Chapter 1- Introduction

● Statutory- Federal Rules of evidence

● Leading questions are allowed in cross-examination and re-cross-examinatoin
● In limine - on the threshold: as a preliminary matter —used for motions regarding the
admissibility of evidence brought up at a pretrial
● Voir Dire- The process of asking questions of Jurors to see if they are competent for
jury duty
● Preemtory Challenges -Each lawyer has a number of preemptory challenges by which
they can outright dismiss a juror during void dire without having to give an explanation.
However, attorneys can also ask the judge to dismiss a juror “for cause”
● Empanelled — Once jurors have been selected and sworn in as jurors!
Anglo-American Trial
● Voir dire → opening statements (not evidence itself but provides a roadmap)
→ case in chief (witnesses, physical evidence, eamination, cross-examination)
→ rebuttal case → sometimes surrebuttal case → closing arguments
Role of the Trial Judge
FRE 104
● (a) In General. The Court must decide any preliminary questions about whether a
witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court
is not bound by evidence rules, except those on privilege.
● (b) Relevance that Depends on a Fact. When the relevance of evidence depends on
whether a fact exists, proof must be introduced sufficient to support a finding that the fact
does exist. The court may admit the proposed evidence on the condition that the proof
be introduced later.
● (c) Conducting a Hearing so that the Jury Cannot Hear It. The court must conduct
any hearing on a preliminary question so that the jury cannot hear it if:
○ (1)The hearing involves the admissibility of a confession;
○ (2)A defendant in a criminal case is a witness and so requests; or
○ (3)Justice so requires.
● (d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary
question, a defendant in a criminal case does not become subject to cross-examination
on other issues in the case.
● (e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right
to introduce before the jury evidence that is relevant to the weight or credibility of other
evidence.
The Trial Judge’s Discretion
FRE 103
● (a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude
evidence only if the error affects a substantial right of the party and:
○ (1) If the ruling admits evidence, a party on the record:
■ (A) Timely objects or moves to strike; and
■ (B) States the specific ground, unless it was apparent from the context; or
○ (2) If the ruling excludes evidence, a party informs the court of its substance by
an offer of proof, unless the substance was apparent from the context.
 ○ determined on a case-by-case bais
○ This is to say that a lawyer should seek to preserve the claim by objecting (in the
case evidence is improperly admitted) or by offering proof as to why evidence
should have been admitted (in the case that the court does not admit it). If an
attorney does preserve the error, reviewing courts will look at the error under an
“abuse of discretion” standard of review.
○ If an attorney fails to preserve the error, a Court may still review the error, but the
standard of review on appeal would be a “plain error” standard, which is almost
impossible to find.
The FRE mandates that courts disregard errors that do not affect the substantial rights of
the parties.
● Standards:
○ Plain Error Standard
■ Allows the appellate court to review errors that were not objected to at
trial if such errors are extremely unjust or unfair (material prejudice to
substantial rights).
■ Normally, a party’s failure to respond promptly to the admission or
exclusion of evidence may result in a waiver of that party’s right to
complain about the error on appeal.
■ However, a substantial error that affects a party, even if un-objected to,
can be reversed in egregious cases where the mistake below is obvious
and plain.
■ FRE 103(e)
○ Harmless Error Standard
■ The verdict below will be reversed, or a new trial ordered, only if the
appellate court believes that the error may have made a difference to the
outcome.
■ An error that is “harmless,” and thus probably did not affect the outcome,
is disregarded.
○ Abuse of Discretion Standard
■ Great deference to the trial court’s determination of the admissibility of
evidence because the trial judge’s first hand exposure to the witnesses
and evidence as a whole.
■ The trial judge has familiarity with the case and the ability to gauge the
impact of the evidence in context of the entire proceeding.
■ If the trial court states the correct legal standard, but applies it incorrectly,
the appellate court reviews the ruling on an abuse of discretion standard.
○ Unless the judge screws up, it is really important to fight best at trial level
United States v. Walton (7th Cir. 2000)- abuse of discretion standard. “We afford great
deference to the trial court’s determination of the admissibility of evidence because of the trial
judge’s first-hand exposure to the witnesses and the evidence as a whole, and because of the
judge’s familiarity with the case and ability to gauge the impact of the evidence in the context of
the entire proceeding.
Bandera v. City of Quincy (1st Cir. 2003)- If you fail to preserve an objection under 103(a),
then the standard of review is Plain Error
Facts: Bandera brough sexual harassment claim against police station, witness Coletta testified
about the harassment to which herself had been subject and was allowed to testify over
objections by the defense as to how Coletta felt about, and assessed, Bandera’s own
allegations. Coletta had no actual knowledge of what had happened to Bandera, and her
assessments of what Bandera reported to have happened and the psychological impact on
Bandera were wholly inappropriate opinion testimony. Fed. R. Evid. 701
Rule: if its basis is not obvious, an objection is not preserved unless the ground is stated. Fed.
R. Evid. 103(a)(1)
Holding: under the plain error doctrine: although the error is plain in retrospect, there is no
showing that it probably infected the outcome or caused a miscarriage of justice
● Have to show that they knew about the harassment

Chapter 2- Relevance
Relevance and Irrelevance
● Irrelevant= should be excluded→ imadmissble
● Relevant= rationally probative→ should be admitted
○ MANY EXCEPTIONS
○ ** think about what you are trying to porve or disprove**
○ Probative value- evidence which is sufficiently useful to prove something
important in a trial
○ Relevancy Thereshold- whether the evidence makes that fact at least slightly
more or less likely than it would be without knowing about the evidence

F.R.E. 401- Test For Relevant Data

● Evidence is relevant if:
○ (a) it has any tendency to make a fact more or less probable than it would be
without the evidence; and
○ (b) the fact is of consequence in determining the action.
■ The fact to be proved may be ultimate, intermediate, or evidentiary; it
matters not, so long as it is of consequence in the determination of the
action
● Advisory Committee Note
○ whether an item of evidence, when tested by the processes of legal reasoning,
possesses sufficient probative value to justify receiving it in evidence
○ Evidence which is essentially background in nature can scarcely be said to
involve disputed matter, yet it is universally offered and admitted as an aid to
understanding

F.R.E 402- General Admissibility of Relevant Evidence- Relevant evidence is admissible

unless any of the following provides otherwise:
 ● the United States Constitution;
● a federal statute;
● these rules;
● or other rules prescribed by the Supreme Court.
● Irrelevant evidence is not admissible.

Knapp v. State 79 N.E. 1076 (Ind. 1907)- A statement that a man killed was violent is relevant
because it goes to show that it is more probable than not that a defendant killed in self-defense.
Facts: appellant committed murder and testifies as a witness on his own behalf saying he killed
in self-defense because he heard that the deceased clubbed and killed an old man. On cross-
examination appellant could not remember who told him this info.
● The state was permitted, on rebuttal, to prove by a physician over the objection and
exception of the defense, that the old man died of senility and alcoholism, and that there
were no bruises or marks on his person.
● Appellant argues: it was an error to admit physician’s testimony; that the question was
as to whether he had, in fact, heard the story, and not as to its truth or falsity.
Issue: Is the testimony of the doctor relevant, when the issue is not how the man
died, but whether someone had heard a false account about the man’s death?
Rule: While it is laid down in the books that there must be an open and visible
connection between the fact under inquiry and the evidence by which it is sought to
be established, yet the connection thus required is in the logical processes only, for
to require an actual connection between the two facts would be to exclude all
presumptive evidence→ the competency of testimony depends largely upon its
tendency to persuade the judgment
Holding: testimony referred to was competent.
● While appellant’s counsel are correct in their assertion that the question was whether
appellant had heard a story to the effect that the deceased had offered serious violence
to the old man, yet it does not follow that the testimony complained of did not tend to
negative the claim of appellant as to what he had heard.
● It discredits appellant- to show that there was no basis in fact for the statement
appellant claims to have heard had a tendency to make it less probable that his
testimony on this point was true
United States v. Dominguez 907 F.2d 216 (1st Cir. 1990)- Evidence is relevant so long as
someone can logically make an inference as to its purpose.
Facts: Dominguez was a U.S. Customs officer. A jury found Dominguez and a fellow officer
guilty of kidnapping, robbing, and murdering Yamil Mitri when Mitri attempted to carry $700,000
into the United States After presenting evidence that a gunshot killed Mitri, the government
introduced evidence showing (a) that Dominguez owned a gun, (b) that a week after Mitri’s
death, he asked a friend to bring his gun to a Miami gun shop to have the barrel replaced, (c)
that the shopowner saw scratches on the barrel, which could have been left by an attempt to
remove it, and (d) that the shopowner repaired the barrel but did not replace it.
 ● Dominquez argues: Dominguez, as a customs officer, had to own a gun- in light of that
fact, that the evidence presented of ownership and about barrel replacement was
irrelevant and prejudicial.
Issue: Is evidence of gun ownership and barrel replacement irrelevant when the
defendant is in fact legally required to carry a gun, as per his job?
Rule: Relevant evidence is evidence “having any tendency to make the existence of any fact
that is of consequence . . . more probable or less probable than it would be without the
evidence.” Fed. R. Evid. 401
Holding: evidence is relevant
● The fact that Dominguez owned a gun makes his guilt somewhat more probable than if
he did not own a gun. The fact that he might have had a good reason, consistent with
innocence, for owning a gun, makes the evidence less probative, not irrelevant
● The effort to replace, in turn, suggests an effort to eliminate features of the gun that
might have linked it with a bullet eventually found in, or near, Mitri’s body. And any such
effort suggests consciousness of guilt. Given this set of logical connections, the
replacement effort makes guilt more probable than had there been no replacement
effort; and the evidence, consequently, is relevant.
● the government is perfectly free to introduce weak evidence.
State v. Larson 843 P.2d 777 (Mont. 1992) The standard of probability under FRE 401 is
“more probable than it would be without the evidence”
Facts: Larson took a 5 year old out on a horse that he knew was inexperienced. The
horse bucked and Larson and the child fell backward and the child died. Three hours
after the incident, Larson’s BAC was .17. A trial, the State argued that Larson made
mistakes in judgment due to his BAC. Larson argued that his BAC is irrelevant to his
conduct on the horse. Larson is charged with negligent endangerment→ conduct
that creates a sibstaintaill risk of death or serious injury
● prosecution argues: a person who is too impaired to drive an automobile safely is too
impaired to ride a horse safely, and certainly is too impaired to allow a five-year-old child
on a high-spirited horse with him
● Larson argues: the level of blood alcohol which will impair a person’s ability to drive is
irrelevant to his conduct relative to a high-spirited young horse
Issue: Is evidence about a defendant’s ability to drive a car irrelevant when the
charge is about riding a horse?
Rule: Relevant evidence is evidence “having any tendency to make the existence of any fact
that is of consequence . . . more probable or less probable than it would be without the
evidence.” Fed. R. Evid. 401
Holding: Larson’s blood alcohol level on the day of the accident is relevant.The comparison of
Larson’s blood alcohol level with that which the scientific community has determined will impair
a person’s ability to drive a motor vehicle is also relevant.
● The comparison aided the jury in evaluating Larson’s level of intoxication. It allowed the
jurors to apply their experience and logic to determine whether Larson’s level of
intoxication clouded his judgment and impaired his reactions, and its probative value
outweighs any prejudice to the defendant. We hold that the court did not abuse its
discretion in admitting the comparison.
Probative Value and Prejudice

F.R.E. 105- Limiting Evidence That Is Not Admissible Against Other Parties or for Other
Purposes- If the court admits evidence that is admissible against a party or for a purpose —
but not against another party or for another purpose — the court, on timely request, must
restrict the evidence to its proper scope and instruct the jury accordingly.
● A close relationship exists between this rule and FRE 403

F.R.E 403- Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or
Other Reasons- The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following:
● unfair prejudice,
● confusing the issues,
● misleading the jury,
● undue delay,
● wasting time, or
● needlessly presenting cumulative evidence.
● ACN- “Unfair prejudice” - an undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one.
○ rule does not enumerate surprise as a ground for exclusion

Confusing the Jury

*United States v. Noriega 117 F.3d 1206 (11th Cir. 1997)- Evidence that has potential
probative value is inadmissible if probative value is outweighed by the confusion it would cause
the jury.
Facts: Noriega (defendant) was indicted on drug-related charges. Noriega had used his position
as commander of the Panamanian Defense Forces in the Republic of Panama to help traffic
cocaine into the US. After declaring war between Panama and the US and subsequently losing
control over Panama during the ensuing combat, Noriega surrendered to US military officials
and was brought to Miami for trial on drug-related charges. Before trial, Noriega attempted to
rebut the fed gov’s argument that he had unexplained wealth by submitting evidence regarding
his intelligence work for the US and contending that the US had paid him $10 mill to perform
these tasks. The fed gov objected to the evidence. The DC excluded the evidence, determining
that the evidence was irrelevant and, alternatively, that the evidence would confuse the issues
before the jury. The gov stipulated that he received $320,000. The DC did, however, allow
Noriega to present evidence of the fact, amounts, time, source, and method of conveyance of
the money that he allegedly received from the US.
Rule: FRE 403
Holding: we cannot conclude that the district court abused its discretion when it determined that
the probative value of the proffered material was outweighed substantially by the confusion of
issues its admission would have caused
 ● Its relevant BUT → Evidence of the purposes for which monies allegedly are
given does not aid significantly in the determination of the fact and amount
of such purported payments.
● the district court correctly recognized that the admission of evidence regarding the
nature of Noriega’s assistance to the United States would have shifted unduly the focus
of the trial from allegations of drug trafficking to matters of geo-political intrigue.
*United States v. Flitcraft 803 F.2d 184 (5th Cir. 1986)-
Facts: Flitcraft and his wife Rebecca appeal their convictions for failing to file tax returns and
filing false withholding exemption certificates. Flitcraft said he relied on cases and articles that
convinvec him his wages for not income that was taxable.
● Flitcraft argues: the jury would have been more likely to credit the sincerity of the
Flitcrafts’ belief that they were not subject to filing a return if it had seen the documents
Rule: FRE 403
Holding: the little probative value of introducing the legal material Flitcraft relied upon does not
outweigh confusionn to jury
● The documents would have been cumulative because Mr. Flitcraft was allowed to
testify and tell the jury that he had read documents that led him to believe he did not
have to file tax returns, therefore, the documents would had very little probative value.
● Flitcraft already testified to the documents he relied on and their contents
● Furthermore, the documents could have confused the jury by suggesting that the law
was unsettled and thereby making it a case not of whether the Flitcrafts failed to pay
their taxes, but about whether or not their wages should be considered income.
*Abernathy v. Superior Hardwoods, Inc. 704 F.2d 963 (7th Cir. 1983) Evidence must meet a
certain standard of reliability or it runs the risk of confusing the jury
Facts: Robert Abernathy drove a flatbed truck loaded with logs to a sawmill in Indiana owned by
Superior Hardwoods. The logs were fastened to the bed of the truck with four chains. Abernathy
released each chain but before he could stow them all in the cab of the truck Superior
Hardwoods’ forklift began unloading the logs and one tumbled off and hit Abernathy in the back.
Abernathy sued Superior Hardwoods for negligence. The president of Superior Hardwoods
made a videotape with his home videotape system showing a forklift unloading logs from a truck
at the sawmill. The videotape was not a tape of the accident
Rule: Although all of these points could have been brought out on cross-examination if the
soundtrack had been played to the jury, a district judge is not required to encumber a trial with
evidence of slight probative value merely because effective cross-examination might expose its
weakness. Fed. R. Evid. 403
Holding: the recording was unreliable → the amuater video can bias the evidence
● Its was right to exclude the sound on the video
● The microphone was not placed where Abernathy had been standing when he was hit
by the log, though it easily could have been; the recording was made by an amateur,
using amateur’s equipment; and there is no indication that in the courtroom the video
recorder’s volume control would have been adjusted to produce the same decibel level
as the sounds actually recorded.
● Sometimes attorneys with weak cases will introduce a lot of evidence at a jury with the
intent to confuse the jury — a tactic that is sometimes called “serving up a muddle.”
Unfair Prejudice
*United States v. Mcrae 593 F.2d 700 (5th Cir. 1979) Under FRE 403, a trial court can exclude
relevant evidence if the evidence’s probative value is substantially outweighed by the danger of
unfair prejudice.
Facts: McRae killed his wife by shooting her. His sole defense at trial was that the shooting was
not malicious but accidental. On appeal D objects to the admission of various photographs of
the deceased and of the death scene.
Holding: the district court did not abuse its discretion in allowing introduction of the
photographs. The photographs were prejudicial to McRae in the eyes of the jury, but they were
not unfairly prejudicial. The crime was a vicious one, and the photographs were probative on
the issue of McRae’s defense
*United States v. Mehanna 735 F.3d 32 (1st Cir. 2013) To be excludable for prejudice,
evidence must be unfairly prejudicial, such that its probative value is outweighed by its unfair
prejudice.
Facts:Mehanna was charged and ultimately convicted of providing material support to terrorists,
conspiring and attempting to provide such support, and several related offenses. On appeal,
Mehanna challenged the district court’s admission of dozens of terrorism-related pictures,
videos, and printed materials. This evidence, the defendant insists, vastly exceeded what was
necessary to prove the government’s case, inflamed the jury, and contaminated the verdict.
● Gov have has to show that he knowingly redacted aid to the terrorist organization
○ It was on his computer
● Gov argues: the defendant’s motive and intent are material facts and that the disputed
media have probative value with respect to those facts.
Rule: Fed. R. Evid. 403, there is no mathematical way to decide, its the discretion of the judge
Holding: evidence is admissible
● Allowed photos but not video
● Because evidence is typically submitted to elicit an emotional reaction from a jury,
almost all evidence can be categorized as prejudicial. In this case, although the
terrorism-related evidence presented at trial is emotionally charged, the evidence directly
relates to the nature of the crimes for which Mehanna is charged.
*Old Chief v. United States 519 U.S. 172 (1997) Souter- Evidence is not admissible if its
unfairly prejudicial effect outweighs its probative value.
Facts: Old Chief (D) was charged with violation of a §921(a)(20) making it illegal for a convicted
felon to carry a firearm. Old Chief had previously been convicted of assault causing serious
bodily injury. Before trial, he moved for an order requiring the Gov “to refrain from mentioning
and roffering into evidence or soliciting any testimony from any witness regarding the prior
criminal convictions of the Defendant, except to state that the Defendant has been convicted of
a crime punishable by imprisonment exceeding one (1) year.” on account of its unnecessary
prejudicial effect against him in the eyes of the jury. The district court denied Old Chief’s offer to
stipulate and admitted the full record of his prior conviction.
Issue: whether the name or general character of that crime is to be disclosed?
Rule: Fed. R. Evid. 403
Holding: In dealing with the specific problem raised by §922(g)(1) and its prior conviction
element, there can be no question that evidence of the name or nature of the prior offense
generally carries a risk of unfair prejudice to the defendant. The most the jury needs to know is
that the conviction admitted by the defendant falls within the class of crimes that
Congress thought should bar a convict from possessing a gun, and this point may be
made readily in a defendant’s admission and underscored in the court’s jury instructions
● Under RULE 401, Old Chief’s previous charge is relevant, and the notes on 401 say that
evidence doesn’t have to be in contention for it to be relevant. So, even if Old Chief
stipulated to his previous crime, under a relevancy analysis, the facts of his previous
crime and witnesses to his previous crime would all still be relevant.
● The Notes specify however that just because evidence is relevant doesn’t mean that it’s
admissible, but that such considerations should be made under Rule 403.
● Such improper grounds certainly include the one that Old Chief points to here:
generalizing a defendant’s earlier bad act into bad character and taking that as
raising the odds that he did the later bad act now charged
● although the name of the prior offense may have been technically relevant, it addressed
no detail in the definition of the prior-conviction element that would not have been
covered by the stipulation or admission
● recognition that the prosecution with its burden of persuasion needs evidentiary depth to
tell a continuous story has, however, virtually no application when the point at issue is a
defendant’s legal status, dependent on some judgment rendered wholly independently of
the concrete events of later criminal behavior charged against him.
● Providing status without telling exactly why that status was imposed leaves no gap in the
story of a defendant’s subsequent criminality,
● Judge is given huge discretion
● The judgement is unlikely to get reversed bc of the abuse of discretion
Dissent: Not unfair prejudice. the District Court instructed the jury that it was not to “consider a
prior conviction as evidence of guilt of the crime for which the defendant is now on trial.” The
jury is presumed to have followed this cautionary instruction.
● A jury is as likely to be puzzled by the “missing chapter” resulting from a defendant’s
stipulation to his prior felony conviction as it would be by the defendant’s conceding any
other element of the crime.
Conditional Relevance
● Many rules of evidence make the admissibility of a particular item of proof depend on the
answer to a “preliminary question” of fact
● Conditional relevance- is not whether the preliminary fact is actually true, but whether a
reasonable jury could think so, given the other evidence in the case.
● The judge applies a sufficiency standard, rather than simply deciding for himself whether
the preponderance of the evidence suggests the fact.
○ The preliminary question the judge has to answer is whether there is sufficient
evidence to allow the jury to find that the defendant did whatever is in dispute.

FRE 104 (b) Relevance That Depends on a Fact. When the relevance of evidence depends
on whether a fact exists, proof must be introduced sufficient to support a finding that the fact
does exist. The court may admit the proposed evidence on the condition that the proof be
 introduced later.
● The judge makes a preliminary determination whether the foundation evidence is
sufficient to support a finding of fulfillment of the condition. If so, the item is admitted.
If, after all the evidence on the issue is in, pro and con, the jury could reasonably
conclude that fulfillment of the condition is not established, the issue is for them. If the
evidence is not such as to allow a finding, the judge withdraws the matter from their
consideration. . . . The order of proof here, as generally, is subject to the control of the
judge.
● Ex. If Mary kills Bob, the fact that Bob had life insurance naming Mary as the
beneficiary is irrelevant unless it can be proved that Mary knew about it beforehand.

*State v. Mcneely 8 P.3d 212 (Or. 2000)A court should admit evidence with relevancy that is
conditional on a fact if a reasonable jury could find that a preliminary question of the fact exists.
Facts: Defendant McNeely was convicted of aggravated murder. A fellow jail inmate,
Thompson, testified at trial about statements McNeely had made to him
● D argues: that the trial court erred in denying his motion to exclude Thompson’s
testimony, because Thompson was unable to identify defendant at trial as the man with
whom he had spoken in jail.
● State argues: Thompson’s testimony was “conditionally relevant,” and, thus, was
properly admitted.
Rule: When dealing with a matter of conditional relevancy under OEC 104(2), the judge
determines whether the foundation evidence is sufficient for the jury reasonably to find that the
condition on which relevance depends has been fulfilled. If so, the evidence is admitted; if not,
the evidence is not admitted.
Holding: Thompson’s inability to identify defendant at trial went to the weight the jury might give
to his testimony, not to its admissibility. It follows that the trial court did not err in leaving the
matter to the jury.
● the evidence that they met previously in jail and that McNeely had since changed his
appearance was sufficient for the judge to determine that a reasonable jury could
conclude Thompson had spoken to McNeely
● Thompson’s statement is relevant if in fact McNeely made the statement →
judge has to determine that a reasonable jury could conclude if a jury believe
he made the statement

Chapter 3 – Hearsay
Exam analysis
● 1) relevance?
● 2) Is it hearsay?
● 3) if it is hearsay, is there an exception?
● 4) Is there a CC issue?
● 5) 403 probative value?
The Hearsay Rule and its Rationale
● Hearsay: “An out of court statement introduced to prove the truth of the matter
asserted” FRE 801(c)
5 things to be aware of:
1. An out of court statement is the hearing/trial/proceeding at hand, not any other hearing
a. Ex. depositions, statement from a first trial
2. “Matter asserted” = the actual statement itself, not the motive for putting on the statement
a. Matter asserted is the content of that specific statement; it is not about the thing
that ultimately needs to be proven
3. “Introduced to prove” = what is introduced to prove a sequence of inferences
4. Don’t think that the hearsay analysis is affected by how the out of court statement is
proven. The hearsay rule is unaffected by the strength of the evidence
a. Ex. does not matter if there is a recording of the out of court statement
5. Don’t confuse the witness with the declarant
a. Witness: Someone who testifies under oath on the witness stand
b. Declarant: The person who made the statement FRE 801(b)
i. Someone who made a statement of any kind, whether or not under oath,
and whether in or out of court
ii. If the declarant is the witness, then there is no hearsay
FRE 801
(a) Statement. “Statement” means a persons’ oral assertion, written assertion, or
nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement
(c) Hearsay. “Hearsay” means a statement that:
(1) The declarant does not make while testifying at the current trial or hearing; and
(2) A party offers in evidence to prove the truth of the matter asserted in the
statement.
(d) Statements that are Not Hearsay. A statement that meets the following conditions is
not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to
cross-examination about a prior statement, and the statement:
(A) Is inconsistent with the declarant’s testimony and was given under
penalty of perjury at a trial, hearing, or other proceeding or in a
deposition;
(B) Is consistent with the declarant’s testimony and is offered:
(i) To rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in so
testifying; or
(ii) To rehabilitate the declarant’s credibility as a witness when attached
on another ground; or
© Identifies a person as someone who the declarant perceived earlier.
 (2) An Opposing Party’s Statement. The statement is offered against an opposing
party and:
(A) Was made by the party in an individual or representative capacity;
(B) Is one the party manifested that it adopted or believed to be true;
(C) Was made by a person whom the party authorized to make a statement on the
subject;
(D) Was made by the party’s agent or employee on a matter within the scope of
that relationship and while it existed; or
(E) Was made by the party’s coconspirator during an in furtherance of the
conspiracy.
The statement must be considered but does not by itself establish the declarant’s authority
under (C); the existence or scope of the relationship under (D); or the existence of the
conspiracy or participate in it under (E).
● If the significance of an offered statement lies solely in the fact that it was made and
no issue is raised as to the truth of anything asserted, then the statement is not
hearsay.
● If the declarant is the witness, then there is no hearsay issue.

