Evidence Outline

Table of Contents
Introduction.............................................................................................................................. 1
Introduction: Objections....................................................................................................... 5
Relevance: Generally.............................................................................................................. 7
Relevance: Character and Habit Rules........................................................................... 10
Relevance: Methods of Proving Character....................................................................14
Relevance: Habit................................................................................................................... 15
Relevance: Prior Sexual Behavior...................................................................................16
Relevance: Other Rules of Inadmissibility.................................................................... 18
Hearsay.................................................................................................................................... 20
Exclusions to Hearsay.......................................................................................................... 24
Exceptions to the Rule Against Hearsay: Regardless of whether Declarant is
Available.................................................................................................................................. 27
Exceptions to the Rule Against Hearsay: Declarant is Unavailable......................32
Residual Exception............................................................................................................... 35
Privilege: Generally, A-C Privilege/W-P........................................................................36
Privilege: Other Privileges................................................................................................. 39
Waiver of Privilege............................................................................................................... 41
Competence of Witnesses.................................................................................................. 42
Impeachment: Generally.................................................................................................... 44
Impeachment: Bad Character........................................................................................... 46
Impeachment: Prior Criminal Convictions...................................................................47
Impeachment: Prior Statements...................................................................................... 49
Impeachment: Bias............................................................................................................... 50
Opinion Evidence.................................................................................................................. 51
Expert Testimony................................................................................................................. 52
Expert Scientific Evidence.................................................................................................. 55
Judicial Notice........................................................................................................................ 58
Burden of Proof and Presumptions................................................................................59
 1

Introduction
 Federal Rules of Evidence
o Govern All evidence in Federal Trials
o Federal Gov’t uses FROEv under Rules Enabling Act
 First rules were created by an advisory committee
 Now Supreme Court can change the rules
o Tried to codify common law but made changes where common law
differed state–to–state.
o Not all states follow
 The Record
o Includes
 All pleadings in the case
 Every other piece of paper filed during litigation
 Transcript
 Exhibits
o Made
 Active participants in a trial make the record
 Court reporter or technology gets verbatim transcript.
 What is Evidence
o Adjudicative Fact
 Determined to be so by the court
 Comes about by evidence that’s been presented
o Different Types of Evidence make up the adjudicative facts
 Testimony
 Q and A
 Restrictions
o Leading Q’s (FROEv 611)
 A question suggests its own answer.
 Not to be used on direct
 But can be used on cross.
 Exceptions
 Preliminary matters
 Undisputed matters
 Adverse Ws.
 When W gives surprise answer
 W with limited understanding
(children, diminished capacity,
language)
 Refreshing memory
 Hypothetical to expert
o Compound/confusing Qs
o Questions assuming unproved facts
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 Cannot assume the existence of facts that

have neither been proved nor conceded.
 Expert Ws (p. 48)
 Cross-Examination (FROEv 611)
o Much more flexible than direct
o Purposes
 Clarify, supplement, qualify direct
testimony.
 Weaken testimony
 Challenge source of knowledge,
perception, memory
 Demonstrate W’s inability to
describe events consistently and
accurately
 Revealing interest or partisanship
 Cast doubt on reliability.
 Physical Objects
 Two basic types (besides writings)
o Real Evidence
 The real thing
 Can be circumstantial
 Process
 Mark for id
 Lay necessary foundation
o Link it to the crime.
 Offer into evidence
 Secure express ruling on record.
o Demonstrative evidence
 Not the real thing
 Tangible material used for explanatory or
illustrative purposes only (visual aid)
 Two types
 Selected (e.g. Handwriting
samples)
 Prepared/reproduced
(model/diagram)
 Requirements
 Conditions must not be
significantly different from those
at time of events in question.
 Testimony that a particular
demonstrative exhibit is true and
fair representation of what it
purports to show
 Writings
 3

 Evidentiary significance depends on authorship

 Writing needs to be authenticated
o Request to admit genuineness
o Direct evidence
o Circumstantial proof.
 Testimony of someone familiar with
person.
 Handwriting expert
 Letting jurors compare.
 Judicial Notice
 Satisfies in place of proof by admitted evidence if the
fact to be noticed is
o Subject to common knowledge among
reasonably informed persons in the jurisdiction;
or
o Capable of accurate and ready determination by
resort to sources whose accuracy cannot
reasonably be disputed.
 If bases are present, the taking of notice by a trial judge
is mandatory if proper record is made.
 Laying foundation for admission of evidence
 Direct examiner must usually lay a preliminary
foundation for the W’s testimony or admission of an
exhibit W is sponsoring.
 FROEv 602: A W may testify to a matter only if evidence
is introduced sufficient to support a finding that the W
had personal knowledge of the matter. Evidence to
prove personal knowledge may consist of the W’s own
testimony.
 Use Q’s aimed at showing the W was in a position to see,
hear, etc. the matters about which he is going to testify.
 Interpreter
 Interpreter must be disinterested.
Counsel will still speak to the W.
 Circumstantial Evidence
o Evidence that is not directly proof of the crime, but it supports an
inference.
o Each piece of evidence adds up to making the case.
o TO be distinguished from Direct Evidence
 Relationship between Federal and States
o Some states have adopted FROEv
o Traditionally Rules of Evidence are Common Law
 Basic Rules
o Evidence is not admissible if it is irrelevant.
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o It is preferred not to use hearsay (but there are many exceptions)

o Generally speaking, privileged information is not admissible.
 Judge decides admissibility and the jury decides questions of weight and
credibility.

 5

Introduction: Objections
 Objections
o Initiative to make objections lies with the parties (not the judge)
o For strategic reasons you may avoid making objections (Expedite
process, mutually beneficial, avoid underscoring hurtful testimony,
open the door for other evidence later)
 (Fighting Fire with Fire: Courts are split on whether parties
should be allowed to answer what should have been
inadmissible evidence with other inadmissible evidence.)
(Clark v. State. Testimony was entered which included
inadmissible evidence regarding being suspect for a rape. His
exoneration should have been admitted under curative
admissibility doctrine.)
o Objections are sometimes made for effect to send message to jury.
o Failing to make a timely objection will result in a waiver of the
complaint. (FROEv 103)
 Must be made as soon as it becomes apparent.
 Cannot object later that evidence was improperly admitted.
o Objections to exhibits must normally be made at time exhibit is
offered in evidence.
 In complex cases, a decision may be made during pre-trial.
(which may result in either conditional or unconditional
acceptance.)
o Objections must be reasonably specific. (FROEv 103)
o Purpose
 Educate trial judge on rule of evidence that authorize the
objection and the exclusion.
 Preserve a record for possible appeal.
o Rules regarding form of objections are weighted heavily in favor of
trial judge (Deference given when form wasn’t clear – didn’t give
reason, etc.)
o Objection must be interposed each time the evidence is offered, unless
court permits a standing/continuing objection.
o Examples
 Accrediting W before impeachment
 Argumentative
 Asked and answered
 Assumes a fact not in evidence (United States v. Drake.
Questions to D about his educational background violated this
rule, but the attorney did not object in time.)
 Authentication lacking
 Best Evidence Rule
 Too broad
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 Chain of Custody Defective

 Improper attack on character
 Improper characterization
 Compound Q
 Concealed during discovery
 Calls for Conclusion
 Confrontation Clause violation
 Confusing
 Counsel is testifying
 Cross is beyond scope of direct (FROEv 611)
 Unduly Cumulative
 Various expert testimony objections
 No foundation for extrinsic evidence of inconsistent statement
 Foundation lacking
 Harassing the W (FROEv 611)
 Hearsay (FROEv 801-807)
 Improper impeachment (FROEv 608, 609, 613)
 Reference to insurance
 Irrelevant (FROEv 401-403)
 Leading Q
 Misstates testimony
 Calls for Narrative answer
 Nonresponsive (Qing attorney only)
 Notes being used without foundation
 Offer in compromise (FROEv 408)
 Opinion rule violated (FROEv 701)
 Lack of personal knowledge (FROEv 602)
 Prejudicial
 Issue eliminated by pretrial conference order
 Prior crimes and other bad acts
 Privilege
 Propensity evidence
 Rape-Shield Statute (FROEv 412)
 Re-Direct Beyond Scope of Cross
 Remedial measures evidence inadmissible (FROEv 407)
 Repetitious question (FROEv 611)
 Rule 403
 Settlement evidence inadmissible
 Specific acts not admissible to show character
 Speculative
 Vague
 Variance between pleading and proof.
 7

Relevance: Generally
 Threshold for all evidence rules.
 Rule 401
o Test For Relevant Evidence
 Relevant if:
 It has any (very broad rule – not a lot will be excluded)
tendency to make a fact more or less probable than it
would be without the evidence; and (Knapp v. State –
Evidence of old man dying by other causes rather than
Deputy (whom D killed out of fear) should be admissible
because it does have a tendency (even if small) to make a
fact more or less probable than it would without the
evidence)
o (Evidence does not have to be in dispute)
 The fact is of consequence in determining the action.
(Material, consequential fact)
o (Proposition is one provable in the case at bar or it
in turn forms a further link in a chain of proof the
final proposition of which is provable in the case at
bar, then the offered item of evidence has probative
value)
o Typically
 To show identity
 Mens rea issue
 To show a crime had been committed
o Fundamental question: What does this evidence help to prove?
 An offered item of evidence may be excluded as irrelevant if:
 It is not probative of the proposition at which it is directed;
or
 That proposition is not provable in the case.
 Does the item of evidence tend to prove the matter sought
to be proved?
o Standard of probability: More probable than it
would be without the evidence.
o Very broad view of relevance
 Any piece of evidence that directly or even circumstantially tends
to prove something of consequence in the case, then as a
preliminary matter (401), it is admissible.
o Many things may be asked in trial which aren’t strictly relevant, but is
relevant in that it tells a story of all the little blocks of information.
 Background information may not be strictly “relevant” but will still
be admissible to create an understanding of who the people are as
the story is created.
 8

