Evidence Outline

by Tracy Swenson

Tanner v. United States 1987

Synopsis of Rule of Law. Federal Rules of Evidence (”F.R.E.) Rule 606(b), prohibits
the impeachment of a verdict with a juror’s testimony except where there is
question as to whether any outside influence was brought to bear on any juror.

Common Law: Internal vs. External?

- bribe - external
- media - external
- someone who reports they are possessed by the devil - internal
Drug use and Drinking - Internal
i.e. like virus and bringing it in, lack of sleep, poorly prepared food
- it is not at all clear that the jury system could survive such efforts to perfect it.

Inquiry- Validity - Verdict or Indictment

Prohibited Testimony (b)(1)
- any statement made or incident that occurred during deliberations
- the effect of anything on that juror's or another juror's vote
- any juror's mental processes concerning the verdict

Exceptions (b)(2)
- Whether extraneous prejudicial information was brought to juror's attention.
- Whether an outside influence was improperly brought to bear on any juror.
- Whether a mistake was made in entering the verdict on the verdict form.
- poling jury prevents clerical errors now

FRE 606(b) - ACN

- Permits jurors to Deliberate w/o fear of oversight.
- Protects jurors against harassment by lawyers seeking a basis for reversal.
- enhances the finality and legitimacy of verdicts.
- simply putting verdicts beyond effective reach can only promote irregularity and
injustice.
-the rule offers an accommodations btw these competing considerations.

What's out under 606(b)(1)

- A juror misunderstood or disregarded an instruction. (doesn't matter - goes to
thought process)
- A juror voted on a verdict as he did not want to deliberate into the evening.
(doesn't matter)
- A juror said, "The defendant did not testify. He must be guilty." (doesn't matter -
statement made during deliberations)

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- that a juror considered evidence that the court instructed the jury to disregard
after an objection. (doesn't matter - thought process)
Relevance Rule 401: "the test"
Evidence is relevant if:
it has any tendency to make a fact more or less probable than it would be w/o the
evidence.
the fact is of consequence in determining the action.

FRE 401: The Relevance Test

Probative Material

Evidence
having any A fact of
tendency to consequence = Relevant
make more or to the action
less probable

Probative = "apparent Probability"

- Evidence is probative if we can say that the apparent probability of the
defendant's guilt or liability is now greater than before the evidence was received.

Material = "of Consequence"

- A fact is of consequence if it relates to:
- an element of a criminal charge, civil claim, or defense or,
- theory of the prosecution or defense.

Relevance Rule 402: "General Admissibility" (minor rule in course)

Relevant evidence is admissible unless barred by:
- The constitution
- A statute
- The FRE
- Other SCOTUS Rules
Irrelevant evidence is inadmissible.

Relevance Rule 403: "The Exclusion"

Even if Relevant, evidence can be excluded if its probative value is substantially
outweighed by:
- unfair prejudice* most common
- confusing the issues
- misleading the jury
- undue delay
- wasting time, or
- needlessly presenting cumulative evidence. (repetitive)
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FRE 403 ACN: Unfair Prejudice: is "an undue tendency to suggest (a) decision on
an improper basis, commonly, though not necessarily, an emotional one.”

Are ALL prejudicial photos subject to FRE 403 Exclusion?

- must be substantial
- but if probative value and material fact is more important than the photograph
being prejudice than the evidence will be allowed
401 and 403: A Sliding Scale

United States v. James (1999)

Synopsis of Rule of Law. Where a Defendant raises self-defense as a defense to a
charge of manslaughter, it is improper under the Federal Rules of Evidence to
exclude extrinsic evidence of the decedent’s violent nature that would have
corroborated the Defendant’s testimony.

FRE 104(b): Conditional Relevance

- When relevance depends on whether a fact exists, proof must be introduced
sufficient to support a finding that it does.
- What does sufficient to support a finding mean?
- such that a jury could find by a preponderance of the evidence (51%)
- the court may admit the proposed evidence on the condition that the proof be
introduced later.

Cox v. State
Synopsis of Rule of Law. When probable cause exists to make an arrest and the
arrest is nevertheless made in violation of the Fourth Amendment, the
exclusionary rule does not bar the introduction of statements into evidence made
by a defendant outside of his home following the illegal arrest.

State v. Bocharski (2001)

Synopsis of Rule of Law. Relevant evidence should be excluded when the
probative value of the evidence is outweighed by the risk of prejudice to a
defendant; testimony that constitutes an admission of a party opponent should
not be admitted unless relevant; when a jury finds a defendant guilty of first-
degree felony murder, which has no lesser-included offenses, no instructions need
be given for manslaughter (a lesser-included offense of first or second-degree
murder).
- This court did not abuse their discretion. 403 says MAY. Therefore will not
overrule.

401 and 403: A sliding Scale

401 Analysis 403 Analysis
What is the probative If the Evidence does not

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Value of the unfairly Address contested issues
Prejudicial Evidence? or if its PV is low, then then unfair prejudice, even if less
"substantial" may still warrant exclusion.

Does the unfairly Note the availability of other means of evidence." ACN
403
prejudicial evidence
advance the resolution
of contested issues?

United States v. Myers (1978) 5th circuit

Synopsis of Rule of Law: Under the Federal Rules of Criminal Procedure, both the
defendant and government have a continuing duty during trial proceedings to
make disclosures concerning the use of alibi witnesses; the defendant must
disclose to the government when an alibi defense is intended to be used and the
government must disclose the existence of any witnesses that may be used to
rebut such a defense. Also, evidence of crimes not charged is inadmissible, when
such evidence is offered to prove that a defendant has propensity for criminal
behavior and that the defendant acted in accordance with that propensity.
-To show flight was probative of guilt you have to show that he tried to flee. Many
conflicting statements by the same officer regarding if he fled.
The Four Flight Inferences
- Behavior to flight
- flight to consciousness of guilt
- consciousness of guilt to consciousness of guilt for the crime charged.
- consciousness of guilt for the crime charged to actual guilt for the crime
charged.
In English
- he ran
- he ran bc he knew he broke the law
- he ran bc, not only did he know he broke the law, he knew he broke this law.
- he ran bc he knew he broke this law, so that means he is guilty beyond a
reasonable doubt.
CA Flight: The Breaks in the chain
**** he ran bc, not only did he know he broke the law, he knew he broke this law.
Evidence of Flight and 403
- bc of the inherent unreliability of evidence of flight, and the danger of prejudice
its use may entail, a flight instruction is improper unless the evidence is
sufficient to furnish reasonable support for all four of the necessary inferences.

The Value of Demonstrative Evidence

- the only limits on the use of demonstrative evidence are the trial judge's
discretion and the trial attorney's imagination.
- imwinkelreid, Evidentiary Foundations.
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- cost will almost never be a reason for exclusion under 403.
- fair and accurate?
- Relevant? probative value
- Unfairly prejudicial?
Jury Instruction: evidence of Flight
- The intentional flight of a def immediately after the commission of a crime or
after he is accused of a crime is not sufficient evidence in itself to establish guilt
but is a fact which, if proved, may be considered by the jury in determining guilt.
The use of flight instructions has frequently been found to constitute error
For these reasons, a flight instruction should not be given.

The Specialized Relevance Rules

FRE 407 Subsequent Remedies
FRE 408 Compromise
FRE 409 Medical Expenses
FRE 410 Pleas XXXX
FRE 411 Liability Insurance XXXX
Why Specialized Rules?
- As a matter of law and public policy, the evidence governed by the specialized
relevance rules fails the 401/403 test.

Focal Points for FRE 407-09

-Rationale for the Rules:
- 401/403
- Public Policy
- Admissibility under the Rules
- Judicial interpretation of the Rules.

United States v. Jackson (1975)

Synopsis of Rule of Law: Defendant’s recent state felony conviction for assault
could not be used to impeach Defendant under Federal Rule of Evidence 609(a)
because Defendant’s conduct in the commission of that assault did not tend to
show whether Defendant would tell the truth if he took the stand in the present
trial; however, the evidence was not allowed was conditioned on Defendant not
portraying to the jury that he had a “pristine background.” Also, evidence that
Defendant’s used a false name, and that Defendant was in another state after the
crime, was inadmissible under Federal Rule of Evidence 403, because its
probative value was outweighed by possible prejudice.

FRE 407: Subsequent Remedies

-when measures are taken that would have made an earlier injury or harm less
likely to occur, evidence of the subsequent measures is not admissible to prove:
Inadmissible to show- Admissible-
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Negligence To show ownership or control
Culpability To show Feasibility - Tuer case
Product Defect To Impeach - Tuer case
Need for warning Or for any other non-prohibited reason
- unlikely a property owner would deny ownership
- likely property owner would say not feasible to repair or that it was safe prior to
the accident.
- measure taken to fix after the fact are inadmissible

Tuer v. McDonald (1997)

Synopsis of Rule of Law: Pursuant to Maryland Rule of Evidence (”M.R.E.”) Rule 5-
507, evidence of subsequent remedial measures is only admissible to establish
feasibility or to impeach a witness’s testimony.
FRE 407: Tuer Turns on Testimony
- IF a party claims that the product or procedure could not have been
implemented in a safer way, evidence of an SRM by that party will likely be
admissible for feasibility and/or impeachment.
- unsafe = not feasible? court says MD was just saying there was a risk but not
unsafe in all circumstances. Just not worth the gamble under these specific
facts.
Two take aways from this case
- look for feasibility exceptions when a witness makes broad and unqualified
statement that it would have been "impossible" to make the contested product or
procedure safer than it was at the time of an accident. Point out impossible is
untrue bc during testimony this was fixed.
- look for impeachment exceptions in cases in which a witness boasts about the
safety of a product or procedure at the time of the accident. "best possible"
product/policy/procedure.
Impeachment -attack credibility of witness by challenging his/her testimony with
some evidence of inconsistency.
- this tends to happen bc attorney's assume that remedial remedies will stay out
but if
- most attorney's will file motion in lemina to leave subsequent remedies stay out.
Judge will likely grant. But if other sides raise exceptions then can get in. "open
door"

408: Compromise & Negotiations

- Evidence that a party offered to or did compromise a claim and all surrounding
statements made during settlement negotiations are not admissible to show the
amount or validity of a disputed claim or impeach by a prior inconsistent
statement.