FRE 802
Hearsay is not admissible unless any of the following provides otherwise:
● A federal statute;
● These rules; or
● Other rules prescribed by the Supreme Court.

For evidence to be considered hearsay, it must:

● Be a statement
○ A statement is a communication (oral, written, or nonverbal) by which the
declarant intends to communicate.
○ Often, the declarant is not the same person as the witness and the witness
repeats the out of court statement of the declarant.
● Have been made out of court, and
○ Outside of the very court proceeding in which the evidence is being admitted
● Be used by the party offering the statement to show that the matter asserted by
the statement is actually true
○ A statement is being used for the truth of the matter asserted when the trier-of-
fact is being asked to believe that the statement of fact is actually true.
○ Easiest way to understand what it means to introduce a statement to prove the
truth of the matter asserted is to consider other things a statement can be used
to prove, aside from the truth of the matter asserted.
○ Matter asserted is the content of that specific statement; it is not about the
thing that is ultimately needed to be proven
 To understand whether or not a statement is being introduced to prove the truth of the matter
asserted, ask yourself the following three questions:
1. What is the statement at issue?
2. With this particular statement, what is the truth of the matter asserted?
3. Is the moving party introducing the statement to prove that truth, or is there a
different reason?
● If it’s being introduced not for the truth but for a different reason, then it’s not
hearsay
Example: D is charged with various crimes. When he speaks with his lawyer for the first time,
he tells her that the judge is dead and that his bones were replaced with chicken bones. He also
says that he’s from another planet. The lawyer requests a competency hearing. At that hearing,
she puts on her investigator who was present during the client interview. When the investigator
starts testifying about what the S said, the prosecutor objects on hearsay grounds. How should
the judge rule?
1. Statement: “The judge is dead and that his bones were replaced with chicken bones.
He’s also from another planet.”
2. Truth of the matter asserted: Whether or not the judge is dead and that his bones were
replaced with chicken bones, and that he’s also from another planet?
3. Is the statement introduced to prove the truth or for some other reason?: Another reason
—for incompetency grounds. Not trying to prove that the statement is true and that the
judge is dead. Introducing the e to demonstrate the defendant’s mental state

*Trial of Sir Walter Raleigh (1603)- CLASSIC HEARSAY- If a co-conspirator has voluntarily
confessed and implicated the defendant, he does not need to testify at the defendant’s trial.
Facts: Sir Walter Raleigh was charged with treason in connection with an alleged conspiracy to
overthrow and kill the King of England. The prosecution alleged that Raleigh’s co-conspirator
was Lord Cobham, who had already confessed and implicated Raleigh. The prosecution read
Cobham’s confession, which was the only evidence offered against Raleigh. Raleigh sought to
cross-examine Cobham about the confession, claiming that if Cobham testified, he would not lie
about Raleigh’s involvement. Raleigh asserted that Cobham’s confession was unreliable
hearsay.
● Crown says they have evidence other than Cobham→ Dyer is a witness→
testified that a Portuguese gentlemen said he heard Cobham and Raleigh
said they would killed him → this is hearsay- its a third person how heard
rumors
Issue: Whether a defendant’s co-conspirator needs to testify at trial if the co-conspirator has
already voluntarily confessed and implicated the defendant.
Holding: NO- Permitting Cobham to testify would be duplicative and serve to confuse the jury.
● Case about why hearsay is problematic
*Leake v. Hagert (1970) - CLASSIC HEARSAY- Under the hearsay rule, a person’s statement
introduced into evidence for the truth of the matter asserted is considered hearsay and is not
admissible unless the person who made the statement is testifying on the stand.
Facts: Leake said Hagert was negligent in her operation of a car when she rear-ended Leake.
Hagert counterclaims that Leake was negligent because he was driving after sunset without his
lights. Evidence: The adjuster’s (witness) viva voce testimony concerning the statement of
Leake's son (declarant) (that the light had been out for a while). Leake argues that the adjuster's
testimony re his son's admission that the small rear light had the red lens out for some time is
hearsay
Issue: Whether the erroneous admission of hearsay into evidence that was not prejudicial
constitutes a reversible error.
Holding: Court made an error in admitting the statement, but such error was not prejudicial
because it did not substantially affect the rights of Leake because there was other evidence of
the light being broken. Even though Gross’s testimony was inadmissible hearsay, the trial court
did not commit a reversible error.
● Other people testified to the light being out, so the statement did not so prejudice Leake.
● The hearsay rule prohibits use of a person’s assertion, as equivalent to testimony of the
fact asserted, unless the assertor is brought to testify in court on the stand, where he
may be probed and cross-examined as to the grounds of his assertion and his
qualifications to make it.
● Error in admission of evidence is not a ground for a new trial unless such error affects
the substantial rights of the parties.
McCormick on Evidence
● Four factors upon which the value of testimony depends:
○ Perception—did the witness perceive what is described and perceive it
accurately?
○ Memory—has the witness retained an accurate impression of that perception?
○ Narration—does the witness’ language convey that impression accurately?
○ Sincerity—is the witness, with varying degrees of intention, testifying falsely?
● Three conditions under which witnesses ordinarily are required to testify:
○ Oath,
○ personal presence at the trial, and
○ Cross-examination.
Laurence H. Tribe, Triangulating Hearsay
● Dangers of hearsay:
○ Ambiguity, insincerity, incorrect memory, inaccurate perception
● First link in the required chain of inferences is the link from the act or utterance to the
belief it is thought to express or indicate
● Second link is the one from the declarant's assumed belief to a conclusion about some
external event that is supposed to have triggered the belief that is linked to the belief in
some other way
In terms of this diagram, the statement of the out-of-court declarant constitutes hearsay
only if the inference that the proponent seeks to establish requires a “yes” answer to the
questions raised by both sides of the triangle
Non-Hearsay Uses of Out of Court Statements
● Hearsay usually involves two statements—one from the declarant and one from the
witness in court.
● When an out of court statement is written, the document is usually introduced.
● Out of Court Statements that Do Not Fit the Hearsay Definition
○ Circumstantial evidence of state of mind of the declarant
○ Statements offered to show their effect on the listener
■ Applies where the statement is offered to show that the listener (or
reader) was put on notice, had certain knowledge, had a certain emotion,
behaved reasonably or unreasonably, etc.
○ Impeachment
○ Verbal acts—the words themselves do not matter just the fact of the speech; also
includes legally operative language (were the words necessary to effectuate a
change in legal status?)
Circumstantial evidence to show what the speaker believed
Lyons Partnership v. Morris Costumes, Inc. (2001) (confusion about barney)
Facts: Copyright infringement case about Barney. The principal of a school testified that
children screamed Barney even though it was the Duffy costume. Parents testified that children
thought Duffy was Barney. The statements were attempted to be brought in but the judge did
not let them in because he believed them to be hearsay.
Issue: Whether the statements were admissible.
Holding: Statements were admissible. NOT HEARSAY
 ● (1) Statement: "Barney, Barney, Mama it's Barney" (i.e., children said it was Barney)
● (2) Truth of the matter asserted: The costume is actually Barney
● (3) Why is the statement being introduced?: showing that kids really believed it was
Barney
○ What is pertinent is the declarant's confusion
United States v. Parry (1981)- (talking to a narc) Using an out-of-court utterance as
circumstantial evidence of the declarant’s knowledge of the existence of some fact, rather than
as testimonial evidence of the truth of the matter asserted, does not offend the hearsay rule.
Facts: D convicted of conspiring to distribute PCP; defended on ground that he had known all
along that he was working with narcotics agent, assisting them in locating drug dealers; said he
had conversations with his mom about this. Court ruled that mother couldn't testify about the
conversations with her son
Holding: evidence should have been admitted. NOT HEARSAY- Circumstantial evidence of a
state of mind of the declarant is not hearsay and should have been issued with a limiting
instruction saying it is admissible but circumstantial.
● (1) Statement: "Im talking with a narcotics agent, and I'm working with him"
● (2) Truth of the matter asserted: He is a narcotics agent and D is working with him
● (3) Why is the statement being introduced?: Not to show that the statement is true, but to
establish that D has knowledge of the agent’s identity when he spoke
○ Where evidence is admissible for one purpose but not for another, the accepted
practice is to admit the evidence with instructions that the jury consider the
evidence only for the permissible purpose
○ Exception to the rule applies only where the probative value of the evidence
when used for its allowable purpose is outweighed by the prejudice that would
result if the evidence were used for its improper purpose
○ The court should admit the statement and give a limiting instruction (FRE 105)
that the statement is admissible only as circumstantial evidence of D’s
knowledge and not as evidence of the truth of the matter asserted
○ D deserves a new trial → the evidence was harmful
Circumstantial evidence to show the effect on the listener

Subramaniam v. Public Prosecutor (1956) (terroism, duress, admissible)

Facts: D was convicted of possessing 20 rounds of ammo. There was a conversation between
D and terrorists. Terrorist said they would kill D if he refused. D introduced statement to show
that he reasonably believed that terrorist would kill him and to prove that he was reasonably
under duress. Trial court excludes as hearsay
Holding: Not hearsay; show state of mind of the declarant→ He was introducing the
statements to explain why he was scared, not to prove that they were in fact taking
him to their leader.
● It is hearsay and inadmissible when the object of the evidence is to establish the truth of
what is contained in the statement. It is not hearsay and is admissible when it is
proposed to be established by the evidence, not the truth of the statement, but the fact
that it was made. The fact that the statement was made, quite apart from its truth, is
 frequently relevant in considering the mental state and conduct thereafter of the witness
or some other person in whose presence the statement was made.
● (1) Statement: “We are taking you to our leader”
● (2) Truth of the matter asserted: They were actually taking him to their leader
● (3) What is the statement being introduced?:to prove that he really believed he was
being taken to their leader and to show the defense of duress
United States v. Feliz (2015) (police coerced confession) Testimony offered to show the effect
of the words spine on the listener is not hearsay
Facts: Feliz convicted of possession of a firearm in furtherance of a drug trafficking crime . . .
and possession with intent to distribute cocaine base. His conviction was based largely on two
written confessions. Before trial, Feliz moved to suppress the confessions as involuntary, being
induced by threats made to him as to repercussions to his mother and his young siblings if he
did not confess. 2 police officers testified that the confessions were freely made.
Holding: we cannot conclude that the confessions were voluntary, because the district court
erroneously excluded from consideration the critical evidence to the contrary
● (1) Statement: “we are going to deport you mother, take your siblings”
● (2) Truth of the matter asserted: Feliz’s siblings would truly be sent to the Department of
the Family if he did not turn himself into police custody, or that she would have been
deported
● (3) Why is the statement being introduced? To show Feliz believed that the
police would do such → coercion, involuntariness, if credible, would show the
fact that the police officer made the threat to Feliz, a fact within mom’s
personal knowledge
● The testimony here was offered to show the effect of the words spoken on the listener
● The government offers no case—and we are aware of none—suggesting that only the
listener (and not an independent over-hearer of a conversation) may testify to an out-of-
court statement that is relevant to the listener’s state of mind.
United States v. Johnson (1995)(doc breaking the law)
Facts: Doctor was prescribing medicine to people who did not need it. A worker at the clinic
testified that pharmacies would call the clinic about prescriptions written by Johnson. The
worker said she told someone about the phone calls and she heard that person tell Johnson
over the phone that “he was going to have to stop writing prescriptions like that.”
Holding: Not hearsay; admissible. The evidence was being brought in to show that D knew that
what he was doing was wrong, not for the truth of the matter (that he was writing illegal
prescriptions)
● (1) Statement: Former employee at clinic said, “I heard Dr. Uppal tell D that he was
going to have to stop writing prescriptions like that”
● (2) Truth of the matter asserted: D needs to stop writing prescriptions like that
● (3) Why is the statement being introduced?: Knowledge of D; to show that D knew he
was writing illegal prescriptions, not that he was actually writing illegal prescriptions
○ As D’s state of mind is an element of the offense, this evidence is relevant
Campbell v. Boston Scientific Corp. (2018) (mesh device- caution against permanent)
Facts: BSC made a medical mesh device to be permanently implanted in women. Mesh
manufacturer included a caution on its material safety data sheet that it should not be used for
permanent implantations.
Holding: the caution is admissible - not hearsay→ One need not assume that the
Caution is true to find it relevant to BSC’s state of mind at various times
● (1) Statement: “not be used in permanent implantation”
● (2) Truth of the matter asserted: it should not be used in permanent implantation
● (3) Why is the statement being introduced: The Caution was offered not to establish that
the Caution was accurate, but instead to demonstrate that BSC had “notification of the
manufacturer’s concerns about the safety of its product for permanent implantation” and
to address BSC’s “knowledge of potential safety concerns in its final product.”

Verbal Acts (probative because they do something)

United States v. Saavedra (1982) (credit card fraud)

Facts: Callers (inmates) said they were police, lied about their identities to steal credit card
numbers. D is one of outside people to pick up money from credit card fraud; argues that
testimony of three victims is hearsay
Holding: Not hearsay; admissible
● (1) Statement: “Man called and said he was law enforcement officer and asked for my
credit card”
● (2) Truth of the matter asserted: That they are law enforcement officers
● (3) Why is the statement being introduced?: The testimony was not offered to prove that
the statements made by the unidentified callers were true, i.e., that they were in fact law
enforcement officials investigating credit card problems. Instead, this testimony was
introduced to show how the credit card numbers were fraudulently obtained by
persons posing as law enforcement officers, thus providing circumstantial
evidence that the later unauthorized use of those numbers to purchase money orders
was intentional, and that others besides D were involved in the scheme to defraud
Hanson v. Johnson (1924) (corn) Verbal act is not hearsay
Facts: Alleged hearsay: conversation between Hanson and Shrick that Shrick said the corn
belonged to Hanson. "Mr. H, here is your corn for the year," tenant pointed the corn out to H.
Bystander testified that is what he heard. Corn gets sold to J in an auction by a bank, which was
mortgaging the property and sold items with tenant’s permission. J objected to statement,
saying it was hearsay.
Rule: Out of court statements not offered to prove the truth of the matter asserted, but whose
words affect the legal rights of the parties are admissible because they are verbal acts which
are not hearsay.
Holding: Not hearsay—it is a performative utterance
● (1) Statement: “Mr. H, here is your corn for the year” with gesture towards the corn
● (2) Truth of the matter asserted: That the corn was actually Mr. H’s
● (3) Why is the statement being introduced?: Not being introduced to prove the truth. It’s
being brought in to show the legal significance—performative utterance→ this you
your corn, it makes the corn Mr. H
 ○ Not hearsay because it is to prove ownership through a legal act
○ Language of the tenant was the very fact necessary to be proved; the verbal part
of the transaction between P and the tenant was necessary to prove the fact. No
division without words or gestures—Words were verbal acts; not hearsay
Creaghe v. Iowa Home Mutual (10th Cir. 1963) (car accident, insurance $) The hearsay rule
does not exclude relevant testimony as to what the contracting parties said with respect to the
making or the terms of an oral agreement. The presence or absence of such words and
statements of themselves are part of the issues in the case.
Facts: Car accident and Craeghe is trying to collect money from Osborn’s insurance company.
At trial, insurance agent takes the stand and says “O told me he wanted to cancel policy”.
Creaghe challenges the action of the trial court in admitting the testimony of the agent that the
insured stated he wanted the policy cancelled, arguing that the statement was hearsay
Holding: The statement is not hearsay because it is legally operative and was the verbal act of
cancelling a contract.
● (1) statement: “O told me he wanted to cancel policy”.
● (2) Truth of the matter asserted: he actually wants to cancel it
● (3) Why is the statement being introduced? Used to show that the concrete was
canceled
● The rule against hearsay does not exclude relevant testimony as to what the contracting
parties said with respect to making or the terms of an oral agreement. Oral agreements
can only be established by testimony as to the convo which was had b/w the parties.
United States v. Montana (1999)- (getaway car) Performative utterances are not within
the scope of the hearsay rule because they do not make any truth claims→ it was a
demand
Facts: D was the driver of the getaway car of Dodd, the actual bank robber. Dodd testified at
D’s trial that she didn’t know Dodd was robbing the bank. During trial, Dodd gave D’s lawyer a
note for D’s mother, who after she read it told the lawyer that the note demanded money in
exchange for the favorable testimony. Marshal overheard Dodd tell D’s father that “it’s going to
be $10,000” for the testimony. District Court allowed the Marshal to testify about what he heard.
Issue: Whether or not the statement to Ds mother was hearsay or not
Holding: Not hearsay—merely a demand → performative utterance
● (1) Statement: “Give me $10,000”
● (2) Truth of the matter asserted: Doesn’t matter because it’s a verbal act
● (3) Why is the statement being introduced?: Show that D demanded the money—a
verbal act
● Government argues that it was admissible as a “verbal act,” distinguishing between
performative and illocutionary utterances. The latter narrate, describe, or convey info,
and so are judged by their truth value (information is useful only if it’s true). The former is
usually a promise, offer, or demand that commit the speaker to a course of action
● Performative utterances are not used to assert something but only to accomplish
something. The prohibitive hearsay inferences are not implicated in such statements
because the chain of inferences does not involve what is in the declarant’s head
 ● Had the Marshall overheard Dodd tell D “your father has promised me $10k” it would’ve
been hearsay because its value as evidence would’ve depended on its truth value, that
is, on such a promise having actually been made
● Only issue of credibility was whether the Marshal was reporting the demand correctly

Implied Assertions
● Under FRE 801(a) nonverbal conduct is only a statement if the person intended it as an
assertion.
● Modern Evidence Codes including Fed. Code takes different view of implied assertions
than common law (including Tatum quoted in Zenni)
● Expressed Assertion (to Contrast with Implied Assertion) → Person explicitly
trying to convey certain idea verbally or nonverbally
○ Ex Verbal Expressed Assertion: responding to the question “What’s the
weather like” by saying “It’s freezing” → statement for Hearsay
purposes
○ Ex Non-Verbal Expressed Assertion: I walked out of my house and my
neighbor yells from down the road yells “What’s the weather like” and I
hug myself and make a scared face, it conveys that it’s cold out →
statement for Hearsay purposes, nonverbal conduct intended as an
assertion
● Implied Assertion→ Need to distinguish what you are analyzing from non-verbal
conduct intended as an assertion! (pointing at suspect in a line up)
○ Or non-verbal→ My neighbor sees me walk outside in shorts and a T-
shirt and then a few minutes later sees me come out of my house
again wearing a big coat, hat, long sleeves, etc. This conveys through
actions that I believe it is cold outside. Didn’t say anything to neighbor,
conveyed something without trying because didn’t realize anyone was
watching
○ Can be verbal→ Zenni → believed that the person was a bookie
● Implied assertion that’s intended as an assertion = HEARSAY
● Non-verbal conduct, intended as an assertion = HEARSAY
● If not intended as an assertion = NOT HEARSAY
● Implied Assertion v. Circumstantial evidence of the State of mind
○ Lyons- kids statement that barney is non hearsay- it is introduced as
circumstantial evidence→ to prove the fact they believe it it was true,
not being introduced to prove that what they believed was actually
true
○ CF. evidence that he took his fam on that boat→ it is introduced to
prove that he believed that the boat was actually seaworthy
○ As compared w Lyons, this evidence is explicitly being introduced to prove what
the caption believed and that what the caption believed was trure
● E.g., Captain took family on the boat
○ Inference: Captain believed boat was safe the boat is safe—is it hearsay?
○ Sort of, but FRE takes a different approach…
 ○ FRE: Hearsay must be a statement and nonverbal conduct can be hearsay only
if the person intended to substitute for verbal expression/for it to be an assertion
■ So NOT HEARSAY
● Cf. Captain said, “I board this vessel because it is seaworthy”
○ Inference: Captain believed boat was safethe boat is safe—is it hearsay?
○ YES, this is HEARSAY
United States v. Zenni (1980)- (illegal bookmaking)- Nonassertive verbal conduct does not
constitute a statement and is not subject to the hearsay rule.
Facts: Humphrey was charged with illegal bookmaking activities. As part of a warrant-
authorized search of Humphrey’s house, the government agents answered his phone several
times and listened to people on the other line placing bets. The prosecution sought to introduce
the evidence of these phone calls to show that the callers thought the house was used for
bookmaking activities.
● Statement at issue (see fn. 7): “Put $2 to win on Paul Revere in the third at Pimlico”
Issue: Whether an implied assertion is a statement that falls under the hearsay rule.
Holding: NOT HEARSAY- The calls are not direct assertions, but rather constitute mere
nonassertive verbal conduct reflecting a belief the individuals held about the house. Because
the calls were based on that belief, the belief is trustworthy.
● The statement of the caller was offered to show the caller’s belief in the fact sought to
be proved by the state—the illegal bookmaking.
● BUT under Common Law, Wright v. Tatham→ moving party trying to admit letters
written by decedent – the issue was whether the decedent was competent when he
finalized his will. His writing of the letters were to be used as circumstantial evidence that
the person was competent – back in the day, Ct held that implied assertions of this kind
were hearsay because the letters were only relevant to imply a statement of opinion of a
third person on the matter in issue, which would be inadmissible if not on oath
● Implied assertions were problematic under the Common Law. But, FRE takes a different
approach because there’s no sincerity problem with implied assertions—we know
people would not do something unless they actually believed in it.
State v. Dullard (Iowa 2003): (note in garage)- MINORITY VIEW
Facts: The police searched the home of Dullard and discovered three boxes of Benadryl, which
contained an ingredient used in meth. The police also found a note that stated a black and white
car was watching Dullard’s home. At trial, the note was used demonstrate that someone, who
was unknown, felt that Dullard needed to know that he was being watched by the police.
● State offered the evidence to show the declarant's belief that the recipient of the note
needed to be told that police were watching the home because he was involved in the
drug activity in the garage and was in possession of the drug lab materials
Issue: Whether the letter, being introduced for its implication, is inadmissible hearsay.
Holding: The note is hearsay because it is being used to prove something the statement
implied. Warning of police constituted an implied assertion→ Implies that the writer
believed that “B” (aka D) was doing something illegal / manufacturing drugs
● Iowa’s take on assertions/doesn’t use FRE
● What is the gov. trying to do with the letter?: trying to connect D to the items in the
garage, saying that the note was written to D based on the first letter of his first name
 ● Absent unusual circumstances, the unknown declarant likely would not have thought
about communicating the implied belief at issue, and this lack of intent arguably justifies
excluding the assertion from the hearsay rule
● BUT absence of intent does not necessarily make the underlying
belief more reliable → The distinction between intended and unintended conduct
or speech only implicates the danger of insincerity, based on the assumption that a
person who lacks intent to assert something also lacks an intent to misrepresent
● Court says that four dangers are used to justify the exclusion of out-of-court statements:
1) erroneous memory, 2) faulty perception, 3) ambiguity, and 4) insincerity or
misrepresentation
● Prejudice is apparent because the admission of the note played a pivotal role in
establishing the possession element of the crime and Dullard was unable to cross-
examine the declarant to overcome this prejudice.
● Hypo: If the letter said “Brett is a drug dealer” that would be hearsay