 Rule 402
o General Admissibility of Relevant Evidence
 Relevant evidence is admissible unless any of the following
provides otherwise
 The U.S. Constitution
 Federal statute
 These rules
 Other rules proscribed by the Supreme Court
 Irrelevant evidence is not admissible. (Sherrod v. Berry. It was
irrelevant to the court that the teen wasn’t actually armed because
all that matters is the officer’s belief.)
 Rule 403
o Basically always applies.
 Most important rule of evidence.
o Excluding relevant evidence for prejudice, confusion, waste of time, or
other reasons.
 The Court may exclude relevant information if its probative value
is substantially outweighed by: (one or more)
 Unfair prejudice
o Obviously most will be “prejudicial”, the problem is
“unfair” prejudice.
o Judge should consider
 Effect of cautionary jury instructions
 Availability of alternative proof
 Possibility of stipulations to reduce unfair
prejudice in making the balancing
determination. (Old Chief v. United States.
D wanted to stipulate to prior conviction.
Naming his prior charges would have had
unfair prejudice to the jury. They are likely to
use it for improper purposes.)
 confusing the issues,
 misleading the jury,
 undue delay,
 wasting time,
 needlessly preventing cumulative evidence.
 (Surprise is no longer included here)
 (Calls for a balancing test)
 Dependent on circumstances.
 Are there other ways to prove the element? (e.g. Old Chief
v. United States – D offered to stipulate.)
 Prosecutors generally have right to prove case the way they
want.
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 The judge does not have the right to make credibility

determinations and exclude evidence for that reason.
(Ballou v. Henri Studios, Inc. – Judge’s decision to exclude
the BAC test because he thought it was “wrong” and relied
more upon nurse’s testimony was improper because that
credibility determination was up to the jury.)
o Weigh probative value against unfair prejudice with
respect to a material fact if the evidence is believed,
not the degree the court finds it believable.
o Court should determine the probative values of the
evidence if true and weigh that probative value
against the danger of unfair prejudice leaving choice
of credibility to jury.
 Ds have a right to make a full and complete defense.
(Holmes v. South Carolina. Court’s decision to fail to
admit evidence of D that someone else committed the crime
was improper because court made decision that the
prosecutor’s case was too strong for the evidence. This type
of decision is for the jury.)
o The strength of their evidence should not be
evaluated based on the strength of the prosecutor’s
case.
o It is not up to court to make strength
determinations.
 The amount of probative Value determines how prejudicial
a piece of evidence must be to be inadmissible.
o Three Step Process
 Determine the probative value of the proffered evidence
 Identify the presence of any of the enumerated dangers (Unfair
Prejudice, confusion of issues, misleading the jury) or
considerations (undue delay, waste of time, or needless
presentation of cumulative evidence).
 Balance the probative value of the evidence.
 “Substantially” weighs it in favor of admissibility.
o Reviewed for abuse of discretion.
 As Compared to Relevance
o There is Technical difference
o Materiality
 Fact must be of consequence
 An issue that matters in this case.
 See 401(B)
 Federal Rules took out “materiality”
 10

Relevance: Character and Habit Rules

 Overview
o Character/Habit is probably relevant to how a party behaves in this
instance.
 But in many cases, it would cause an unfair prejudice.
o General Character testimony v. Specific instance evidence
 Specific Acts
 Can be very powerful
 Can draw out trial significantly
o General rule: You can’t use character evidence to show that D likely did
the act this time.
 However, if you can find a way that character is relevant in a
different way besides propensity to commit the crime, it will
typically be admitted.
 FROEv 404
o Character Evidence; Crimes or other acts (how this actor has behaved)
 Character evidence
 Prohibited Uses
o Evidence of a person’s character or trait is not
admissible to prove that on a particular occasion the
person acted in accordance with the character or
trait (But can be used to prove other things.)
(Cleghorn v. New York Central & H. River Ry. Co.
Cannot use that he was generally known as a
drunkard to prove that he was drunk here, but you
can use the evidence that he was a drunk to decide if
he should have been the switchman.) (Wellman-
Showing evidence at trial that P was a “bad man”
was ok because being introduced to show that his
reputation actually hadn’t been hurt in a libel suit.
The P’s character is directly material on the issue as
to how much he ahs been damaged by what the D
has said or written.)
 Exceptions for a D or V in a criminal case
o D may offer evidence of D’s pertinent trait and if
admitted, the prosecutor may offer evidence to
rebut it. (Special privilege for D “mercy rule”
because his liberty is at stake.
o D may offer evidence of an alleged V’s pertinent trait
(e.g. show violent tendencies of V in self-defense
trial) and if admitted the prosecutor may offer
evidence to rebut it or offer evidence that D has
same trait.
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 (But see 412 for limitations)

 Rape shield limitations.
o In homicide case, the prosecutor may offer evidence
of the alleged V’s trait of peacefulness to rebut
evidence that victim was the first aggressor.
 Exceptions for a W
o See Rules 607, 608, 609 (under impeachment)
 Crimes, Wrongs, or Other Acts (specific instances)
 Prohibited
o Evidence of a crime, wrong, or other act to prove a
person’s character in order to show that on a
particular occasion the person acted in accordance
with the character.
 (Can’t use pure character or specific instance
to get jury to make inference about how D
acted in this instance.)
 Permitted
o May be admissible for another purpose, such as
proving motive, opportunity, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident.
 Ways bad act could be used (Circumstantial
Evidence)
 To fill in the story, res gestae
 Prove the existence of a larger plan
(But see Tucker v. State. Previous
death that D may have been in was not
admissible because he was never
convicted nor even charged.
Prejudicial nature will outweigh
probative value.)
 TO show Handiwork, Similar Acts,
M.O. (But see, U.S. v. Carillo. State
introduces evidence that D had
previously sold drugs in such a way
and more likely to do it this time was
not admissible, because the style was
very common.) (also: Drowning
Brides case.)
 TO show intent (see United States v.
Beasley. D’s movements around the
country were probative of intent, but
they also had the potential to have
unfair prejudice.)
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 To show motive (United States v.

Cunningham. D nurse’s previous
addiction of drugs was admissible to
show motive to steal more.)
o Careful: Propensity and motive
can start to merge.
 When motive= He likes
to engage in this type of
activity, begins to spill
into character. (But in
Cunningham, addiction
was to drug, not to
stealing it.)
 To prove opportunity
 To prove existance/non-existance of
malice
 To prove identity. (rare.)
 To show a lustful disposition.
 P must provide reasonable notice of the
general nature of any such evidence the P
intends to offer at trial; and
 Do so before trial – or during trial if
the court, for good cause, excuses lack
of pretrial notice.
 Such evidence should be admitted if there is
sufficient evidence to support a finding by the
jury that the D committed the similar act.
(prima facie evidence standard)
(Huddleston v. United States. – There did
not have to be a preliminary finding
regarding D’s stealing of VHS tapes to
introduce it as similar act evidence.)
 Court examines all the evidence in the
case and decides whether the jury
could reasonable find the conditional
fact by a preponderance of the
evidence. (The court does not weigh
the evidence)
 Individual pieces of evidence,
insufficient by themselves, may prove
a point in culmination.
 Three steps
 Identify a material issue (other than
character) (401)
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 Balance the probative value of the

evidence against risk the jury will
make the prohibited character
inference (403)
 Determine whether there is prima
facie evidence of accused’s
involvement in the other act.
 14

Relevance: Methods of Proving Character

 FROEv 405
o Methods of Proving Character (Ways in which you prove character) (not
dealing with admissibility, which is 404)
 By reputation or opinion.
 When evidence of character or character trait is admissible,
it may be proved by testimony about the person’s
reputation (in the community) or by testimony in form of
opinion. (not as to specific acts)
 ON Cross, the court may allow an inquiry into relevant
specific instances of the person’s conduct from the
character W. (to respond) (Michelson v. united States.
Prosecutor brings up q’s about D’s previous arrest to see
how well the W actually knows the D or to call W’s
testimony about D’s reputation into question.)
o Prosecutor probably has to have at least a
reasonable basis for the belief of the specific acts
you’re asking about
 (At Common law, you could only ask about their knowledge
of the general reputation of the person, rather than the
personal opinion of just one W.)
 By specific Instances of conduct
 When a person’s character or character trait is an essential
element of a charge, claim, or defense, (at issue) the
character trait may also be proved by specific instances of
the person’s conduct.
o More likely to be prejudicial. (403 still applies!)
o Essential element
 Ultimate issue, issue that the law governing
the charge, claim or defense makes
determinative
 Nothing is being inferred from the fact of
character
 Proof of character is an end in itself.
 (E.g. P sues D claiming defamation. D offers
defense of truth)
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Relevance: Habit
 FROEv 406
o Habit; Routine Practice
 Evidence of a person’s habit or an organization’s routine practice
may be admitted to prove that on a particular occasion the person
or organization acted in accordance with the habit or routine
practice. (Perrin v. Anderson. V who was killed by police.
Allowing evidence of V’s previous violent interactions with the
police were admissible as evidence of a habit under 406.)
 Evidence of how you always do something can be brought
in to show that it’s how you did it this time. (Halloran v.
Virginia Chemicals, Inc. Evidence of P’s routine in using
heating coil was admissible to show his routine that was a
habit of his.)
 An almost automatic response to certain stimuli.
 Can apply to organizations and businesses as well.
 Limitations on the methods of proving character in 405 do not
apply to habit.
 Testimony of prior specific incidents is allowed. (in
addition to opinion evidence)
 Court may admit this evidence regardless of whether it is
corroborated or whether there was an eyewitness.
o Character v. Habit
 Character: Generalized description of one’s disposition or of one
disposition in respect to a general trait.
 Habit: Describes one’s regular response to a repeated specific
situation.
 With such regularity it’s beyond character.
 Admissible to prove conformity on specified occasions.
 May become semi-automatic.
 No specific # of times.
o FROEv 403 still applies
 The court may exclude relevant evidence 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 cumulative evidence.
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Relevance: Prior Sexual Behavior