FRE 408: Amount or Validity of a claim

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- FRE 408 applies when a plaintiff wants to show that a def offered to settle a
claim as a means of proving liability and amount of damages - CANNOT DO
- FRE 408 applies when a def wants to show that a pl offered to settle a claim to
show that the PL's claim is invalid. CANNOT DO
- FRE 408 applies when a PL wants to offer that a def settled with a similary-
situated third party as a means to show the def's liability or the proper amount of
damages in the present case. CANNOT DO

FRE408: All Surrounding Statements

- FRE 408 prohibits admission of all statements made in the course of settlement
negotiations, not just the offer to compromise.
- FRE 408 only protects offers to compromise when a claim exists and liability or
amount of damages is actually in dispute.
- initiation of dialog that could result in representation.

FRE 408: inadmissible to Impeach

- Allowing use of an effective admission of negligence in settlement negotiations
to impeach a denial of negligence at trial would "tend to swallow the exclusionary
rule and impair the public policy of promoting settlements."

FRE 408: Admissible to show bias

- evidence of compromise may be used to show the bias of a third party who
settled a claim with the defendant and is now testifying against the PL.
FRE 409: Offers to Pay Medical Expenses
- FRE 409 prohibits offers to pay or actual payment of medical, hospital, or similar
expenses resulting from an injury.
- Unlike FRE 408 and compromise negotiations, FRE 409 ONLY excludes the offer
and not the surrounding statements.

Williams v. McCoy (2011)

Synopsis of Rule of Law: Evidence of whether a plaintiff has hired an attorney is
admissible for the purposes of impeachment as to a litigious plaintiff, and is
relevant to rebut the existence of a plaintiff’s injuries. Under Rule 411, testimony
offered to prove the existence of insurance coverage is inadmissible when offered
to show whether the insured party acted negligently, but when offered for another
purpose, as was the case here, such testimony is not per se inadmissible.

FRE 404(a)(1): The Character - Propensity Rule

- Evidence of person's character is NOT admissible to prove that on particular
occasion the person acted in accordance with the character or trait.
Why FRE 404
- FRE 404(a)(1) prohibits the admission of propensity evidence due to the risk of
unfair prejudice, juror confusion, and waste of time substantially outweighs the
probative value of that evidence.
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- as a matter of law, propensity evidence fails the 401/403 test.
- why? unfairly prejudice - jury will form opinion not based on facts
The "natural tendency" of a juror is to-
- give excessive weight to the (propensity), and allow it "to bear too strongly on
the present charge" or,
- Take the proof of propensity.....
- FRE 404(a)(1) premits all other uses of "prior acts" evidence, subject to the FRE
401/403 balancing test
- FRE 105 limiting instructions restrict the evidence to its proper scope.
People v. Zackowitz (1930)
Synopsis of Rule of Law: Evidence of Defendant’s possession of weapons that
were not used in or related to the crime committed are inadmissible, as the
introduction of such evidence is likely to have a prejudicial effect on the jury.
Nature of the Evidence Use at Trial
- Three revolvers and “a "...in the forefront of the trial..."Device resembling a
(pen)
which is both a revolver "...laid before the jury..."and a tear gas gun." "...to
characterize the def as a man murderously inclined."
- trying to show def was a man "murderously inclined"
- Character "is never an issue in a criminal prosecution unless the def chooses to
make it one."
- The basis for the exclusion is "one, not of logic, but of policy."
FRE 404(a)(1) & FRE 404(b)
404(b)(1): a breakdown
- evidence of a crime, wrong, or other act is not admissible to prove
person's character in order to show that on a particular occasion the
person acted in accordance with the character.
- this language effectively mirrors the "character trait" language in FRE
404(a)(1)
- evidence of a crime, wrong, or other act means any act not directly at issue
in the case. For instance, Zackowitz's ownership of additional weapons.
- the other act need not be a crime, an arrest, or even "wrong."
- the other act need not happen prior to the crime in question. (could
happen after the crime in question)

FRE 404(b)(2): A breakdown

CWOA evidence may be admissible to prove:
- motive
- opportunity
- intent
- preparation
- plan
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- knowledge
- date of prior conviction?
- location of prior conviction?
- type of drug, prior or instant?
- amount of drug, prior and instant?
- knowledge involved when some special skill set is needed to commit the
crime.
- identity
- absence of mistake
- lack of accident
- these are not exceptions to 404(a)(1). Trait never admissible. Evidence may be
admissible to prove the situations above.
- The permitted purposes listed under 404(b)(2) are not exceptions to 404(a)(1) or
(b)(1)

FRE 404(b): analytical steps

- based on the facts of the case, does the evidence have probative value that
does not depend directly on an action taken by the defendant "in accordance with
his character"?
- If no, it's out. At least for 404(b). (answer is rarely no)
- does the evidence of the crime, wrong, etc. does it depend directly on
propensity?
- if yes, is the probative value to show:
- motive: if some act by the def tends to show that he had a motive for
committing the crime in question, the court MAY admit the evidence.
- opportunity - evidence of crimes, wrongs, or other acts may be used to prove the
def had access to the scene of the crime, or the capacity to commit the charged
crime. Remember your 401/403 analysis.
- intent
- preparation/plan to demonstrate preparation for a crime or show a common
plan or scheme, the charged offense and the offered offenses generally must both
constitute steps toward the final goal.
- knowledge
- identity- if the identity of the person who committed a crime is at issue,
evidence that links the def to similar crimes or related prior bad acts may be
admissible as evidence that the def committed the crime charged, subject to
401/403.
- absence of mistake - evidence of a person's prior crimes, wrongs, or other acts
may tend to prove that the person understood what she was doing or of the
consequences of her act.
- Lack of accident?
If yes, it may be in under FRE 404(b) if 401/403 is met.

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 - how might you argue against the admission of the evidence using FRE
403? Unfair prejudice, confusion, misleading the jury, FRE 105

FRE 105 Limiting Instructions

- if a court allows character evidence to come in for reasons other than "in
accordance with,"ask the court for a FRE 105 limiting instruction to restrict the
evidence to its proper scope. - or not.
- as defense counsel note how effective a limiting instruction to the jury is (not
very and may just highlight a fact you don't want them to)

The "real" exceptions to 404(a)(1) &(2)

413
414
415
all subject to 403

FRE 413 Similar crimes in sex assault cases

- in a criminal case which a def is accused of a sexual assault, the court may
admit evidence that the def committed any other sexual assault.
- the evidence may be considered on any matter to which it is relevant (including
propensity).

FRE 414 &415

- FRE 414 permits evidence of prior child molestation in like cases.
- FRE 415 permits evidence of previous sexual assault or child molestation in civil
cases as provided in FRE 413 & 414.

Test for FRE 413-14 admission

The def must be accused of a sexual assault or child molestation
The court must find that the evidence proffered is "evidence of def's commission
of another offense of sexual assault"
The court must conduct a 401/403 balancing test (Guardia)

The 401/403 Balancing Test (Guardia)

- a district court "should not alter its normal process of weighing the probative
value of the evidence against the risk of unfair prejudice."
- Bc of the "sensitive nature" of the balancing test in these cases, a court must
"fully evaluate" the evidence and "make a clear record."
- the similarity and closeness in time of prior conduct to the act charged - no time
limit imposed
- the frequency of the prior conduct
- the need for evidence beyond the testimony of the alleged victim and def.

FRE 404(a)(2)(A)

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Exceptions for a Defendant in a Criminal Case
- in a criminal case
- a defendant may offer evidence of the def's pertinent (character) trait
- and if the evidence is admitted, the prosecutor may offer evidence to rebut it.

FRE 404(a)(2)(B)
Exceptions for a Victim in a Criminal Case
- in a criminal case
- a defendant may offer evidence of an alleged victim's pertinent trait.
- And if the evidence is admitted, the prosecutor may:
- offer evidence to rebut it; and
- offer evidence of defendant's same trait.

Limits to FRE 404(a)(2)(A) & (B)

- FRE 404(A)(2)(A) and (B) only allow evidence of a pertinent trait of character of
the defendant or victim.
- for example, in a fraud case, a defendant may offer evidence of her honesty.

FRE 404(a)(2)(C): Exceptions for a victim in a criminal case

- in a homicide case, the prosecutor may offer evidence of the alleged victim's
trait of peacefulness to rebut evidence that the victim was the first aggressor.

FRE 405(a): What kind of Evidence?

- A defendant may present:
- Testimony
- About (her/victim's) reputation
- OR
- In the form on an opinion

FRE 405(a): Reputation and Opinion

- for reputation evidence, a witness must demonstrate that she has knowledge of
the person's reputation in the community, even if she does not know the person
- Opinion evidence is generally given when the witness knows the person.

FRE 405(a): What kind of Evidence?

- a prosecutor may respond with:
- cross-examination
- about relevant
- Specific instances
- of the def's conduct

FRE 405(b): What kind of Evidence?