Hearsay and Confrontation

WILL BE ON EXAM
6th Amendment: In all criminal prosecutions, the accused shall enjoy the right… to be
confronted with the witnesses against him.
● A criminal defendant is guaranteed the right to confront opposing witnesses.
● This means that any out of court testimonial statement by a witness cannot be used
against the defendant unless the witness is available to be cross-examined by the
defendant.
○ There are exceptions to this.
● The Confrontation Clause only applies in criminal prosecutions and grants the right of
confrontation only to the accused.
○ The state does not have a 6A right
● The Clause has no implications for hearsay in civil cases, hearsay introduced against
the prosecution in a criminal case, and hearsay declarations from someone who winds
up testifying in open court, subject to cross-examination.
● What matters now is whether the out-of-court statement is testimonial
● Statements from children will rarely implicate the confrontation clause
● Questioning by non-law enforcement third parties rarely implicate CC
● Out of court “testimonial” statement may be used against the Accused only if the
Declarant is either:
○ Available for cross examination, OR
○ Proved to be unavailable AND the testimonial statement was subject to cross-
examination by the Accused previously
■ 2 exceptions: (1) Forfeiture by wrongdoing (someone makes another
available intentionally, e.g. murder for hire of a witness to make them not
come into court), and (2) maybe dying declarations
● EXAM
○ 1) define testimonial→ Statements with pp to be used to establish or
prove past events potentially relevant to later criminal prosecution (available for
use at trial)
■ Non testimonial when: Made in the course of police interrogation
used to aid the police in an ongoing emergency
○ 2) do the primary purpose test
■ See Davis, Hannon, Clark, Bryant
PRIMARY PURPOSE TEST STEPS (Used to determine whether a statement
is testimonial or not) The test is a multi-factor test! (a situation can change)
● FACTOR 1: Is there an ongoing emergency
○ If there is an ongoing emergency, it lessens the risk of fabrication,
lessens risk that this is being taken for future prosecution. Rather,
simply responding to emergency
■ FACTOR 1 SUBFACTORS: To determine if there is an
ongoing emergency, look at these 3 things:
● (1) Has the threat been neutralized?
○ The type of encounter makes a difference
(Michigan v. Bryant)! Domestic violence is
usually aimed at only one person, so when
the couple is separated, the risk is
neutralized.
■ Lave said she would fight this
● (2) The type of weapon used
○ Michigan: the type of weapon was a gun,
which could endanger more people
○ Fist, knife, rope, gun, bomb, etc.
○ Plays a role in determining whether the
emergency is ongoing
● (3) The medical condition of the victim
○ The more dyer the victims medical
condition, the less likely the it is to be
testimonial
○ Michigan: speaker was literally bleeding to
death; relevant in determining whether there
is an ongoing emergency
● FACTOR 2: The informality or formality of the encounter
○ More formal, more likely it is to be testimonial
○ If you are filling out an affidavit or are in court or in an office
building, it’s more formal than if you are lying bleeding in a parking
lot
● FACTOR 3: the statements and actions of the declarant / the
interrogators
○ SCOTUS acknowledges there can be mixed motives
 Hearsay Confrontation

Applies to civil and criminal. Applies only to criminal.

Can be raised by either party. Is the right of the accused, not the
prosecutor.

Focuses on accuracy and reliability. Grounded in the belief that a specific,

essential process—confrontation—has
unique social and procedural value (reflects
a preference for live testimony)

Crawford v. Washington (2004): Where a testimonial statement is at issue, the statement

cannot come in unless the person is unavailable, and the D had a prior opportunity for cross-
examination
Facts: Crawford was charged with assault and attempted murder after stabbing Lee at his
apartment. Crawford’s wife, Sylvia, led him to Crawford’s house after telling her husband that he
tried raping her. It was unclear whether Lee had drawn a weapon before he was assaulted and
after interrogating Michael and Sylvia, the stories of the actual fight were different in detail.
Sylvia was exempt from testifying according to the marital privilege. However, in Washington,
the privilege does not extend to the spouse’s out-of-court statements admissible under a
hearsay exception. Thus, the State sought to introduce Sylvia’s tape-recorded statement to the
police, where she admitted she led Crawford to Lee’s apt, as evidence that her husband didn’t
act in self-defense. State invoked the hearsay exception for statements against penal interest.
● Crawford argued→ The evidence would violate his Constitutional right to be
confronted with the witnesses against him
Issue: Whether a recorded statement to the police by an unavailable witness is admissible.
Holding- Scalia: The statement made by the wife against Crawford was testimonial and
inadmissible, because it was made to law enforcement in an interrogation and the wife knew or
should have known that the statement was going to be used in a trial.
● The term testimonial, at minimum, applies to prior testimony at a preliminary hearing,
before a grand jury, or at a former trial; and to police interrogations
● Not all hearsay implicates the CC—it must be TESTIMONIAL in nature.
● Most statements to police are testimonial, except when identifying a suspect during an
ongoing emergency.
● Overrule Ohio v. Roberts because we shouldn’t follow its “reliability” test
○ Ohio v. Roberts is fundamentally wrong – 6A is about testing in the crucible of
cross-examination.
● The right to confrontation is a procedural right guaranteed by the Constitution
○ The Clause’s ultimate goal is to ensure the reliability of evidence, but it is a
procedural rather than a substantive guarantee
○ It commands not that the evidence be reliable per se but that reliability be
assessed in a particular manner: cross-examination
Michigan v. Bryant- PRIMARY PURPOSE TEST (whether or not a statement is testimonial)

PRIMARY PURPOSE TEST STEPS: The test is a multi-factor test!

● FACTOR 1: Is there an ongoing emergency

○ If there is an ongoing emergency, it lessens the risk of fabrication, lessens risk
that this is being taken for future prosecution. Rather, simply responding to
emergency
■ FACTOR 1 SUBFACTORS: To determine if there is an ongoing
emergency, look at these 3 things:
● (1) Has the threat been neutralized?
○ The type of encounter makes a difference (Michigan v.
Bryant)! Domestic violence is usually aimed at only one
person, so when the couple is separated, the risk is
neutralized.
■ Lave said she would fight this
● (2) The type of weapon used
○ Michigan: the type of weapon was a gun, which could
endanger more people
○ Fist, knife, rope, gun, bomb, etc.
○ Plays a role in determining whether the emergency is
ongoing
● (3) The medical condition of the victim
○ The more dyer the victims medical condition, the less likely
the it is to be testimonial
○ Michigan: speaker was literally bleeding to death; relevant
in determining whether there is an ongoing emergency
● FACTOR 2: The informality or formality of the encounter
○ More formal, more likely it is to be testimonial
○ If you are filling out an affidavit or are in court or in an office building, it’s more
formal than if you are lying bleeding in a parking lot
● FACTOR 3: the statements and actions of the declarant / the interrogators
○ SCOTUS acknowledges there can be mixed motives
Ohio v. Clark (2015): a statement cannot fall within the Confrontation Clause unless its primary
purpose was testimonial
Facts: Clark dropped off LP, his 3 year old, at preschool. The teachers noticed that one of LP’s
eyes was bloodshot and eventually uncovered more bruises on his body. The teachers asked
LP what happened and LP implicated that it was Clark who hit him. Clark was charged with
several counts of child abuse. At trial, LP’s statements to his teachers were introduced into
evidence. LP was unable to testify because of his age. Clark moved to exclude the statements
under the Confrontation Clause.
Issue: Whether out of court statements made to persons other than law enforcement are
excluded from admission into evidence by the Confrontation Clause.
Holding: This is different than Crawford. The statements are admissible because the boy was
not giving the statements to build a case. The primary purpose was to deal with an on-going
emergency. Furthermore, the statements were non-testimonial and were informal.
● Primary Purpose test: the primary purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal prosecution
● Where no testimonial primary purpose exists, the admissibility of a statement is the
concern of state and federal rules of evidence, not the CC. But that does not mean that
the Confrontation Clause bars every statement that satisfies the primary purpose test.
● Although we decline to adopt a rule that statements to individuals who are not law
enforcement officers are categorically outside the 6A, the fact that LP was speaking to
his teachers remains highly relevant.
○ a questioning by a third party is much likely to be testimonial
● LP’s age fortifies our conclusion that the statements in question were not testimonial.
Statements by very young children will rarely, if ever, implicate the CC
○ Young children do not understand the criminal justice system
● Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency.
● Statements are testimonial when the circumstances objectively indicate there is no
such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution
● DEFINITION OF “TESTIMONIAL” = used to establish or prove past events potentially
relevant to later criminal prosecution
● Two takeaways:
○ Questioner is third party NOT law enforcement (third party less likely to be
testimonial)
○ The age of the victim is relevant→ rarley will implaict the CC if a child
Testimonial Statement in Hammon Non-Testimonial Statement in Davis

Police respond to domestic violence call and Domestic violence victim calls 911 during
find victim alone on the front porch and and immeidatly after her bf is hitting her.
asked her what had happened. Affidavit of
her responses.

Circumstances objectively indicated that Declarant’s statements were “made in the

there was no ongoing emergency. course of police interrogation under
Interrogation was part of an investigation circumstances objectively indicating that the
into possibly criminal past conduct primary purpose of the interrogation is to
Not seeking to determine (as in Davis) what enable police assistance to meet an
is happening, but rather what happened ongoing emergency.”

Exceptions to the Hearsay Rule

 ● Advisory Committee Note to Article 8 p. 92
○ Hearsay provisions rely on categorical exceptions rather than relying on ad hoc
judgments
■ Job of trial judge to determine if evidence is more prejudicial than
probative
○ Most of the hearsay exceptions codify doctrines developed by common law
courts. The advisory committee’s invocation of the past puts you on notice that
rules will be justified as appeals to tradition
There are two categories of exceptions:
● 1) Exceptions that apply whether or not the declarant is available to testify in court
○ FRE 803 (present sense impressions; excited utterances; then-existing mental,
emotional, or physical condition; statement made for medical diagnosis or
treatment…)
● 2) Exceptions that apply only if the declarant is unavailable
○ FRE 804
○ Harder to get introduced

Remember to always ask:

● 1) Is this hearsay?
● 2) Is the statement exempt from the hearsay ban?
● 3) If exempt, is the statement nonetheless inadmissible against a criminal defendant by
virtue of the Confrontation Clause?

Prior Statements by Witness

FRE 801(d)(1)
(d) Statements that are Not Hearsay. A statement that meets the following conditions is
not hearsay:
● (1) A Declarant’s Prior Statement. The declarant testifies and is subject to cross-
examination about a prior statement, and the statement:
○ (A) Is inconsistent with the declarant’s testimony and was given under
penalty of perjury at a trial, hearing, or other proceeding or in a deposition
○ (B) Is inconsistent with the declarant’s testimony and is offered:
■ (i) To rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in
so testifying; or
■ (ii) To rehabilitate the declarant’s credibility as a witness when
attacked on another ground or;
○ (C) Identifies a person as someone the declarant perceived earlier.

● Does not apply if the declarant is not available or is not subject to cross-
examination.
 ● If the witness admits on the stand that he made the statement and that it was true, he
adopts the statement and there is no hearsay problem. The hearsay problem arises
when the witness on the stand denies having made the statement or admits having
made it but denies its truth.
● (d)(1)(A) Prior inconsistent statements traditionally have been admissible to impeach
but not as substantive evidence.
● To fall within 801(d)(1)(B), the statement must be offered to rebut an express or implied
charge against the declarant of recent fabrication or improper influence or motive
● (d)(1)(C): Because it was closer in time it is seen as more reliable

Albert v. McKay & Co. (Cal. 1917) (washing machine)When a witness is impeached by proof
of prior inconsistent statements, the effect is merely to discredit him as a witness
Facts: Albert worked for McKay. One day his clothes got caught in the machine that powered
the mill and he died. His wife brought suit alleging that negligence is what resulted in his death.
At trial, a worker stated that the machine was already running. The wife brought in a rebuttal
witness to say that the machine was not.
Issue: Whether prior statements made by the worker could be admitted for the purpose of the
truth of the matter asserted and to show that he is lying.
Holding: The rebuttal witness’s statements were not admissible to prove the truth of
the matter asserted, only offered to make the initial witness look untruthful→
undermine his credbility
● Impeachment statements are NOT EVIDENCE
United States v. Owens (1988): The Confrontation Clause guarantees the right to confront a
witness, not that the witness be effective.
Facts: Foster, a correctional counselor, was brutally beaten with a metal pipe. When an FBI
agent tried to interview him a week after the incident, he was unable to remember the attacker’s
name. a couple of weeks later, he named the defendant as his attacker and described the
incident. He testified that he clearly remembered identifying the defendant. On cross, he
admitted that he could not remember seeing his attacker. He was also unable to remember any
visitors he had in the hospital aside from the FBI agent.
● Evidence at issue: whether the prior identification of D is admissible
Issue: Whether admission of a witness’s testimony about a currently held belief, when the
witness cannot remember the basis for belief violates a criminal D’s rights under the CC.
Rule: 801(d)(1)(C) defines as not hearsay a prior statement of identification of a person made
after perceiving the person, if the declarant testifies at trial or hearing and is subject to cross-
examination concerning the statement
Holding: Evidence Admissible- If a witness cannot remember a prior identification he made,
the prior identification is still admissible as long as the opposing party has a chance to cross
examine the witness who made the identification.
● Even though he did not remember anything, the defendant still had the opportunity to
cross and Foster was willing to answer questions so there was no CC issue.
● The identification was close in time

Admission by Opposing Parties

 ● Is one person trying to bring in another party's statement? Yes = direct admission
● Admissions are treated as non-hearsay by 801(d) even though they satisfy the
standard for hearsay, but because they’re made by a party opponent→ they
can be admitted
● Direct admissions are not affected by the Confrontation Clause: the defendant cannot
persuasively claim he has had no chance to confront himself. And most co-conspirator
admissions will probably qualify as non-testimonial.
● What matters is not the content of the statement, but the identity of the declarant and
the party against whom it is introduced.
● Personal knowledge is not required for admission
○ No guarantee of trustworthiness is required in the case of an admission.

A statement is “not hearsay” if it is a statement by a party offered against an opposing

party and is:
● The opposing party’s own statement, or
● A statement that the opposing party appears to adopt or believe is true, or
● A statement by a person authorized by the opposing party to make a statement
concerning the subject, or
● A statement by the opposing party’s agent or servant concerning a matter within the
scope of the agency or employment, made during the existence of the relationship, or
● A statement by a co-conspirator of an opposing party during the course and in
furtherance of the conspiracy

Direct Admissions
FRE 801(d)(2)(A): A statement is not hearsay if it is offered against an opposing party, and
the statement was made by the party in an individual or representative capacity
● They themelseves made the statement→ doesnt require personal
knowledge
○ Cf. 801(d)(2)(B): did not say anything themselves→ using somebody
else words against them and it’s their silence or adoption that makes
it not hearsay (adoptive admission)

US v. McGee:There is NO requirement that admissions need to be inculpatory to be admissible

as nonhearsay
Facts: D found guilty of bank robbery. D gave three different statements to the police that all
differed. He claims that the district court erred in admitting under 801(d)(2)(A) as an admission
by a party-opponent because his statement to the police was not inculpatory
Holding: Statement doesn’t need to be inculpatory to be admissible.
● The statement need only be made by the party against whom it is offered (i.e., the
statement only needs to be made by D
McCormick on Evidence
● Admissions usually gets confused with declarations against interest
● Declarations against interest, an exception under the hearsay rule, must have been
against the declarant's interest when made
● Although most admissions are against interest when made, no such
US v. Phelps: A party cannot offer his or her own statement as an admission
Facts: Phelps charged with possession of marijuana and cocaine. At a bench conference,
Phelps advised the court that he was going to seek to introduce through the testimony of one of
the officers that when the officers discovered the drugs in a gym bag, Phelps said: “That is my
gym bag, but Taylor put it in the trunk.” Phelps is the one that wanted this to be admitted, not
the state. And it was the Co-D that objected, not the Government
Holding: Testimony excluded; hearsay
● Although the proponent of the testimony was the declarant himself, the testimony
constituted hearsay under FRE 801
● The statement of a party may be introduced as an admission only when
offered against that party→ It cannot be a self-serving declaration
● To be admissible, a party’s out-of-court statement need not have been against his
interest when made. But it may not be offered in his favor, but only against him
● admission= statement offered against opposing party
● Question: Why is the statement admitted in Phelps and not in Parry (talking to a narc)
○ In Parry, statement is not for the truth of the matter asserted (not
hearsay). In Phelps, it is introduced for the truth of the matter
asserted→ trying to bring it in to prove that the bag actually wasn’t his
(can’t come in because its not a party opponent).

Admissions and Multiple Hearsay

FRE 805-Hearsay within hearsay is not excluded by the rule against hearsay if each part of
the combined statement conforms with an exception to the rule.

● An admission when you are calling someone into court to testify about the staments
that someone else (opposing party) said
● Hypo: (1) Stenographer testified, D said at the time of accident the machine was not in
position, which caused the accident and (2) Stenographer testified, D said I heard that
the machine was not in position, which is what caused the accident
○ First one is Not Hearsay→ describes an out of court statement
○ Second one is Hearsay→ relies on another out of court statement
● Hypo: A roller coaster severely injures a rider, V. V sues O the owner of the rollercoaster
company for negligent operation. At trial, V calls witness to the stand who testifies as
follows: “O told me that Dennis was running the trains too quickly.”
○ O is the party opponent, V is bring O’s statements into court
■ Look at what came out of O’s mouth→ is it about their own belief
○ This is not Hearsay because under 801(d)(2)(a), this is a direct admission – the
opposing party (O) made this statement, and V is bringing it in to show he was
negligent. O made the statement, it is a direct admission, it should be admitted.
● Hypo: V then calls witness 2 who testifies, “O told me that Dennis told him that he was
running the trains too quickly.”
 ○ This is hearsay. 801(c) Out of court statement offered to prove the truth
of the matter asserted. V suing O to show he was negligent→ dennis
was actually running the train too quickly
○ This is not an admission because what Dennis told him is hearsay. He is not
adopting the statement as his own. The statement is hearsay within hearsay.
■ Level 1 is O told me
■ Level 2 is Dennis told O
■ You’d need an exception for EACH level of hearsay, if there is one
Reed v. McCord (NY 1899): In a civil action, the admissions by a party of any fact material to
the issue are always competent evidence against him
Facts: P claimed that the negligence of D caused the death. P sought to introduce
evidence D’s statements to the coroner about the circumstances and cause of the
accident. D was not present at the time of the accident→ didn’t have personal
knowledge. The trial court admitted the evidence as an admission by a party
opponent.
Issue: Whether the out of court statements made to the coroner by D are admissible even
though D had no personal knowledge of the events contained in the statements.
Holding: The statements were admissible as plain admissions of fact
● Hearsay #1: Admission under 801(d)(2)(B) because D adopted the man’s statement and
believed it to be true. Thus, it became D’s own admission
● Hearsay #2: Admission under 801(d)(2)(A) because it was an admission by D who is a
party to the action. 801(d)(2)(A) does not require personal knowledge
● If he had admitted that he heard the accident occurred in the manner stated, it would’ve
been inadmissible, as then it would only have amounted to an admission that he had
heard the statement which he repeated, not to an admission of the facts included in it
● By making the statement like he did, it shows that he actually incorporated and believed
the statement
Foster v. Comm. of Internal Revenue
● There is a difference between offering as an admission a party’s out of court statement
that “A said that x is a fact” for the purpose of proving that x is a face, and offering as an
admission a party’s out of court statement that “x is a fact” for that same purpose
● You do not need personal knowledge→ you can always cross examine witness
● If I’m the employer and I said “John caused the accident” then that’s an admission
● If I say “John said that he caused the accident” then that’s not adopting anything

Admissions and Completeness

FRE 106: If a party introduces all or part of a writing or recorded statement, an adverse party
may require the introduction, at that time, of any other part — or any other writing or recorded
statement — that in fairness ought to be considered at the same time
● Rule of Completeness: The opponent, against whom a part of an utterance has been
put in, may in turn complement it by putting in the remainder, in order to secure for the
tribunal a complete understanding of the total tenor and effect of the utterance
● The rule applies only to writings and recorded statements and does not apply to
 conversations

Beech Aircraft Corp. v. Rainey (1988): When one party has made use of a portion of a doc,
such that misunderstanding or distortion can be averted only through presentation of another
portion, the material required for completeness is relevant and admissible under 401 and 402.
Facts: Crash of naval training aircraft that killed both pilots. D alleges pilot error. P alleges
defect in fuel system.P had sent a letter to the person who concluded the accident was pilot
error. D brings in the letter as an admission. During the trial, P is called by D to the stand for
questions regarding what was written in the letter. In the letter, P noted that D concluded that it
was pilot error, but P wasn’t allowed to state that his letter was primarily about the fuel tank.
Issue: Whether the entire report should have been admitted under the completeness doctrine.
Holding: The full document should have been admitted.
● Question of fairness: Only allowing specific parts gave the jury a distorted and
prejudicial impression of the letter. The rule of completeness was designed to prevent
this type of prejudice.
● This would not have been hearsay because it would not have been provided to prove
the truth of the matter asserted—that the crash was due to faulty part—but instead
would have proven what Rainey said right after the accident.

Hypo on Admissions and Completeness

● Bob is arrested and says, “I shot the sheriff, but I did it in self-defense.” At trial, the
arresting officer is called to the stand. He testifies that Marley told him, “I shot the
sheriff.” The defense objects on hearsay ground. Should the objection be sustained on
hearsay grounds?
○ This is a direct admission by a party opponent under 801(d)(2)(a). NOT Hearsay.
● Now defendant objects saying you’re leaving out part of my client’s statement.
Prosecution objects, should it be sustained?
○ NO! Rule of completeness 106→ it was a recorded statement
● Judge lets in the second statement, D never takes the stand and D puts on no
witnesses. Defense requests a jury instruction for self-defense. Is D entitled to it?
○ no→ unless there is evidence to support a jury instruction for self-
defense, defense can’t have it, and the statement, “i shot him in self-
defense” doesnt constitute evidence bc it wasn’t introduced for the
truth
○ To bring in a jury instruction, you need evidence for it. D did not testify, no
witnesses, only evidence was statement brought in through completeness
doctrine – but not brought in for the truth of the matter. If that’s the only evidence
brought in, there’s no ground for jury instruction.