 See 404
o Mentions that evidence of trait of V it is subject to Rule 412.
 FROEv 412
o Federal Rape Shield Legislation
o The following is not admissible in a civil or criminal proceeding involving
alleged sexual misconduct
 Evidence offered to prove that a V engaged in other sexual
behavior; or
 Evidence offered to prove a V’s sexual predisposition. (State v.
Cassidy. D was not allowed to introduce evidence of V’s previous
similar sexual behavior as it was not admissible under 412 and did
not fall under any of the exceptions. Court notes it may have been
different if V had previously made a false report.).
o Exceptions
 Evidence of specific instances of V’s sexual behavior if offered to
prove that someone other than the D was source of semen, injury,
or physical evidence.
 Evidence of specific instances of a V’s sexual behavior with respect
to the person accused, if offered by the D to prove consent.
 Evidence whose exclusion would violate the D’s constitutional
rights. (Olden v. Kentucky. Evidence of V’s other relationship is
necessary to avoid violating D’s constitutional rights in
confronting W’s against him because D was not allowed to pursue
his line of cross..) (United States v. platero. Court finds that judge
denied D of right to trial by jury when it made decision regarding
the sexual relationship of a woman and a third party without
sending it to jury, cites Olden.)
o IN a civil case the court may admit evidence offered to prove a C’s sexual
behavior or sexual predisposition if its probative value substantially
outweighs the danger of harm to any victim and of unfair prejudice to any
party. Court may admit evidence of a V’s reputation only if the V has
placed it in controversy.
 FROEv 413
o Sexual assault
 Previous sexual assault may be brought up to show propensity
toward same this time.
 Must be disclosed to D ahead of time.
 FROEv 414
o Child molestation
 Previous actions of child molestation may be brought up to show
propensity toward the same this time.
 Must be disclosed to D ahead of time.
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 FROEv 415
o Civil Version of 413-414 (Johnson v. Elk Lake School District. The
earlier evidence of sexual assault is not admissible because it doesn’t
qualify as assault. Lack of similarity. 403.)
 Court may admit evidence of D’s previous sexual assault or child
molestation as it is in 413-414.
 Can still be inadmissible under 403.
 413-415 generally
o Controversial
o No time limits
o Still subject to 403.
 18

Relevance: Other Rules of Inadmissibility

 Similar Happenings
o Evidence of other similar accidents or occurrences may be relevant
circumstantially to show a defective or dangerous condition, notice
thereof or causation on the occasion in question. (Simon v.
Kennebunkport – Evidence that showed multiple people fell at the same
spot on the sidewalk over the prior two years was improperly excluded.)
o Absence of similar happenings may also be probative.
o Remember 403.
 Rules 407-411
o Further attempts to keep evidence from the jury.
o Fear that the jury will improperly use the information if it has it.
 FROEv 407
o Subsequent Precautions (Subsequent remedial measures)
 Subsequent conduct is not an admission.
 Social concerns of discouraging people from taking safety
minded steps.
 Not admissible to prove
 Negligence
 Culpable Conduct
 Defect in Product or design
 Need for Warning or instruction
 Evidence can be introduced to show feasibility,
ownership/control, or impeachment purposes. (Feasibility must
be in dispute)
 Narrow form of definition of “feasibility”: Possible. (Tuer v.
McDonald. Court takes narrow form of “feasibility” when
discussing whether doctors should have administered
certain drug to patient. Since “possible” doesn’t undercut
“feasibility”, than “feasibility” wasn’t an issue and the
evidence of subsequent precautions are not admissible.)
 Broader form: “Wouldn’t make sense”.
 Rule 403 still applies.
 FROEv 408
o Offers of Compromise
 Offers made in settlement to be excluded to prove or disprove the
validity or amount of a disputed claim or to impeach.
 Does not apply to non-disputes.
 Offer is excluded and so are statements/conduct surrounding it.
(Davidson v. Prince. Court allows letter to be admitted, which
included his statement of being 10 feet away, because they did not
find it to be a settlement offer.)
 Exceptions
 19

 May admit for another purpose: Such as proving W’s bias or

prejudice, negating a contention of undue delay, proving an
effort to obstruct a criminal investigation or prosecution.
(not exhaustive list)
 403 still applies
 Limiting instruction required upon request of a party (105)
 FROEv 409
o Offers to pay medical Expenses
 To be excluded for purposes of proving liability
 Otherwise would discourage assistance to injured persons.
 Statements surrounding the offer are not to be excluded.
 No dispute necessary.
 FROEv 410
o Governs how plea negotiations are admissible.
o Can be waived before trial.
 Must be voluntary and knowing.
 20

Hearsay

 In General
o We want to hear from eyewitnesses, not somebody who heard it from
someone else.
 Lack of reliability
 No chance to cross examine.
o Two Definitions of Hearsay
 Assertion Centered
 An out-of-court statement is hearsay when it is offered in
evidence to prove the truth of the matter asserted.
 Declarant-Centered
 An out-of-court statement is hearsay when it depends for
value upon credibility of the declarant.
o Interaction with confrontation clause
 Where declarant’s statement is “testimonial”, the only
constitutional solution is confrontation. ( Crawford v.
Washington. The declarant wife’s statements to the police officer
regarding stabbing were inadmissible because they were
“testimonial” in nature and D had a right to confront his accuser.)
 Statements are testimonial when the circumstances
objectively indicate that there is no ongoing emergency and
that the primary purpose of the interrogation is to establish
 21

or prove past events potentially relevant to later criminal

prosecution. (Davis v. Washington. 911 call was
information to police to aid in emergency and not
testimonial.)
o Statements to Police Officers are very likely to be
testimonial in nature. (Davis v. Washington.
Statements to police as there was no emergency
ongoing was testimonial.)
 Absence of an oath is not dispositive.
 Reliability exception is rejected.
 FROEv 802
o Hearsay is not admissible unless any of the following provides otherwise
 Federal statute
 These rules; or
 Other rules prescribed by the Supreme Court
 FROEv 801
o Definitions
 Statement: Oral assertion, written assertion, nonverbal conduct, if
intended as an assertion. (United States v. Zenni. Statements on
the telephone attempting to make arrangements with D as bookie
are not hearsay because it was not intended to be an assertion.)
(Commonwealth v. Knapp. Other man kills himself before trial. If
intended as an assertion, then inadmissible. If not, then
admissible.)
 Generally silence is not to be interpreted as an assertion.
Unless possibly if there is a showing of intentional silence
intended as an assertion. (Wilson v. Clancy. Fact that
neither D nor Doctor ever brought up how assets were to
be transferred was not admissible because one cannot infer
why the person chose to remain silent.)
 Implied assertions are not assertions (Zenni).
 (Also remember 403 problems)
 Declarant: Person who made the statement
 Hearsay:
 Statement that the declarant does not make while testifying
at the current trial or hearing; and
 A party offers in evidence to prove the truth of the matter
asserted in the statement. (estate of Murdock (fictional
case) – “I am still alive” is admissible as it is not being
introduced for the truth of the matter asserted.)
o When regardless of the truth or falsity of a
statement, the fact that it has been made is relevant,
the hearsay rule does not apply, but the statement
may be shown. (Subramaniam v. Public
Prosecutor. Statement of terrorists that they were
 22

planning to kill him was admissible because it was

being offered for other than truth of assertion,
offered to show D’s belief) (Fun-Damental Too v.
Gemmy Industries. Evidence of declarant’s
confusion on the products was admissible because it
was not being presented to show the truth of the
matter asserted, but rather to demonstrate their
confusion.)
o Hearsay doesn’t prevent evidence of a contract. “I
offer X” and “I accept” are not being offered as
evidence to prove the truth of the matter asserted
(that they will actually pay). (Ries Biologicals, Inc
v. Bank of Santa Fe. Evidence of an oral contract is
not inadmissible due to hearsay rules. The relevance
of the statement depends on the credibility of the
testifying W.)
o It’s important to recognize what the evidence is
being offered for. (United States v. Hernandez.
Evidence is being offered to prove the truth of the
matter asserted – that D was a drug smuggle - and is
inadmissible. Court is not convinced by gov’ts
argument that it’s being introduced to show D’s
state of mind, because that wasn’t at issue.)
o Look at where the jury needs to make the credibility
decision. Does it depend on the credibility of the W
or the declarant? (United States v. Brown.
Evidence that 90-95% of taxpayer returns through D
were fraudulent was not admissible because it was
offered for the truth of the matter asserted and
depended on credibility of the declarants. D had no
opportunity to test the assumptions through cross.)
o Documents may be admissible when they are not
being offered to show the truth of the matter
asserted. (United States v. Jaramillo-Suarez. The
Pay/Owe Sheet which seemed to implicate D as a
drug deal was admissible because it was not being
introduced to show the truth of the payments
owed/paid, but for the use/character of the
apartment.) (United States v. Rhodes. Intercepted
communication between D and Russian spies was
admissible because it was not being admitted for the
truth of the matter asserted, the truth of what they
said is irrelevant)
 Where an item has a non-hearsay purpose and a hearsay purpose, it is
admissible under the non-hearsay purpose. (Vinyard v. Vinyard Funeral
 23

