes of diagnosing and treating the
injuries to the victim
e. This includes statements about the identity of the perpetrator
4. Field (p. 667)
a. Medical malpractice action based on the failure of a doctor to give
snake bite victim antivenin
b. The defendant doctor testified to statements of other doctors that
said that he was “doing everything appropriately”
c. This did not come within the meaning of FRE 803(4) because the
exception is limited to cover only statements by a patient to a
doctor
g. FRE 612 Present recollection revived
i. Three ways a witness can remember something
1. On his own
2. That he wrote it down
3. He can be prompted

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ii. Present recollection revived

1. Not hearsay at all just a trial tactic
2. Witness who can’t remember may be prompted
3. Not very persuasive. Witness preparation is better
iii. Elements:
1. If a writing is used to refresh a witness’ memory, either
a. While the witness is testifying, or
b. Before the witness testifies – if the court determines it is in the
interest of justice
2. Then the other side can see the writing
iv. Consequently, showing the witness a privileged document can result in waiver of
the privilege
v. Tactic: communicate it orally to the witness to obtain the protection of attorney-
client privilege
h. FRE 803(5) past recollection recorded
i. Elements:
1. Record of matter that witness once had knowledge of
2. But no longer can recall fully and accurately
3. Record was made or adopted when the memory of the witness was fresh
a. “or adopted” allows multiple person involvement in making of the
record (see Adv. Notes p. 195)
b. also a report may be admissible under another exception even if it
is barred under FRE 803(5) or another rule
ii. Record may be read but not received in evidence itself unless offered by opposing
party
iii. The witness has to say :I don’t remember” before he can be given notes
iv. Rationale: written records are more reliable than memory but the problem with
use of records is that it puts a restriction on cross
v. Felix-Jerez (p. 667)
1. Prosecution for escape from a prison camp
2. Evidence in controversy: confession by defendant to a federal Marshal
a. Confession was in Spanish and translated by camp guard
b. After the interview the Marshal typed up his notes
c. Prosecution called Marshal who offered his notes into evidence
3. Allowed by trial court but reversed on appeal because he needed to satisfy
the requirement of present lack of knowledge in order to prevent the use of
a canned statement in lieu of live testimony
i. FRE 803(6) business records
i. Broadest of the exceptions
ii. Elements:
1. Record made at or near time of events
2. By a person with knowledge or from information transmitted by a person
with knowledge
3. Record was kept in the course of a regularly conducted business activity
(defined broadly)
4. Making of record was regular practice of the business activity

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5. Authentication by custodian of records or certificate of a custodian (added

in 2000)
6. Not admissible if business record is not trustworthy
j. FRE 803(7) Absence of entry in business records
i. Same foundation as in FRE 803(6) may be used to show absence of entry
ii. Exception is not really necessary because the absence of an entry is not a
statement (see Advisory Notes, p. 200)
k. Business records
i. Once the foundation is satisfied, boxes of records can be admitted
ii. Rationale:
1. Practical needs of business
2. Consider how to prove a MasterCard debt without a business records
exception
iii. Major problem areas identified in Advisory notes p. 197
1. Sources of the recorded information
2. Entries in opinion form
3. Motivation
4. Involvement as participant in matters recorded
iv. Sources of information
1. See advisory notes p. 197
a. Not a problem for ordinary business records
b. The problem arises when the supplier of information is outside the
business as in the leading case (Johnson v. Lutz)
v. Johnson v. Lutz (p. 676) leading case
1. Wrongful death action arising from a traffic accident
2. Evidence in controversy: police report based on statements of bystanders
3. This was not admissible because the exception does not cover entries
based upon voluntary hearsay statements made by third parties not
engaged in the business or under any duty in relation thereto
4. The police report would have been admissible as a business record if it
was based on the police officer’s personal knowledge, rather than on
hearsay statements
vi. Saks International (p. 678)
1. Suit against ship for non-delivery of bags of coffee beans to plaintiff
2. Issue: How many bags of coffee beans were loaded onto the ship in
Africa?
3. Plaintiff offers loading tallies from local stevedores at the African ports
4. The courts held the tallies were admissible
a. Business records may be admitted even though they are the records
of another business besides one of the parties
b. Authentication may be by a person who is not an employee of the
business
c. There is no requirement to identify the person whose first-hand
knowledge was the basis of the business entry