- When a person's character is an essential element of a charge, claim, or
defense, the character or trait may also be proved by relevant specific instances
of a person's conduct
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 - entrapment
- defense of Truth in a a Libel or Slander Action (this is on the BAR A LOT)
- Resolving a parental custody Dispute

Witness character for Truth/untruth

FRE 404(a)(3)
Leads to
FRE 607
FRE 608
FRE 609
Witness Impeachment

Non-character
- contradiction by prior inconsistent statement
- contradiction by conflicting evidence or circumstances
- Evidence of Bias

Character (propensity)
- evidence of opinion or reputation (FRE 608)
- evidence of certain past convictions (FRE 609)

Impeachment, Character for truth/untruth

- FRE 404(a)(3) allows character evidence as to witness character for truthfulness
or untruthfulness as guided by FRE 602

Under 6089a), a witness's credibility may be attacked by way of reputation or

opinion evidence
- FRE 608(b) permits cross examination as to specific instances of witness conduct
with some limitations.
- FRE 609 establishes guidelines for the u se of a witness's prior criminal
convictions as a basis for impeachment of the witness's character for truthfulness.

FRE 608(a): Witness Character

- A witness's character for untruthfulness may be attacked by:
- Testimony (opinion)
- about the witness's reputation for having a character for untruthfulness OR
- opinion about character for untruthfulness.
- A witness may be attacked (on cross-examination):
- about the "character" witness's specific acts that are probative of
untruthfulness OR
- specific acts that are probative of the truthfulness by (the) witness (about
whom the character witness testified.)
- A good faith basis must exist for the question -> no "hunches."
- the question may not involve convictions (or arrests, usually) (see FRE 609)
- A court may use a 401/403 test for ALL evidence under 608(a) and (b).
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- If attacked, a witness's character may (also) by rehabilitated with:
- testimony
- about the witness's reputation for having a character for truthfulness OR
- Opinion about that character
608 REVIEW:
- Witness character evidence is admissible in BOTH civil and criminal cases
- Either party may initiate an attack on the truthfulness of a witness, not just the
defense
- Evidence may only go to the witness’s propensity for truthfulness or
untruthfulness
- Evidence of truthful character is admissible only after evidence of the witness's
character for untruthfulness
- Extrinsic evidence is not admissible to prove specific instances of a witness's
character for un/truthfulness, subject to 609

FRE 608(b): Witness character - CS2

- A fact witness may be attacked on cross-examination
- About the witness's specific acts that are probative of untruthfulness.
- no questions about arrest or convictions
- must have GFB
- No extrinsic evidence

Examples of specific instances of untruthfulness:

- prior use of a false name
- filing false tax returns
- forgery
- perjury in other court proceedings
But not:
- drug use
- violent crimes

U.S. v. Whitmore
Reputation: A party must show witness has "acquaintance with the witness," his
"community," and "the circles in which he has moved."
Opinion: A party must show that opinions include "sufficiently supportive factual
information to be credible.”

US v. Whitmore: 608(b) and good faith

- Counsel need only have "a reasonable basis for asking questions (about specific
acts) on cross-examination which tend to incriminate...the witness."
- the general rule is that the questioner must be in possession of some facts which
support a genuine belief that the witness committed the act.

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- counsel did not move to admit the record of the suspended license into as
extrinsic evidence.
- abuse of discretion
- error not harmless as Soto was only witness to gun.
Witness Impeachment

Non-Character Character (Propensity)

- Contradiction by prior inconsistent statement - Evidence of opinion or
Reputation (FRE
608)
- Contradiction by conflicting Evidence or - Evidence of certain past
circumstances convictions (FRE 608)
- Evidence of Bias
FRE 609: Evidence of Past Convictions
- FRE 609 is premised on the belief that a witness's criminal past is indicative of a
dishonest character or a willingness to flaunt the law.
- therefore, jurors can infer that a witness with a criminal past is less deserving of
credit as honest that a witness w/o a record.

FRE 609(a)(1)(A): Civil Case or Witness not defendant

- a prior conviction for any crime -
- punishable by over one year- actual sentencing could have been less
- must be admitted -
- to attack the truthfulness of the witness
- if -
FRE 403 is satisfied - court has no discretion and must allow
- FRE 609(b) "ten year rule" is satisfied
- FRE 609(c) "pardon" rule is satisfied

FRE 609(b): 10 yr rule

- If more than ten years since the witness's conviction or release from
confinement, admissible only if:
Its probative value, supported by specific facts, substantially outweighs its
prejudicial effect
the proponent gives the adverse party written notice of use.

FRE 609(c)
- if a witness has been pardoned, the prior conviction is generally inadmissible

FRE 609(a)(1)(B): Witness IS Defendant (criminal case)

- prior conviction for any crime
- punishable by over one year
- must be admitted
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- to attack the truthfulness of the defendant - witness
- if -
- probative outweighs prejudice
- FRE 609(b) "ten year rule" is satisfied
- FRE 609(c) "pardon" rule is satisfied

609(a)(1)(B): attacking credibility not his propensity to commit crimes. still have
to satisfy probative value verse prejudice but this is rarely a factor.

FRE 609(a)(2): Any Witness in a civil or criminal case

1. Conviction for a crime
2. involving dishonesty or false statement
3. regardless of the punishment
4. must be admitted
5. subject to 10 year limitation/pardon rule
- felony or misdemeanors must be admitted subject to10 yr rule.
if involves false statement or dishonesty regardless of prejudice it will be
admissible

Dishonest Convictions?
Yes:
- perjury
- Counterfeiting
- Fraud
- Embezzlement
- Failure to file tax return

No:
- violent crimes
- theft
- robbery
- drug offenses
FRE 609(d): Juvenile Adjudications - charge that is processed and disposed on in
juvenile court
- Criminal case
- witness is NOT defendant
- Would be admissible if adult conviction
- Admitting the conviction is necessary to fairly determine guilt or innocence.

Reliability & Hearsay

- Is the witness competent and does she possess sufficient personal knowledge to
testify?
- Is her testimony itself reliable enough to be admitted as evidence?

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Hearsay -> Unreliable testimony

Hearsay, Testimonial Defects

- Perception (see)
- Memory (Remember)
- Narration (Say)
- Sincerity

The Problem with Hearsay in court

- Oath
- Demeanor
- Cross-Examination

FRE801(a)-(c): defining Hearsay (CHECK LIST)

- A declarant's
- Out-of-court
- Statement
- Offered at trial to prove the truth of the matter asserted.

FRE 802: The rule against Hearsay

- Hearsay is not admissible unless provided for by:
- A federal Statute
- An exception in the FRE
- Other SCOTUS rules

FRE 801(b)-(c)(1): Defining Hearsay

- The Declarant is the person who made the statement.
- Out-of-court means that the declarant did not make the statement while
testifying at the current trial or hearing.

FRE 801(a): Statement

- oral or written assertion, non-verbal conduct intended as an assertion.

Why the "truth" matters

- an out-of-court statement offered to prove that what a declarant said is true is
inadmissible as there is no way to verify it for accuracy.
- The declarant is not at trial, under oath, observable by a jury, or subject to cross.

Non-TOMA = Non-Hearsay
- if counsel can convince the court that the out-of-court statement is offered for a
reason other than its truth, the statement is admissible as non-hearsay.
Examples:
- OOCS offered to prove the effect or impact on the listener.
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- OOCS offered to show a legal obligation (verbal or legal a ct)
- OOCS offered to impeach court testimony.
FRE 801(d)(2)(A): Statement of P-O
- a party’s own words are not hearsay when offered against her at trial
FRE 801(d)(2)(B): Statement of P-O
- A statement that a party adopted is not hearsay when offered against her at
trial.
- A defendant’s actions may show his adoption of another person’s statement
even if the defendant remains silent.
- Even in the absence of overt action, silence may constitute an adoptive
admission if:
- the defendant heard and understood the statement
- he was at liberty to respond
- the circumstances “naturally” called for a response.
FRE 801(d)(2)(C) & (D): Statement of P-O
- a statement made by a party’s agent or employee on a matter w/in the scope of
that relationship and while it existed is not hearsay when offered against the
party at trial.
- The statement must be considered but does not by itself establish the
declarant’s authority.
- a statement
FRE 801(d)(2)(D) and Standard of Proof
- there was sufficient circumstantial evidence for admission of cafe manager's
statement in suit to recover for burns when hot coffee spilled on customer, where
woman identified herself as manager, apologized, gave him paper towels, and
asked if he was hurt. Becton v. Starbuck's Corp.

FRE 801(d)(2)(E): Statement of P-O

A statement by a party's co-conspirators is NOT hearsay when offered against her
at trial.

Test for Admission:

- A conspiracy existed at the time the out of court statement was made.
- the conspiracy included the declarant and the party against whom the statement
was offered.
- The declarant spoke during the course and in furtherance of the conspiracy.

17
- standard of Proof: while FRE 801(d)(2)(E) is silent as to the standard of proof to
satisfy the foundational requirements, courts have held that the moving party
must make a case for the conspiracy by a preponderance of the evidence.

Hearsay Roadmap
- past inconsistent witness statements admissible to impeach under FRE 613
- Past inconsistent witness statements admissible for TOMA under FRE 801(d)(1)
(A)
- Past consistent witness statements admissible for TOMA under FRE 801(d)(1)(B)

FRE 613: past statements to impeach

- Extrinsic evidence of a WPIS (in the form of an oral or written statement)
- Is admissible if the witness is given an opportunity to explain or deny the
statement.
- and an adverse party is given an opportunity to examine the witness about it.
- FRE 613 allows admission of past statements only to impeach the testimony of a
witness who testifies in conflict with the past statement.
- the restrictions of FRE 613(b) DO NOT apply when the past statement is made
by an opposing party under FRE 801(d)(2).
- a witness's prior inconsistent statement may be used for the specific and limited
purpose of discrediting her trial testimony as to that issue.
- extrinsic evidence MAY be used to support the prior inconsistent statement,
subject to FRE 613
- 401/403 applies to the impeachment evidence offered.