Home. Evidence of slippery floor was admissible for non-hearsay purpose of

showing that they knew about it despite its hearsay purpose of showing that it
was slippery.) (Johnson v. Misericordia Community Hospital. Statements that
D was incompetent can’t be used to show that he was incompetent here, but
should be admissible to show that hospital was aware of his incompetence.)
 Hearsay only applies to human statements
o Does not apply to radar guns, bloodhounds, parrots, etc. (City of Webster
Groves v. Quick. The readout from the radar gun is not hearsay.)
 Rule 403 still applies.
 FROEv 805
o Hearsay within Hearsay
 Hearsay within Hearsay is not excluded by the rule against
hearsay if each part of the combined statements conforms with an
exception to the rule.
 24

Exclusions to Hearsay
 FROEv 801
o Statements that are not hearsay (not exceptions, exclusions)
 Declarant-W’s Prior Statement
 Declarant testifies and is subject to cross about a prior
statement, and the statement
o Is inconsistent with the declarant’s testimony
o Is consistent with the declarant’s testimony and is
offered to rebut an express or implied charge that
the declarant recently fabricated it
 Must have been made before the W had
motivation to lie. (Tome v. United States.)
o Identifies a person as someone the declarant
perceived earlier.
 Declarant testifies and is subject to cross
about a prior statement which identifies a
person as someone the declarant perceived
earlier. (United States v. Owens. W’s earlier
statements identifying D as aggressor are
admissible under this exclusion. No
requirement that W have a good/convincing
memory.)
 An Opposing Party’s Statement
 The statement is offered against an opposing party and
o Was Made by the party in an individual or
representative capacity (Reed v. McCord. D’s
statements to coroner were admissible in court
because the statement is being offered against an
opposing party, was made by the party (any
statement will count, doesn’t have to be admission),
was made with belief it was true.)
 Doesn’t have to be an admission.
 Does not have to be against interest at time it
was made.
o Is one the party manifested that it adopted or
believed to be true (Mahlandt v. Wild Canine
Survival & Research Center. D’s note and
statement about the wolf biting a child (note: Not “I
was told that…”) was admissible as a statement of an
opposing party.)
o Was made by a person whom the party authorized
to make a statement on the subject.
 25

o Was made by the party’s agent or employee on a

matter within the scope of that relationship and
while it existed; (Big Mack Trucking Co. v.
Dickerson. Under FROEv, the statement by the
truck driver to the police officer regarding what
happened when the truck rolled backward would
have been admissible.) or
 Must demonstrate the existence of an agency
relationship before taking advantage of this
rule. (Sabel v. Mead Johnson & Co. The
statements made by attendees at the
conference (exception: employees) were
hearsay as they were not made by “agents” of
the D. Agency was not established or proved.)
 Three Characteristics
o Power of the agent to alter the
legal relationships between the
principal and third parties and
himself.
o Existence of a fiduciary
relationship toward the
principal.
o Right of principal to control the
agent’s conduct.
o Was made by the party’s coconspirator during and
in furtherance of the conspiracy. (United States v.
DiDomenico. Posner upholds decision to admit out-
of-court statements of co-conspirators)
 A co-conspirator takes a conspiracy as he
finds it. So, statements used before his
entrance can be used against him. (United
States v. Goldberg. Statements made before
co-conspirator entered the conspiracy can be
used against him. Take the conspiracy as you
find it.)
 “IN furtherance” of the conspiracy is a
limitation on admissibility that’s to be taken
seriously.
 Satisfied when the statement is part of
the information flow between
conspirators intended to help each
perform his role. (United States v.
Doerr. Mocking statements made
between brothers did not qualify as
 26

“in furtherance” and should not have

been admitted.)
 Preliminary factual question of whether a
conspiracy exists only needs to be
established by a preponderance of the
evidence. (Bourjaily v. United States.
Telephone conversations between D and
other were admissible because the gov’t had
established by a preponderance that a
conspiracy existed between them.)
 Rationale: Co-conspirators are each other’s
agents and an admission by one is an
admission by all. (Criminal enterprises
should not receive better treatment than legit
companies.)
 Silence will sometimes be interpreted to be an opposing
party’s statement given the circumstances. (United State v.
Hoosier. D remained silent at gf’s mention of how much
money they head was admissible as evidence against him
because it was the statement of an opposing party, and
given the circumstances he would have said something.)
o An admission may be made by adopting or
acquiescing in the statement of another.
o Where there is silence, sometimes you can interpret
that to be a type of confession.
 Nonverbal movements may be considered a statement by
an opposing party, but they should be relatively clear
before admitting them. (State v. Carlson. Evidence that D
hung his head and quietly shook it back and forth when
girlfriend accused him of shooting up was inadmissible
hearsay because it was not clear what his
intention/statement was.)
 27

Exceptions to the Rule Against Hearsay: Regardless of

whether Declarant is Available
 If statements fit under one of the exceptions, then they will be admissible,
despite their other non-admissible purposes. (example: Adkins v. Brett. See
below.)
o But watch out for 403.
 FROEv 803
o Exceptions to the Rule Against Hearsay – Regardless of whether the
Declarant is Available as a W
 Present Sense Impression
 A statement describing or explaining an event or condition
made while or immediately after the declarant perceived it.
(State v. Jones. Evidence that officer heard two unknown
truckers on the CB discussing the events as they took place
should have been admissible. Even though they don’t know
their identities.)
 Elements
o Contemporaneous (Michigan v. Byrant. Declarant’s
statement about what happened earlier that night
was not present sense impression because it was
not contemporaneous, but may qualify under
excited utterance)
o Identity of Declarant
 Party offering statement must show that the
declarant spoke from personal knowledge,
but the identity does not always need to be
established. (See State v. Jones. Above.)
 Beware of interaction with testimonial statements.
(Crawford)
o In absence of emergency, statements to police are
likely testimonial and not admissible as hearsay.
(Davis v. Washington. Statement to police in
absence of emergency not admissible.)
 If there is an emergency ongoing, then the
statements likely aren’t testimonial and are
likely admissible under this exception. (Davis
v. Washington. 911 calls admissible.)
 The key is whether the primary
purpose of the interrogation was to
enable police assistance to meet the
ongoing emergency.
 Excited utterance
 28

 Statement relating to a startling event or condition, made

while the declarant was under the stress of excitement that
it caused.
 Spontaneity is the key factor
 Instinctive, not deliberate. (Lira v. Albert Einstein
Medical Center. See below.)
 Utterance made under stress of the emotion which was
brought on by the startling occasion. (Lira v. Albert
Einstein Medical Center. New doctor declarant’s
statement “Who’s the butcher who did this was not
admissible as hearsay because his experience would not
have made him overcome by emotion or shocked over
seeing a bad surgery.)
 Participation in the act by the declarant is not required.
(Can be surprised by something going on nearby, for
instance.)
 Time interval is in sound discretion of the trial court.
 There must be evidence of an act, itself admissible
independently of the declaration that accompanies it.
(Otherwise, circular reasoning.) (Truck Insurance
Exchange v. Michling. Declarant’s statement through wife
that he hit his head was not admissible through excited
utterance exception because there was no independent
evidence of him hitting his head which was the issue to be
proved.)
 Again: Beware of testimonial issue. (Michigan v. Bryant.
Declarant’s statement while he lay dying was a statement
made while an emergency was ongoing and not testimonial,
so admissible under this exception.)
o Key question is whether the primary purpose of the
interrogation was to enable police assistance to
meet the ongoing emergency.
 Then Existing Mental, emotional, or physical condition
 Statement of the declarant’s then existing state of mind
(such as motive, intent or plan) or emotional, sensory, or
physical condition but not including a statement of memory
or belief to prove the fact remembered or believed unless it
relates to the validity or terms of the declarant’s will
 “State of mind” exception. (Adkins v. Brett. Declarant’s
statement that she went in D’s car, got flowers, had a good
time, etc. was properly introduced to show state of mind
even though there were other impermissible purposes.)
o When the intention, feelings, or other mental state
are material to issues at trial, evidence of such
 29

declaration indicative of his mental state are an

exception to the hearsay rule.
 May be used to infer other facts besides the party’s state of
mind. (Mutual Life Insurance Co. of New York v.
Hillmon. Evidence should have been admitted regarding
V’s intention to travel away from Wichita to allow inference
that the body actually wasn’t his. Established Hillmon
Doctrine.)
o State of mind doesn’t have to be at issue. (United
States v. Pheaster. Statements of declarant can be
used to prove that he intended to meet in the
parking lot, leading inferentially to that he did meet
in parking lot. Properly admitted under Hillmon
doctrine.)
 As always 403 continues to apply. (Shepard v. United
States. V’s conversation with her nurse claiming to be
poisoned would be excluded today under 403 because the
evidence is too prejudicial despite showing her state of
mind that she likely did not commit suicide.)
 Used also to admit public surveys. (Zippo Manufacturing
Co. v. Rogers Imports, Inc. The consumer survey
regarding customer confusion is properly admitted under
this exception.)
 Statement made for medical diagnosis or treatment
 You can trust people to make true statements to their
doctors.
 Recorded recollection
 A record that
o Is on a matter the witness once knew about but now
cannot recall well enough to testify fully and
accurately
o Was made or adopted by the W when the matter
was fresh in W’s memory
o Accurately reflects the W’s knowledge. (Johnson v.
Lutz. The declarant’s statement from police report
was properly excluded because it was not the
officer’s own recollection.)
 Controversy over whether impaired memory should be a
requirement.
 Refreshing memory is not past recollection recorded
o Refreshing memory is perfectly acceptable. (Baker
v. State. Court erroneously failed to allow attorney
to use a police report to help refresh a W’s memory.
Past recollection revived is not held to standards of
past recollection recorded.)
 30