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d. Loading tallies were admissible because they were prepared in the

regular course of the stevedore businesses, as shown by the
defendant’s chief mate
vii. Lust (p. 680)
1. Employment discrimination action
2. Evidence in controversy: memos that the plaintiff’s supervisor’s boss
wrote to the file concerning her complaints about discrimination
3. These do not qualify as business records unless it was the regular practice
of the business to make the memos
4. The court concluded that the memos were made to create evidence against
the plaintiff in the subsequent lawsuit, rather than for business purposes
viii. US v. Reyes (p. 682)
1. Prosecution for racketeering, narcotics offenses and conspiracy for murder
2. Defendant ran a drug distribution ring from prison
3. Evidence in controversy: logbook of prison visitors: the logbook
corroborated an informant’s testimony by showing visits with the
defendant in prison by gang members
4. Three issues:
a. Custodian did not have first-hand knowledge of the creation of
each entry in the logbook
i. Testimony of procedure for creation of entries is sufficient
b. Prison did not have business duty to provide accurate information
i. Business records are admissible if there is a regular practice
of verifying the information by employees as a regular
practice of the business
c. Lack of trustworthiness
i. Verification by employees provides trustworthiness
ix. Other problems
1. Entries in opinion form
a. See advisory notes p. 197 last paragraph
b. At common law there was difficulty if the business entries
reflected opinions
c. But FRE 803(6) expressly permits the use of opinions and
diagnoses
2. Motivation of declarant
3. Advisory notes p. 198, 1st full paragraph: description of Palmer v.
Hoffman case
a. An accident report prepared by a railroad engineer was not allowed
into evidence
b. The Supreme Court stated that the reason was that the report was
not prepared in the regular course of business, but this reasoning
would exclude many business records
c. The only sensible reason for excluding the report was that it was
not trustworthy, because the engineer may have had a motive to
cover up the accident

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d. Note that trustworthiness may depend on who is offering the

business record. See p. 198 end of first full paragraph and the
reference to the Yates case
4. Involvement as a participant in the matters reported
a. See advisory notes p. 198, 2nd to last paragraph
b. Does not require that the person who made the record must have
been involved in the matter being recorded
c. Example: a weather report
l. FRE 803(8) Public Records
i. Most poorly drafted of the exceptions
ii. Elements:
1. Records or reports of either
a. Activities of the office or government agency, OR
b. Matters observed pursuant to official duty, except for matters
observed by police in criminal cases, OR
c. In civil actions and against the government in criminal cases,
factual findings resulting from investigation
d. Unless they are untrustworthy
iii. Advisory notes
1. 803(A)(iii) factual findings: do they cover evaluative reports? They should
be allowed in but you must look at whether they were prepared timely? By
someone with special expertise? In a hearing? Motive problems?
a. Approved of by advisory committee
b. House report wants to exclude them
c. Senate disagrees with House
2. No comment in the Conference Committee report
iv. Beech Aircraft (cited on p. 689) covers evaluative reports
1. Pilot and flying instructor were killed in the crash of an aircraft at a Navy
base
2. Spouses sued the airplane manufacturer who claimed that the crash was
caused by pilot error
3. Evidence in controversy: an evaluative report: a report of an investigation
conducted by a Naval officer that concluded with the opinion that the
crash was caused by pilot error
4. SCOTUS noted that the legislative history was confusing but it concluded
that evaluative reports could be admissible, unless they were
untrustworthy
v. Moss v. Ole South Real Estate (p. 683)
1. Race discrimination in housing case
2. Evidence in controversy: two reports of separate investigations that
concluded there was race discrimination: one by HUD and one by the Air
Force
3. The magistrate excluded both reports, because he found that they were not
credible (p. 685-686)
4. The appellate court reversed on grounds that the magistrate applied the
wrong legal standard

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a. The focus should be on reliability rather than credibility.