Adoptive Admissions
FRE 801(d)(2)(B): A statement is not hearsay if it is offered against an opposing party, and
the party manifested that it adopted or believed the statement to be true
 ● Adoption or acquiescence may be manifested in any appropriate manner
● The decision in each case calls for an evaluation in terms of probable human behavior
● An adoptive admission is a statement which the party has adopted as a belief in its
truth
○ Adoptive admissions are not hearsay
● Admission by silence: All courts agree that the mere fact that the party remains silent
does not by itself amount to an adoption. Issue becomes “whether a reasonable
person would have denied under the circumstances”
○ Statement must have been heard by the party claimed to have acquiesced
○ Must have been understood by the party
○ Must have been within the party’s knowledge
○ Impediments to a response must not have been present
○ The statement itself must be such as would, if untrue, call for a denial under
the circumstances
■ I.e., a reasonable person would have denied the accusatory statement
under the circumstances

US v. Fortes: When a statement tending to incriminate one accused of committing a crime is

made in his presence and hearing and such statement is not denied, contradicted, or objected
to by him, both the statement and the fact of his failure to deny are admissible in a criminal
prosecution against him, as evidence of his acquiescence in its truth.
Facts: F and J convicted of armed robbery. The government relied heavily on testimony of W,
who was in prison with them. J challenges the district court’s admission against her of
statements made by F to W in J’s presence about the robbery.
Holding: The testimony was properly admitted against J under FRE 801(d)(2)(B), which allows
the introduction of so-called adoptive admissions, including admissions by silence or
acquiescence.
● F and J were present during the conversation wherein F made the statements to W that
W was testifying about!
○ If J was not present→ no be able to be brought it- she would not have
been able to object
● When F was telling W about the statements, J did not deny anything – J was silent.
● For adoptive admission, circumstances are in part whether the accused heard what was
attributed to them
Southern Stone Co. v. Singer: Silence doesn’t necessarily mean that you have adopted the
belief unless its reasonable under the circumstances for the person to respond
Facts: SS was never paid for rock it sold to SM, sued S to pierce the corporate veil. District
court permitted the introduction into evidence of a letter to M by SS's counsel. SS argues that
letter is admissible as a statement in which M manifested his adoption or belief in its truth. SS
argues that M's failure to respond to the letter indicates M's adoption or belief in the truth of the
letter's contents, making the letter into M's own statement about what he said during the
conversation (i.e., 801(d)(2)(B): an adoptive admission of the statement)
 ● Evidence at issue is the letter prepared by P’s attorney concerning statements
allegedly made by D
Holding: Court says NO to P! Silence doesn’t necessarily mean the person adopted belief and
its truth unless it was reasonable under the circumstances for the sender to expect the
recipient to respond to and correct erroneous assertions.
● The mere failure to respond to a letter does not indicate an adoption unless it was
reasonable under the circumstances for the sender to expect the recipient to respond
and to correct erroneous assertions
● Here, all the circumstances surrounding the letter does not support a reasonable
expectation of any response. D wasn’t there to discuss any matters relating to his former
involvement with S&M, which is what the entire subject matter of the letter was.
● Because of P’s failure to lay a foundation for the introduction of the letter more solid than
D’s mere failure to respond, the letter did not meet the requirements of 801(d)(2)(b) and
could not be admitted on that basis.
● The letter involves 2 levels of hearsay: the letter says P’s counsel said that D had made
certain admissions
● Even if it was a adoptive admission→ its still an admission within hearsay→
would need an exception for the letter itself or that lawyer would have to
come in a testify to the letter
Moss v. Commonwealth: A suspect’s failure to deny an incriminating accusation is not an
admission of guilt under circumstance in which there is seemingly no natural and proper call to
contradict the accusation
Facts: Thompson was shot and killed while he and a woman were visiting Moss (D). D said he
had been attacked by the decedent, which is why he shot D. The woman interjected during
police interview on the scene, saying, “You shot him in the back for no reason!”. When the
woman exclaimed this, D remained silent covering his face.
● Theory of admissibility: adoptive admission
Issue: Whether the statement can be admitted as an adoptive admission by D
Holding: D’s failure to verbally protest the woman’s accusation did NOT manifest an adoption
or belief in its truth
● This is a fact-based inquiry. D would have had no natural and proper call to contradict
Sanders’ outburst when he was then and there in the process of telling his side of the
story to the police, especially after his explanation had provoked the woman’s
accusation.

Authorized Admissions
FRE 801(d)(2)(C): A statement is not hearsay if it is offered against an opposing party, and
was made by a person whom the party authorized to make a statement on the subject
● Applies where the party has expressly agreed that his agent may make a statement
on the particular subject
Hanson v. Waller: Although an attorney does not have authority to make an out-of-court
admission for his client in all instances, he does have authority to make admissions which are
directly related to the management of the litigation
Facts: P appeals, arguing it was error to allow D at trial to put into evidence a letter from P’s
attorney to D’s attorney. The letter read that the photos taken from the same type of truck the D
was driving shows it’s impossible for him to see the deceased if in crossing the street she had
reached a position directly in front of the truck when the traffic light changed
Holding: Not hearsay
● the letter was directly related to the management of the Appellant’s litigation, thus the
contents fall within the hearsay exclusion provided by 801(d)(2)(C)

Agent and Employee Admissions

FRE 801(d)(2)(D): A statement is not hearsay if it is offered against an opposing party, and
was made by the party’s agent or employee on a matter within the scope of that relationship
and while it existed

Mahlandt v. Wild Candid Survival & Research Center, Inc.

Facts: Mahlandt sued on behalf of her son Daniel, for injuries he sustained in an apparent
attack by a wolf. The wolf, owned by the Center, was being kept at the house of its Director, Mr.
Poos. Mahlandt sought to introduce evidence of three statements, two made by Poos and one
of the minutes of a meeting of the Directors. The first statement was a note Poos left for his
boss that said the wolf bit a child. The second was a verbal statement, and the third reflected a
significant amount of the discussion was on the legal implications of the wolf biting a child. The
trial court said all three were hearsay.
● (1) Note that says “Sophie bit a child” = admissible against Mr. Poos AND corporate
defendant
○ Can be used against Mr. Poos because he wrote it and its proof of his adoption
or belief of its truth under 801(d)(2)(B)
■ Under admissions there is no need for personal knowledge. Poos
adopted what someone told him. “Sophie bit a child” is different than “Joe
told me that Sophie bit a child”
○ Can be used against the Center under 801(d)(2)(D) because Mr. Poos is an
employee and its within his scope of employment
● (2) Statement of Mr. Poos to president saying “Sophie bit a child” = admissible against
Mr. Poos AND corporate defendant because he was an agent/employee
○ Can be used against Mr. Poos because he wrote it and its proof of his adoption
or belief of its truth under 801(d)(2)(B)
○ Can be used against the Center under 801(d)(2)(D) because Mr. Poos is an
employee and its within his scope of employment
● (3) Corporate minutes from board meeting where Mr. Poos was NOT present discussing
the wolf bite= admissible against corporate D but NOT Mr. Poos, as he was not there
 ○ Can be used against company under 801(d)(2)(C) because the board is
authorized to make a statement on behalf of the company about the subject
■ Doesn't matter that the board members had no personal knowledge
■ The fact that it’s in-house is irrelevant; just because they are internal
meeting notes does not prevent 801(d)(2)(C) from applying (i.e., doesn’t
have to be a public statement)
○ Cannot be used against Mr. Poos because it does not fall within 801(d)(2)(C)
because he’s a non-attending, non-participating employee
● What if bring in Clarks statement→ not admissible against Wild

Sea-Land Service, Inc. v. Lozen International, LLC:

Facts: Sea-Land brought suit against Lozen for payment owed pursuant to a shipping contract.
Lozen filed a counterclaim, asserting that Sea-Land had failed to deliver one of the shipments
on time. As evidence, Lozen sought to introduce an email that had been forwarded to Lozen by
Martinez, a Sea-Land employee. Specifically, Martinez had pasted into her email to Lozen the
contents of an email by Jacques, another Sea-Land employee, stating that they messed up.
Issue: Whether the email was admissible against Sea-Land as a party-opponent admission.
Holding: The email is admissible under 801(d)(2)(B) & (D)
● Email is an admission bc incorporated and adopted the contents of the forwarded
email’s message because her remark manifested an adoption or belief in the truth of the
information contained in the original email
● The information in the email was an admission by a party opponent.
● Martinez was acting within the scope of her employment when she sent the email.
● It is irrelevant that M no longer works there because the email was sent when she did
● Hypo: If the email Martinez forwards isn’t written by an employee but somebody else
would it still be admissible? Yes. Employee (Martinez) is still adopting the email. Doesn’t
matter if the original email was written by a non-employee or an employee

When you are analyzing a statement’s admissibility under 801(d)(2), you need to look
for the following:
1. Is the statement being offered against an opposing party?
a. If no, can’t be admitted under 801(d)(2).
2. Was the statement made by someone who can make an admission as defined by A,
B, C, D,?
a. If not, can’t be admitted under 801(d)(2)
3. Is there evidence the opposing part adopted another person’s statement as his own?
a. If yes, can be admitted under 801(d)(2)(B).
4. Did the party rely on the statement of another or simply describe it?
a. If they didn’t rely on it but simply described it, can’t be admitted under 801d2.
i. Compare: P sues D after fire at his restaurant. P puts on D’s statement,
“The cook started the fire when he used too much grease” vs. “The
cook told me he started the fire when he used too much grease” the
first one is the admission, D is adopting the cook’s statement, the
second one is hearsay within hearsay
5. Personal knowledge is irrelevant!
Admissions and the Bruton Rule
● When two or more defendants are tried together, a prior statement by one of the
defendants will be admissible against that defendant as an admission, but typically
cannot be introduced against the other defendant(s) without violating both the hearsay
and the Confrontation Clause
● Usually dealt with, with a limiting instruction, but this is unacceptable when the
evidence is an incriminating statement by a co-defendant.
○ Can either separate the trials
● If the co-d takes the stand himself→ there is no 6A violation
Bruton v. United States (1968):
Facts: Bruton and Evans were charged with committing armed postal robbery. Bruton and
Evans had a joint trial. A trial, a postal inspector testified that Evans orally confessed to him that
Evans and Bruton had committed the robbery. The confession was admitted into evidence
against Evans, but the trail court instructed the jury that Evans’s confession was inadmissible
hearsay against Bruton. Both were convicted.
Issue: Whether under 6A, may a defendant’s confession incriminating a co-defendant be
admitted if the jury is instructed to disregard the reference to the co-defendant.
Holding: Court says NO, it shouldn’t have been admitted.
● Because of the substantial risk that the jury, despite instructions to the contrary,
looked to the incriminating extra-judicial statements in determining Bruton’s guilt,
admission of Evans’s confession in this joint trial violated Bruton’s right of cross-
examination guaranteed by the Confrontation Clause.
● “There are some contexts in which the risk that the jury will not, or cannot, follow
instructions is so great, and the consequences of failure so vital to the defendant, that
the practical and human limitations of the jury system cannot be ignored. Such a context
is present here, where the powerfully incriminating extrajudicial statements of a
codefendant, who stands accused side-by-side with the defendant, are deliberately
spread before the jury in a joint trial. Not only are the incriminations devastating to the D
but their credibility is inevitably suspect, a fact recognized when accomplices do take the
stand and the jury is instructed to weigh their testimony carefully given the recognized
motivation to shift blame onto others.”
● Professor Note: When trying 2 Ds, one of whom who confessed and implicated the
other, prosecution needs to forgo introduction of confession of one against the other, or
proceed in separate trials.
Gray v. Maryland: an obvious deletion is inadmissible
Facts: Bell confessed to the police that he and Gray had beaten a man to death. They were
tried together and Bell’s confession was admitted into evidence. The judge ordered that Gray’s
name be redacted, so when the Bell’s statement was read, Gray’s name was replaced with
“deleted.” After the police officer read the confession, the prosecutor asked him whether the
information he received from Bell allowed him to then go and arrest Gray, to which the officer
said yes. The prosecution also admitted a written copy of the confession into evidence with
Gray’s name redacted, with white space where his name was. The judge gave a limiting
instruction that the confession was evidence against Bell and not Gray. Both were convicted.
Issue: Whether redaction that replaces a defendant’s name with an obvious indication of
deletion, such as a blank space, the word “deleted”, or a similar symbol, still falls within
Brutons’s protective rule
Holding: Yes → Confession not admissible
● Hinges on Confrontation Clause rights→ If the confessor takes the stand and
testifies, he’s subject to cross-examination and that’s fair. But bringing in the
confession against the co-defendant is not fair.
● Discusses Richardson, another joint trial - need to understand both cases
○ Facts: Joint murder trial of M and W. The state redacted confession of W so as
to omit all reference to his codefendant, M—indeed, to omit all indication that
anyone other than W and a third person had participated in the crime
○ Holding: that this redacted confession fell outside Bruton's scope and was
admissible, with appropriate limiting instructions, at the joint trial
○ Richardson got rid of indication of another person. There, they removed co-
defendant completely and just talks about the confessing guy. That was OK.
● In this case, unlike Richardson, the confession refers directly to the “existence” of
the non-confessing defendant.
○ Redactions that simply replace a name with an obvious blank or “deleted” leave
statements that so closely resemble Bruton's unredacted statements that the law
requires the same result
○ In Gray, they say “[Deleted] and I robbed the store.”
● The jury will often realize the confession refers specifically to the defendant and
encourages the jury to speculate about the deleted name
○ The obvious deletion may call the juror's attention specifically to the removed
name
● Putting “deleted” is incriminating on its face rather than requiring linkage→
directly accusatory, NOT OK
○ unlike Richardson where the inferences did not refer directly to the D himself and
which became incriminating only when linked with evidence later introduced at
trial. Richardson placed outside the scope of Bruton’s rule those statements that
incriminate inferentially
● If Bell testified→ would have been ok bc it would not have violated his 6A right
Scalia Dissent: The Court’s extension of Bruton’s rule to name-redacted confessions “as a
class” will seriously compromise “society’s compelling interest in finding, convicting, and
punishing those who violate the law.”
● “Introducing the statement with full disclosure of deletions is one thing; introducing as the
complete statement what was in fact only a part is something else.”
● “The risk to the integrity of our system posed by the approval of such free-lance editing
seems to me infinitely greater than the risk posed by the entirely honest reproduction
[writing “deleted, deleted”] that the Court disapproves.”
 When there are 2 or more co-defendants:
● (1) Try them separately;
● (2) Try them at the same time, and don’t bring in the confession at all; or
● (3) Try them at the same time, admit the confession, but have to redact it so there’s no
mention of the other defendants at all
○ Remember, if the confessing co-defendant testifies, there is no Bruton issue.
○ However, if the confessor does not testify, then the confession cannot be
brought in against the co-defendants because it would be a 6A violation.
● Bruton→ Can’t bring statement against non-testifying co-defendant, even
with a limiting instruction
● Richardson→ Court allows a confession by a non-testifying co-defendant in
which all mention of defendant is omitted
● Gray→ Court rules that it violates 6th Amendment to admit the statement of
non-testifying co-defendant if the names are replace with “deletes”

Exception: Spontaneous and Contemporaneous Statements

● Unlike the admissions doctrine, most exceptions to the hearsay rule pertain to out of
court statements that for one reason or another are thought to be reliable and are
admissible regardless of whether the declarant is available to testify.
● Theory of Rule 803: Under appropriate circumstances, a hearsay statement may
possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction
of the declarant in person at the trial even though he may be available
● Does NOT require unavailability
● For analysis:
○ Is it relevant?
○ Is the statement in context hearsay? (truth of the matter?)
○ If yes, ask if there’s an exception
■ Personal knowledge?
FRE 803: The following are not excluded by the rule against hearsay, regardless of whether
the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or
condition, made while or immediately after the declarant perceived it.
○ Doesn’t require that the statement be made to anyone who was in a position to
correct the statement if it was wrong
○ Theory underlying 803(1): Because its contemporaneous, it negates the
likelihood of deliberate or conscious misrepresentation
○ Time Limit: In many, if not most, instances precise contemporaneity is not
possible and hence a slight lapse is allowable
○ Permissible subject matter: Limited to description or explanation of the
event or condition, the assumption being that spontaneity, in the absence of a
startling event, may extend no further
○ can be a CONDITION→ will they perceive the CONDITION
(2) Excited Utterance. A statement relating to a startling event or condition, made while
 the declarant was under the stress of excitement that it caused.
○ Requires emotional stress
○ Spontaneity is the key factor
○ Theory underlying 803(2): Circumstances may produce a condition of
excitement which temporarily stills the capacity of reflection and produces
utterances free of conscious fabrication
○ Time limit: Standard is the duration of the state of excitement
○ Permissible subject matter: The statement need only “relate” to the startling
event or condition, thus providing a broader scope of subject matter

United States v. Obayagbona (E.D. N.Y. 1985):

Facts: Turner, an undercover FBI agent, arranged to meet Onaiwu to buy heroin. Turner
recorded the meeting with a hidden tape recorder. Obayagbona was also there and was
charged with conspiracy to sell heroin. At trial, Turner testified that Obayagbona handed Turner
a sample of heroin from her purse. When the transaction was complete, the FBI agents
swarmed. Onaiwu, Obayagbona, and Turner were all arrested. Turner’s recorder was still
recording when he was asked about the heroin. On the recording, 14 minutes after the arrest,
Turner stated that Obayagbona handed him the sample.
Issue: Whether a statement is admissible as an exception to the hearsay rule if the statement:
(1) relates to a startling event and was a spontaneous reaction to that event; or (2) describes or
explains an event that the declarant was perceiving during or immediately after the event.
Rule: Under FRE 803(2), a statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition is not excluded
by the hearsay rule. When a statement is offered as an excited utterance, the trial court must
find two conditions: (1) There must be an occurrence or an event sufficiently startling to render
inoperative the normal reflective thought processes of an observer, and (2) the statement of the
declarant must have been a spontaneous reaction to the occurrence or event and not the result
of reflective thought
Holding: Tape recording is admissible under 803(1) Present Sense Impression and (2) Excited
Utterance
● Under 104(a), the trial court makes the determination as to the existence of excitement
and the applicability of this exception
● Agent's statement is admissible under 803(1) Present Sense Impression
○ 803(1) does not require simultaneity of observation and description! Can be
satisfied by a statement made immediately after the perception of the event or
condition described
○ 803(1) DOES have a temporal requirement – statement has to have been
made at the same or close in time to the incident itself
○ "Precise contemporaneity" is often not possible
■ Here, “immediately” is given some flexibility – here, the description was
14 mins and 25 seconds after the arrest
■ Agent turner spoke at his first opportunity and thus his declaration was as
spontaneous as possible
 ■ 803(1) does not require an emotional state to exist
● Agent’s statement is admissible under 803(2) Excited Utterance
○ For something to come in under 803(2), the speaker must be under the stress of
the incident
○ Such a situation as Agent was in engenders excitement
○ Court determined that there were valid psychological guarantees against
fabrication
○ The fact that the excited witness was a law enforcement agent does not preclude
admissibility under the excited utterance exception
○ 803(2) has no temporal requirement
People v. Cummings: Lack of ID of declarant does not make excited utterance inadmissible
per se but facts must exist from which a reasonable trier of fact could infer that the declarant
personally observed the incident
Facts: A man was shot, 911 was called several minutes later, and in the tape of the 911 call, an
unidentified person was heard saying, “It was Twanek (D) man!” The government tries to
introduce the statement as an excited utterance
Holding: Statement not admitted
Analysis:
● Is it hearsay? YES→ that it was actually Twanek who shot him
● Is there an exception? Gov. points to 803(2) excited utterance exception to admit the
statement
● Here, we can’t be sure that the declarant had personal knowledge of the event
○ “The People are correct that lack of identification of the declarant does not make
an excited utterance inadmissible per se, but facts must exist from which a
reasonable trier of fact could infer that the declarant personally observed the
incident. Here, we cannot tell whether the declarant personally observed the
shooting or was passing on hearsay several times removed. There is no
evidence that the declarant personally observed the incident.”
Gainor v. Wal-Mart (S.D. Mich): (from Lexis)– Many courts require preponderance of the
evidence that the declarant had personal knowledge. Courts are hesitant to find personal
knowledge has been met when there is a statement of an unidentified declarant standing alone.
Facts: Slip and fall in Wal-Mart while raining outside, after the fall an unidentified bystander
exclaimed, “They were just mopping the motherf*cking floor! Why didn’t they put mats out or
signs out?” Plaintiff's primary theory of notice is that D itself created the alleged dangerous
condition when one of its employees mopped the floor
Issue: whether the hearsay statements can be used to prove the actions and circumstances
surrounding the event which actually prompter the utterance
Holding: Yes, this is hearsay (out of court statement, moving party (P) bringing it in
to prove that Wal-Mart employee had just been mopping the floor→ not that the
statement had just been made). P trying to bring it in under an exception
● 803(1) doesn’t have to be at same time, just has to occur close in time
○ The deposition testimony reflects that the unidentified declarants' statements
were made immediately following P's fall — not D's employee's mopping
○ Nothing in record to support that D was mopping during fall
 ○ “just mopping” just is speculative
○ No evidence that mopping employee was present
● 803(2) the alleged mopping of the floor — which the statement is offered to prove as the
event causing the fall — is a prior, independent event.
● (1) Many courts require preponderance of the evidence that the declarant had
personal knowledge. (more likely than not)
○ PERSONAL KNOWLEDGE FACTORS:
■ 1. The plaintiff has to meet the preponderance of the evidence standard
■ 2. Courts are hesitant to say that personal knowledge has been met when
the statement is one of an unidentified declarant
■ 3. Explicit claims of personal observation may be enough
■ 4. Courts often require these claims of personal observation to be offered
in combination with non-hearsay evidence that supports the occurrence of
the underlying event
● (2) Courts are hesitant to find personal knowledge has been met when there is a
statement of an unidentified declarant standing alone.
○ Whether there is other evidence
■ Only evidence here is the statement→ when declarant is an
unidentified bystander, the cases indicate hesitancy in
upholding the statement alone as sufficient
○ Only P/ P’s daughter testified to statements→ Cts should be particularly
vigilant in policing the personal knowledge requirement where the only
witness able to testify to a statement made by an unidentified
declarant is a party in interest
U.S. v. Elem : NOT AN EXCITED UTTERANCE
Facts: Elem appeals from a conviction of possession of a firearm by a convicted felon. Elem
challenges the gov’ts pre-trial in limine motion to exclude certain exculpatory statements made
by Elem to the police at the time he was taken into custody. In response to officer asking if the
gun was his, he said: “No.” In response to a police inquiry about the flourishing of a weapon, he
answered: “You won’t be able to make that.” Elem argues that the statements are admissible as
a part of the res gestae (not on her exam) or as excited utterances under FRE 803(2). DC
disagreed with Elem and excluded them as impermissible hearsay
Holding: Not excited utterance, rightly excluded
● Court doesn't find anything in the record to say that he was unduly excited so as to alter
any of his conscious reflections
● Prof: Elem can’t bring in his statements as an admission→ not against an
opposing party

Exception: State of Mind

FRE 803(3):
Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-
existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical
condition (such as mental feeling, pain, or bodily health), 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.
Generally
● Offered to show state of mind / that declarant believed it, NOT admissible to prove the
truth of the matter asserted
● Advisory Note to FRE 803(3): This is essentially a specialized application of FRE
803(1) Present Sense Impression→ Rests on the premise that Declarant’s
statement was made so close to the time the condition or state of mind was
experienced, so the chances of memory defects or risks of fabrication are diminished
Compare
● “That’s Barney! That’s Barney!” → NOT HEARSAY→ is admitted not for the truth of
the matter asserted but for circumstantial evidence of the person’s belief
(basically, the person’s state of mind) (Lyons)
● “Mama, I think that’s Barney” → HEARSAY (introduced for the TOTMA- that the
costume is Barney), but can be used under 803(3) state of mind exception
U.S. v. Harris: (gove set up) If the declarant states that he believes something to be true, the
statement will be admissible to prove that the declarant had the belief, but not to prove the truth
of the belief.
Facts: Steward acts as informant for DEA. Posing as a prospective heroin purchaser, Steward
led the DEA to Harris, who in turn, eventually led the DEA to Mamone. Defense attempted to
establish that Harris knew Steward was an informant and only played along with him out of fear
of what would happen to him if he refused. Harris expressed to Hernandez (parole officer) that
the Government and people were after him and trying to set him up. Harris also made a similar
statement to his lawyer Ira Auslander (that Harris was aware that Steward was an informant).
● Testimony: Harris written offer of proof D counsels oral reps Harris’s lawyer would
testify
● District judge excluded this, reasoning that it is hearsay, unreliable, and self-serving
● Harris and Mamone were convoyed of conspiracy to distribute herion and appeal
● Statements at issue were that witnesses said D said:
Holding: DC erred in excluding the proffered testimony as hearsay → The
statements were admissible, not for their truth, but instead as circumstantial evidence of
Harris’ state of mind → his knowledge of Steward’s cooperation
● COMPARE FOR PRACTICE:
○ “The government is trying to set me up” to Parole Officer
■ Reminds of Parry case
■ Truth of the matter: gov. is actually setting him up, not introduced for the
truth of the matter here!
■ Circumstantial evidence of state of mind
○ “I believe the government is trying to set me up”
■ Hearsay, truth of the matter is that gov. was trying to set him up
■ This statement is admissible under R. 803(3)
● COMPARE FOR PRACTICE:
○ “Mr. Steward brought an agent to me” Lawyer
 ■ This is circumstantial evidence of state of mind, NOT HEARSAY, like
Parry, like kids saying “Barney! Barney!”
○ “I believe Mr. Steward brought an agent to me”
■ This IS HEARSAY – it’s an out of court statement to prove truth of the
matter asserted / it’s like kid saying, “Mama I think that’s Barney!” / the
statement IS admissible under R. 803(3)