o FROEv 612 – Allows writing to be used when

refreshing W’s memory.
 Other party has right to inspect.
 Records of a regularly conducted activity
 Record was made at or near the time by-or from
information transmitted by- someone with knowledge.
(Johnson v. Lutz. Police report was properly left out of
evidence because it consisted of hearsay from third parties
of accident that officer did not see occur.)
 The record was kept in the course of a regularly conducted
activity
 Making the record was a regular practice of that activity.
 All of these conditions are shown by the testimony of the
custodian or another qualified witness
 Neither the source of the information nor the method or
circumstances of preparation indicate a lack of
trustworthiness. (United States v. Vigneau. Because it
wasn’t the duty of the person in the business to put down
the recipient on the WU money order and instead was the
D’s duty, this information lacks of trustworthiness and it
was admitted for the truth of the matter asserted..)
 Factually based conclusions or opinions are not excluded
from the rule. (Beech Aircraft Corp. v. Rainey. Conclusion
and opinion statements in report on accident can still fit
under this rule.)
o There is great debate regarding the introduction of
forensic lab reports. Right now they are considered
non-testimonial and admissible through expert W’s.
(Williams v. Illinois – Expert can testify about
forensic test that he himself did not perform as a
stand-in for a lab analyst who does not come to
trial.)
 Absence of a record of a regularly conducted activity
 Public Records
 Public records of vital statistics
 Absence of a public record
 Records of Religious Organizations Concerning Personal or family
History
 Certificates of Marriage, Baptism, and similar ceremonies
 Family records
 Records of Documents that affect an interest in property
 Statements in Documents that affect an interest in property
 Statements in ancient documents
 Market reports and similar commercial publications
 Statements in learned treatises, Periodicals, or pamphlets
 31

 Reputation concerning personal or family history

 Reputation concerning boundaries or general history
 Reputation concerning character
 Judgment of a previous conviction
 Judgments involving personal, family, or general history.
 32

Exceptions to the Rule Against Hearsay: Declarant is

Unavailable
 FROEv 804
o Exceptions to the rule against Hearsay when the Declarant is unavailable
as a witness
 Criteria for being unavailable
 Privilege applies
o Invoke privilege not to testify (Traveler’s Fire
Insurance Co. v. Wright – Court may enter
declarant’s testimony against his partner because
they are closely enough related as predecessor in
interest and declarant is invoking privilege not to
testify.)
 Refuses to testify despite a court order (Williamson)
 Testifies to not remembering
 Dead or ill.
 Is absent from trial and proponent has been unable to
secure his attendance.
o Can’t reasonably be brought to court.
 The exceptions
 Former testimony
o Testimony given in one action may be admissible in
another.
o Types
 Against the party whom it was previously
offered; or
 Against the party by whom it was previously
offered. (traveler’s Fire Insurance Co. v.
Wright.)
o Elements
 Inability to obtain the testimony of the W
 Opportunity to cross-examine in former trial
 Identity or substantial identity of issue
 Same parties.
 Might not matter if another party is
being added in civil trial, as long as the
other elements existed. (Traveler’s
Fire Insurance Co. v. Wright.
Testimony from previous criminal
trial is admissible even though there’s
a new D because there was substantial
identity of issues, parties, and
opportunity for cross.)
 33

 Must have similar motive in

questioning/cross to be admissible. (United
States v. Solerno. Prosecutor had different
motives in GJ proceedings, so the testimony is
not admissible here.)
 Statement under the belief of imminent death
o Limited to civil cases or homicide cases.
o Must be connected to the cause of the death (not just
any deathbed confession counts)
o Depends upon declarant’s belief of their imminent
death.
o Possible elements (R. v. Perry. Court allows
deathbed statements of V who died of botched
abortion due to below elements.)
 Settled hopeless expectation of death
 Death was imminent
 Statement against interest
o We’re talking about W’s here, not the party
opponent because 801(b) applies for party-
opponent.
o Traditionally confessions by a third party who is
unavailable as a W is inadmissible as hearsay. (State
v. English. Declarant’s statement that he committed
the crime was not admissible when he was not
available for trial under hearsay rules.)
o Statements against pecuniary interest were
admissible. (McKelvey v. General Casualty.
Declarant’s statements that they had embezzled
were admissible when the declarants were absent
from trial because it was against their self interest.)
 Elements (McKelvey.)
 Declarant is unavailable.
 Declarant had peculiar means of
knowing the facts which he stated.
 Declaration was against his pecuniary
or proprietary interest.
 He had no probable motive to falsify
the facts stated.
o Statements against penal interest are admissible,
but must be supported by corroborating
circumstances that clearly indicate its
trustworthiness.
 Realistic standard for reasonableness
(United States v. Barrett. Court appears to
want to admit evidence of declarant’s
 34

statement that Tilly said D wasn’t involved as

against penal interest. Court doesn’t want to
have an unrealistic standard for
reasonableness.)
o Must actually be against self interest. (Williamson
v. United States. Declarant’s out-of-court
statements regarding D were actually self-serving
and less against his own self-interests and so not
admissible under this exception.)
 804(b)(3) does not allow admission on non-
self-inculpatory statements even if made
within a broader narrative that is generally
self-inculpatory. (Must be viewed in context.)
 Would the reasonable person had said it
unless it were true.
 Statement of personal or Family history
 Statement offered against a party that wrongfully caused
the declarant’s unavailability.
o Must have been done with that intention. (Giles v.
California. Declarant’s statements of domestic
abuse are not admissible in murder trial of her
because D did not cause her absence from court for
that purpose.)
 Confrontation clause.
 We will not “dispense with jury trial because
a D is obviously guilty”
o Need not be proved BRD (it’s an admissibility issue,
not a jury issue.)
 35

Residual Exception
 FROEv 807
o Residual Exception
 A hearsay statement is not excluded by the rule against hearsay
when (All 4 are true):
 The State has equivalent circumstantial guarantees of
trustworthiness.
 It is offered as evidence of a material fact.
 It is more probative on the point for which it is offered than
any other evidence that the proponent can obtain through
reasonable efforts; and
 Admitting it will best serve the purposes of these rules and
the interests of justice.
 (Catch-all exception)
 Intended to be used very rarely and only in exceptional
circumstances. (Turbyfill v. International Harvester Co.
Evidence of handwritten account of the accident should be
admitted under this exception because it fit all 4 elements of the
exception.)
 “Near Miss” problem: Residual exception cannot be invoked
when there is a specific exception which sets forth
conditions governing the admissibility of a clearly defined
category of hearsay evidence. (Zenith Radio Corp. v.
Matsushita Electrical Industrial Co. Evidence of writings
was properly not admitted because it almost qualified
under business writings exception but failed, so it can’t
seek solace here.)
o Some courts reject the Near Miss problem
philosophy espoused here.
 Notice is required before attempting to use residual exception.
 36

Privilege: Generally, A-C Privilege/W-P

 In General
o FROEv 501
 Privilege in General
 Common law governs privilege unless any of the following
provides otherwise
o Constitution
o Federal statute
o Rules prescribed by the Supreme Court.
 But in a civil case, state law governs privilege regarding a
claim or defense for which state law supplies the rule of
decision.
 Attorney-Client Privilege
o Oldest of privileges
o The privilege is absolute.
o Necessary to promote/facilitate communication between client and the
lawyer.
o Protects the communications, not the disclosure of the underlying facts.
(Upjohn)
o Waiver of the privilege is possible.
o Definition of the Privilege (United States v. Woodruff)
 Applies only if:
 Asserted holder of privilege is or sought to become a client
 The person to whom the communication made
o Is a member of the bar or his subordinate; and
o In connection with this communication is acting as a
lawyer.
 Communication relates to a fact of which his attorney was
informed
o By his client
o Without the presence of strangers (Clark v. State.
Became an issue because the operator was
eavesdropping on the line.)
o For the purpose of securing primarily either
 An opinion on law; or
 Legal services; or
 Assistance in some legal proceeding; and
(United States v. Woodruff. Attorney can
testify as to whether he informed his client as
to the date of trial because he was not acting
as attorney at this time, not a protected
incidental communication.)
 37

o Not for the purpose of committing a crime or tort;

and (Clark v. State. Court balks at eavesdropping
issue, but finds privilege does not apply because
lawyer became an accessory to a crime.)
 The privilege has been
o Claimed; and
o Not waived.
o Who holds the privilege?
 The client
 In corporation, communications between employees and general
counsel are privileged. (Upjohn Co. v. United States. Rejects
prevailing “control group” test and finds that surveys attorneys
sent to other employees within the corporation was privileged.)
o Attorney can use other agents who will also be within the privilege. (City
and County of San Francisco v. Superior Court. The doctor the lawyer
hired to examine his client is within the a-c privilege as the attorney’s
agent.)
 Includes people who are necessary to help the lawyer do hi job.
o The a-c and w-p privileges survive death (Swidler & Berlin v. United
States. Court finds that handwritten notes between now deceased
attorney and personal attorney were still protected.)
o Crime-Fraud Exception
 Exception to the a-c privilege. (Clark v. State – See above.)
 R. §82
 A-C privilege does not apply to a communication occurring
when a client
o Consults a lawyer for the purpose, later
accomplished, of obtaining assistance to engage in a
crime or fraud
o Regardless of the client’s purpose at the time of
consultation uses the lawyer’s advice to engage in or
assist in a crime or fraud.
 Client need not specifically understand the act is a crime.
 Client’s purpose can be inferred from circumstances.
 Exception does not apply when client does not carry it out.
 Applies regardless of fact that the lawyer is unaware of
client’s intent.
 Also applies if lawyer actively participates in the crime or
fraud.
 Applies to future and ongoing crimes or frauds.
 Sometimes judge will do in-camera review of evidence to
determine if there’s been a waiver of privilege due to crime-fraud
exception.
 But prosecutor must show a factual basis adequate to
support a good faith belief by a reasonable person. (United
 38