Reliability= whether they were prepped in a trustworthy manner.
b. Factors to consider
i. Timeliness, skill of official, whether there was a hearing,
and motive to falsify (p. 685, 4th paragraph)
c. Applying these factors, the appellate court decided that the Air
Force report was admissible but not the HUD report
d. Difference between the reports (p. 687)
i. HUD report was untimely
ii. HUD investigator did not interview a key witness, Henry
Wixey
vi. How confrontation clause applies to this:
1. Williams (p. 693) plurality opinion. Have to bring in chemist
a. There were two earlier cases: Melendez-Diaz and Bullcoming
b. Melendez-Diaz involved a forensic lab report that concluded the
white powdery substance was cocaine. The Supreme Court decided
it was testimonial and therefore was barred by the Confrontation
Clause
c. Bullcoming involved a forensic lab report showing the defendant’s
blood alcohol level was 0.21. The Supreme Court decided it was
testimonial and was therefore not admissible
d. Williams involved a DNA analysis in a rape case to identify the
defendant. This time the forensic lab report itself was not offered.
Instead, the prosecution offered the testimony of an expert as to his
opinion that was based on the DNA analysis
e. The case was a complete fiasco
f. 4 justices agreed that the expert’s testimony was admissible for
two reasons
i. first that the report itself was not introduced,
ii. and second that the report was not testimonial
iii. but Justice Breyer thought there should be a reargument
g. Justice Thomas concurred on the ground that the report was not
testimonial, but not on the ground that the Confrontation problem
could be avoided by using expert opinion testimony
h. 4 justices thought Melendez-Diaz and Bullcoming should control
because the DNA analysis was testimonial
i. so it is not clear what the court decided
vii. US v. Fryberg (p. 697) public records example
1. Admissibility of routine law enforcement records
2. Prosecution for possession of firearm by a prohibited person (a person
subject to a protective order)
3. Evidence in controversy: return service of the protective order
4. The return of service would appear to outside of the exception in FRE
803(A)(ii) because it involved a matter observed by law enforcement
personnel

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5. However, there is a line of cases that hold that “records of routine, non-
adversarial matters made in a non-adversarial setting, reflecting
ministerial, objective observations” are admissible under FRE
803(8)(A)(ii) (p. 699)
6. Examples include license plates of cars crossing the border and warrants
of deportation
7. The 9th Circuit also held that the return service was not testimonial
viii. Oklahoma’s public records exception (p. 707) § 2803
1. The following public records are admissible:
a. Reports of the agency’s own activities
b. Matters observed pursuant to duty as to which there was a duty to
report, and
c. Factual findings from investigations
2. But the following are excluded:
a. Police investigative reports
b. Government investigative reports offered by the government
c. Factual findings offered by the government in criminal cases, and
d. Factual findings from a special investigation
e. Anything that lacks trustworthiness
f. Note: police reports are excluded in all cases, not just criminal
cases
m. Miscellaneous exceptions
i. Long list
1. Tend to be easy to spot
2. Mostly on documents that people generally would rely on
ii. FRE 803(9): vital statistics
1. Like birth and death certificate
iii. FRE 803(10): absence of public record
1. Similar to FRE 803(7)
2. Not hearsay
iv. FRE 803(11),(12): Records of religious organizations
1. Like marriage and baptismal certificates
v. FRE 803(13): family records
1. Family bibles, tombstones
vi. FRE 803(14),(15): recorded deeds and recitals in deeds
vii. FRE 803(16): ancient documents
1. Must have been prepared before 1998
2. Authentication under FRE901(8)
viii. FRE 803(17): market reports and the like
ix. FRE 803(18): learned treatises
1. For cross of experts
2. Must call book to the attention of the opposing expert, but your own
expert may establish that it is a reliable authority if the opposing expert
does not
x. FRE 803(19), (20), (21): reputation concerning family history, boundary markers,
or for character evidence

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xi. FRE 803(22): prior convictions

1. Judgments are hearsay: what the judge or jury said at the end of trial
2. Exception only for felonies
3. Includes guilty plea, but no nolo contendere pleas
4. Does not include convictions of third persons to prove guilt of the
defendant
5. Because of Confrontation Clause (p. 208, 4th paragraph of advisory notes)
xii. FRE 803(23): judgments to prove family history
xiii. FRE 804(b)(4): statements of declarant’s family history if declarant is unavailable
xiv. FRE 805: Hearsay within hearsay (like a business record w an excited utterance)
1. You need an exception for each “bubble”
xv. FRE 806: attacking and supporting the hearsay declarant
xvi. FRE 807: Residual Exception
1. Purpose: allow growth in hearsay exceptions (not used in practice much)
2. Do not use on final exam
3. Elements
a. Trustworthiness
i. Equivalent circumstantial guarantees of trustworthiness as
other exceptions
b. Materiality
i. Must relate to a material fact
c. Necessity
i. More probative than any other evidence that the proponent
can get through reasonable efforts
d. Fairness
i. Interests of justice will be served by admission of statement
e. Notice
i. Proponent of evidence must give opposing party notice
before trial
n. Overall considerations of the Hearsay Rule
i. You cannot evaluate the hearsay rule without all the exceptions
ii. Benefits of the rule against hearsay
1. It keeps out second hand evidence that may have reliability problems
2. Requires witnesses to come to court to testify in person
iii. Drawbacks of the rule
1. Cumbersome and overly complicated
2. It might be better to let the hearsay in with a cautionary instruction to the
jury
iv. But the hearsay rule is here to stay – particularly for criminal cases because of the
Confrontation Clause in the Constitution
32. FRE 501: Privileges
a. Privileges are governed by federal common law, except where state law provides the rule
of decision
b. Swidler & Berlin (p. 703) main point: easier if you have a statute you can apply
i. What is the effect on the privilege of the death of the client?