The Hillmon Doctrine

● Statement of future intent is admissible as circumstantial evidence to prove that the
declarant did the thing that they intended, AND it’s admissible to prove that the third
party did it too!
● Under 803(3), a statement of future intent can be admitted to show:
○ (1) Declarant intended to do something;
○ (2) Declarant did the thing they intended to do; and
○ (3) Third party (the person the declarant said they were going to do the thing
with) did it as well

Mutual Life Ins. Co. v. Hillmon: (going to Kansas): Declarations by an insured that he intends
to go upon a journey with another may be evidence of a state of mind lending probability to the
conclusion that the purpose was fulfilled
Facts: Sallie Hillmon sues for life insurance for death of her husband. She claimed husband
died on March 17, 1979 insurance co – company said that Hillmons were faking his death. At
the third trial, P introduced evidence that Hillmon and Brown traveled and that Hillmon was killed
by accidental discharge of a gun. D said the body was not Hillmon, but Fred Walters. There was
conflicting evidence about who the corpse was. D introduced testimony that the last time
Walters was heard from was in Kansas after leaving Iowa. The sister of Walters testified that
she got a letter from her brother saying he was planning to travel with Hillmon (but she lost the
letter). Hillmon’s wife objects on hearsay grounds. Then, Alvina testified providing a letter from
Hillmons saying he intended to travel with Hillmon. The jurors go in favor of Hillmon’s wife.
● The testimony at issue is the two letters – (1) the remembered contents of the letter
to the sister, and (2) the letter to Alvina.--> “I’m going to Colorado with Mr. Hillmon”
Holding: The letters are admissible to prove Walters’s then-existing intention to go on the
trip with Hillmon. This is relevant because it makes it more probable that he did go on the trip
and that the body found was his and not Mr. Hillmon’s.
● The existence of a particular intention in a certain person at a certain time being a
material fact to be proved, evidence that he expressed that intention at that time is direct
evidence of the fact as his own testimony that he then had that intention would be
● If he was still alive, his own memory of his state of mind at a former time is no more
likely to be clear and true than bystander’s recollection of what he then said, and is less
trustworthy then letter written by him at the very time
● Evidence is let in under 803(3) state of mind, statement of future intent
○ “I’m going to CO with Hillmon” is admissible under 803(3) – it shows that:
■ (1) Declarant was intending to go to CO with Hillmon
 ■ (2) Evidence that declarant went to CO with Hillmon
■ (3) Evidence that Hillmon went to CO
○ COMPARE: If the letter said, “I’m in Colorado I came here with Hillmon” would it
be admissible?
■ NO- ITS HEARSAY!
● What’s the truth of the matter: that he did actually go to
Kansas with Hillmon→ to show that he actually went to
Kansas with Hillmon.
Shepard v. U.S.: (poisoned wife): state of mind must look forward
Facts: Wife poisoned, husband claims his wife actually committed suicide. Testimony at trial
from wife's nurse that the wife asked the nurse to get her a bottle of whiskey, which she said
she drank before she got ill, and then said "Dr. Shepard has poisoned me"
Holding: Not admissible under 803(3) because these statements looked backward in time and
thus did not fall under the Hillmon doctrine, allowing admission of statements that would show
the state of mind or intention of an unavailable declarant
● The declarations of Ms. Shepard were not used to prove her present thoughts or
feelings, or even her thoughts/feelings in times past – it used the declarations as proof of
an act committed by someone else, as evidence that she was dying of poison given by
her husband. This fact, if fact it was, the gov. was free to prove, but not by hearsay
declaration.
● (1) She’s not talking about her own intention, she’s talking about her believe about
someone else’s future intention
● (2) Under 803(3)- the statement of belief cannot be proved to prove the statement of
belief
United States v. Houlihan (D. Mass. 1994): Hillmon applies to third parties’ intent for future
conduct
Facts: James Boyden was found dead with a gun shot in the back of the head. As he was
leaving his sister’s apartment earlier, he told her that he was going out to meet Billy Herd,
one of the men charged with the murder. At trial, the government sought to introduce this
statement as then-existing mental or emotional condition.
● Gov. sought to admit the statement as relevant circumstantial evidence that Herd killed
him later that evening.
○ They want to show with the statement that decedent was intending to meet Billy,
that the decedent met Billy, and that Billy met him (like in Hillmon doctrine)
● Hearsay- out of court- yes no longer alive, statement→ oral assertion, truth of
the matter→ he was planning to meet Billy Herd
Issue: Whether Boyden’s statement of intent can be admitted under the 803(3)
Holding: The statement is admissible as circumstantial evidence that the defendants killed
Boyden that night.
● The statement was not admitted to prove that Boyden met with the defendants, but
rather to prove that he intended to meet with the defendants
○ They want to show with the statement that decedent was intending to meet Billy,
that the decedent met Billy, and that Billy met him (like in Hillmon doctrine)
 ● Under Hillmon, out-of-court statements of a declarant are admissible to prove the
subsequent conduct of others. Issue: whether in enacting Rule 803(3), Congress
codified in full the reasoning of Hillmon or whether it sought to limit the case’s application
○ House judiciary committee intends that the rule be construed to limit the doctrine
of Hillmon, so as to render statements of intent by a declarant admissible only to
prove his future conduct, not the future conduct of another person
● The language of Rule 803(3) clearly states that the statements of intent are admissible.
Thus, because it does not by its terms limit the class of persons against whom such
statements of intent may be admitted, this Court rules that Rule 803(3) codifies
Hillmon as written and does not disturb its conclusion or its reasoning. Had Congress
intended to limit the admissibility of such statements, it presumably would have done so.
● There is a divide on whether there needs to be independent evidence
connecting to statement→ this court says no need→ the statment is enough
“She knew that he didn’t love her”
● Introduced under R. 803(3) to show her belief that he didn’t love her (state of mind)
“She was sure he was seeing someone else”
● Introduced under R. 803(3)
“She was going to tell him she wanted a divorce”
● Statement of future intent, hearsay but admissible under R. 803(3) exception
● That she intended to ask him for a divorce and that she did ask him for a divorce

Exception: Injury Reports

FRE 803(4)
(1) Statement made for Medical Diagnosis or Treatment. A statement that:
(A) Is made for—and reasonably pertinent to—medical diagnosis or treatment;
AND
(B) Describes medical history; past or present symptoms or sensations; their
inception or their general cause.
Doesn’t have to be made by a doctor

Rock v. Huffco Gas & Oil Co. (5th Cir. 1991): (oil, hurt ankle): A statement that suggests fault,
but is not necessary for treatment, generally will not qualify under the medical diagnosis
exception.
Facts: Rock worked on an oil right owned by Huffco. Rock claimed that his foot had fallen
through a rusted step on the rig, resulting in a sprained ankle. There were no witnesses to the
accident. After he recovered, he went to work on another oil rig and slipped and re-injured his
ankle. Rock gave the doctors a history of the incidents and later died from a heart attack. His
family sought to introduce the statements to the doctors. In depositions, the doctors stated
that for the purposes of medical treatment, they only needed to know that Rock hurt his ankle,
not necessarily the details of how.
Statement at issue: where or not his explaination should be admitted
Issue: Whether a statement is admissible under the medical diagnosis exception if it is not
reasonably pertinent to the diagnosis or treatment.
Holding: The statements were inadmissible under 803(4) because it was not necessary to
describe the rusty step or grease for diagnosis or treatment.
● W statment saying “Rock was planning to fake that injury”
○ THIS can be brought in under FRE 803(3) as Rocks intention/state of mind
○ It can NOT be introduced to show Rock himself intended to fake an accident
AND that he actually did fake the accident bc cant show the intentions of
someone else (See Hillmon Doctrine)
● Hypo: Doctor took the stand and said P said he fell through the slip, and
falling through was important in broken ankle fall syndrome, which I
diagnosed him with. Would the P’s statement of how it happened be
admissible under R. 803(4)? → Yes
Ward v. State: (PA and FN)
Facts: JM was battered by her boyfriend, paramedics came found her black and blue, crying,
etc. JM told the paramedic that her boyfriend (D) did it. JM was taken to hospital where she was
cared for by a forensic nurse, and JM also told the nurse that it was her boyfriend. State wants
to bring the statement in under 803(4).
● D argues that the statement that it was him was testimonial hearsay, and argued that it
should’ve been excluded. D argues that, because JM didn’t show up to testify, that
admitting the statements was a violation of the Confrontation Clause – gov. needs an
exception to the hearsay rule for this.
● Exception used: R. 803(4) requires that the statement (a) is made for and is reasonably
pertinent to medical diagnosis or treatment; and (b) describes medical history, past or
present symptoms or sensations, their inception, or their general cause
Issue: is there an exception under 803(4) and is there a CC issue?
Holding: ADMISSIBLE→ JM’s hearsay was properly admitted into evidence.
● Court holds that the statements are non-testimonial – the statement was a vital part
of providing appropriate medical and psychological treatment and service referrals,
as the applicable standard of care requires.
● ANALYSIS FOR STATEMENT TO PARAMEDIC:
○ The problem is satisfying R. 803(4)(a) – why does the paramedic need to know
how she was hurt? Why is it relevant or pertinent to diagnosis or treatment to
know who did the attack?
○ See p. 163-64: The paramedic said he needed to know the source of the injury
to know if the attacker is still there or if they are anywhere around to cause any
more harm
○ To be testimonial, the issue is whether the statement was prepared for future
prosecution (primary purpose test)
■ (1) Whether there’s an ongoing emergency – in asking that question ask
● (a) Has the threat been neutralized? → They didn’t know
where the boyfriend was
● (b) Was there a weapon / what kind was it?
● (c) Nature of the victim’s injuries→ Clearly battered
■ (2) Formality or informality of the situation→ In her bedroom
■ (3) Motives of the parties involved
 ○ The circumstances indicate that the statement to the paramedic was non-
testimonial. The paramedic’s priority was to treat an obviously battered victim
who apparently was suffering in pain. The paramedic never told JM her answers
might be used to arrest or punish her abuser and JM never indicated she
intended her statement to be used for such a purpose. The conversation was
also in formal.
● ANALYSIS FOR STATEMENT TO FORENSIC NURSE:
○ She identiifys him as the attacker to FN
○ Gov. first needs an exception to the hearsay rule (R. 803(4)).
○ Hypo: Could the statement be brought in under 803(1)? The statement is in
relation to the event that just happened. The moving party has to show, in order
to bring in under 803(1), that the statement was made while or immediately after
the incident.
■ Here, NO 801(1) doesn’t apply because of the timeframe issue
(while/immediately after). By the time she got to the hospital she had
talked to paramedics, been transported, etc.
○ In the Obayagbona case, they let it come in under 803(1) because the
statement, though made 15 mins after, was the first time the agent was able to
speak of the incident
○ Hypo: Could the statement be brought in under 803(2)? NO, though no
timeframe needed, she was not under the same stress of the event.
○ USE 803(4): The statement here served the primary purpose of medical
treatment. Medical scholarship confirms that identifying attackers is integral to
the standard of care for medical treatment of domestic abuse victims. Doctors
and nurses in various clinical settings
● Confrontation Clause: There’s only a 6A issue if the statement is testimonial, and here
the statement is NOT testimonial
○ Clark told us statements to non-law enforcement are less likely to be testimonial
○ Lave says this is a close call on testimonial/nontestimonial under the primary
purpose test in regard to the statements to the Forensic Nurse because of the
nature of the entire encounter - the court could have come out differently
■ NOTE that Forensic Nurse is trained and prepared to testify in court
■ JM was filling out forms and the nurse was taking a lot of information
about the attacker
■ This is more formal than the encounter with the paramedic

Exception: Recorded Recollection

FRE 803(5)
Recorded Recollection: Provides a hearsay exception when
● (A) a witness once knew about/had knowledge of the matter in the record but now
cannot recall well enough to testify fully and accurately;
 ● (B) the record was made or adopted by the witness when the matter was fresh in the
witness’s memory; and
● (C) the record accurately reflects the witness’s knowledge AT THE TIME
If admitted, the record may be read into evidence but may be received as an exhibit only if
offered by an adverse party

Past Recollection Recorded FRE 803(5) Refreshed Memory (Present Recollection

Revived or Refreshed) FRE 612

EVIDENCE→ SUB FOR MEMORY TOOL→ REFRESHER TO TESTIFY

The witness does not have a complete UNDER OATH
memory of the events represented in the After being refreshed with the document, the
document witness’s memory is sufficiently jogged so that
the witness can testify from current memory;
used for memory stimulus

Statements that fall within the exception for This is a technique not for introducing a
“recorded recollection” are admissible as document, nor even for having it read to the
evidence, not just available for use to jury, but rather for jogging the memory of a
refresh the witness’ memory forgetful witness, and thereby allowing the
witness to testify from “present recollection”

The out-of-court statement is admitted for The out-of-court statement is not admitted at all,
the truth of the matter asserted, but usually and used merely to refresh the witness’s
limited to being read into the record (rather recollection. The jury never sees the document
than being given to the jury as an exhibit). or hears it read into evidence. The opposing
Limitation on this exception: Allows the party must be shown the document
statement to be read to the jury but
prohibits the jury from actually looking at it

The rule applies only to writings and ANYTHING can be used to revive the
recordings recollection of a forgetful witness, as long as it
is first shown to opposing counsel. Writings,
recordings, such as photographs or even
sounds or smells

The evidence is the actual thing that has “It is not the memorandum that is the evidence
been recorded but the recollection of the witness”

Fisher v. Swartz: past recollection recorded

Facts: P testified that he furnished certain labor and materials in repairing a house owned by D.
While testifying, he refreshed his recollection from a copy of an itemized statement of charges
made for the labor and materials. The copy was admitted into evidence
Holding: Writing ought to be admissible as evidence→ It may be inferred that the
writing was a record of the witness’ past recollection and was treated as such by counsel
and the trial judge
● A writing may be used by a witness in different ways:
● (1) He may use it to revive or stimulate a present recollection (“present recollection
revived”), or
○ witness, although he may use the writing to refresh his recollection, must testify
to the facts as he remembers it and may not read or show the writing to the jury
● (2) Having no present recollection even with the aid of the writing, he may use it merely
as a record of his past knowledge (“past recollection recorded”)
○ judge in his discretion may permit witness to incorporate in his testimony a
writing expressive of his past knowledge, and to read it & even show it to the jury
U.S. v. Riccardi: (list of stolen chattels) present recollection revived
Facts: Riccardi (D) was charged with the interstate transportation of stolen goods. The goods
belonged to Doris Farid and the thieves packed up the goods at Farid’s request, but then stole
them on route to their destination. To prove the specific chattels involved, the government relied
on the testimony of Farid. To prove the chattels’ value, it relied on the testimony of an antiques
expert, Berlow. Farid testified that as the chattels were being moved from her house she made
handwritten notes and later copied these notes on her typewriter. The government sought to
have Farid testify with respect to the chattels by using the typewritten notes for the
purpose of refreshing her memory. With the aid of these lists, Farid testified that her
recollection was refreshed and she recognized and could identify each item. She was permitted
to read the list aloud. Berlow was shown the same lists, and with their aid testified that he could
recall the items and could give their value.
● D argues that the lists should not have been used because they were not made by the
witnesses (Farid and Berlow) at or shortly after the time of the transaction while the facts
were fresh in memory.
● gov argues that the witnesses gave their independent recollection, which is admissible,
albeit refreshed, because it is the recollection and not the writing which is the evidence
Holding: Farid and Berlow both testified from present recollection→ Trial judge did not
abuse its discretion in determining that the witnesses testified from present
recollection, or in permitting the use of the lists
● On the record→ both F and B knew the chattels and could identify them
● The primary difference between “past recollection recorded” and “present recollection
revived” is the ability of the witness to testify from present knowledge
● **Where the witness’ memory is revived, and he presently recollects facts and swears to
them, he is in a different position from the witness who cannot directly state the facts
from present memory and who must ask the court to accept a writing for the truth of its
contents because he is willing to swear that its contents are true
● Past Recollection Recorded:
○ The witness has no present recollection of the matter contained in the writing
○ The record admitted into evidence is a substitute for the witness’ memory and is
offered for the truth of its contents
● Present Recollection Revived:
 ○ The witness relates his present recollection, and under oath and subject to cross
examination asserts that it is true
○ The primary evidence here is not the writing; the primary evidence is the oral
statement of the witness

Exception: Business Records

FRE 803(6) Records of a Regularly Conducted Activity: A record of an act, event,
condition, opinion, or diagnosis is excluded from the hearsay rule if:
● (A) the record was made at or near the time by — or from information transmitted by
— someone with knowledge;
● (B) the record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling, whether or not for profit;
● (C) making the record was a regular practice of that activity;
● (D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a
statute permitting certification; and
● (E) the opponent does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness
Basically
● (1) Record of a business that is
● (2) Regularly maintained
● (3) Made promptly
● (4) Based on knowledge (made by person with knowledge)- CAN’T BE AN OUTSIDER
● (5) Supported by in-court testimony
● (6) Records appear not untrustworthy
○ Qualifying business records should be presumed trustworthy
● Based on financial incentive businesses have to maintain accurate records. Should be
deemed reliable enough to be introduced into evidence
● Exception NOT limited to narrow meaning of “business”
○ Individual casino worker’s diary of tips in Keogh, drug sale log in Gibson
State v. Acquisto: (payroll recs) Personal records kept for business reasons may qualify
Facts: D presented evidence of alibi. Two employees (alibi witnesses) testified that they saw
the D at the home he shared with his mother at the time the assault took place and they were
home that morning since the employees were on strike and were not able to go to work.
Rebuttal testimony from custodian of records testified that she received payroll vouchers and
the vouchers were offered in evidence and tended to show that both the witnesses worked
during the time of the assault. The records also indicated that the strike did not happen at that
time but occurred the prior week
Holding: Admission of records was correct under 803(6)
● D’s reputation of being untruthful did not matter – the diary contained his own financial
records, there’s no reason to think he would’ve lied to himself
● Under the common law, the record-maker and every human link had to testify and the
federal rules no longer require that! The witness is the custodian of the records.
● Rule specifically provided that a memorandum in any form of acts, events, or conditions
made at or near the time by, or from information transmitted by, a person with
knowledge, may be admitted into evidence
 ● Custodian of records testified that although the vouchers were made up in advance, she
would be notified before she completed the payroll if anything had changed, nothing did
Qualifying “Businesses”
● Courts have generally required foundation witnesses to testify
● The records must be those of a regularly conducted business activity rather than a
“business”
● The records of institutions and associations like schools, churches, and hospitals are
admissible under this provision
Keogh v. Commissioner of Internal Revenue: (diary) If they otherwise qualify, personal
records kept for business reasons may be admitted into evidence under the business records
exception to the hearsay rule, which does not apply only to commercial business records
Facts: Tax Commissioner asserted that D had underreported tip income based on an analysis
of Whitlock’s diary entries. The principal evidence includes:
1) Photo copy of diary
a) Hearsay but admissible under rule 803(6)
2) 2) Testimony of Mikle, Whitlock’s ex-wife (Whitlock failed to appear)
a) She saw only Whitlock make the entries
b) Whitlock made them after night shifts of work
c) When he skipped a few days, he would copy entries for those days from a record
kept in wallet
d) Didn’t make entries on his off days
Holding: Diary admissible
● Diary shows every indication of having been kept in the course of the business activity,
occupation, and calling of its author, even though it was a personal record
● There is no reason to believe that Whitlock’s motives in making the entries were suspect
● The diary contained his own financial records and there is no reason why Whitlock
would have lied to himself in preparing his own personal records
● Reliability is corroborated by the fact that the diary entries corresponded with the
company’s payrolls
● The reliability usually found in records kept by business concerns may be established in
personal business records if they are systematically checked and regularly and
continually maintained
U.S. v. Gibson: Record need not be perfect; Incomplete and inaccurate records are admissible
as business records under FRE 803(6) if the record holder relied on the records and recorded
the transactions contemporaneously
Facts: D was convicted of dealing drugs and argues that the ledger of the prosecution witness,
which contained records of drug deals and implicated D, was inadmissible because the records
were not kept in the course of regularly conducted business activity and because the entries
were untrustworthy
Holding: Evidence is admissible
● Drug log qualifies as business record – broad definition of “business”
● The fact that the ledger was incomplete and contained several blank pages did NOT
render it inadmissible
Qualifying Records
 ● Records made in the course of a regularly conducted activity will be taken as admissible
but subject to authority to exclude if the sources of information or other circumstances
indicate lack of trustworthiness
● The form which the record may assume under the rule is described broadly as a
memorandum, report, record, or data compilation, in any form
Palmer v. Hoffman: A record is considered to be "in the regular course of business" if made
systematically or as a matter of routine to reflect events or transactions of the business
Facts: The engineer of a train involved in an accident, who died before trial, made a statement
to the railroad company regarding the accident. It was the custom of the railroad to record such
statements whenever there was an accident. The statement was not allowed in evidence
Holding: Not admissible evidence
● The fact that a company makes a business out of recording employee’s versions of their
accidents does NOT put those statements in the class of records made in the regular
course of the business within the meaning of the Act
● Primary use of these reports was litigating, not railroading (the business here)
● If the mere custom of making a record of nonessential activity could bring that record
within the meaning under 803(6) then any company could bring any type of record into ct
Lewis v. Baker: opposite of Palmer; injury report admissible
Facts: P claimed he was injured on the job and D wanted to introduce personal injury report and
inspection report by 3rd party to show the brake worked fine before and after the accident. P
argues Palmer controls and precludes the reports admission into evidence
Issue: Should the post-injury report be admitted as a business record, or be kept out as in
Palmer?
Holding: Both the accident report and the inspection report are admissible under 803(6)
● This WAS in the regular course of business.
● In the absence of a motive to fabricate, a motive so clearly spelled out in Palmer v.
Hoffman, the holding in that case is NOT controlling here. Here there could’ve been no
similar motivation, for not one of the reporting people were involved in the accident or
possibly the target of litigation.
● Report prepared in Palmer was prepared by someone who himself was involved in the
accident hence had a strong motive to lie
● Difference between Palmer and Lewis
○ Motive!!!!! In Palmer the engineer was the one injured so he had more reason to
try to exculpate himself and relieve himself or employer of liability
○ In Lewis there was no similar motivation because none of the men who made
the reports were involved in the accident or could have been the target of a
lawsuit by Lewis
○ LAVE says she does not completely buy this - don't the three men who made the
reports in Lewis have the same motivation to write a report that is in favor of their
employer??? Even if they themselves are not subject to direct liability?
Sources of Information
● The rule requires the record to be made by an informant with knowledge acting in the
course of the regularly conducted activity
● ASK: is the source an outsider to the business?
 ○ If the source of the statement is an outsider- that statement must be subject to a
hearsay exception
Wilson v. Zapata Off-Shore – (double hearsay) Business duty exception rule: applies to
every level of hearsay involved in the creation of a business record so long as each person
participating in the chair was acting in the regular course of the business question .
Facts: Hospital record contains a statement of Wilson’s sister made to the social worker that
Wilson is a liar (double hearsay)
Holding: inadmissible→ Here, the sister’s statement does not meet the exception
because she doesn’t meet the threshold – she is an outsider
● There is no hearsay within hearsay problem so long as everyone in the chain of
declarants was speaking or writing pursuant to a duty regarding maintaining the record
● E.g. nurse talking to doctor and doctor’s statements in the record are in the business
exceptions rule
○ NEED ANOTHER EXCEPTION FOR STATEMENT OF THE SISTER!
● First level of hearsay:
○ Report by the social worker
○ Rule 803(6) provides a hearsay exception for records kept in the course of any
regularly conducted business activity, which includes hospitals
● Second level of hearsay:
○ The sister’s out-of-court statements are offered to prove the TOTMA and thus
were classic hearsay
○ D argues that sisters’ statements fall within FRE 803(4), which excepts from the
hearsay rule statements made for the purposes of medical diagnosis or treatment
○ Court doesn’t rule if this exception would work, but instead just says that it was
harmless error
Absence of Record
FRE 803(7) Absence of a Record of a Regularly Conducted Activity: Evidence that a
matter is not included in a record described in paragraph (6) is excluded from the hearsay rule
if:
● (A) the evidence is admitted to prove that the matter did not occur or exist;
● (B) a record was regularly kept for a matter of that kind; and
● (C) the opponent does not show that the possible source of the information or other
circumstances indicate a lack of trustworthiness
Basically
● Failure of a record to mention a matter which would ordinarily be mentioned is
satisfactory evidence of its nonexistence
● You can bring in record to prove something didn’t happen if you meet the requirements