FRE 613(a): Practice Pointer

- when challenging a witness about a prior inconsistent statement with a
document, counsel is NOT required to show the document to the witness but
must - upon request - show it to opposing counsel.
- 613 only allows for attack to credibility to the witness. does not apply to
"injection" question 2. similar to 806.
- if def moved more a directed verdict
- "proof" "evidence" or some standard of proof - this means you can't use 613
U.S v. Barrett
- to be admissible as a prior inconsistent statement, the contradiction need not be
"in plain terms"
- the key is the "clear incompatibility" btw the two statements.
- FRE 613(b) only requires that "the witness be afforded at some time an
opportunity to explain or deny."

FRE 801(d)(1)(A): WPIS for Substance

- the prior inconsistent statement of a witness
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 - is admissible for TOMA
- if it was given under penalty of perjury during court proceeding or deposition
- and the witness is subject to cross-examination about the prior statement (at
present).
- to be admissible, the prior statement need not have been subject to cross-
examination at the time that it was made - just at the time it was offered.
- Does not require that the witness was subjected to cross when the prior
statement was made
- defense counsel do not appear in front of the grand jury.
FRE 801(d)(1)(B): WPCS
- The prior consistent statement of a witness
- Is admissible to rehabilitate witness
- if subject to cross (at present) and
- offered to rebut a charge that the witness "recently fabricated (the testimony) or
acted from a recent improper influence or motive in so testifying."

TOMA
- in order to be admissible under 801(d)(1)(B), a prior consistent statement must
have occurred before "the alleged fabrication, influence or motive came into
being."

Prior consistent statement ->motive to fabricate-> PCS admitted at trial

Hearsay exceptions - declarant unavailable

FRE 804(a)
FRE 804(b)(1)
FRE 804(b)(2)
FRE 804(b)(3)

FRE 801(d)(2)(A): OPS

A statement is not hearsay if it is offered against an opposing party and was made
by the party in an individual or representative capacity.

FRE 801(d)(2)(B): Adoptive ADMISSION (test)

- the defendant heard and understood the statement.
- he was at liberty to respond
- the circumstances" naturally" called for a response. (if innocent - speak up)
- the def failed to respond.
- proximity is the best argument.

FRE 801(d)(2)(E): Conspiracy test

- a conspiracy existed at the time the out of court statement was made.
19
- the conspiracy included the declarant and the party against whom the statement
was offered.
- the declarant spoke during the course and in furtherance of the conspiracy.

FRE 801(d)(2)(E) and Standard of Proof

- While FRE 801(d)(2)(E) is silent as to the standard of proof to satisfy the
foundational requirements, courts have held that the moving party must make a
case for the conspiracy by a preponderance of the evidence.

Hearsay Roadmap: FRE 804(a) & (b)

Statements by unavailable Declarant
- Prior Testimony
- Dying declarations
- statements against interest
- forfeiture by wrongdoing

FRE 804(a): unavailable witness

- privilege: declarent who themselves has criminal exposure and as a result has
asserted their 5th amendment right against self incrimination.
- refusal to testify - williamson case.
- memory loss
- death or serious illness
- absence - and inability by proponent to procure attendance or testimony by
reasonable means.

FRE804(b)(1): The former testimony exception

- former testimony is admissible if it was:
- given as a witness at trial, hearing, or deposition (whether in current
proceeding or a different one) AND
- is now offered against a party who had an opportunity and a similar motive
to develop it by direct, cross or redirect examination.
- former testimony is admissible in a civil proceeding if it is offered against a party
whose "predecessor in interest" had an opportunity and a similar motive to
develop it by direct, cross-, or redirect.

FRE 804(b)(2): Dying Declaration

- Where words are scarce they are seldom spent in vain, for they breathe truth
that breathe their words in pain.
- In prosecution for homicide or in a civil case
- A statement made by the declarant while believing his or her death to be
imminent
- about its cause or circumstances
- is admissible as non-hearsay
- to establish a dying declaration, the "declarant must have spoken w/o hope
of recovery and in the shadow of impending death."
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 - there must be a "settled hopeless expectation" that death is "near at hand"
and what is said "must have been spoken in the hush of its impending
presence."

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

A statement:
- made by an unavailable declarant/witness (and)
- that a reasonable person in the position of the declarant would have made only
if he believed it to be true bc -
- it was so contrary to his interest (or)
- had so great a tendency to invalidate his claim against someone else or to
expose him to civil or criminal liability (and)
- is supported by corroborating circumstances that clearly indicate its
trustworthiness -
- (only if) offered in a criminal case (by either side) as one that tends to expose
the declarant to criminal liability.

SAI: Corroboration Requirement

- A statement by an unavailable witness must be supported by corroborating
circumstances that clearly indicate its trustworthiness
-If offered in a criminal case by either side as one that tends to expose the
declarant to criminal liability.
- The timing and conditions under which the statement was made.
- The party to whom the statement was made.
- the declarant's motive in making the statement and whether there was a reason
to lie.

FRE 804(b)(6): Forfeiture by Wrongdoing

A hearsay statement:
- offered against a party that wrongfully caused or acquiesced in wrongfully
causing the declarant's unavailability as a witness
- and did so intending the result
- is admissible for the TOMA

- A court must use a preponderance of the evidence standard to determine

whether a party has engaged in conduct justifying a forfeiture under FRE 804(b)
(6).
- The court "need not hold an independent evidentiary hearing if the requisite
findings may be made baed upon evidence presented in the course of the trial."
- Per Gray, a court must find by a POE:
- the def engaged in "some wrongdoing"
- that was intended to procure the declarant's unavailability a a witness and
-
- that did, in fact, procure his unavailability as a witness.

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FRE 803: Declarant unavailability immaterial
- is based upon "the theory that certain hearsay statements may possess...
guarantees of trustworthiness sufficient to justify non- production of the
declarant even though he may be available.

FRE 803(1) exception: present sense impression

- A statement
- describing or explaining an event or condition
- made while or immediately after the declarant received it.
- as long as have evidence that the witness declarant say what she said she saw

FRE 803(2): Excited Utterance

- a statement
- relating to startling event or condition
- made while the declarant was under the stress of the excitement that (the
event) caused.
- if cooling off period that is when excited utterance comes into question.

FRE 803(3): Then Existing M-E-P Condition

- Then - existing state of mind when SOM is at issue in the case.
- Then- existing SOM as probative of subsequent conduct -- also called plan or
intent to act.
- Then - existing bodily condition to a doctor or lay person.
- SOM of a testator in a will case.
- no reference to wills, estates, trusts, etc. on exam.
- While the exception describes "then-existing" conditions, those conditions are
"present" when the statement is made.
- every person is "the world's foremost authority on his or her contemporaneous
internal states."
- Thus, TEMEPC minimizes concerns as to memory, perception, or narration.
- can only talk under 803(3) about my future intent. Not future conduct of
another person.
- - in litigation when a person's mental or physical condition is at issue -
- - statements by that person -
- - Describing pain, mental feeling, or bodily health "at present"
- Are admissible under 803(3) as then-existig M-E-P
- In trial over concussions, the plaintiff reported: "I can't concentrate" or "my
head is throbbing."
- these statements are admissible under FRE 803(3)
Rule 803(3) does not require that a statement regarding M-E-P condition be made
to medical personnel.

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Rule 803(3) requires a statement about M-E-P condition at or about the same time
as the feeling...

Statements of memory or belief

- FRE 803(3) does NOT allow a statement of memory or belief to prove the fact
remembered or believed, unless the validity of a will is involved.
- look for past tense ("backward-looking") statements or statements about belief.
- witness claims, "victim said, "I feel like Bob is going to kill me" - to prove that the
victim believed that bob wanted to kill her.
- INadmissible! But --
- Victim's statement, "I fear for my life" is fine as it does not attempt to prove the
fact believed but reflects a "then-existing emotion."

803(5): recorded recollections

- A record on a matter about which the witness once knew but now cannot recall
well enough to testify fully and accurately and
- Was made or adopted by the witness when the matter was fresh in the witness's
memory and
- accurately reflects the witness's knowledge -- is admissible as HS exception.
- If admitted, the record may be read into evidence but may be received as an
exhibit only if offered by an adverse party.
- A record that is on a matter the witness once knew about but now cannot recall
well enough to testify fully and accurately.
- was made or adopted by the witness when the matter was fresh in the witness's
memory and accurately reflects the witness's knowledge.
- 803(5) may not save a case in the face of a recanting witness. Why?
- the recording must accurately reflect the witness's prior first hand knowledge --
a problem if the witness cannot testify to the occasion of the recording.
FRE801(d)(1)(A) works if:
- the witness testifies in front of a grand jury.
- the witness then appears at trial
- the witness’s memory loss is not credible and, as a result, it is “inconsistent”
804(b)(1) works even more effectively if the witness testifies at a preliminary
hearing at which he is cross examined.
- The witness’s “memory loss” makes him “unavailable” per FRE 804(a) and his
former testimony is admissible.

Sixteen Hearsay Exceptions - see handout

No 803(6) or (8) on the test

Confrontation Clause - right to cross - examine witnesses

The confrontation clause: Three Keys

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- The confrontation clause ONLY applies in criminal prosecutions.
- ONLY arises when the witness-declarant is unavailable.
- Evidence must survive both the confrontation clause and the rule against
hearsay to be admissible in court.

Mattox v. United States: 1984

- a "technical adherence to the letter of a constitutional provision may
occasionally be carried farther than is necessary to the just protection of the
accused."
- yes and no. reliable
- the "substance" of the right to confrontation is preserved (once the) defendant
(has seen) the witness face to face and has subjected him to cross-examination.
Therefore six amendment satisfied.