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ii. After Foster committed suicide, the independent counsel sought production of his
attorney’s notes of Foster’s meeting with his attorney 9 days before he died
iii. The notes were handwritten and 3 pages
iv. The trial court denied production, but the court of appeals reversed and applied a
balancing test
v. SCOTUS reversed and upheld the privilege after the client’s death
vi. But there were 3 dissenters
c. Attorney- client privilege under Oklahoma law: 12 OS 2502
i. (A): definitions
1. attorney, client, representative of attorney, representative of client,
confidential
ii. (B): statement of privilege: A client has a privilege to refuse to disclose and to
prevent any other person from disclosing confidential communications made for
the purpose of facilitating the rendition of professional legal services to the client
iii. (C): means for claiming privilege
iv. (D): exceptions to the privilege
33. FRE 502: Waiver (primarily concerned with electronic sources of information)
a. FRE 502 (a): Scope of waiver
i. If a disclosure was made in a federal proceeding or to a federal agency, a waiver
extends to undisclosed information only if
1. Waiver was intentional
2. Same subject matter, and
3. Fairness
ii. Von Bulow (p. 722) 502 has a limited application. Must be made in federal
proceeding.
1. Deals with scope of waiver
2. Subject of the movie Reversal of Fortune
3. After von Bulow was acquitted, professor Dershowitz wrote his book,
which included some privileged communications
4. Von Bulow’s step children brought civil actions against him for putting
their mother into a coma, and they sought discovery of Dershowitz’s
communications with von Bulow
5. The children claimed that the privilege was waived by the book’s
publication
6. The trial court ordered disclosure of the materials, but the 2nd circuit
reversed
7. The 2nd Circuit agreed that the privilege had been waived by Dershowitz,
because von Bulow acquiesced in the publication of the book
8. But the 2nd Circuit disagreed as to the scope of the waiver
9. Under the fairness doctrine, a party may not disclose part of a privileged
communication and claim the privilege with respect to the rest of it,
because this could distort the judicial process
10. However, this did not apply to disclosures made out of court
11. And so, the waiver went only to the attorney-client communications that
were actually disclosed in the book, and the privilege still applied to the
other communications

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b. FRE 502(b): Inadvertent waiver

i. If a disclosure was made in a federal proceeding or to a federal agency, there is no
waiver if
1. Disclosure was inadvertent
2. The holder took reasonable steps to prevent disclosure, and
3. The holder took prompt and reasonable steps to rectify the error
ii. Reasonable precautions
1. Suburban Sew ‘n Sweep (p. 709)
a. The plaintiffs searched though the defendant’s trash to find
attorney-client communications
b. Were the documents still privileged?
c. Note that the federal court relies on the superseded Rule 503
(which is similar to 12 OS 2502, p. 706)
d. “confidential” is defined as not intended to be disclosed to third
persons
e. the court lists two factors to consider on p. 725
i. the effect on uninhibited attorney-client consultation if the
privilege is not allowed, and
ii. the ability of the parties to protect against disclosure
f. because the defendants could have gotten a paper shredder, the
privilege was waived
2. Scott v. Beth Israel (p. 726)
a. Use of employer’s e-mail server for attorney-client
communications
b. Attorney-client privilege was waived for failure to use reasonable
precautions to preserve confidentiality
iii. Selective Waiver
1. Pacific Pictures (p. 717)
a. A Hollywood producer was involved in and IP dispute with DC
Comics over the rights to a Superman movie
b. An attorney for the producer absconded with copies of several
documents and sent them to DC Comics. The producer reported
the theft to the FBI, and then the US Attorney began an
investigation
c. Next the US Attorney issued a grand jury subpoena for a number
of documents from the producer along with the assurance that the
government would not provide them to third parties. The producer
complied with the subpoena
d. Then DC Comics requested production of all the documents the
producer had disclosed to the US Attorney
e. The 8th Circuit has recognized a doctrine of selective waiver, but
nearly every other circuit has rejected it
f. It has also been proposed in legislation, but never adopted, except
to a limited extend for antitrust cases and in FRE 502(d)
g. Selective waiver would not be recognized in the absence of a court
order, even if there is a confidentiality agreement, like in this case