States v. ZOlin. Prosecutor must show factual basis before

the judge will review the evidence in-camera.)
o Work Product protection
 Codified in FRCP 26(b)(3)
 Party may obtain discovery of documents and tangible
things prepared in anticipation of litigation by an attorney
or agent of the opposing party only upon a showing of
substantial need and showing that the party seeking
discovery cannot, without undue hardship, obtain the
substantial equivalent from other sources.
 Differences from a-c privilege
 A-C privilege cannot be disclosed by showing of special
need.
 W-P covers a much larger category.
 W-P covers only information gathered in anticipation of
trial (as opposed to regardless if litigation is expected.)
 39

Privilege: Other Privileges

 Physician–Patient Privilege/Psycho-therapist Privilege
o Rationale
 Public policy concern.
o Not hearsay under Rule 803(4)
o Who does the privilege belong to?
 The Patient.
o Exceptions
 Welfare to a child.
 Some states have law that if patient is a child and v of crime
than privilege inappropriate (People v. Sergio)
 Where an emergency exists and it is necessary to disclose
otherwise privileged communication in order to respond properly
to that emergency. (People v. Sergio. It was not a violation given
the ongoing emergency situation and the life of the baby was in
jeopardy.)
 Putting the matter into issue in a suit (Prink v. Rockefeller
Center. The communication between decedent and his therapist
was fair game because the wife brought it into issue during his
wrongful death suit which looked like either suicide or accident.).
 Other exceptions are available.
o The exception has been extended to include psychotherapist/counselor
context (Jaffee v. Redmond. Court declines to establish a strict code, but
this falls within the privilege under 501)
 Marital Privilege
o Two Marital privileges
 Standard communication privilege
 Communication between spouses
o Does not include things she has seen or
communication that occurred in front of a third
party (Trammel v. United States. Court finds wife
may testify as to things she has seen in her marriage
and things said in front of third parties, but not
things said to just each other. Other courts will
differ.)
 Both parties hold the privilege (but differs from state to
state)
o Some states: Only the W spouse holds the privilege.
 Adverse testimony privilege
 One party cannot be forced to testify against the other
 Broader than the communications privilege
 Some states waive this privilege after divorce.
 40

 Some states hold only W spouse holds privilege not to

testify adversely. (Trammel.)
 Clergy-Communicant Privilege
o 501 applies to clergy (IN re Grand Jury Investigation. Applies 501 and
extends privilege to clergy in case with arson of black family’s home.)
 Other Possible privileges
o Accountant privilege (most courts don’t recognize)
o Familial privilege also not recognized.
 41

Waiver of Privilege
 Waiver of privilege
o FROEv 502
 Limits the waiver from traditional rule (that one document
slipping through meant waiver and all had to come through.)
 Intentional Waiver
 Waiver extends to undisclosed communication only if
o Waiver is intentional
o Disclosed and undisclosed information concern the
same subject matter
o In fairness they ought to be considered together.
 Two step analysis for inadvertent waiver
 Are they actually privileged?
o Burden on party claiming the privilege to prove the
privilege exists. (Peterson v. Bernardi. Court
finding that P had not established the privilege at
all.)
 Are the 3 elements of 502(b) satisfied?
o Inadvertent
o Took reasonable steps to prevent the disclosure
o Promptly took reasonable steps to rectify the error.
 5 factors to determine if inadvertent disclosure operates as
waiver (Peterson v. Bernardi. Applies these 5 factors
when finding that the disclosure operated as a waiver.)
o Reasonableness of precautions
o Number of inadvertent disclosures
o Extent of disclosures
o Delay and measures taken to rectify disclosure.
 Can also circumvent the waiver through
 Court order
 Party agreement
 42

Competence of Witnesses
 Who’s entitled to present the evidence
 We’re really talking about the competence of the W on the stand giving the
evidence.
o Mental competence: W’s ability to observe, recall, and relate
o Moral competence: W’s recognition of duty to testify truthfully
 FROEv 601
o Every person is considered to be competent to stand trial.
o But also look at state law to see if there’s a stricter definition.
o 403 still applies.
 FROEv 602
o The proponent of the testimony of a non-expert W must present evidence
that the W has personal knowledge of the matter to which he testifies.
o Evidence to prove knowledge may consist of the W’s own testimony.
 FROEv 603
o Requires every W to give an oath or affirmation to testify truthfully
 FROEv 605
o A judge is not competent in this trial.
o Need not object to preserve this issue.
 FROEv 606
o Jurors basically not either..
 (No rule on lawyer competence in evidence code.)
o But ABA MR 3.7
 A lawyer shall not act as advocate at a trial in which the lawyer is
likely to be a W unless
 Testimony relates to an uncontested issue
 Testimony relates to the nature and value of legal services
rendered in the case
 DQ of the lawyer would work substantial hardship on the
client.
 Traditional/obsolete incompetence findings
o Religious belief (Expressly forbidden under FROEv 610)
o Interested parties
o Dead man’s statute
 Premise that if two parties have dealing and one dies, it is unfair to
testify against the dead one.
 Most have been repealed (but a few remain, like NY)
o Infamy (felons)
 Children
o There is no minimum age for children to testify (Hill v. Skinner. It was
not abuse of discretion to allow small child to testify in dog bite case.)
 43

o Generally enough: Child has testimonial capacities of perception,

memory, and communication and recognizes obligation to tell the truth.
 Hypnotic Memory
o Court allows some hypnotic refreshed memory, but they’re not fond of it.
 Perhaps only for criminal D’s (Rock v. Arkansas. Court allows
hypnotically refreshed memory regarding D’s self defense.)
 We shouldn’t have rule that will keep D from being able to
give a full testimony.
 Court did not allow prosecution to use hypnotically refreshed
memory to help Ws. (State v. Moore.)
 44

Impeachment: Generally
 FROEv 607
o Any party, including the party who called the W, may impeach them
o Limit:
 Can’t bring a party to the stand for the sole purpose of impeaching
them in an effort to bring evidence in front of the jury which
otherwise wouldn’t get in. (U.S. v. Hogan. Court finds its improper
to impeach their own W just in an attempt to bring in otherwise
inadmissible evidence.)
 Four grounds of impeachment
o Lying
o Bias
o Faulty memory
o Imperfect perception
 Limits of Cross-Examination
o Testing Credibility of W
o Whatever the W discussed on direct.
 Overview
o Witness is testifying
o Generally
 W must have perception about what they’re testifying to
 W must have memory
 Problems of W testimony
 Narrative capacity
 Sincerity
o Much of impeachment is actually suggesting that the W might be
mistaken.
 Which goes to perception, memory, and narrative capacity.
o But other impeachment is trying to expose a W as telling a lie.
 Try to show
 You are lying
o Show that the W has a bias.
o Prior inconsistent statements.
o Contradiction
 Direct or inferential.
 You are a liar
o Showing character of untruthfulness is admissible
under 607, 608, 609 to impeach.
o Also excludable under 404(a)(3)
 A Witness cannot be impeached upon matter collateral to the principle issues
being tried. (State v. Oswalt. W cannot be impeached upon matters collateral to
the principles being tried. In this case that he lied/mistaken about being in a
restaurant every day.)
 45

o You can’t prove through Ws or other evidence in a collateral way.

o Extrinsic evidence that doesn’t go to anything else other than
impeachment is probably not admissible (except on cross)
o Test of collateralness
 Could the fact, as to which error is predicated, have been shown in
evidence for any purpose independently of the contradiction?
 Evidence of bad acts are admissible for impeachment purposes. (e.g. impeach
through contradiction.) (United States v. Copelin. Evidence that D had used
drugs before in the past was admissible to impeach his testimony via
contradiction that the only other time he had seen drugs was on television.)
o FROEv 404(b)
 46

Impeachment: Bad Character

 FROEv 608
o A W’s credibility may be attacked or supported by testimony about the
W’s reputation for having a character for truthfulness or untruthfulness,
or by testimony in the form of an opinion about that character.
 But evidence of truthful character is admissible only after the W’s
character for truthfulness has been attacked.
o Judge has discretion to permit a W to be cross-examined about specific
acts that reflect on the W’s character for truthfulness.(United States v.
Owens. It was permissible to bring up W’s prior lies he told on his
application to military. Trial counsel is authorized to impeach W by
extracting on cross his admission to a prior act of intentional falsehood.)
 If W denies the conduct, then assuming the evidence is not
admissible on some other ground, the examiner must “take the
answer”.
 Extrinsic evidence of the misconduct is not admissible.
 Testimony from W's mouth is not extrinsic.
 Testimony from another W is extrinsic.
 Documentary proof of untruthful acts is also extrinsic when
it is necessary to call another W to establish that the
documents or genuine or to lay foundation for admission
under an exception to hearsay rule. (Sometime courts just
accept the documents anyway, let’s be honest.)
 Questions on cross-examination does not constitute
extrinsic evidence. (But remember limits of cross-
examination 611(b)) (United States v. Drake. Questions
about the inconsistencies in W’s educational record were
fair game when they were brought up on direct and did not
constitute extrinsic evidence.)
 FROEv 806: When you are dealing with a hearsay statement (or
admissions of a party opponent), the declarant’s credibility may be
attacked by any evidence that may be admissible if the declarant
had testified as a W. (United States v. Saada. Introducing specific
acts of the declarant for purpose of attacking his credibility must
follow rules of 608(b) and therefore extrinsic evidence is not
permitted.)
 Limited by Judicial Discretion
o 403 still applies!
 47