U.S. v. Gentry: absence of a report can prove its nonoccurence

Facts: Gentry claimed that he bit into a pin when eating an M&M, false report / food tampering.
Testimony of M&M worker saying no other reports of pins in M&Ms
Holding: The testimony was relevant, it implies that the pin came from Gentry rather than the
factory – 803(7) allows this use of business records to show the nonoccurrence of an event
● Issue: are the reports nonverbal conduct intened as an assertion? No- this is not
hearsay at all → when the witness comes in and says “i reviewed the records
 and there are no reports of pins” - they are just reviewing what is here and
not finding anything→ to clear confusion 803(7) exists

Exception: Public Records

Beech Aircraft Corp. v. Rainey: report with conclusions/opinions is admissible; broad
approach
Facts: Airplane crash. Rollback v pilot error. One piece of evidence presented by D was an
investigation report prepared by a Lieutenant. Among his “opinions” was that it is almost
impossible to determine what caused the crash but the most probable cause was pilot error.
The opinion has three parts: opinion, fact, and conclusion
Issue: Whether 803(8)(A)(iii), which provides an exception to the hearsay rule for public
investigatory reports containing factual findings, extends to conclusions and opinions contained
in such reports?
Holding: Yes→ Portions of investigatory reports otherwise admissible under 803(8)(C) are
not inadmissible merely because they state a conclusion or opinion. As long as the
conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness
requirement, it should be admissible along with other portions of the report
● Textualist
○ Rule 803(8) defines the public records and reports which are not excludable. It is
not apparent that “factual findings” should be read to simply mean “facts” (as
opposed to opinions or conclusions).
○ The rule does not state that factual findings are admissible, but rather states that
reports setting forth factual findings are admissible.
○ The language of the rule does not create a distinction between fact and opinion
contained in such reports.
● Legislative intent
○ the Advisory Committee’s comments contain no mention of any dichotomy
between statements of facts and opinions or conclusions
○ The Committee’s comments referred to “reports,” without any such differentiation
regarding the statements they contained
○ It is too hard to draw a line/distinction between facts and opinions
● The Rule’s limitations and safeguards lie elsewhere:
○ The requirement that reports contain factual findings bars the admission of
statements not based on factual investigation
○ The trustworthiness provision requires the court to make a determination as to
whether the report, or any portion thereof, is sufficiently trustworthy to be
admitted
○ The Federal Rules dealing with relevance and prejudice provide further means to
scrutinize or exclude evaluative reports or portions of them
○ The admission of a report containing conclusions is subject to the ultimate
safeguard—the opponent’s right to present evidence tending to contradict or
diminish the weight of those conclusions
Confrontation Clause Cases
Melendez-Diaz v. Massachusetts: Extends Crawford to drug analysis certificate
Facts: D found guilty of distributing and trafficking in cocaine. At trial, Gov’t introduced
“certificates of analysis,” prepared by analysts in order to show that the substance seized from
D was cocaine. The analysts did not testify at trial. On appeal, D asserted that the certificates of
analysis were testimonial and their admission by the trial court violated his constitutional rights
under the Confrontation Clause. On SCOTUS’ appeal, the Government presented six grounds
for finding that admission of the certificates did not implicate or violate the Confrontation Clause:
1) The witnesses were not accusatory because the information in the certificates did not
directly accuse D of wrongdoing
2) The analysts’ statements in the certificates were not the type of ex parte statements
presented in the trial of Sir Walter Raleigh
3) D would not derive a benefit from having the opportunity to cross-examine on the
“neutral, scientific testing” contained in the certificates
4) The certificates are admissible as business or public records under the common law
5) D could have subpoenaed the analysts
6) Stringent application of the Confrontation Clause in this case will make the prosecution
of criminals overly burdensome because analysts will have to testify any time scientific
data is presented
Holding: Under Crawford, the analyst’s affidavits were testimonial statements and the
analysts were witnesses for purposes of the 6th A. Absent a showing that the analysts were
unavailable to testify at trial and that D had a prior opportunity to cross-examine them, D was
entitled to be confronted with the analysts at trial
● The fact that there might be an evidentiary exception does not address whether
there is a problem under the Confrontation Clause!
● Scalia says they were accusatory documents, and this is a paradigmatic case that
identifies the core of the rights not its limits
● Documents at issue are testimonial statements (they are clearly affidavits)
○ The certificates are functionally identical to live, in-court testimony, doing
precisely what a witness does on direct examination (showing that the substance
was cocaine)
○ Under MA law, the sole purpose of the affidavits was to provide “prima facie
evidence of the composition, quality, and the net weight of the analyzed
substance.” Thus, the analysts were aware of the affidavit’s evidentiary purpose
● Under the Confrontation Clause, the prosecution must produce the witnesses
against the defendant
○ The issue is process not substance (Crawford)
○ Confrontation is one way of assuring accurate forensic analysis
○ The prospect of confrontation will deter fraudulent analysis (analysts may feel
pressure from law enforcement or have an incentive to alter the evidence in
favorable manner)
○ Confrontation will also weed out the incompetent analyst—an analyst’s lack of
training or deficiency in judgment may be disclosed in cross-examination
○ Confrontation Clause helps test analyst’s honesty, proficiency, and methodology
○ The Confrontation Clause imposes a burden on the prosecution to present its
witnesses, not on the defendant to bring those adverse witnesses into court
 ● The affidavits do not qualify as traditional official or business records, and even if
they did, their authors would be subject to confrontation nonetheless
○ If the regularly conducted business activity is the production of evidence for use
at trial, the document cannot come in under the business record exception of
803(6)
■ Palmer held that an accident report did not qualify as a business record
because although kept in the regular course of the railroad’s operations, it
was calculated for use essentially in the court, not in the business
● The analyst’s certificates—like police reports generated by law enforcement
officials—do not qualify as business or public records
○ A clerk could by affidavit authenticate or provide a copy of an otherwise
admissible record, but could not do what the analyst did here: create a record for
the sole purpose of providing evidence against a D
○ Business and public records are generally admissible absent confrontation not
because they qualify under an exception to the hearsay rules but bc they are not
testimonial—they have been created for the administration of the entity’s affairs
and not for trial use. certificates are clearly created for use in trial
● The burden is on the government to subpoena the lab analyst, and that can’t shift
the burden of proof to the D to bring in the analyst for confrontation
○ P. 200: “The Confrontation Clause may make the prosecution of criminals more
burdensome, but that is equally true of the right to trial by jury and the privilege
against self-incrimination. The Confrontation Clause – like those other
constitutional provisions – is binding, and we may not disregard it at our
convenience”
● Hypo: what if the analyst died before trial
○ unavailible : yes
○ No oppur for prior cross
○ Its testimonial → It can come in
Bullcoming v. New Mexico: certificate of BAC is testimonial, surrogate not okay
Facts: D charged with DWI and lab report showed that his BAC was very high. At trial,
prosecution did not call as a witness the analyst who signed the certification, but called another
analyst who was familiar with the lab’s testing procedures but who had not participated in nor
observed the testing of D’s blood sample. State proposed to introduce the evidence as a
business record
Holding- Ginsberg: The surrogate testimony does not satisfy the Confrontation Clause
● An analyst’s certification prepared in connection with a criminal investigation or
prosecution is testimonial and therefore within the compass of the Confrontation Clause
per Melendez-Diaz
● Surrogate testimony could not convey what the original analyst knew or observed about
the events his certification concerned, i.e., the particular test and testing process he
employed
○ Nor could such surrogate testimony expose any lapses or lies on the certifying
analyst’s part
○ Surrogate had no knowledge of the reason the original analyst had been placed
on unpaid leave. With the original analyst on the stand, D could have asked
 questions designed to reveal whether incompetence, evasiveness, or dishonesty
accounted for his removal from work
● Can’t dispense with confrontation because the court believes that questioning one
witness about another’s testimonial statements provides a fair opportunity for cross-
examination
○ “Nor is the risk of human error so remote as to be negligible”
● The lab report here resembles those in Melendez-Diaz
○ The report is testimonial- doesnt matter that it was unsworn
○ The certification reported more than a machine-generated number and related to
past events and human actions that are subject to cross-examination
○ Its reliability is irrelevant for 6th Amendment purposes
● The State could have avoided any Confrontation Clause problem by asking the
surrogate analyst to retest the sample, and then testify to the results of his retest rather
than to the results of a test he did not conduct or observe
Sotomayor’s Concurrence in Bullcoming:
● No question about the primary purpose here, but what if there was another purpose?
Like what if it was medical? (e.g. autopsy by medical examiner for public health) The
purpose of the test would not be for the prosecution/crime. If the primary purpose is not
for future prosecution, doesn’t pose a problem under 6A!
● What if you have expert witness who relies on hearsay in forming their opinion
○ Experts are allowed to rely on hearsay in forming their opinion!
● What if experts testify about machine-generated evidence?
○ See Williams v. Illinois
Public Records
US v. Torralba-Mendia: basically how to get around the public records exception in criminal
case with law enforcement officer
Facts: Torralba convicted of conspiring to smuggle undocumented immigrants into the US
● What does the gov. bring into trial? I-213 immigration forms showing that many of the
passengers detained during the investigation had been deported (i.e. forms re whether
someone has been deported/inadmissible to the US)
● D argues that gov. shouldn’t be able to admit the documents at his trial
Rule: Under 803(8)(A)(ii), a record or statement of a public office is admissible as an exception
to the hearsay rule if it sets out a mater observed while under a legal duty to report, but not
including, in a criminal case, a matter observed by law enforcement personnel
● If it’s a matter observed by law enforcement personnel and it’s a criminal case, the
prosecution can’t bring it in under 803(8)
Issue: 2 evidentiary issues with these forms:
● ISSUE 1→ Whether they are considered public records for purposes of 803(8);
and
● ISSUE 2→ Whether they are testimonial
D makes textual argument about 803(8): the officer had a legal duty to fill out the form – D
argues this is a criminal case and this is about “a matter observed by law enforcement
personnel” so inadmissible under 803(8)(A)(ii)
Holding: admissible→ COURT DISAGREES WITH D!
 ● Issue 1 (admissibility under 803(8)):
○ In US v. Lopez, held that public records exception applied to a verification of
removal. This case is like Lopez, because like the verification of removal, the
report here contained the name/photo/prints/date/port/method of departure and
officer’s signature.
○ In Lopez, like here, officer had legal duty to fill out the form, i.e. recording and
maintaining verifications that an individual has been deported under the rubric of
the responsibilities assigned to the Dpt. of Homeland Security.
○ The documents were admissible notwithstanding the general prohibition against
admitting records created by law enforcement, and in Lopez the court reasoned
that the law enforcement prohibition’s purpose is to exclude observations
made by officials at the scene of the crime or apprehension, because
observations made in an adversarial setting are less reliable than
observations made by public officials in other situations.
■ Basically → they weren’t really acting like law enforcement-
Lave thinks this is crazy
○ The law enforcements prohibitions rule is to Documents not created in
adversarial setting – a ministerial objective observation that merely records
the movement of aliens across the border and was therefore inherently reliable
because of the gov’s need to keep accurate records of the movement of aliens.
○ The records are kept by the Department of Homeland Security in its regular
course of business.
● Issue 2 (testimonial):
○ The docs were not created in anticipation of litigation, and are therefore not
testimonial. Because the documents are not testimonial, the statements do not
run afoul of 6A. These documents are simply a routine, objective cataloging of an
unambiguous factual matter.
○ Public records are normally non-testimonial because they are created for the
administration of an entity’s affairs and not for the purpose of establishing or
proving some fact at trial (Melendez-Diaz).
State v. Davis: When public records are used against a D in a criminal prosecution, the public
records exception is the exclusive applicable hearsay exception
Facts: Davis convicted of operating a vehicle under the influence
Issue: the admissibility of a machine operator’s sworn statements to prove that the test used for
the breath test was in proper working order
Holding: The statements were NOT admissible as business records under Rule 803(b)(6) =
803(A)(ii), reversed
● Gov. first tried to bring in statements under 803(b)(8)(B)= (803(A)(ii)) in like in Torralba,
and court here disagrees because this was an interpretative conclusion and
therefore does NOT constitute “a matter observed” within the meaning of 803(b)
(8)(B)
● Gov. then tried to bring in statements under 803(b)(6). While the proponent of hearsay
is generally entitled to “shop around” among the exceptions, the public records exception
forecloses access to business records admissibility. It is generally understood that
 records excluded by 803(b)(8) cannot be admitted through the back door as a
business record under 803(b)(6).
● When public records are used against a D in a criminal prosecution, the public records
exception is the exclusive applicable hearsay exception (US v. Orellana-Blanco).
Business records hearsay exception is not an avenue for admitting evidence that is
inadmissible under the public records exception (Weiland).

Unavailability of a Declarant: a threshold requirement under 804!

FRE 804(a) Criteria for Being Unavailable: A declarant is considered to be unavailable as a
witness if the declarant:
● (1) is exempted from testifying about the subject matter of the declarant’s statement
because the court rules that a privilege applies;
● (2) refuses to testify about the subject matter despite a court order to do so;
● (3) testifies to not remembering the subject matter;
● (4) cannot be present or testify at the trial or hearing because of death or a then-
existing infirmity, physical illness, or mental illness; or
● (5) is absent from the trial or hearing and the statement’s proponent has not been
able, by process or other reasonable means, to procure:
○ (A) the declarant’s attendance, in the case of a hearsay exception under 804(b)
(1) or (6); or
○ (B) the declarant’s attendance or testimony, in the case of a hearsay exception
under Rule 804(b)(2), (3), or (4).
● But this subdivision (a) does not apply if the statement’s proponent procured or
wrongfully caused the declarant’s unavailability as a witness in order to prevent the
declarant from attending or testifying (forfeiture, wrongdoing)
● When the testimony is offered in the form of a transcript of the prior trial, there are two
levels of hearsay:
○ (1) The transcript, i.e., the statement of the court reporter about what was said on
the witness stand at the prior trial, is hearsay
■ The public records exception creates an exception for this statement
○ (2) The witness’ testimony at the prior trial is also hearsay
■ The former testimony exception allows the testimony to be received

Exception: Former Testimony 804(b)(1)

FRE 804(b)(1) The Exceptions: The following are not excluded by the rule against
hearsay if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
● (A) was given as a witness at a trial, hearing, or lawful deposition, whether given
during the current proceeding or a different one; and
● (B) is now offered against a party who had — or, in a civil case, whose predecessor in
interest had — an opportunity and similar motive to develop it by direct, cross-, or
redirect examination
FOCUS ON:
● This exception applies to testimony given by declarant in another trial or proceeding,
including a deposition or earlier hearing in the same case
 ● Need to focus on the nature of the SECOND proceeding/hearing when introducing
prior testimony, as opposed to the first hearing where the testimony occurred
○ There may be other exceptions that allow introductions of prior statements
other than under 804 (e.g. admission, 801(d)(A))

REMEMBER: All statements under 804(b) must meet threshold requirements of

unavailability under 804(a)!!!
● 804(b)(1) applies differently to criminal vs. civil cases:
○ Civil:
■ Unavailable
■ Testimony given in a prior trial/hearing/etc.
■ Offered against a party or a party whose predecessor in interest (a
person or entity at prior litigation) had an opportunity and similar motive
to develop it under direct/cross/redirect examination
○ Criminal:
■ Unavailable
■ Testimony given in a prior trial/hearing/etc.
■ Offered against a party (same party) who had an opportunity and
similar motive to develop it under direct/cross/redirect examination

U.S. v. Bollin: A criminal D who invokes his 5A privilege makes himself unavailable to any other
party.
Facts: D was convicted of investment fraud. DC allowed the Gov’t to present a redacted version
of D’s grand jury testimony (as admissions 801(d)(2)) but refused to allow him to present the
omitted portions under the rule of completeness or the former testimony exception to the
hearsay rule. D tries to invoke 804(b)(1) to bring in his former testimony where he pled the 5th in
the current trial
Holding: inadmissible→ By invoking his 5A privilege, D made himself unavailable for
the purpose of preventing his testimony, and he therefore cannot invoke the
exception in Rule 804(b)(1).
● When you’re “unavailable”, you can’t make yourself “available”
● While D contends that his testy should have been admitted under the rule of
completeness (106), the omitted testy was not necessary to avoid misleading the jury
● What is the best argument the gov. has to bring in D’s prior statement? It’s an
admission (a statement of a party opponent)! See p. 216 fn. 16. Gov. IS allowed to
bring in his statement as an admission!
○ Obviously, D CANNOT bring in his own statement as an admission because an
admission is a statement by a party opponent – and D is not a party opponent,
he is NOT prosecuting himself
Kirk v. Raymark Industries, Inc. can’t use former testimony unless declarant unavailable
Facts: Asbestos case, D offered expert testimony to prove that the overwhelming majority of
asbestos cases was from a different type of fiber that their material didn’t contain. P was
allowed to read from testimony from another case of another one of D’s experts, in which the
expert admitted on cross that D’s fibers could cause mesothelioma.
Issue: whether the statement of the expert in the previous case could be admitted.
Holding: REVERSED – testimony CANNOT come in
● P tries to justify the admissibility under 2 theories:
○ (1) The statement is an admission
■ Expert is NOT an agent of D, and expert’s testimony is just his or her
opinion regarding the matter. Expert NOT authorized to make an
admission for the party he is testifying for – they just give her
opinion.
● Experts give information to the factfinder that they wouldn’t have
otherwise. Expert isn’t an “advocate”
○ (2) Exception under Rule 804(b)(1)
■ It is the proponent of the statement offered under 804 who bears the
burden of proving the unavailability of the declarant.
■ Nothing in the record indicates that reasonably means were used by P to
procure the services of the prior expert so that he would testify at the
present trial.
■ P tried to counter that the expert lived in another state and beyond
subpoena, but ct says P didn’t try to contact and pay regular expert fee
■ P failed to show that she used reasonable means to enlist the prior
expert’s services
Clay v. Johnson-Manville Sales Corp.: dr. is a predecessor in interest; prior testimony
admissible
Facts: P argues that judge erred in excluding a deposition taken from a witness, Dr. S, in the
case DeRocco. Dr.’s deposition was relevant to the asbestos issue. Dr. died before the trial of
this case. This is hearsay because it is an out-of-court statement (another trial is still considered
an out-of-court statement). P is trying to get the statement in under 804(b)(1) former testimony
Issue: Ascertain the meaning of “predecessor in interest” in Rule 804(b)(1)
Rule: Prior testimony of an unavailable witness is admissible if the party against whom the
testimony is introduced is a successor in interest to the party against whom the original
testimony was offered and that party had an opportunity to cross-examine the witness
Holding: Prior deposition should be admitted→Previous party here has a “like
motive” as the present party
● The Dr. is a “Predecessor in interest”
● If it appears that in former suit a party having a like motive to cross-examine about the
same matters as the present party would have, was accorded an adequate opportunity
for such examination, the testimony may be received against the present party
U.S. v. Salerno: SCOTUS: to get in prior testimony, need to have had similar motive before
Facts: Ds were charged with RICO violations and other federal crimes. At a grand jury hearing,
two owners of a concrete firm allegedly a part of the racketeering ring testified that neither they
nor their firm had participated in the ring. At trial, however, the owners of the firm invoked their
5th A privilege against self-incrimination. As a result, Ds sought to introduce the owners’
testimony from the grand jury proceeding under 804(b)(1).
Issue: Whether 804(b)(1) allows a criminal defendant to introduce the grand jury testimony of a
witness who asserts the 5th A privilege at trial
Holding: Proof of a similar motive is required, and that proof was not presented in this
case→ remanded to fig out if there was a similar motive
● Witnesses are unavailable under 804(a)(1); they are exempt bc they’ve invoked 5th A
● 804(b)(1) permits admission of former testimony against a party at trial only when that
party had a similar motive to develop the testimony by direct, cross, or redirect
examination
○ Must have opportunity to cross-examine and similar motive
● NOT same motive→ The gov’t did not have this motive bc the motive of a
prosecutor in questioning a witness before the grand jury in the investigatory
stages of a case is far different from the motive of a prosecutor in conducting
a trial
○ Grand jurys are a lower bar→ it is not adversarial
Dissent: not accurate to say the party lacked a similar motive to cross-examine the witness
Note: This is different than Bollin because Bollin invoked his own privilege and was the person
who made himself unavailable. Here, the persons who made themselves unavailable are
different than the persons who are trying to bring in the testimony
● hypo → if it’s civil instead of criminal → can be predecessor in interest but still
have to fig out if similar motive

Exception: Dying Declarations

FRE 804(b)(2) Statement Under the Belief of Imminent Death: In a prosecution for
homicide or in a civil case, a statement that the declarant, while believing the declarant’s
death to be imminent, made about its cause or circumstances, is excluded from the hearsay
rule
Requirements for dying declaration
● Unavailability
● Certainty of impending death
● Must be a sufficient basis to believe that the declarant is speaking based on
knowledge and not on mere suspicion or conjecture
○ Firsthand knowledge assured by rule 602
● Statement must concern the cause or circumstance of the declarant’s impending death
● Exception to the hearsay rule justified on grounds of reliability and practical necessity
● The notion of special likelihood of truthfulness of deathbed statements was widespread
long before recognition of the rule against hearsay in the 1700s
● Now the general principle on which dying declarations are admitted is that they
are declarations made in extremity
○ When the party is at the point of death, every hope in the world is gone, every
motive to falsehood is silenced, and the mind is induced by the most powerful
considerations to speak the truth
● Common law rule required that the statement be of a homicide victim, but the theory of
admissibility applies equally in civil cases and in prosecutions for crimes other than
homicide
Shepard v. United States: Cardozo (1933): To make out a dying declaration, the declarant
must have spoken without hope of recovery and in the shadow of impending death
Facts: D was convicted of murdering his wife. At trial, the wife’s nurse testified that Mrs.
Shepard told her, “Dr. Shepard has poisoned me.” Before she said those words, the wife
asked the nurse to retrieve a bottle of whiskey from her room, said she drank it right before
collapsing and that it smelled and tasted weird, and asked the nurse if it could be tested for
poison. The wife said that she was not going well and that she was going to die. She actually
died a few weeks later after a relapse in her condition accompanied by an infection of the
mouth, congestion of the eyes, and hemorrhages of the bowels
● Government’s Argument: Statement is a dying declaration → COURT SAYS NO
Holding: There was a failure to make out the imminence of death, NOT a dying declaration
REVERSED
● unavailable→ yes, dead
● On the day of the statement, all hope had NOT been lost. The wife had greatly
improved from her previous state at that point, and was seemingly moving forward to
recovery. There was also no diagnosis of poison.
● She may have thought she was going to die and said so to the nurse, but this was
consistent with hope
○ (e.g. she told the doctor “you will get me well, won’t you?” the next day)
● The patient must have spoken with the consciousness of a swift and certain
doom, and the words were not spoken in that mood here. She spoke as one ill,
giving voice to the beliefs and conjectures of the moment. She wanted the liquor tested
to see if her belief was true. She didn’t speak like a dying person.
● Fear or even belief that illness will end in death will NOT avail of itself to make a dying
declaration – 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
(Mattox)