California v. Green (1970)

- confrontation and the FRE (separate but parallel tracks. Picture trains)
- If the "declarant is present, testifies at trial, and responds to questions about his
previous hearsay statement," the CC does not bar admission of the OOCS,
regardless if the OOCS was made under oath and subject to cross-examination.

Mattox + Green: the takeaway

- the confrontation clause will only arise in cases in which the witness-declarant is
unavailable and the defendant has had no prior opportunity for cross-
examination.

The Roberts Era

- the crux of the Roberts era rule regarding confrontation regarded the reliability
and trustworthiness of the out of court statement.
- roberts, wright, white and lilly are dead and serve only to contextualize
crawford.

Crawford v. Washington
- Crawford and his wife went to the victim's home to confront the victim for his
alleged attempted rape of defendant's wife.
- Crawford stabbed the victim and was charged with assault and attempted
murder.
- at his trial, crawford asserted his marital privilege.
- wife's tape-recorded statement to police was admitted as a "statement against
penal interest."
- Crawford was convicted and appealed on Confrontation Clause grounds.
- Per Roberts, statements of absent witnesses satisfied the CC if an "indicia of
reliability.”
- A firmly-rooted hearsay exception
24
 - A "particularized guarantee of trustworthiness."
- trial court "reliability" via corroboration, presence, recentness, "neutral" inquiry.
- appeals court no "reliability" via nine-factor test.
- State Supreme Court "reliability" via two "virtually identical" statements.
- even if the sixth amendment is not solely concerned with testimonial hearsy,
"thiat is its primary object."
- The Framers would not have allowed admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to testify and the
defendant had a POCX. (prior opportunity to cross-examine)
- The confrontation clause is concerned with testimonial hearsay.
- Testimony is "a solemn declaration or affirmation" made to "prove some fact."
- An accuser who makes "a formal statement" to government officers "bears
testimony"
- a statement to government officers is almost always going to be
testimonial
- interrogations by law enforcement officers "fall squarely into the class of
testimonial hearsay.

Focus on the FRE

- using the FRE and not the similar washington rules, how might a court rule on
this statement?
- what rules apply?
- 804(a)(1) unavailable witness
- FRE 804(b)(3) - statement against interest.

FRE 804(b)(3): Review: Statement against interest

- made by an unavailable witness/declarant (and)
- that a RP in the position of the declarant would have made only if he believed it
to be true bc - it had so great a tendency to... expose her to...criminal liability
(and)
- is supported by corroborating circumstances that clearly indicate its
trustworthiness -
- only if offered in a criminal case by either side as one that tends to expose the
declarant to criminal liability. (i.e. - advised of rights, able to call lawyer, not
placed in coercive atmosphere.)
- statements "collateral" to self-incriminating statements remain inadmissible
hearsay
- also - "this is especially true when statements implicate someone else."
- the question of what "against interest" must be viewed by the TOC.
What is not "testimonial"?
- an "off-hand, overheard remark..."
- A "casual remark to an acquaintance…"
25
TAKEWAY - where testimonial evidence is at issue, the sixth amendment demands
what the common law required: Unavailability and a prior opportunity for cross-
examination.

Crawford Does not Bar an OOCS if:

- the OOCS not offered for its truth.
- the declarant appears for trial and is cross-examined.
- the declarant is unavailable but the defendant had a past chance to cross-
examine.
- the statement was not considered "testimonial."

The Crawford Legacy

- interrogations by police "of the sort presented against crawford" are "testimonial
evidence."
- But do all statements made by suspects to law enforcement arise from
"interrogations"?

FRE 801(d)(2)(D): Party-Opponent

- a statement made by the party’s agent to employee on a matter within the
scope of that relationship and while it existed.

FRE 804(b)(2): Dying Declaration

In a civil case:
- a statement made by the declarant while believing his death is imminent
- about its circumstances
- is admissible as a hearsay exception.
FRE 804(b)(1): Former Testimony
- Former testimony is admissible if it was gien as a witness as a deposition and
- is now offered against a party who had an opportunity and a similar motive to
develop it by examination.

The crawford legacy: A new analysis

- criminal case
- hearsay
- testimonial statement
- unavailale witness
- prior chance to cross-examine

Crawford does not bar an OOCS (outof court statement) if:

- the OOCS not offered for its truth (not hearsay).
- the declarant appears for trial and is cross-examined.

26
- The declarant is unavailable but the defendant had a past chance to cross-
examine.
- the statement was not considered "testimonial."
Crawford - Davis - Hammon
- whether the justices meant what they said in Crawford about the inadmissibility
of testimonial hearsay by an absent declarant.
- rather than learning from and building on lower courts' attempts to apply
crawford's formulations, the davis court seemed bent on reshaping the inquiry.

Davis and Hammon (2006)

In Davis (2006), the victim made a 911 call about a domestic assault. During the
conversation, the operator cut the victim off, saying, “stop talking and answer my
questions.” She then acquired more information about Davis. The police arrived in
minutes and saw the victim’s injuries.
- at trial the victim was unavailable
- the officers testified that the injuries appeared to be "recent" but could not
testify as to their cause.
- the prosecutor successfully moved to admit the 911 call. The def was convicted
and appealed.
- A 911 call is not ordinarily designed to prove some past fact, but to describe
circumstances requiring police aid.
- The Davis victim “plainly made a call for help against a bona fide threat” and
the questions asked were “necessary to resolve the present emergency.”
- Thus the victim was NOT testifying when she identified Davis in the
“emergency.”
HAMMON - police responded to a domestic disturbance. The police arrived, saw
that the victim was "somewhat frightened" though she told them that "nothing
was the matter." The police entered the home and saw a broken heater. The
victim signed an affidavit stating that Hammon broke the heater and assaulter
her. The victim did not appear at trail. Her affidavit was admitted and the def was
convicted. He appealed. the Indiana Supreme Court ruled harmless error.

What is "testimonial"?
Statements taken by police officers during interrogations (crawford.)
Were the statements in Davis and Hammmon "testimonial" in light of the nature
of the police exchanges?

Davis and Hammon: Non-testimonial - primary purpose Test

Statements ->Made in the course of police interrogations -> under circumstances
indicating that the primary purpose of interrogation is to enable police to meet an
emergency.
TESTIMONIAL
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Statements -> made when the circumstances objectively indicate that there is no
emergency -> and that the primary purpose of the interrogation is to establish
past events to facilitate later prosecution.

Remember Redaction
- In limine, the court may redact or exclude the portions of a 911 call that are
testimonial.
Hammon
- No emergency in progress hours after the described events.
- Officer not seeking to determine what is happening but what happened.
The Crime Scene is "immaterial"
- the statement by the victim was an obvious substitute for live testimony.
- where the victim's statements were neither a cry for help nor information
enabling officers to end a threat, the fact that they are given at an alleged
crime scene is immaterial.

Hammon and Hearsay?

- what does the SCOTUS ruling say about the indiana trial cour's basis for
admitting the statements as an exception to the hearsay prohibition?

Hammon, Davis, and Domestic Violence

- this particular type of crime is notoriously susceptible to intimidation or coercion
of the victim to ensure that she does not testify at trial.
Other possible avenues for admission: 804(b)(6) statement offered against a party
that wrongfully caused the declarant's unavailability.

FRE 803(1) resent sense impression: a statement describing or explaining an

event or condition made while

Testimonial? YES!
- a solemn declaration or affirmation made to establish or prove some fact (think,
affidavits).
- prior testimony at a preliminary hearing, before a grand jury, or at a former rial.
- a statements made with involvement of government officers and "an eye toward
trial"
- statements taken by police officers in the course of interrogations in which the
primary purpose is to establish past events to facilitate later prosecution.

Testimonial? No!
- casual remarks to an acquaintance.
- off-hand, overheard remarks.
- statements in furtherance of a conspiracy.

28
- statements made during police interrogations and under circumstances
indicating that the primary purpose is to enable police to respond to an
emergency.

Whose primary Purpose?

- The davis Court did not answer an important question left for lower courts:
whose primary purpose should the court objectively evaluate? The reasonable
officer? The reasonable declarant?
- in some cases, a court may have no choice but to look to intent or expectations
of the declarant. Such as when a "official" questioner is not involved.

Primary purpose of declarant

- davis "primary purpose" test (in absence of involvement of police)
- Crawford "whether declarants would reasonably expect their statements to be
used in prosecution."
WI SC combined the two. Primary purpose from a reasonable declarants
standpoint.

Statements ->Made in the course of police interrogations -> under circumstances

indicating that the primary purpose of interrogation is to enable police to meet an
emergency.

“Primary Purpose” of Declarant

- The cohort "made the statement in confidence and on his own initiative to a
close family member, over a year before the defendant was arrested."
- Thus, his primary aim was NOT to communicate these facts to authorities to
facilitate prosecution.
- Court must fact intensive inquiry and not going to admit statements that
directly distant the declarant from .... from the def.

Testimonial Today?
- Look for statements bearing the “procedural trappings and formal legal
consequences” of courtroom testimony or a police-type interview.

804(b)(3): "Collateral statements"

- a statement in a co-perpetrator's confession that incriminates the accused is
admissible under FRE 804(b)(3) if, based on the surrounding circumstances, the
statement is also sufficiently against the declarant's interest.

Davis to Giles: Forfeiture by Wrongdoing

- In Davis, SCOTUS stated that the rule of forfeiture by wrongdoing extinguishes
confrontation claims on equitable grounds.

29
- In Giles, SCOTUS held that forfeiture of confrontation rights by wrongdoing
requires a showing that the defendant engaged in conduct designed to prevent
the witness from testifying.