Impeachment: Prior Criminal Convictions

 FROEv 609
o Allows you to attack a W’s credibility through the use of W’s criminal
convictions.
o Not automatic
o Juvenile adjudications
 Cannot use against a D
 Sometimes may use against a W
 Only if necessary to determine D’s guilt or inaccuracy
o Adult convictions
 10+ years have passed
 609(b)
 Only if probative value substantially outweighs prejudicial
effect (flips 403)
 Less than ten years have passed
 609(a)(2)
o Dishonesty Crimes
 Must be admissible
 Court uses narrow form of “dishonesty”
(United States v. Brackeen. Bank robbery
does not fit the definition of a “dishonest”
crime.)
 609(a)(1)
o All other crimes
 Punishable by death or imprisonment for
more than 1 year
 Civil case= Must be admitted (subject
to 403)
 Criminal case (Admissible against
non-D W, subject to 403. But if it’s
against D, then probative value must
be greater than the prejudicial effect.)
(United States v. Sander. D’s adult
conviction within last ten years of a
crime that does not involve
dishonesty, but is punishable by more
than 1 year cannot be used here
because the probative value of his
violent past is less than the prejudicial
effect it will have on the jury seeing as
how it’s almost the same exact crime.)
 48

o Not admissible to show

propensity to commit crime,
only admitted to impeach.
o Some factors to consider (U.S.
v. Sloman.)
 Impeachment value of
the prior crime. (Some
felonies have greater
bearing on honesty?)
 Point in time of the
conviction and W’s
subsequent history.
 Similarity between past
and charged crimes.
(high prejudice chance)
 Importance of W’s
testimony.
 Centrality of credibility
issue.
 Not punishable by death or imprisonment for
more than a year
 Inadmissible
o You must actually testify to reserve the judge’s decision to admit prior
convictions for impeachment purposes for appeal. (Luce v. United
States. Judge would not find that prior convictions were inadmissible. D
decides not to testify on this concern. The judge’s decision is not
appealable.)
 If D brings up his own convictions to preempt the opponent, the
judge’s decision to allow the conviction will not be appealable.
(Ohler v. United States.)
o You are allowed to prove by other evidence someone’s criminal
conviction (certified copy of the conviction.)
 49

Impeachment: Prior Statements

 Impeachment by prior Statements
o Two types of prior inconsistent statements that can be made
 To be used to prove something was true (if prior statement was
made under penalty of perjury)
 To show that the W is lying.
o FROEv 613
 Extrinsic evidence of a W’s prior inconsistent statement is
admissible only if
 W is given opportunity to explain or deny the statement;
and (Coles v. Harsch. Impeaching statement of W to show
he had something else earlier could be admitted only if W
had an opportunity to explain them, which did not happen
here.)
 An adverse party is given opportunity to examine the
witness about it; or
 Justice so requires.
o Evidence of prior consistent statements
 The prior consistent statement offered as extrinsic evidence to
rebuff charge of lying must have been made before the declarant
had a motivation to lie. (Tome v. United States. V’s prior
consistent statements regarding her abuse were inadmissible
because they were made after she had a motivation to lie.)
 50

Impeachment: Bias
 Impeachment by Bias
o Bias
 Describes relationship between a party and a W which might lead
W to slant his testimony in factor of or against a party.
o Bias is (almost) always relevant
o Bias can be introduced to impeach a W.
o The real control over bias is 403. (United States v. Abel. The D’s
membership in a gang where they agree to perjure themselves for each
other is highly probative of his truthfulness on the stand.)
 51

Opinion Evidence
 FROEv 602
o Generally requires W to testify as to their personal knowledge.
 But we allow in knowledge that is influenced, founded upon
previous knowledge and understanding, conclusions really.
 Two kinds of opinion testimony
o By those who did witness the events, but need to extrapolate to form
rational opinions on the matter (lay opinion)
 FROEv 701
 Allowed when
o rationally based on the W's perception and (Gov’t of
the Virgin Islands v. Knight. Court erred by not
admitting eyewitness testimony as to whether the
gun going off was accidental or not as it would have
been rationally based on W’s perception.)
o is necessary to come to a better understanding of
the W’s testimony. (Knight)
 Otherwise jury could come to this conclusion
on their own.
o Not based on scientific, technical or other
specialized knowledge within scope of 702
 Should not speculate as to what another person was
thinking. (Commonwealth v. Holden. Dissent upset
because court does not address W testimony about what D
was thinking when he “winked” at him.)
 Modern trend is to allow more lay-opinion
o Expert testimony based on things they have been told, but have not
witnessed (expert opinion) FROEv 702
 52

Expert Testimony
 FROEv 702
o A W who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if:
 The expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to
determine a fact in issue.
 W is qualified as expert in the pertinent field
 W possesses a reasonable degree of certainty about her
opinion or conclusion.
 The testimony is based on sufficient facts or data.
 Sources
o Personal observations
o What they hear at trial (if not in conflict)
o Hypotheticals
 Lots of problems with this traditional method
(Ingram v. McCuiston. Long hypothetical
shows a lot of the problems.)
 Irrelevant material
 Argumentative/slanted
 Hearsay
 Long and confusing
 Not really done this way anymore.
 FROEv 705 does away with the need.
o Provides that an expert can
testify in terms of opinion
without prior disclosure of the
underlying facts or data.
o Based on data made known to him before trial
(FROEv 703)
 The testimony is the product of reliable principles and methods;
and
 The expert has reliably applied the principles and methods to the
facts of the case.
 The testimony is helpful.
 Does not need to be based on W’s own perceptions.
 Who can be a witness (702)
o If you have relevant skill, knowledge, training, or education.
o Must be relevant.
o Broad definition
 Don’t have to be some kind of genius.
o Your expertise is limited.
 53

o (First step is always to qualify the W)

 W can be excluded if he does not have the requisite expertise.
 Sometimes opponent will stipulate to expert (sometimes to try to
avoid having their credentials marched before the jury.)
 Sometimes opposing counsel will try to discredit.
o Sometimes the court will appoint an expert W. (FROEv 706)
 FROEv 703
o Bases of an expert’s opinion testimony
 May base on facts or data in the case that the expert has been
made aware of or personally observed.
 If experts in the particular field would reasonably rely on those
kinds of facts or data in forming an opinion on the subject, they
need not be admissible for the opinion to be admitted.
 But if the facts or data would otherwise be inadmissible, the
proponent of the opinion may disclose them to the jury only if
their probative value in helping the jury evaluate the opinion
substantially outweighs their prejudicial effect.
 Some traps
o Expert opinion should not be admissible on topic that does not require
expert testimony.
 Turns on whether W offered as expert has peculiar knowledge or
experience not common to the world which renders their opinions
founded on such knowledge or experience any aid to the court.
 Beyond understanding of average person or ordinary experience,
education, and knowledge.
o Issues about guilt, ultimate issues, legal conclusions (Odom, Scop)
 (W may not give an opinion that D is guilty)
 FROEv 704 Opinion on an Ultimate Issue
 In General
o Not automatically objectionable just because it
embraces an ultimate issue.
o (But not intended to allow experts to offer opinions
embodying legal conclusions.)
 Exception
o Criminal case, expert W may not state an opinion
about whether D did or did not have a mental state
or condition that constitutes an element of the crime
charged or of a defense. (United States v. Scop.
Expert’s testimony about D’s intention to defraud
investors was an inadmissible legal conclusion.)
(But See State v. Odom. Court allows officer to
testify as an expert as to D’s intent to distribute
cocaine as it was not about guilt and was within his
expertise outside regular knowledge of jury. And did
not give opinion as to guilt.)
 54

o Includes prohibiting mental health experts from

giving their opinion whether the accused had the
required mental state. (U.S. v. Kristiansen.
Questions to expert regarding whether D’s mental
state rendered him unable to tell right from wrong
were properly excluded.)
 An expert’s testimony on the W’s credibility is not helpful to the
jury (so probably not admissible)
 Impeachment of Expert Ws
o Attack his qualifications
o Attack thoroughness/competence of his investigation
o Attack the opinion
 Confront with contradictory material from authoritative published
works in the field.
 Inquire whether consideration of omitted facts of a hypothetical
would change his opinion.
 Objections to Expert W testimony
o No foundation showing factual basis for opinion
 705 and 703 basically do away with this objection.
o Improper hypothetical
 Omits material facts not in dispute
 Refers to facts not in evidence
 Refers to irrelevant or prejudicial facts
 Requires opinion to rest on opinion of another
o Based on facts not in evidence
 703 does away with.
o Based on inadmissible hearsay
 703 does away with
 55

Expert Scientific Evidence

 Scientific Evidence
o To be admissible expert scientific testimony that is derived from research
for purposes of litigation must show that the conclusions were reached
after following recognized scientific methods of research. (Daubert v.
Merrel Dow Pharmaceuticals, Inc. This is the case that creates this
Daubert standard.)
 Several factors to consider (may be considered, not mandatory –
Kumho)
 Whether the theory is generally accepted in the scientific
community
 Whether the theory/method has been subjected to peer
review and publication
 Whether the theory/method has been tested or can be
tested
 Whether the potential or known rate of error is acceptable.
 The court/judge is the “gatekeeper”.
 Standard of review is abuse of discretion. (General Electric
Co. v. Joiner. It was not an abuse of discretion when court
excluded on Daubert grounds expert scientific evidence
showing link between PCB and cancer. Judge is
gatekeeper.)
 Applies not only to testimony based on “scientific” knowledge, but
also to testimony based on “technical” and “other specialized”
knowledge. (Kumho tire Company, Ltd. v. Carmichael. It was
within trial court’s discretion to exclude testimony of “tire expert”
on Daubert grounds when he discussed tread and so forth.)
 Witness must only show his evidence is reliable, not necessarily
correct.
 Focus must solely be on principles and methodology, not on
conclusions they generate.
 (Some states still follow Frye)
o Best approach to questionable evidence is to balance the need to admit all
relevant and reliable evidence against the danger that the admission will
be unfairly prejudicial. (United States v. Piccinonna. Court remands to
investigate polygraph tests with new knowledge to see if per se rule
should be removed.)
 But legislature has power to exclude unreliable evidence as long as
not arbitrary or disproportionate. (United States v. Scheffer.
Military rule of evidence which excludes polygraph material is not
an unconstitutional infringement on the interest of the accused.)
 Rules of evidence are constitutional if they are rational and
proportional means of advancing a legitimate interest in barring
unreliable evidence.
 56