Exception: Declarations Against Interest

FRE 804(b)(3) Statement Against Interest: A statement that:
● (A) a reasonable person in the declarant’s position would have made only if the person
believed it to be true because, when made, it was so contrary to the declarant’s
proprietary or pecuniary interest or had so great a tendency to invalidate the
declarant’s claim against someone else or to expose the declarant to civil or criminal
liability; and
● (B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to expose the
declarant to criminal liability is excluded from the hearsay rule

The elements of declarations against interest are as follows:

● Declarant is unavailable
● Declarant makes a statement contrary to her own interests regarding the Declarant’s:
○ Financial or property interests
○ Tort or contract interests (potentially expose Declarant to civil liability)
○ Penal interests (expose Declarant to criminal liability)
● In criminal cases, corroborating evidence is required
 Unlike the admissions doctrine, the present exception applies only to statements that are
obviously contrary to the interest of the declarant - so contrary, in fact, that a "reasonable
person" would make the statement only if it were true

Admissions 801(d)(2): Dec. Against Interest 804(b)(3):

● Exception to the hearsay rule? ● Exception to the hearsay rule?
○ NOT hearsay ○ YES its hearsay
● Who made the statement? ● Who made the statement?
○ Party opponent ○ Anyone can make the statement,
● Unavailability doesn’t matter doesn’t matter
● Content of an admission: ● Unavailability is a requirement! 804
○ basically anything unless ● Content requirement:
its irrelevant or more ● Must be so contrary to the declarant’s
prejudicial than probative interest that a reasonable person in the
declarant’s position would have made
the statement only if the person believed it
to be true AND makes the declarant an
object for criminal (which also requires
independent corroborating evidence) or
civil liability
U.S. v. Duran Samaniego (stealing belts): An apology is not admissible to prove the reasons
why the declarant is apologetic
Facts: Brother-in-law stole P’s champion belts which ended up in the hands of D. D argues that
DC should not have admitted testimony about the brother-in-law’s apology, claiming that it is
inadmissible hearsay. DC allowed it on the theory that the out-of-court statement described an
existing state of mind or emotion, and for that reason fit within the hearsay exception of 803(3)
● Disputed Evidence: A purported apology from Iglesias – the lower court had permitted
a number of witnesses, including Duran and his family members, to testify that Iglesias
apologized in their presence for stealing the belts.
Holding: Statement is admissible, but NOT properly admitted under 803(3)
● 803(3): Does the apology fall within the 803(3) exception because it is a statement of a
memory or belief to prove the fact remembered or believed? NO!
○ Not the problem that it’s for the truth of the matter: An apology is evidence of
a then-existing state of mind: remorse. The apology is admissible to prove the
truth of the matter asserted (that Iglesias felt remorse when he apologized). That
isn’t the problem!
● The problem is explaining the state of mind: the problem is that the state of mind
exception DOES NOT permit the witness to relate any of the declarant’s statements as
to why he held the particular state of mind, or what he might have believed that would
have induced the state of mind
○ The purpose of the exclusion from Rule 803(3) admissibility is to narrowly limit
those admissible statements to declarations of condition (e.g. I’m scared) and not
belief (e.g. I’m scared because someone threatened me)
 ● The testimony admitted in this case was NOT limited to the fact that Iglesias
expressed remorse, but included the fact that he said he apologized and asked for
forgiveness for having stolen the belts.
○ What Iglesias said was to show NOT ONLY that he was remorseful, but ALSO
that he had stolen the belts.
■ Rule 803(3) expressly PROHIBITS the use of a statement of a then-
existing state of mind in this way.
● Instead, the apology is a statement against interest because it would subject the
declarant to civil or criminal liability under 804(b)(3)
○ For a statement to be admissible under 804, the declarant must have
been unavailable→ Declarant (brother-in-law) was unavailable because
he lived in Panama and P took reasonable means to locate him
○ Civil case, matters because easier to admit statements, no corroboration
requirement
U.S. v. Jackson (coke from Jamaica)
Facts: D convicted of conspiring to import cocaine into the U.S. D argues that court abused its
discretion in refusing to admit the entire plea allocution of co-conspirator Brown. Specifically, he
challenged the exclusion of Brown’s statement that Brown never supervised
Holding: Statements NOT allowed in!
● 804(a)(1) D. Brown was unavailable at D’s trial because he invoked the 5th A right
against self-incrimination
● FRE 804(b)(1) Former Testimony exception analysis:
○ Not admissible under 804(b)(1)(B) (former testimony exception) because the
gov’ts role at a plea proceeding is quite limited, and certainly doesn’t include the
opportunity to engage in rigorous examination like at a trial. There is no similar
motive, so statement is inadmissible
● FRE 804(b)(3) Declaration Against Interest exception analysis:
○ In Williamson v. U.S., the Court held that 804(b)(3) doesn’t allow admission of
non-self-inculpatory statements, even if they are made within a broader narrative
that is generally self-inculpatory. Each particular hearsay statement offered under
804(b)(3) must be separated and must, itself, be self-inculpatory
■ The statements by Brown that D sought to introduce at trial (that Brown
never supervised D and never asked D to go to Jamaica to smuggle
drugs) were not self-inculpatory as to Brown. They did not, therefore,
satisfy Williamson
○ 804(b)(3) requires that if the statement exposes the declarant (Brown) to criminal
liability and is offered to exculpate the accused (D), the proponent of the
statements must identify corroborating evidence that clearly indicate the
trustworthiness of the statement
■ Even if Brown’s statements could be considered self-inculpatory, D hasn’t
satisfied the corroboration requirement

Exception: Forfeiture by Wrongdoing

 FRE 804(b)(6) Statement Offered Against a Party That Wrongfully Caused the
Declarant’s Unavailability: A statement offered against a party that wrongfully caused — or
acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so
intending that result, is excluded from the hearsay rule

Basically
● A party forfeits the right to object on hearsay grounds to the admission of a declarant’s
prior statement when the party’s deliberate wrongdoing or acquiescence therein
procured the unavailability of the declarant as a witness
○ The wrongdoing NEED NOT consist of a criminal act. The rule applies to all
parties, including the government
○ The usual 104(a) preponderance of the evidence standard has been adopted
in light of the behavior 804(b)(6) seeks to discourage

Giles v. California (gf killer):

Facts: D was convicted of fatally shooting his girlfriend, Avie. Over D’s objection, the court
admitted statements that Avie made to a police officer responding to a domestic-violence report
about 3 weeks before the shooting. She told the police that D accused her of having an affair
and beat her, threatening to kill her if he found her cheating on him
● EVIDENCE: statements that Avie made to a police officer responding to a domestic
violence report three weeks before the shooting about D’s attack on that day, including
D’s threat to kill her if he found her cheating on him
○ Trial court admitted the statements under CA provision that permits admission of
out of court statements describing the infliction or threat of physical injury on a
declarant when the declarant is unavailable to testify at trial and the prior
statements are deemed trustworthy
○ Avie’s statements were testimonial hearsay. The State maintains that 6A did
not prohibit prosecutors from introducing the statements because an exception to
the confrontation guarantee permits the use of a witness’s unconfronted
testimony if a judge finds that D committed a wrongful act that rendered the
witness unavailable to testify at trial
Rule: Forfeiture by Wrongdoing exception applies only if the defendant has in mind the
particular purpose of making the witness unavailable→ That was not the case here
Holding: The lower court did not consider the intent of the defendant. REVERSED.
● The forfeiture by wrongdoing exception only applies to situations where the defendant
causes the witness' absence with the INTENTION of preventing that witness from
testifying at trial. Without this intention, any act by the defendant making the witness
unavailable does not waive that defendant's Sixth Amendment right to confront and
cross-examine the witness, and therefore any out-of-court statements made by the
witness are inadmissible as evidence
● Prof: 803(1) Contemporaneous statement; 803(2) Excited utterance, look good as
exceptions, but why isn’t it good enough for them?
○ Confrontation Clause 6A is the elephant in the room because she’s dead, and
the statements were testimonial! You need a different exception
 ■ In the real world, if a statement is testimonial, fight to bring in under
dying declaration OR forfeiture by wrongdoing
● Statements to the police are hearsay. The statements are being admitted for the
TOTMA—that he held a knife to her and threatened to kill her
● Is the theory of forfeiture by wrongdoing is a founding-era exception to the
confrontation right? YES when conduct is designed to prevent testifying
○ 2 forms of testimonial statements are admitted at common law though
unconfronted: (1) dying declarations, and (2) forfeiture by wrongdoing
○ Forfeiture by wrongdoing which permits the introduction of statements of a
witness who was detained or kept away by means or procurement of D. The
exception applied only when D engaged in conduct designed to prevent the
witness from testifying. D has to make victim unavailable with the intention of
making her unavailable for court.
● State’s & Dissent’s Argument: D shouldn’t benefit from his own wrongdoing
○ For that serious crime, as for others, abridging he constitutional rights of criminal
defendants is not in the state’s arsenal
● Scalia Exception: The domestic violence context is relevant because such acts of
violence are committed to dissuade a victim to resorting to outside help and to prevent
testimony to police or cooperation in criminal prosecutions
○ Where an abusive relationship culminates in murder, the evidence may support a
finding that the crime expressed the intent to isolate the victim and to stop her
from reporting abuse to the authorities or cooperating with a criminal prosecution,
rendering her prior statements admissible under forfeiture doctrine
○ Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting
to outside help would be highly relevant to this inquiry as would evid of ongoing
criminal proceedings at which the victim would have been expected to testify
Thomas (Concurring): respondent doesn’t argue that the contested evidence is nontestimonial
Alito (Concurring): Not convinced that the out-of-court statement at issue fell within the
Confrontation Clause
Dissent: D loses his right to confrontation when he makes a witness unavailable due to his own
wrongdoing, even if he did not act with the specific intention of preventing her from testifying at
trial
● The law does not often turn matters of responsibility upon motive, rather than intent –
there is no reason to believe that application of the rule of forfeiture constitutes an
exception to this general legal principle. To turn application of the forfeiture rule upon
proof of D’s purpose rather than intent as the majority does creates serious
practical evidentiary problems and cannot be squared within the exception’s basically
ethical objective

Hearsay and Machine-Generated Proof NOT ON EXAM

People v. Lopez:
Facts: D was convicted of vehicular manslaughter while intoxicated
 ● Evidence: To prove intoxication the prosecution relied on a nontestifying lab analyst’s
blood alcohol report. Pages 2-6 of the report consisted entirely of data generated by a
gas chromatography machine to measure calibrations, quality control, and the
concretation of alcohol in the blood sample
● D’s Argument: D argued that the entirety of the report was testimonial hearsay that
violated 6A rights
Issue: Is the prosecution’s use at trial of a machine printout violative of D’ s 6A rights when the
printout contains no statement from the operator attesting to the validity of the data shown?
Holding: NO! Reported admitted, affirmed.
● Even though the analyst’s signature appears on the report’s 2nd page and initials on the
following pages, no statement by the analyst, express or implied, appears on any of
those pages
● Cites cases to say the printouts are not statements because the machines aren’t
declarants, Sotomayor concurrence in Bullcoming that using a machine generated
printout may not violate D’s 6A right
● Unlike a person, a machine cannot be cross-examined so the prosecution’s right to
introduce into evidence the printouts of a nontestifying analyst’s report does NOT
implicate 6A

Hearsay and Due Process

● Constraints on Hearsay by the Constitution
○ (1) Confrontation Clause
○ (2) Due Process Clauses of 5A and 14A
■ Due process can require the admission of some evidence offered by a
criminal D, even if the hearsay rule or other rules of evidence would
otherwise prohibit the use of the statements
■ FEW STATEMENTS FALL INTO THIS CATEGORY!
Chambers v. Mississippi (DP violation): A state cannot violate a defendant’s rights under the
14th A by restricting a defendant from examining a witness through the strict application of
evidence rules
Facts: D was accused of murdering a police officer during a confrontation between police and a
hostile crowd. Several months after D’s arrest, McDonald spoke with D’s attorneys and gave a
written confession to the murder. McDonald repudiated his confession at a subsequent
preliminary hearing and was released from custody. At trial, D called McDonald as a witness
and had his confession admitted into evidence. After the prosecution cross-examined
McDonald, D moved to examine him as an adverse witness in order to challenge the credibility
of his subsequent repudiations of his confession. The trial court denied his request for adverse
examination. D attempted to elicit testimony of three additional witnesses who would have
presented evidence of conduct and statements tending to validate McDonald’s confession. The
trial court excluded the admission of testimony from each witness on hearsay grounds. D was
convicted and appealed
● Problem: Chambers wanted to show that McDonald repeatedly confessed to the crime
by proving that McDonald admitted responsibility for the murder on 4 occasions: the
statement to Chambers’ counsel, and 3 times in private conversations with friends
Issue: Is there a violation of the Due Process Clause of the Fourteenth Amendment when the
defendant cannot cross-examine a witness or admit the testimony of another person’s
confession of the crime to a third party?
Holding The exclusion of the evidence coupled with the state’s refusal to permit
Chambers to cross-examine McDonald denied him a trial in accord with due process.
● The voucher rule (that a D can’t impeach its own witness because he “vouches” for him)
prevented D from discovering the circumstances of McDonald’s oral confession and
challenging his repudiated written confession, which deprived D of the right to contradict
testimony offered against him
● Under the Due Process Clause, defendants have the right to confront and cross-
examine witnesses and to call witnesses on their own behalf
● The Court also held that the hearsay statements were not untrustworthy evidence but
were a crucial part of D’s defense and could have led the jury to a different decision
● Right of cross-examination is more than a desirable rule of trial procedure. It is implicit in
the constitutional right of confrontation, and helps assure the accuracy of the truth-
determining process
● Where constitutional rights directly affecting the ascertainment of guilt are implicated, the
hearsay rule may not be applied mechanistically to defeat the ends of justice
● Narrow ruling
● Would not come in under 804(b)(3) (statement against interest) because he was not
unavailable
● CHAMBERS V. MISSISSIPIPPI IS NOT REALLY A LIMITATION ON HEARSAY RULE
BUT A LIMITATION TO ANY RULE OF EVIDENCE TO BLOCK PROOF
Fortini v. Murphy
Facts: D shot and killed Monterio, and argued self-defense
● Disputed evidence: trial judge excluded evidence that Monterio, the victim, assaulted 4
men on a basketball court shortly before his confrontation with D
● D’s argument is that this ruling violated Chambers
Holding: The exclusion of evidence in question does not rise to the level of a Chambers
violation
● Chambers is the law, but the Court rarely invokes it to overturn convictions – only for
extreme cases. A state law justification for exclusion will prevail unless it is arbitrary or
disproportionate and infringes upon the weighty interest of the accused
● D has a strong argument that the evidence in question should have been admitted under
conventional evidence rules – while the basketball court episode wasn’t relevant to
D’s state of mind it was relevant to Monterio’s, making it more likely than it would
be without evidence that Monterio lunged at D as claimed
○ The basketball incident might look like mere character evidence portraying the
victim as a violent man, and such evidence is commonly excluded because of
prejudice
○ In federal court and under MA law, the incident was so close in time to the
shooting so as to suggest that it might fall within the exceptions that admit
acts demonstrating state of mind and emotion of the actor, here Monterio
(who lunged)
 ● The evidence here was prejudicial because it made Monterio out to be a violent man to
the jury, but the court did not exclude on grounds of undue prejudice and there is
no certainty it would’ve done so if it had appreciated the relevance of the evidence. It is
hard for us to see why such bad acts would be categorically to be inadmissible.
● Yet not every ad hoc mistake should be called a violation of due process/
Chambers
○ The SCOTUS cases where Chambers was used were more egregious.

Chapter 4: Character Evidence

FRE 404 Character Evidence; Other Crimes, Wrongs, or Acts
(a)(1) Prohibited Uses. Evidence of a person’s character or character trait is NOT admissible
to prove that on a particular occasion the person acted in accordance with the character or
trait.
● Basically: YOU CANT BRING IT IN IN A CIVIL CASE (unless for impeachment)
○ Can try to use habit/404(b)(2) non character theory of admission
(a)(2) Three exceptions:
1. One for the character of a criminal defendant
○ FRE 404(a)(2)(A)
■ Must be invoked by a criminal defendant
■ If an accused has raised a pertinent issue of her character, the
Prosecutor may then rebut evidence of good character brought up by
the accused
2. One for the character of the victim or alleged victim of a criminal offense
○ FRE 404(a)(2)(B)
■ Must be invoked by a criminal defendant
■ A defendant may offer evidence of an alleged victim’s pertinent trait
■ If the evidence is admitted, the prosecutor may (i) offer evidence to
rebut it; and (ii) offer evidence of the defendant’s same trait
○ FRE 404(a)(2)(C) 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
3. One for the character of a witness→ his credibility
● Idea: Unfair / improper to put D’s character on trial
● **Barred ONLY IF it is offered to prove conduct in conformity w the trait**
● D’s choice as to whether to open up character, but once he does, it is open to
prosecution too!
● Old Chief: Justice Jackson → “The inquiry is not rejected because character is
irrelevant; on the contrary, it is said to weigh too much with the jury to so
over persuade them as to prejudge one with a bad general record and deny
him a fair opportunity to defend against a particular charge”
● CIVIL: can only bring in character evidence if for impeachment, habit 406, 404(b)(2) non
character theory of admission
Character in Issue
● Character questions arise in two fundamentally different ways:
 ○ 1. “Character in issue” → when character is relevant for some purpose
other than conduct in conformity in character→ Character may itself be
an element of a crime, claim, or defense
■ E.g., competency of the driver in an action for negligently entrusting a car
to an incompetent driver
○ 2. “Circumstantial” use of character → Character evidence is susceptible
of being used for the purpose of suggesting an inference that the
person acted on the occasion in question consistently with his
character
■ Circumstantial use of character is rejected, with exceptions in 404(a)(2)
People v. Zackowitz (1930) – (guns at home) character cannot be used→ Character is
never an issue in a criminal prosecution unless the D chooses to make it one
Facts: Guy asked D’s wife to sleep with him for $2, D goes to the guy’s shop with a gun and the
guy ends up shot dead. At trial prosecution introduced evidence that D had other weapons at
home. Gov. trying to show the killing was premeditated
Evidentiary Issue: the admission of evidence that D had other weapons at home
Holding: Reversed – character cannot be used here
● The issue is NOT one of relevance – if D is criminally inclined and had a murderous
disposition, it is more likely that the killing was premediated.
● The issue IS ONE OF UNFAIR PREJUDICE – that character is more probative of
conduct than it really is, etc.
● Cardozo also says a reason for the character evidence rule is that a criminal D should
be able to start his life fresh, not have to carry his deeds that are no longer in issue
● Danger that jury will overuse or overvalue evidence of “bad character.” Something
fundamentally wrong about adjudicating present disputes based on past conduct.
● The issue with character evidence is “he did it before, he’ll do it again”
● If the pistols had been bought in expectation of the crime, they would be admissible as
evidence of preparation and design. But there’s no implication of preparation/design/etc.
from the ownership of guns which one leaves at home
Cleghorn v. NY Central & Hudson River R.R. Co. (drunk RR) chacter to show knowledge in
negligence suit
Facts: Switchman forgot to close the switch after train had passed on to the sidetrack gave a
false signal to the approaching train that the track was all right. Court admitted evidence that
switchman was intoxicated at the time of the accident and that he was a man of intemperate
habits, which were known by the company
Holding: The evidence was competent upon the question of gross negligence on the part of the
D in employing or continuing the employment of a subordinate known to be unfit due to
intoxication
● Not admissible to prove that because he drank alcohol in the past, it means he drank it
at the time of the incident. RATHER, admissible to show that the railroad had knowledge
that he has these habits and they knew the danger of continuing his employment
Berryhill v. Berryhill – character allowed in custody proceeding
Evidence at issue: “have you killed anyone” – evidence of his violent character
Holding: Allowed here because custody dispute in civil suit
 ● Not to show that because he acted violently before he acted violently now. The character
is relevant to their fitness as a parent→ purposes of child safety
Larson v. Klapprodt: evidence of reputation admissible because relevant to slander claim
Evidence at issue: Klappodt’s reputation for drinking to excess and being sexually
promiscuous
Holding: Allowed. Not admitted to show did it again, will do it now. Admitted for:
● (1) Demonstrating the truth of the defamatory statements
○ Only defamatory if the declarant is lying… need to know whether the statements
are true
● (2) Show there was damage to reputation
○ If the person’s reputation sucks already then it doesn’t make it any worse
United States v. Baez:
Facts: Baez wants to argue entrapment. Gov wants to rebut and introduce evidence showing
Baez’s predisposition to commit the offenses. DC court admitted BAez’s statments, conduct and
prior convictions for weapons posession as proof.
Holding: Baez’s predisposition is not barred, affirmed
● if a D presents credible evidence of gov inducement, then the prosecutor must show
predisposition beyond a reasonable doubt
Methods of Proving Character
FRE 405. Methods of Proving Character
(a) By Reputation or Opinion. When evidence of a person’s character or character trait is
admissible, it may be proved by testimony about the person’s reputation or by testimony in the
form of an opinion. On cross-examination of the character witness, the court may allow an
inquiry into relevant specific instances of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s character or character trait is an
essential element of a charge, claim, or defense, the character or trait may also be proved by
relevant specific instances of the person’s conduct.
● Character exceptions apply only to testimony about a person’s reputation, or a witness’
own opinion about the person’s character.
● Evidence of how the person has acted on other occasions is excluded
○ **Unless on cross-exmaination or trait is essential element**
Michaelson v. United States: on cross examination, injury is allowable as to whether the
reputation witness has heard of particular instances of conduct pertinent to the trait in question
Facts: D convicted of bribing a federal revenue agent, but says it was entrapment. D called 5
witnesses re proof of his good character, testifying to his honesty. The witnesses did NOT give
detailed examples of why they think he’s honest – 405 prohibits that so they didn’t – good.
Holding: The question permitted by the trial court was proper cross-examination because
reports of defendant’s arrest for receiving stolen goods, if admitted, would tend to weaken the
assertion that he was known as an honest and law-abiding citizen
● Generally, the prosecution may not resort in its case in chief to any kind of evidence of
D’s evil character, disposition, and reputation to establish probability of his guilt
○ While the prosecution cannot show D’s prior trouble with the law, ill name, etc., D
may introduce testimony that his character is so favorable that the jury may infer
that he would not be likely to commit the offense charged
 ○ Then, when the D puts his reputation in issue, the entire subject is fair game
and the prosecution may cross-examine the D’s character witnesses as to the
contents and extent of the hearsay on which they base their conclusions
● He opened the door 404(a)(2)(A)!!!! Proscutor can bring in contradicory character evid
● He invoked 405 to provide testimony about the person’s reputation – D allowed to
put on evidence of his character trait for truthfulness but limited to reputation or
opinion evidence (opinion-based-on-hearsay testimony)
○ Not allowed to give a specific example of returning someone’s lost wallet
● **Use p. 277 fn 3→ Court instructed jury to not assume that the incidents asked
about actually took place, said that all that is happening is that this witness’
standard of opinion of the reputation of the D is being tested
○ Can cross examain for reliability of the witness
Notes:
● FRE confines the use of evidence of specific instances of conduct to cases in which
character is in issue (and hence deserving of a searching inquiry)
● When character is used circumstantially (and hence occupies a lesser status in the
case), proof may be only by reputation and opinion
Government of the Virgin Islands v. Roldan: When defense puts D’s reputation in issue-
prosecution can question D’s character
Facts: D convicted of murder. Testimony is from D’s nephew’s wife.
● D’s cross-examination:
○ Q: Would you say that he is a lonely, unsociable fellow?
○ A: He is a man that never bother nobody
● Government’s redirect examination:
○ Q: You knew he was convicted of murder in the first degree?
○ A: Yes
○ Q: And you would still say he is a man who never bothers anyone?
○ A: Yes
D argues that it was error for the DC to have allowed the Government to inquire whether
Witness knew that D had been convicted previously of 1st degree murder, since evidence of
prior bad acts is generally inadmissible
Holding: The government’s questions/impeachment testimony are admissible
● By asking questions about D’s social habits, D’s counsel had put D’s character in issue
● The questions D’s counsel asked Witness are directed toward establishing
that D had little contact with anyone→ would therefore be unlikely to have
reason to murder anyone
● Because D’s counsel put D’s character in issue, prosecution can question D’s
character
US v. Krapp: Questions regarding specific facts of bad acts must be grounded in good faith
Facts: Krapp presented a character witness who testified she is honest and trustworthy, but on
cross the prosecution asked “did you know” that D’s husband omitting things for tax purposes
Holding: Even if the question was improper, it was not so offensive as to warrant a mistrial
● Case tells you what the gov. needed to ask question like this: gov needs good faith
basis to ask the question / good faith belief the statement is true!
 ● here, the prosecution did not have a good faith belief to ask this question. The
prosecutor knew the tax return had not been filed.
● Still wasn’t reversed, but still bad job on part of the attorney
U.S. v. Setien: Evidence of good conduct is not admissible to negate criminal intent
Facts: D convicted of conspiracy to import coke. D’s witness (coke importer) testified that he
offered D the opportunity to be involved in importing coke but D always refused
Holding: Testimony was irrelevant under 405(b) (“When a person’s character or character trait
is an essential element of a charge, claim, or defense, the character or trait may also be proved
by relevant specific instances of the person’s conduct”) and was not admissible under 404(b)
(“Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted in accordance with the character”)
● Witness’ testimony was merely an attempt to portray D as a good character through the
use of prior good acts; this is inadmissible character evidence
U.S. v. Ford: prior, specific “good” act inadmissible under 405
Facts: D convicted of wire fraud. DC did not allow D to testify that she had cooperated in an FBI
investigation of an identity-theft scheme. D argues that she should have been allowed to testify
about her cooperation with the FBI as evidence of her law-abiding character under 404(a)(2) (“a
defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted,
the prosecutor may offer evidence to rebut it”)
Holding: Under 405(a), admissible character evidence may be introduced in the form of opinion
or reputation testimony. Specific instances of the D’s character, on the other hand, may only be
introduced if that character “is an essential element of a charge, claim, or defense” 405(b)
● D’s testimony about the time she tipped off the FBI is evidence about a specific
instance of her character
● D’s law-abidingness is not an essential element of a wire fraud charge, nor a def to it

Other Uses of Specific Conduct- Permissible Purposes

FRE 404(b)(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible
to prove a person’s character in order to show that on a particular occasion the person acted
in accordance with the character.