Giles v. California
RULE OF LAW: A wrongful act of a defendant creates a forfeiture of his Sixth
Amendment right to confront a witness against him only when the act was
designed to prevent the witness from testifying.
- the wrong doing of the def to make the victim witness unavailable do not get to
benefit
- must be evidence that they def acted with the intent to make the witness
unavailable. Lower court said that the they are not required to prove this. Justice
Scalia says the defendant engaged in conduct designed to prevent the witness
from testifying. NEED INTENT.
- extended abusive relationship where there is evidence of ongoing abuse may be
sufficient for showing that the def intended to prevent the unavailable witness
from testifying.

Bruton v. U.S. (1968)

*** ON EXAM*** only arise when two defendants are being tried jointly. (jointly
see on test most likely BRUTON will apply) Will need to know the name of this
case. Bruton issues!
- A postal inspector testified that Evans verbally confessed to him that bruton and
he did the crime. Judge instructed the jury not to use the statement against
Bruton. Bruton was convicted and Confrontation clause challenged.
- evens did not testify so couldn't be cross examined.
- court said jury instruction is not good enough in this situation.
- the basic premise of Delli Paoli is that a properly instructed jury will ignore the
confessor's inculpation of the non-confessor in determining the latter's guilt."
Such an admonition is a futile collocation of words and fails of its purpose as a
legal protection to defendants."
Why not limiting instructions?
- the risk that the jury will not follow the instruction.
RULE OF LAW: It violates a defendant’s Confrontation Clause rights when a co-
defendant’s confession is admitted at their joint trial, even if the jury receives a
limiting instruction that the confession cannot be used against the defendant.

Bruton Alternatives
- Several trails
- separate juries
- redaction
- bench trial

30
- no problem if statements are not testimonial hearsay or if maker testifies at
trial.

The Bruton Doctrine

- The use of Evans’ confession against Bruton “posed a substantial treat to
Bruton’s right to confront the witnesses against him.”
- In a joint trial, “we cannot accept limiting instructions as an adequate substitute
for petitioner’s constitutional right to cross-examination.”

Why not Limiting Instructions?

- the risk that the jury will not follow the instruction is too great and the
consequences of failure so vital to the defendant
- “powerfully incriminating”
- “suspect credibility”
Deathbed Confession
- availability?
- Dying declaration?
- another hearsay exception?
- Lay testimony “results from a process of reasoning familiar in everyday life.”
- Expert testimony “results from a process of reasoning which can be mastered
only by specialist in the field.”

Confrontation Wrap-Up: Three Keys

Look for unavailable witnesses in criminal cases.
Hearsay is hearsay, even when an exception applies.
Does it look like testimony? If so, it is likely testimonial. remember primary
purpose test.

FRE 701: Lay Witness Testimony

Rationally based on witness's perception
helpful to jury as to material fact (relevance and probative value)
NOT based on "specialized knowledge"

Not Just the Facts...

Even under the more restrictive common law rules, courts usually let lay
witnesses speak in ordinary language "unbewildered" by admonition from the
judge to testify to facts.

The Keys to FRE 701

- Rationally based on the perception of the witness.
- witness must have personal knowledge per FRE 602
31
 - The opinion is one that a reasonable person could draw from the
underlying facts.
- helpful to the jury as to a fact in issue.
- the jurors could not have otherwise judged the matter for themselves
- the opinion adds relevant information to the case.
- the more relevant the fact the more detailed the testimony.

The Keys to FRE 701

- Rule 701 places great reliance on a party's ability to cross-examine an
opponent's witness and present any weaknesses in the witness's testimony to
the trier of fact.
- The trier of fact will give whatever weight the witness's opinion as may be due.
- Only opinions that framed as conclusions and amount to taking sides are
categorically objectionable.
- Ultimately, the question of whether a lay opinion is a baseless assertion or will
help the jury decide an issue in the case is a judgment call for the district court.
- Judge may make the final call and usually courts favor the admissibility of lay
witness testimony.
- not based on "scientific, technical, or other specialized knowledge."
- what is "non-science"?

ACN 701 - Common lay opinion

- appearance of persons or things. How did he look?
- Identity. Who was he?
- Manner of conduct. What was he doing?
- Degrees of light or darkness
- sound
- size and/or Weight
- Distance
- an "endless number of items that cannot be described factually apart from
inferences."

Deathbed Confession: Witness testimony

- "broken and looked flattened"
- "visible in the examination"
- When the autopsy continued"
- lay testimony "results from a process of reasoning familiar in everyday l ife.”
- Expert testimony “results from a process of reasoning which can be mastered
only by specialists in the field.”

FRE 702: Expert Testimony

A witness qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion if:
32
 - her specialized knowledge will assist the trier of fact and
- her testimony is based on sufficient facts or data (and)
- her testimony is the product of reliable priniciples and
- she has reliably applied the principles to the case facts
- probative value is not substantially outweighed by DUP or other FRE 403
bars.

Expert Testimony Formula:

Witness must be qualified + testimony must help jurors + adequate factual basis
+ reliable principles + reliable application of principles of facts + FRE 403 test is
satisfied.
- If the witness describes how a narcotic was manufactured, or describes the
intricate workings of a narcotic distribution network, then the witness would
have to qualify as an expert under FRE 702."

U.S. v. Johnson
- The introduction of testimony from an expert witness does not foreclose the
issue from consideration by the jury, which may reject the testimony.
- When two conflicting opinions are offered, the disputed issue should be given to
the jury for consideration.
- Under FRE 702, “expertise may be obtained by experience as well as from
formal training or education”

The Five Easy Pieces of Expert Testimony

- qualified
- helpful
- factual
- reliable
- probative
1. Propert Qualifications
- The witness must be qualified as an expert by knowledge, skill, experience,
training, or education
- the party offering the expert testimony must voir dire the proposed expert
- the court determines whether the expert is qualified to testify.
- leading questions are permitted — and desired.
2. Helpful to the Jury
- The expert’s testimony must concern a topic that exceeds the knowledge or
experience of the jurors - as long as that topic does not encroach upon the
court’s role as the law. FRE 702(b), 704

33
FRE 704: Ultimate Issues & Intent
- prohibits an expert witness from stating an opinion about whether the
defendant possessed or lacked a mental state that is an element of the crime.
- in other works, an expert cannot “tell the jury what result to reach.”
Expert & Witness Credibility
- Courts have consistently held that “expert opinions that constitute evaluations
of witness credibility, even when such evaluations are rooted in scientific or
technical expertise, are inadmissible under FRE 702.
- The primary reason to bar expert opinions of credibility is that juro rs are “fully
equipped by their common sense and daily experience to detect the lies of in-
court witnesses.”
- Thus, an expert’s opinion does not “help jurors.”
3. Sufficient Factual Basis
The expert must have a factual basis for the opinion
- FRE 702(b), 703
- Facts or data that the expert has personally observed
- facts or data that the expert has been made aware of at or before the hearing
- if otherwise inadmissible, facts experts in the filed would “reasonably rely on.”
4. Reliable Methods
The expert’s testimony must be the product of reliable principles and methods
and reliably applied to the facts of the case. FRE 702(c), (d)

FRE 703: Reliable Principles & Application

- a trial judge makes an assessment via a motion in limine to determine if:
- an expert’s testimony is based on reasoning or methodology that is
scientifically valid and
- can properly be applied to the facts at issue
5. The 403 Test
The probative value of the testimony must not be substantially outweighed by the
403 factor - likely a risk of confusing or misleading the jury.

FRE 901: authentication

FRE 1001: The best evidence rule

Expert Enough?
- The lack of precision in the baubret yest serves as a source of its remarkable
flexibility but also as a source of frustration to practitioners.

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- In short, the rule requires that the trial judge ensure that expert testimony “is
not only relevant, but reliable.”

5 step test for the admissibility of expert testimony

- is the witness qualified? FRE 702
- Is the testimony helpful to the jury? FRE 702(b), 704
- Does the witness have a factual basis for his testimony? FRE 702(b), 703
- Are the methods reliable - and reliably applied to the facts? FRE 702(c), (d),
Daubert
- is the probative value of the testimony substantially outweighed by a danger of
unfair prejudice, misleading the jury, etc.? FRE 403

Authentication: What?
FRE 901
- Establishing that a piece of evidence “is what the proponent says it is.”
- Authentication methods are open-ended and non-exhaustive.

How?
- Testimony of a witness with knowledge of an item.
- Comparison with an authenticated specimen by an expert or juror. (handwriting
example)
- Testimony of a witness as to distinctive characteristics. (comes up with voice
identification a lot)

When?
Witness qualification -> hearsay
Authentication -> Best Evidence Rule

How much? 901(a)

Huddleston, FRE 104(b) - low standard. more likely than not. by a preponderance.

Chain of Custody - sufficient evidence that a common item has moved through
the process in essentially the same condition as is where it was taken from.
- in play with generic or common items, often drugs.
- same item
- substantially same condition
- huddleston, FRE 104(b)
- any defeat in the chain of custody goes to weight and not admissibility.
- the court must decide based on the piece of evidence at issue.

Authentication Issues: Handwritting FRE 901(b)(2), (3)

A handwriting exemplar is an identifying physical characteristic which falls outside
the protection of the fifth amendement.
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The government may introduce into evidence the fact that the suspect refused to
provide an exemplar after being directed to do so by a court.
The government may also introduce evidence that the individual intentionally
distorted his handwriting when giving the exemplar.

901(b)(2): Handwriting Opinion

- a non-expert
- may testify that handwriting is genuine
- as long as her familiarity with the handwriting was not acquired for the current
litigation.
- a sufficient familiarity with the handwriting of another person may be acquired
by seeing him write, exchanging correspondence, or by other means.
- Thornton became familiar with Hollender’s writing over the course of her
investigation prior to the litigation.
- thus, it cannot be said that her familiarity with his writing was gained for the
purposes of litigation.