 403 always applies.

o Probabilities in genetic/DNA evidence
 Important not to make move from random person match to
conclusive evidence of D’s guilt. (People v. Collins. Gross misuse
of probabilities involving odds that it was this couple.)
 You can’t switch around probability (1 out of 10), to make
assumptions about D (10 to 1)
 Just because you’ve shown the odds doesn’t mean this
person’s guilty.
 Probability statistics by themselves are not enough to show
guilt.
o But is admissible with other types of evidence.
o The evidence might still be probative. (People v.
Robinson. The blood type of D matched with blood
on scene is probative, but limiting instruction will be
necessary.)
 Important to avoid logical fallacies
 Prosecutor’s fallacy
o When prosecutor elicits testimony that confuses
source probability with random match probability.
(Brown v. Farwell. D did not get a fair trial when
the W twisted a 1 in 3,000,000 random chance to
mean nearly 100% chance it was him. Especially
when it could have been one of his brothers.)
 Defense fallacy
o 1 in 5,000,000, means 1 out of 3 (so 33%) (But of
course the other 2 weren’t at the crime scene.)
 Bayes’ theorem
 Controversial
 Multiply the probability by what % you were convinced of
his guilt to begin with.
 Leads to higher probability than intuition would allow.
 Three probabilities
 Random Match probability: Probability that a person
selected at random from a particular population would
match the trace evidence as well as suspect
 Source probability: Probability that suspect is source of the
recovered trace evidence.
o Affected by random match, but also affected by
estimate of number of other people who might be
source, their relation, circumstances, etc.
 Guilt probability: Probability that the suspect is guilty of the
crime in question.
o Requires an estimate of both the strength of genetic
matching and non-genetic evidence.
 57

 DNA matching
 When scientists declare a DNA match they are saying the
person cannot be excluded as a possible source.
 Random match probability does not show us source
probability.
o (Jack Ripper left handed. 10% left handed. 10 to 1
odds this left handed person is Jack the Ripper)
 Labs should not be supplying estimate of probability that
this is the guy.
o Especially because labs use a 50% prior probability
calculation before coming up with new probability.
 Juries are not getting full story without false positives and
false negatives analysis
o May completely change the story (Remember guy
with syphilis)
 58

Judicial Notice
 Certain circumstances where you can ask the judge to take judicial notice of a
fact.
o If judge does so, it becomes the basis of evidence in the trial without
having to prove it.
 Adjudicative fact vs. legislative fact
o Adjudicative: Facts that are particularly pertinent to deciding this specific
dispute
 Not every case can start from scratch.
o Legislative: facts that are applicable to deciding what the law generally
should be.
 Guided by other cases, laws, treatises.
 No FROEv deals with judicial notice of legislative facts.
 FROEv 201
o Applies only to adjudicative facts (not legislative facts)
o Court may take notice of adjudicative facts
 Of things that aren’t reasonably questioned. (De La Cruz v. City of
Los Angeles. Layout of the roads, the map is information that can
be accepted via judicial notice because the information of a map
cannot be reasonably questioned.
 Things generally known within the jurisdiction.
o IN a civil case, court must instruct the jury to accept the fact as conclusive
as opposed to a criminal case where the court must instruct the jury that
it may or may not accept the noticed fact as conclusive.
 Reviewing Court has discretion to grant judicial notice even when the
information was not presented to trial court where:
o Facts are not reasonably open to dispute
o Opposing party does not dispute them.
 Court cannot take judicial notice of elements of the crime, that’s for the jury.
(Fielding v. State. Judge erred when taking judicial notice that certain road was
a “highway”, a disputed element of the crime.)
 Jury Notice
o Juries (or other fact-finder) may rely upon their general knowledge upon
some matters in question (more importantly, counsel can ask them to do
so.) (United States v. Amado-Nunez. It was ok for judge to apply
personal knowledge of how arriving in customs works to find that D had
come in from a foreign country).
o Narrow scope:
 Limited to few matters of elemental experience in human nature,
commercial affairs, and everyday life. (background facts)
 Range of information is not definable.
 59

Burden of Proof and Presumptions

 Sometimes the law creates presumptions
o Conclusive presumptions
 Irrebutable presumptions
 As a matter of law, when we know A, we can presume B as a
matter of law.
 Court will not receive evidence nor entertain argument to show
the nonexistence of B.
 Court will direct jury that if they find A to be proven, they must
also find B.
 Not many of these in the law.
o Rebuttable Presumptions
 Party can overcome the presumption
 Generally courts have discretion to allow the presumption
to be rebutted. (In re Nicholas H. Court was entitled not to
rebut the presumption of fatherhood because law said
“may” rebut the presumption.)
 Morgan theory
 Shifts the burden of persuasion and production to
opponent disprove “B”
 Other theory (Thayer)
 Once a D presents any evidence attacking B, then the
presumption goes away.
 Presumption will stop doing any work
 Traditional inference begins functioning.
 Jury would be told nothing about the presumption, but
could be told about possible inference.
 BE careful of Constitutional concerns
 Such as D’s right to trial. (Virginia v. Black. Law which
creates prima facie provision that burning a cross=
intimidation, was unconstitutional because it permitted
jury to convict in every case where D declined to put on a
defense.)
 FROEv 301
o Presumptions in Civil Cases, Generally
 The party against whom a presumption is directed has the burden
of producing evidence to rebut the presumption. But this rule does
not shift the burden of persuasion, which remains on the party
who had it originally.
 In case of rebuttal, you have to present enough evidence
that a reasonable jury could find that B is not true.
 If D introduces to rebut “B”, then presumption doesn’t go
away, just something else that the jury can take into
 60

account.(Legille v. Dann. Since the Ds presented evidence

to counter the presumption, there was an issue of material
fact which should have gone to jury.)
 Rejection of the Morgan theory.
 Presumptions are not treated as evidence.
 While evidence of facts giving rise to a presumption shifts
the burden of coming forward with evidence to rebut or
meet the presumption, it does not shift the burden of
persuasion on the presumed facts.
 If the adverse party does offer evidence contradicting the
presumed fact, the court cannot instruct the jury that it may
presume the existence of the presumed fact from proof of
the basic facts.
o The court may instruct the jury that it may infer the
existence of the presumed fact from proof of the
basic facts.
o Do not confuse “presumption” with “inference”.
 FROEv 302
o IN a civil case, state law governs the effect of a presumption regarding a
claim or defense for which state law supplies the rule of decision.
 Application of state law is called for only when the presumption
operates under a substantive element of the claim or defense.
 Not when the presumption operates upon a lesser aspect of
the case.
 Presumptions in criminal cases
o Generally not appropriate
o In re Winship requires prosecution to prove each element beyond a
reasonable doubt, but presumptions bump up against this.
o Bumps up against right against self-incrimination. (Virginia v. Black.)
o FROEv 303 has been deleted (which would have allowed presumptions in
criminal cases.)
o Conclusive presumptions and any presumption-like device that carries
the “third burden of proof” on an element of the crime is per se
unconstitutional.
o Assumption that places the burden of persuasion on the D are per se
unconstitutional, at least with respect to intent and perhaps other
“traditional” elements of the crime.
o Morgan-McCormick presumptions are per se unconstitutional if they shift
the burden of persuasion to the D on an element of the charged crime.
 Burdens of Persuasion
o In civil case: preponderance of the evidence
 “More likely than not” (but kind of a bad definition)
 Not enough to show mathematically the chances somewhat favor a
proposition to be proved. (Smith v. Rapid Transit Co. Just
 61

because D owned the majority of buses in town doesn’t mean by a

preponderance it was their bus.)
o For summary judgment purposes, if the party has no Ws who will testify
for him, he cannot rely on the off-chance that one of the Ws will change
their story or redact on the stand. (Dyer v. MacDougall. Court was right
to award summary judgment where the P did not have any Ws who
would testify for him.)
o Burden is with party seeking to sustain an affirmative
o Burden is determined by the form of the pleadings
o Burden is to be borne by the party having peculiar knowledge of the facts.
o Burden is imposed on the party whose contentions depart further from
normal likelihood.
o Burden of persuasion vs. Burden of production
 Burden of persuasion
 BRD
 C&C
 Preponderance of the evidence
 Burden of production
 Responsibility to introduce evidence at trial.
62
 Conviction (not merely charge)?

Attacking character of truthfulness?

Not pardoned for innocence or rehabilitation?

Or pardoned and convicted of a felony?

Juvenile Adult
Adjudication? Adjudication?
Element of dishonesty?
Criminal Civil (Bracken: Bankrobbery
is not dishonesty)
Inadmissable
Witnes 
s Yes No
Must admit, Inadmissible
subject to Must admit
403 Punishable Punishable > 1
< 1 year year or death

Inadmissable
Criminal Civil

Must admit,
Witnes  subject to 403

Must admit, Must admit if

subject to 403 P.V > P.E.