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h. Instead, the holder of the privilege has to assert the privilege in

order to preserve it
iv. Limitations of inadvertent waivers
1. Only if the disclosure was made in a federal proceeding or to federal
agency
2. Requirements of reasonable steps to avoid disclosure and to rectify error
c. FRE 502 (d), (e) Use of Agreements to avoid waiver
i. What happens if the parties agree that some type of disclosure is not a waiver in
their case?
1. Clawback agreement
2. Quick peek
ii. These provisions were adopted to facilitate agreements on waiver
iii. If the court approves an agreement by court order, then a disclosure will not
waive the privilege even if it is not inadvertent
iv. So it authorizes selective waiver, but only if the court approves the waiver
v. FRE 502(c) avoids waiver in later federal proceedings if there was a previous
disclosure in a state law proceeding and either the state or federal law avoided the
waiver
d. Waiver under Oklahoma Law
i. 12 OS 2511 (p. 727)
1. privilege is waived if the holder discloses or consents to the disclosure of
any significant part of privileged matter. No waiver if the disclosure is
privileged.
2. You do not have to be aware of the privilege to waive
ii. 12 OS 2502 (E), (F) (p. 707)
1. added in 2009, based in FRE 502 (a) and (b)
2. (E): inadvertent waiver
3. (F): scope of waiver
iii. the privilege only extends to the privileged communication, and not to the
underlying facts. And so, disclosure of the underlying facts does not waive the
privilege
iv. 12 OS 2512: Compelled disclosure
1. no waiver if the disclosure was compelled erroneously or there was no
opportunity to claim the privilege
v. 12 OS 2513: Comment upon claim of privilege
1. no comment is allowed on a privilege claim, and no inference may be
drawn from a privilege claim
2. this rule is different in federal court
vi. 12 OS 2502(D): Exceptions to the privilege
1. crime or fraud
2. where the client is dead and the parties are asserting claims against the
client’s estate
3. there is a claim of breach of duty by the attorney to the client
4. the attorney is the attesting witness to a document
5. where there were joint clients and now there is a dispute between them

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6. the communication is between an attorney and a public officer or agency,

unless there is a pending investigation that will be adversely affected by
the disclosure
e. The crime or fraud exception
i. Only applies to future crimes, not past ones
ii. Only applies if the client is engaged in a crime or fraud (as opposed to the
attorney)
iii. In re Grand Jury (p. 728)
1. During a grand jury investigation of a corporation, the government issued
subpoenas to the corporation’s attorneys. The attorneys provided some
information, but did not fully comply with the subpoenas
2. The attorneys asserted the attorney-client privilege, but the trial court
decided that the crime-fraud exception applied
3. The 9th Circuit held that there was a two-part test for the crime-fraud
exception
a. The client was engaged in a crime or fraud, and
b. The attorney-client communications were in furtherance of the
crime or fraud
4. The appellate court reversed the trial court for not examining the attorney-
client communications to verify that they were in furtherance of the crime
or fraud
f. Other exceptions
i. These mostly involve situations where there is some sort of conflict that arises
between the parties to the attorney-client communication. When this happens, the
privilege gives way
ii. Where the client is dead and the parties are asserting claims against the client’s
estate - the attorney can claim the privilege, but there is a conflict between the
heirs
iii. There is a claim of breach of duty by the attorney to the client – conflict between
attorney and client
iv. The attorney is the attesting witness to a document – hardly involves legal
services
v. Where there were joint clients and now there is a dispute between them – conflict
destroys the privilege
vi. The communication is between an attorney and a public officer or agency, unless
there is a pending investigation that will be adversely affected by the disclosure –
the conflict is between a member of the public and the public’s governmental
official

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