Chain of custody - same note, substantially same condition, sufficient such that a
jury could find by a poe?

Any what about hearsay?

- present sense impression
- Confrontation Clause?

Authentication Issues: Voice and phones

901(b)(5) and (6)
- lay witness opinion as to familiarity with a voice based on hearing voice at any
time.
- evidence that a call was made to the number assigned to a particular person or
business, if other circumstances show that the person or business was the one
called.

901(b)(4): Distinctive characteristics - a document or a telephone conversation

may be shown “to have emanated from a particular person by virtue of its
disclosing knowledge of facts known peculiarly to him.”

For Exam: Authentication

FRE 901(a)
FRE 901(b)(1-6)
FRE 902

Authentication Wrap-up
FRE 501 & Privileges

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Ringing up Troy Bell problem
1. 901(b)(3)
2. 901(b)(2)
- need to know if investigation he gained experience by looking at a lot of
records. Quantum of evidence. Sufficient that a jury could find by a
preponderance of evidence (more likely then not)
- Did not learn in anticipation of litigation. need to know date on which
formally charged.

confrontation clause - Bruton challenge?

- testimonial
- primary purpose test - non-testimonial - is admissible
-casual remarks to an acquaintance - Crawford
- off-and, overheard remarks - crawford
- statements in furtherance of a conspiracy

2. Hearsay challenge? 801(d)(2)(E)

therefore no Bruton challenge?

Privileges: Proposed Rules & Common law

The recognized federal privileges
-psychotherapist - patient
- clergy - penitent
- lawyer - client
- spousal

PFRE 501-13: the proposed privilege rules

- although congress did not enact PFRE 501-13, courts often rely on the proposals
for guidance.
- while courts can create new privileges, SCOTUS is “disinclined to permit the
exercise of this authority expansively.”

Why Only “proposals”?

- privileges “contravene the fundamental principle that ‘the public has a right to
every man’s evidence.”
- privileges tend to “protect the privilege of powerful professions” and “act as
blockades to the discovery of truth.”

When Privileges?
- privileges may be justified by a “public good” beyond the “predominant principle
of utilizing all rational means.

FRE 501: The Four sources of Privileges

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- common law - based on reason and experience (unless)
- us constitution
- federal statutes
- SCOTUS rules say otherwise
- with rare exception, federal common law controls privilege.
- in a civil case, state law governs privilege for “a claim or defense in which state
law supplies the rule of decision.”
- the ….

FRE 501: common law “rules”

- “leaves the law of privileges to be developed by courts using the principles of
common law by reason and experience.”
- courts must “continue the evolutionary development of testimonial privileges.”

FRE 501: Common law

Reason + Experience

PFRE 504 & Psychotherapist Privilege

- established by SCOTUS in Jaffee v. Redmond 1996.
- Experience? All 50 states and DC have similar privilege.
- reason? “mental health is a public good of transcendent importance” and
“effective psychotherapy depends on confidence and trust.”

Joffee v. Redmond (1996)

- In dissent, justice scalia opined that the privilege extended beyond the scope set
forth in the proposed rule and served no policy goals.
- if the defendant “wishes the benefits of telling the truth to her therapist she
must also accept the adverse consequences.”
FN 19
- A “serious threat of harm to the patient or to others “ is generally viewed as
grounds for breach
- The MD privilege is out?
- Treatment by a physician can succeed based upon a physical exam, objective
information from the patient, and tests.
- effective psychotherapy depends on an atmosphere of trust in which the patient
can make a frank disclosure of facts and emotions.
- a patient has the privilege to refuse to disclose and to prevent the disclosure of
communications made for diagnosis or treatment of his mental condition.
- the privilege may be claimed by the patient or his guardian or by the
psychotherapist on behalf of the patient.
- a communication is confidential if not intended to be disclosed to third persons
other than those present to further patient intersts.

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- a patient may refuse to disclose and prevent another from disclosing confidential
communication made for the purpose of diagnosis or treatment of his mental
health.

PFRE 504(a)(3) “if not intended to be disclosed to third persons”

PFRE 504(b) - “statements made for the purposes of diagnosis or treatment.”
FN 19 - dangerous patient?
Reporter-Source Privilege?
- there is none
- proposed free flow of information act, introduced and died.

FRE 502(b): Efforts to Rectify

After learning that the memo was in pl's possession, BGB promptly wrote to Pl's
counsel demanding its return...
Counsel knew not of it but, after contacting the Pl, learned that she had acquired
it. Pl refused to return the memo.
BGB filed a motion to compel. The motion was granted.

MPRC 4.4(b)
A lawyer who receives a document relating to the representation of the lawyer's
client and knows or reasonably should know that the document was inadvertently
sent shall promptly notify the sender.
& Privileges
Whether a lawyer must return the materials or whether the privileged nature of
the materials is waived are "questions of law beyond the scope of the rule" that
lawyers should decides as "a mater of professional judgment."

Problem 12.3: Driver's Identity

- if the lawyer is called to testify, is the identity of his client covered by the
attorney-client privilege?
- Usually, client identities are NOT part of the privilege as most people do not
regard their names as secrets and, in addition, the disclosure of a name is
preliminary to the attorney-client relationship.
- confidential communications extend to a client's identity if the disclosure of the
identity of the client is in substance a disclosure of a confidential communication.
502(b) Inadvertent disclosure, reasonable steps to prevent, reasonable steps
taken promptly to rectify

PFRE 503: Identity

Courts should uphold the privilege when the information sought would implicate
the client for the criminal act for which legal advice is sought. In other words,
where disclosure would be a link in a chain of incriminating evidence likely to lead
to the client's indictment.

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Under MPRC 3.6(a), a lawyer may make a statement that a reasonable lawyer
would believe is required to protect a client from the substantial undue prejudicial
effect of recent publicity not initiated by the lawyer or the client.

PFRE 503 Review: My So-Called Wife

- no ethical violation of reporting
- being bound by privilege is not always waived by ethical violation
- 503(d)(1) - she did not hire him for the purpose of committing this act.
- client made pro-active effort to say he could not disclose.
- was her intent to tell others implicit when she told the person she hired? So
privilege may be waived.
- 503(b) - intent not to disclose there but not for the purpose of facilitating the
rendition of professional legal services to the client.

PFRE 503(d)(1): Crime - Fraud Exception

- If the services were sought to enable or aid the planning or commission of what
the client knew or reasonably should have known to be a crime or fraud, the
privilege does not apply.
Newman v. State - An attorney's compliance with MRPC 1.6(b)(1) does not breach
the privilege or compel disclosure of client secrets at trial. To permit rule 1.6 to
destroy the privilege and empower the attorney to waive his client's privilege is
repugnant to the ....

The Spousal Testimonial Privilege

- In A criminal case only
- A married person whose spouse is the defendant
- May not be called to testify against the spouse at trial
- Or in grand jury proceedings in which the spouse is a target.
- In federal courts, ONLY the witness-spouse may invoke the privilege
- If the witness-spouse wishes to testify, the defendant - spouse may not prevent
her.
- there must be a valid marriage for the privilege to exist.
- the privilege lasts only during the marriage. Divorce ends it.
- If a marriage exists, the privilege may be asserted even as to events before the
marriage.

Confidential Marital Communications

- in a civil or criminal case
- Either spouse, even if neither is party to the litigation
- may refuse to disclose or prevent another from disclosing
- a communication made during the marriage
- divorce will NOT terminate the privilege but communications made after the
divorce are not privileged.
- pre-marital communications are NEVER privileged.
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- If the communication is made in the known presence of a stranger, it is NOT
privileged.
- a communication cover all types of "communicative conduct", even those that
are non-verbal (like nodding or pointing) but does not extend to one spouse's
observations of another.

Banking on the Marital Privileges

- Hubs is on trial for bank robbery. His is married to WIFE.
- AUSA calls WIFE to testify that HUBS came home on night in question covered in
red dye and claiming that he robbed a bank.
- wife refuses to assert spousal testimonial privilege and chooses to testify. What
options does HUBS have? CMC, but she could testify to the red dye because that
is an observation.

REVIEW

The Primary categories

- relevance
- hearsay
- confrontation
- opinions
- authentication
- privilege

FRE 606(b)(1) and (2)

- Permits jurors to deligberate w/o fear of oversight
- protects jurors against harassment by lawyers seeking a basis for reversal.
- enhances the finality and legitimacy of verdicts
- look for any extrenious issues with jurors - reading posts on social media -
prejudicial information

Relevance: 401, 402, 403

401: test - sliding scale
Evidence is relevant if:
it has any tendency to make a fact more or less probable than it would be w/o the
evidence.
The fact is of consequence in determining the action
Think about probative value w/in sliding scale test

403: the exclusion

Even if relevant, evidence can be excluded if its probative value is substantially
outweighed by a danger of: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
- any test questions will be in relation to unfair prejudice
- look for question where 403 is involved. photos, video
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401-403: sliding scale

FRE 104(b): Conditional Relevance

when relevance depends on whether a fact exists, proof must be introduced
sufficient to support a finding that it does.
- sufficient evidence that a jury could find by a preponderance that a fact exists.
(test question under authentication)

Relevance: Categories
- evidence of flight
- specialized relevance rules
- character evidence, defendant
- character evidence, witnesses

The four flight inferences

- behavior to flight
- flight to consciousness of guilt
- consciousness of guilt to consciousness of guilt for the crime charged
- consciousness of guilt for the crime charged to actual guilt for the crime charged
or:
- he ran
- he ran bc he knew he broke the law
- he ran bc, not only did he know he broke the law, he knew he broke this law
- he ran bc he knew he broke this law, so that means he is guilty beyond a
reasonable doubt.

The Specialized Relevance Rules

FRE 407 S-R-M
FRE 408
FRE 409
407: SRM admissibility
inadmissible to show --
negligence, culpability, product defect, need for warning
admissible--
to show ownership or control, TO SHOW FEASIBILITY, TO IMPEACH, or for any
other non-prohibited reasons
- look for reliability of product

FRE 408: Compromise & Negotiations

- cancer gene essay question
- evidence that a party offered to or did compromise a claim and all surrounding
statements made during settlement negotiations are not admissible to show the
amount or validity of a disputed claim or impeach by a prior inconistent
statements.
- no 480(a)(2)
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- claim or action initicated before 408 can protect settlement negotiations

FRE 409: Offers to Pay Medical Expenses

- prohibits evidence of offers to pay or actual payment of medical, hospital, or
similar expenses resulting from an injury.

FRE 404(a)(1): Defendant's character

- evidence of a person's character is not admissible to prove that on a particular
occasion the person acted in accordance with the character or trait
- exceptions to the bar on propensity IMPORTANT
- 404(a)(1) prohibits the admission of propensity evidence due to the risk of unfair
prejudice, juror confusion, and waste of time
- as a matter of law, propensity evidence fails the 401/403 tests
- permits all other uses of "prior acts" evidence, suject to the FRE 401/403
ablancing test.
- Look at speak easy extra credit
- FRE 105 limiting instructions restrict the evidence to its proper scope.
- NO 411

FRE 404(b)(1)
- Evidence of a crime, wrong, or other act means ANY act not directly at issue in
the case.
- the other act need not be a crime, n arrest, or even "wrong."
- the other act need NOT happen prior to the crime in question.

FRE 404(b)(2)
CWOA evidence MAY be admissible to prove:
- motive, opportunity, preparation or plan, identity - for test know for sure
Seventh Circuit: Admitting FRE 404(b) "bad acts" look at speak easy problem
BA must be relevant to a matter other than defendant's propensity to commit a
crime.
BA must be similar and close enough in time to relevant to a matter in issue.
Evidence must be sufficient to support a jury finding that the defendant
committed a similar act, and (conditional relevance test)
probative value must not be substantially outweighed by the danger of unfair
prejudice.
The "real" exceptions to FRE 404(a)(1) & (b)

FRE 413, 414, 415

FRE 404(a)(2)(A), (a)(2)(B)
FRE 413-414: test for admission - probably not on test
the def must be accued of a sexual assault or child molestation.
the court must find that the evidence proffered is "evidence of def's commission
of another offense of sexual assault"
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the court must conduct a 401/403 balancing test

FRE 404(a)(2)(A): Exceptions for a Def in a criminal case - WILL BE ON TEST

In a criminal case
a defendant may offer evidence of the def's pertinent character trait (peaceful
and charge involves violence, honest and charge involves lying)
and if the evidence is admitted, the prosecutor may offer evidence to rebut it.

FRE 404 (a)(2)(b) exceptions for victim in a criminal case

in a criminal case
a def may offer evidence of an alleged victim's pertinent trait
and if the evidence is admitted, the prosecutor may: offer evidence to rebut it;
and offer evidence of the defendant's same trait
- look for victim is first aggressor and def is claiming self-defense

FRE 404(a)(2)(A) and (B) given the defendant the SOLE option to open the
character inquiry.
- if prosecutor opens character door to the victim - NO
- if prosecutor opens character door to def - NO
405(a): what kind of evidence? - WILL BE ON TEST

A defendant may present:

- testimony
- about her/victim's reputation
- OR
- in the form on an opinion
- NOT OK if asked about specific instance

405(a): reputation and Opinion

For reputation evidence, a witness must demonstrated that she has knowledge of
the perosn's reputation in the community, even if ....
....

What kind of evidence?

- A prosecutor may respond with:
- cross-examination, about relevant, SPECIFIC instances, of the def's conduct
NO 405(b)

Witness character for Truth/untruth

FRE 404(a)(3)
- FRE 607
- FRE 608
- FRE 609

Impeachment, charcter for truth/untruth

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- under 608(a), a witness's credibility may be attacked by way of reputation or
opinion evidence
- 608(b) permits cross-examination as to specific instances of witness conduct
with some limitations
608-609 - character of witness
404-405 - character of defendant
609 establishes guidelines for the use of a witness's prior criminal convictions as a
basis for impeachment of the witness's character for truthfulness
- felonys, mistomny - truthfulness, 10 year rule - strict, generally speaking
admission of juvenille adjuication is frowned upon.
609(a) and (b) primarily

FRE 608: Important points

- witness character evidence is admissible in both civil and criminal cases
- either party may initiate an attack on the truthfulness of a witness, not just the
defense.
- evidence may only go to the witness's propensity for truthfulness or
untruthfulness
- evidence of truthful character is admissible only after evidence of the witness's
character for untruthfulness
- extrinsic evidence is not admissible to prove specific instances of a witness's
character for un/truthfulness, subject to FRE 609 exceptions

FRE 609(b): Dishonest Conviction?

yes: perjury, counterfeitiing, fraud, embezzlement, failure to file tax returns
no: violent crimes, theft, robbery, drug offenses

Hearsay
- defined
- important exceptions

FRE 801(a)-(c): defining hearsay

- a declarant's
- out-of court
- statement
- offered at trial to prove the truth of the matter asserted.
Non- TOMA: Common Examples - look at worksheet - will be one of those
examples
OOCS offered to prove the effect or impact on the listener.
OOCS offered to impeach court testimony (FRE 613)
Non-hearsay: effect on the Listener
- the key in effect- on - listener is not the PMS
- ....

Sixteen hearsay Exceptions - look at handout posted

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Importation Hearsay exceptions
- opposing pary statements FRE 801(d)(2)(A-E) - crack buddy problem
- Past inconsistent witness statements admissible for TOMA, FRE 801(d)(1)(A)
- past consistent witness statements admissible for TOMA, FRE 801(d)(1)(B)

FRE 801(d)(2)(A): ops

a statement is not hearsay if it is offered against an opposing party and was
made....
d2b: adoptive admission
- the def heard and understood the statement
- he was at liberty to respond
- the circumstances "naturally" called for a response
- the defendant failed to respond.
- look for criminal activity - look at crack buddy problem
d2E: conspiracy
a conspiracy existed at the time the out of court statement was made.
the conspiracy included the declarant and the party against whom teh statement
was offered
the declarant spoke during the course and in furtherance of the conspiracy

FRE 613: Past statements to IMPEACH

extrinsic evidence of a WPIS(in the form of an oral or written statement)
is admissible if the witness is given an opportunity to explain or deny the
statement
and an adverse party is given an opportunity to examine the witness about it.
- look at problems involving police report and testimony in front of a grand jury
indictment

Hearsay roadmap: FRE 804(a)&(b)

Statements by unavailable Declarant:
- prior testimony
- dying declarations
- statements against interest
- forfeiture by wrongdoing

SAI: Corroboration Requirement

- the timing and conditions under which the statement was made.
- the party to whom the statement was made.
- the declarant's motive in making the statements and whether there was a
reason to lie

FRE 804(b)(6): Forfeiture by wrongdoing

- A court must find by a POE:
- def engaged in "some wrongdoing"
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 - that was inteded to procure the declarant's unavailability as to a witness
and
- that did, in fact, procure his unavailability....

Hearsay: 803 (1,2,3,5)

- present sense impression
- excited utterance
- then-existing M-E-P condition
- Past recollection recorded

612-805 - handout

FRE 803(5): recorded recollections

- a record on a matter about which the witness once knew but now cannot recall
well enough to testify fully and accurately
-
-

Testimonial statements & interrogations

- criminal case
- hearsay
- testimonial statement
- unavailable witness
- prior chance to cross- examine

Davis and Hammon: Non-testimonial

statements -> made in the course of police interrogations -> under circumstances
indicating that the primary purpose of interrogation is to enable police to meet an
emergency.

Davis and Hammon: Testimonial

Statements-> made when the circumstances objectively indicate that there is no
emergency -> and that the primary purpose of the nterrogation is to establish
past events to facilitate later prosecution.

Non-testimonial = admissible
present sense expression or excited utterence for 911 calls
"primary purpose" of declarant
davis "primary purpose" test in absence of involvement of police PLUS Crawford
"whether declarants would reasonably expect their statemetns to be used in
prosecution."
BURTON: co-defendants, Jointly tried
- the risk that the jury will not follow the instruction is too great and the
consequences of failure so vital to the defendant.
- powerfully incriminating
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- suspect credibility
look for word jointly - that confrontation clause issue may exist

Alternatives
- severed trials
- separate juries
- redaction
- bench trial
- no problem if statements are not testimonial hearsay or if maker testifies at trial.

FRE 701: lay witness testimony

rationally based on witness's perception
helpful to jury as to material fact
NOT based on specialized knowledge
Expert testimony: Qualified, helpful, factual, reliable, probative. Look for many
facts used by witness and 403/401 probative test. Will not ask about RELIABLE

Authentication: Exam focus

901a
901b1
901b2
901b3
901b4
901b5
901b6
- look for handwriting issue on test
The recognized federal privileges - study lawyer and spousal for test
- psychotherapit - patient
- clergy - penitent
- lawyer - client
- spousal
know the distinction btw spousal testimonial and confidential marital
privilege...look to handout

[The holding in Melendez says that prosecutors can’t prove their case with out of
court affidavits. I don’t know if it’ll work but I wanna argue that the affidavit isn’t
used to prove prosecutions case but to establish Shelke’s credentials to testify on
behalf of Tenuto. PR is gonna prove their case using the test results]

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