FRE 404(b)(2) Permitted Uses. This evidence may be admissible for another purpose, such
as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.

FRE 404(b)(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:
● (A) provide reasonable notice of any such evidence that the prosecutor intends to offer
at trial, so that the defendant has a fair opportunity to meet it;
● (B) articulate in the notice the permitted purpose for which the prosecutor intends to
offer the evidence and the reasoning that supports the purpose; and
● (C) do so in writing before trial — or in any form during trial if the court, for good cause,
excuses lack of pretrial notice.
● The evidence listed above is allowed in because the evidence serves a different,
legitimate purpose and is not being introduced as character evidence at all
 ● Prior acts need only pass the Huddleston standard, under which a judge will admit the
prior crime, wrong, or act if a jury could believe the act actually happened
● Evidence of uncharged misconduct by defendants is routinely admitted in criminal
cases (on the theory that it is being used to prove something other than the defendant’s
character)
● 404(b)(2) Motive v. Intent
○ Motive: person attacks gay perosn → being homophebotic and gov
brings in evidence of homophobotic blog posts
○ Intent: shot someone, defense is that it was accidnt, gov brings in evidence of
diary entries that you wanted person dead
U.S. v. Beechum- evidence admissible to show intent, two step test for 404(b)
Facts: D was a letter carrier and was convicted of unlawfully possessing an 1890 silver dollar
that he knew to be stolen from the mail. Government introduced evidence that D was found with
2 stolen credit cards in his pocket
Holding: Credit cards were properly admissible to show intent→ Not used to prove that he
had the character of a thief, but that he didn’t have the intention of returning the
silver dollar
● 404(b) states that evidence of extrinsic offenses should not be admitted solely to
demonstrate the defendant’s bad character (because it is inherently prejudicial)
○ Where, however, the extrinsic offense evidence is relevant to an issue such as
intent, the evidence may have probative force that is not substantially
outweighed by its inherent prejudice—if so, then evidence may be admissible
● TWO-STEP TEST for uncharged misconduct:
○ (1) It must be determined that the extrinsic offense evidence is relevant to
an issue other than the defendant’s character
■ credit card evid is relevant to D’s intent with respect to the silver dollar
■ Satisfied bc the fact that D possessed the cards with illicit intent
diminishes the likelihood that at the same moment he intended to turn in
the silver dollar
○ (2) The evidence must possess probative value that is not substantially
outweighed by its undue prejudice and must survive a Rule 403 analysis
(excluding relevant evidence for unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence) Lave is less interested in 403 argument- still make it
■ The credit card evid bore directly on the plausibility of D’s story (that he
intended to surrender the silver dollar to supervisor), and thus justice calls
for its admission—if he didn’t return credit cards, not going to return $
■ Satisfied bc the case depended on whether the jury was to believe that D
was telling the truth that he “intended” to hand it over to his supervisor
● Look at the jury instruction! Helps explain what the purpose of the evidence is
○ p. 289 fn. 23.
○ Before you are allowed to consider the uncharged misconduct, have to find the
elements of the charged crime are true (e.g. that D possessed the property, that
the property belonged to someone else, etc.) – only then after the gov proves the
 elements can the jury consider the uncharged misconduct for the purposes of
deteringing the state of mind or intent of accused
U.S. v. Boyd: personal drug use can be used to show motive under 404(b)
Facts: D convicted of trafficking marijuana. D argues that testimony that D personally used
marijuana and coke should have been excluded because, according to D, such evidence was
only admitted to show he had a bad character, and, therefore, must have committed the crimes
of which he was charged
● Evidence at issue is testimony that D personally used coke and weed
○ This is the uncharged misconduct – here, D appeals a conviction for weed
trafficking
Issue: Is there a non-character theory for admissibility, if so, does it survive the 403 analysis?
● Gov’s theory of admissibility for 404(b)(2): D participated in this to finance his
own use of the drug and to insure himself of a ready supply → this is his
motive!
Holding: ADMITTED. Evidence of D’s personal use is admissible under 404(b) as proof of his
motive for participating in the charged conspiracies
● 403 analysis: the evidence of B’s personal use did not involve conduct any more
sensational or disturbing then the crimes with which he was charges
● Hypo: Robbery case. Is history of D’s drug use admissible?
○ People rob because they need money. Drug habit would show a motive for the
robbery. YES, admissible.
US v. DeJohn: testimony admissible to show opportunity under 404(b)
Facts: D charged with uttering and publishing 2 US Treasury checks
● Evidence at issue: (1) Testimony of a security guard who “arrested” D for being behind
a YMCA reception desk; and (2) Testimony of a police officer (who searched D on an
occasion unrelated to the current charge) who found two checks, one of them a Treasury
check, on D during a different search
Holding: Circumstantial evidence properly admissible
● Impermissible use: Because he stole before, he’ll steal again
● Permissible use: Being brought in to show opportunity, not character
● Evidence of similar actions generally is admissible when introduced for purposes other
than those which improperly show propensity to commit the crime
○ Here, the testimony of the security officer and the policeman was probative of D’s
opportunity to gain access to the mailboxes and obtain the checks that he
cashed at a later time knowing the checks contained forged endorsements.
● The issue of opportunity became material to the trial once defense counsel set forth the
theory that it was not their client who uttered the forged checks – D’s opportunity to gain
access to the checks thus became a key issue
Lewis v. US testimony that d committed earlier burglarly admissible to show plan
● Evidence at issue is testimony that D had participated in the burglary of a garage store
earlier on the same evening that he participated in another burglary of a post office
○ Robbery of the post office is uncharged misconducd
● Gov’s non-character theory of admissibility: evidence of D’s participation in the burglary
of the post office establishes D’s plan and intent to commit the second one, because D
 allegedly took equipment from the garage store that was needed for the post office
burglary
Holding: admissible to show plan under 404(b)
● Impermissible Use: because he committed burglary earlier, he committed burglary again
● Permissible use: Showing plan and intent
U.S. v. Crocker: prior conviction admissible to show knowledge
Facts: D convicted of conspiracy to commit bank theft (his role was to drive his friend to bank).
● Evidence at issue is evidence related to a prior arrest with the same co-defendant
Holding: admissible
● D’s “knowing” participation in the conspiracy was a crucial element which if not clearly
established could have made the jury think that D was merely driving his friend to the
bank
● The fact that D had been arrested before with co-conspirator while in a car with
counterfeit checks was highly probative of his knowledge that co-conspirator’s checks
and his trips to the banks were for an illicit purpose
● Impermissible use: He’s stolen before, he’ll steal again
● Permissible use: To show D’s knowledge
US v. Dossey: prior conviction admissible to show identity
Facts: D convicted of armed bank robbery, she dresses up in a wig and wears rose-colored
glasses. The costume she wore is distinctive.
● Evidentiary issues
○ (1) D admitted to the witness that she had committed robberies in Little Rock in
which she wore the costume
■ Admitted because costume is distinctive – same place, and in part
because she wore the thing that is distinctive (identity/modus operandi)
○ (2) Witness testifies that she along with D planned and executed a bank robbery
in AZ, in which D wore the costume
■ Admitted because of the modus operandi – it’s the signature element.
The issue at stake is who did it? It’s distinctive to wear the costume.
○ (3) Witness testifies D admitted to committing robbery in Minnesota
■ Court says this isn’t enough – just propensity evidence
○ Remember, if the gov. wants to bring in a statement that D allegedly made, that’s
an admission
■ Even if something is an admission, still have to see if there’s some other
reason it can be kept out
Holding: Evidence of the AZ robbery was admissible to prove identification of the person who
robbed the AK bank, an issue that was important due to the teller’s inability to positively ID D
● Gov’s theory of admissibility: Identification of the bank robber, modus operandi
(signature crime wearing the costume)
US v. Wright: Posner-prior conviction can’t be used to show propensity
Facts: On 2 different days, plain clothes police bought crack from a man. Police identified the
man as D, but they don’t arrest him. 6 months later, they put a wiretap on his phone, and on a
call he bragged about being a drug dealer. The recording of the call was introduced at trial.
● Non-character theories→ Identity, Intent
Holding: Evidence is inadmissible
● No intent: The recording does not show that D is more likely to be guilty of the crim with
which he is charged than the average man on the street – the recording does not prove
that D was the one who sold the officers the crack on the street
○ Unless there was something distinctive, like he sold the drugs in Snoopy baggies
or said on the phone that he sold drugs to two guys on X date who he thought
were cops, can’t come in
● No identity: Just bc he’s bragging about being a drug dealer doesn’t link him to the
officer encounter
○ If he said something like he was selling that day, etc., it would be different
● This is not a relevance issue, its how the evidence is unduly prejudicial
U.S. v. Davis: LIMIT: prior possession conviction inadmissible to prove intent to distribute
Facts: Convicted of possession of coke with intent to distribute. DC admitted two prior
convictions for possessing coke as relevant to D’s intent and knowledge
Holding: D’s past convictions are inadmissible
● Possession and distribution are very different
● Past convictions are inadmissible to prove D’s knowledge:
○ One who possesses a drug might not recognize the same drug when prepared
for distribution
○ The jury had no way of knowing whether D’s experiences made him any more
likely to recognize coke in the backseat
■ Jury doesn’t know what the coke D possessed looked like in prior
convictions, so the jury couldn’t know if D’s past possession of coke
helped him identify the coke in his car
● A possession conviction does not imply an intent to distribute:
○ A prior conviction for possessing drugs does not suggest that the D intends to
distribute them in the future
US v. Ekiyor – reverse 404(b)
Facts: D seeks to compel the gov. to disclose info purportedly in the possession of the DEA and
other agencies relating to the smuggling of drugs by bag handlers
Holding: inadmissible
● Reverse 404(b) evidence → evidence of a prior act by another that is offered as
exculpatory evidence by the D, instead of being used by a prosecut againt
the D
● The Court fails to see how the info sought by D could have any probative value at his
trial apart from its use to support an impermissible propensity inference (namely, to
suggest that because baggage handlers in other cases were accused or convicted of
drug trafficking activities, it is more likely that a bag handler is responsible in this case for
the drug smuggling activity that the gov. seeks to attribute to D)
● Absent evidence that the same baggage handler changred in a diff case→
admitting this evidence would show only the propsenity of an entire class of
employees in the travel industry to engage in drug trafficking activites
Chapter 5: Other Forbidden Inferences
● Evidence of subsequent remedial measures is typically inadmissible to prove fault
● Settlement efforts generally cannot be proved to show the merit or weakness of a civil
claim or criminal charge
● Humanitarian payments are inadmissible to show liability
● The presence or absence of liability insurance generally cannot be proved to show
fault or lack of fault
Subsequent Remedial Measures
FRE 407 Subsequent Remedial Measures: 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
(i) negligence;
(ii) culpable conduct;
(iii) a defect in a product or its design; or
(iv) a need for a warning or instruction.
But, the court may admit this evidence for another purpose, such as impeachment or — if
disputed — proving ownership, control, or the feasibility of precautionary measures
● If customer slips in store, can’t introduce evidence that the store replaced its flooring
type after the slip as evidence that it was negligent for not fixing it before to a less
slippery material
● Not very probative – just because someone later thought to do something, doesn’t
mean they were negligent/culpable for failing to do it in the first place
● 401 and 402 codify the principle that minimally probative evidence should be admissible
unless there’s reason to exclude it
○ 407 argument affirmative reason to exclude it
■ public policy – if we allow the evidence to come in, it will be a
disincentive for people to fix things because they’re afraid if they fix the
floor it’ll make them more likely to not make the change and we want
them to make the change
● Evidence of repairs may be admissible for another purpose
○ e.g., allowed admission that D subsequently put out signs to show that the
portion of the road was under D’s control
○ Boeing case allowed admission of subsequent design modification to show that
changes/safeguards were feasible
■ *There is a requirement that these other purposes be controverted
Settlement Efforts
FRE 408(a) Prohibited Uses: Evidence of the following is not admissible — on behalf of any
party — either to prove or disprove the validity or amount of a disputed claim or to impeach by
a prior inconsistent statement or a contradiction:
● (1) furnishing, promising, or offering — or accepting, promising to accept, or offering to
accept — a valuable consideration in compromising or attempting to compromise the
claim; and
● (2) conduct or a statement made during compromise negotiations about the claim —
except when offered in a criminal case and when the negotiations related to a claim by
a public office in the exercise of its regulatory, investigative, or enforcement authority.
 FRE 408(b) Exceptions: The court may admit this evidence for another purpose, such as
proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an
effort to obstruct a criminal investigation or prosecution
● Public Policy: the inadmissibility of settlement offers is justified on 2 grounds:
○ Evidence is not very probative
■ People settle cases for all kinds of reasons even when they’re in the right
○ We want people to settle and they’re less likely to do so if settlement offers can
be used against them
US v. Davis: 408(a)(2) bars not only evidence of settlement offers, but also statements made in
compromise negotiations
Facts: D stole money from frat. Evidence is a conversation in which D asked if he could split the
money and make this situation go away
Holding: Inadmissible. The convo revealed D’s consciousness of guilt, which proves liability for
a disputed claim under 408(a), and is a prohibited purpose of introducing the evidence
● There is no doubt that D offered to compromise a disputed claim
● Gov intended to introduce D’s settlement offer in order to prove D’s guilt/liability
● Offers to settle are excluded even if no settlement negotiations follow
● The Rule is meant to promote settlements
● If one party attempts to initiate negotiations with a settlement offer, the offer is excluded
from evidence even if the counterparty responds: “I’m not negotiating with you”
● D asking what it would take to “make this go away,” is a compromise negotiation
● It may be that an offer of settlement that is excessive in amount can be seen as an
attempt to “buy off” the complaining party, but that is not the case here
● LAVE: Could’ve come in if it was evidence of a bribe—obstructing criminal
investigation/obstruction of justice is exception to 408
● **This is an admission BUT admission is the first step, this is another reason it cannot
come in**
Ramada Development Co. v. Rauch: Under 408, the question is whether the
statements/conduct were intended to be part of the negotiations towards compromise
Facts: Evidence in dispute is a report (Goldsmith Report), Rauch alleges it was error not to
admit the report by an architect studying the alleged defects
Rule: 408 conduct or statement made during compromise negotiations -- the fact that some
statement/discovery is made available during process of settlement negotiations doesn’t mean
its prohibited under 408. 408 only pertains to statements/evidence created FOR THE
PURPOSE OF SETTLEMENT.
Holding: inadmissible→ Court says precluded by 408 – created for settlement/compromise
negotiations
● Second arg for why report should be admitted: to show Ramada’s notice of the defects
○ Court says improper to show notice. The trial court did not abuse discretion in
excluding the report for that purpose. Can’t come in
● Case important because – PROHIBITION UNDER 408 APPLIES TO ALL
COMMUNICATIONS IN THE COURSE OF SETTLEMENT NEGOTIATIONS.
○ Illustrates how broad the prohibition can be.
 ● Report commissioned by D to be discussed in monetary terms. Because report
contained statements made in effort to compromise, its exclusion under 408 is good.
● Question is whether the statements/conduct were intended to be part of the
negotiations towards compromise!
● Remember! Can’t use this exception to make discoverable documents that were not
prepared for settlement.

PRL USA Holdings, Inc. v. US Polo Association, Inc.: Illustrates the limits of 408→
compromise negotiations admitted for estoppel defense
Facts: Ralph Lauren sues for TM infringement. D had evidence that P had affirmatively
consented to the use of the logo by the testimony of D’s employee. D attempted to prove the
affirmative defense of estoppel by acquiescence by presenting evidence that P had consented
to their use of a similar logo. P claims that the evidence should not admitted under 408 because
it consists of statements made in compromise negotiations
Holding: Admissible, estoppel by acquiescence raises issues different from the elements of a
claim of infringement
● To construe 408 as barring such evidence would substantially limit the opportunity of D
to rely on defense of estoppel
● Thus, it was admitted for a purpose (estoppel defense) other than the main claim
(infringement)
Criminal Settlements
FRE 410(a) Prohibited Uses: In a civil or criminal case, evidence of the following is not
admissible against the defendant who made the plea or participated in the plea discussions:
● (1) a withdrawn guilty plea;
● (2) a nolo contendere plea;
○ (a plea by which a defendant in a criminal prosecution accepts conviction as
though a guilty plea had been entered but does not admit guilt)
● (3) a statement surrounding a withdrawn guilty plea or a plea of nolo contendere; or
● (4) a statement made during plea discussions with a prosecutor if the discussions did
not result in a guilty plea or they resulted in a later-withdrawn guilty plea
● Same rationale as FRE 408: to encourage full disclosure during negotiations and to
promote settlement (promotion of disposition of criminal cases by compromise)
US v. Mezzanatto: (SCOTUS) Absent some affirmative indication that the agreement was
entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of
the plea-statement rules is valid and enforceable
Facts: D arrested after selling meth to undercover cop. D met with the prosecutor to discuss
cooperating with the authorities. The prosecutor told D that he had to agree that any statements
he made during the discussion could be used to impeach any inconsistent statements he might
make at trial. D agreed to this condition. During discussions, D admitted knowing that the
package he sold to the undercover cop had drugs in it. He also admitted knowing about a meth
lab at the home of a man named Shuster. Later, at trial, D denied knowing that the package
contained drugs and denied knowing about Shuster’s meth lab. On cross, over the objection of
D’s attorney, the prosecutor asked D about the prior inconsistent statements he made at their
earlier meeting. D was found guilty
Holding: Agreement to waive evidentiary rule was enforceable even over D’s
subsequent objections→ D had voluntarily entered into the agreement, the evidence
was properly admitted
 ● D CAN WAIVE HIS 410 RIGHTS
● Public Policy: The type of waiver in this case (admission of plea statements for
impeachment) enhances the truth-seeking function of trials and will increase the
reliability of an accurate verdict
● D contends that waiver here is fundamentally inconsistent with the rules of encouraging
voluntary settlement
○ But, Court held that although the availability of waiver may discourage some Ds
from negotiating, it’s also true that prosecutors may be unwilling to proceed
without it
■ In this case, the waiver will not interfere with the purpose of
encouraging plea bargaining
● D argues that there is a gross disparity in the relative bargaining power of the parties to
a plea agreement and suggests that a waiver is inherently unfair and coercive
○ But, Court held that although plea-bargaining process exerts pressure on Ds to
plead guilty, we have repeatedly held that the government “may encourage a
guilty plea by offering substantial benefits in return for the plea”
● The appropriate response to D’s predictions of abuse is to permit case-by-case inquiries
into whether the waiver agreements are the product of fraud or coercion
Concurrence:
● Majority holds that a waiver allowing the Gov to impeach with statements made during
plea negotiations is compatible with the Congress’ intent to promote plea bargaining
● However, a waiver to use such statements in the case in chief might severely undermine
a defendant’s incentive to negotiate, and thereby inhibit plea bargaining
Dissent: Although here it is only about bringing in the statement for impeachment, there is no
distinction stopping prosecutors from using the statements in their case-in-chief
● Courts have tended to enforce Mezzanatto waivers in all four of the situations in which
they can operate:
○ (1) when bargaining fails to produce an agreement
○ (2) when agreement is reached but one side or the other withdraws
○ (3) when courts do not accept pleas tendered pursuant to an agreement
○ (4) when the defendant is allowed to withdraw the plea
US v. Mergen:NY BROADENS MEZZANNATO: As long as the waiver was knowing and
voluntarily, the gov. can use a statement D made during negotiations in its case in chief
Facts: gov. wanted to introduce statements D made during plea allocation per waiver of 410;
cooperating agreement under which D entered plea specified that he could waive his rights to
object to the use of such evidence
Holding: waiver enforcable→ 410 poses no obstacle to the gov’s use of D’s plea
allocation statements as part of its case-in-cheif
● All about what Souter and Stevers Dissent in Mezzannato was worried about!
● “There is no reason to believe that rebuttal-only waivers represent the outer limit of
enforceable proivison

Medical Payments 409 and Liability Insurance 411

FRE 409 Medical Payments: Evidence of furnishing, promising to pay, or offering to pay
medical, hospital, or similar expenses resulting from an injury is not admissible to prove
liability for the injury
● Rationale: The reason for such payment or offer is usually made from humane
impulses and not from an admission of liability. To hold otherwise would tend to
discourage assistance to the injured person
● Contrary to 408 (offers of compromise), 409 does not extend to conduct or
 statements not a part of the act of furnishing or offering or promising to pay
○ 408: Communication is essential if compromises are to be effected, so
protection of statements is needed
○ 409: This is not so in cases of payments or offers or promises to pay medical
expenses, where factual statements may be expected to be incidental in nature
● Public Policy: Evidence of humanitarian payments is not probative of liability, and
letting them to be used for liability will discourage such payments (we want people to
offer to pay for such bills)

FRE 411 Liability Insurance: Evidence that a person was or was not insured against liability
is not admissible to prove whether the person acted negligently or otherwise wrongfully. But
the court may admit this evidence for another purpose, such as proving a witness’s bias or
prejudice or proving agency, ownership, or control

Charter v. Chileboard: Liability insurnace can be used to show bias under 411
Facts: D (surgeon) performed surgery on P’s legs, complications arose, and another surgeon
had to amputate the legs. At trial, P offered testimony from Dr. L that the complications were
caused by D’s negligence. As part of rebuttal, D offered testimony from attorney (who was
employed by the same liability carrier who represents D) that Dr. L’s reputation for truth is bad
Holding: Under 411, evidence of the existence of a liability insurance policy is inadmissible to
show one’s negligence/wrongful conduct, but is ADMISSIBLE if offered for other purposes
● The fact that the D’s insurer employed the expert witness is admissible to show possible
bias of that witness
Higgins v. Hicks Co.: evidence of insurance is inadmissible unless it is relevant to an issue
Facts: Two accidents occurred during resurfacing of highway. P argues that it was error for the
DC to refuse to admit evidence that the state carries liability insurance
Rule: Evidence of liability insurance may be admitted if relevant to an issue in the case or to
prove bias or prejudice of a witness. It is not admissible to prove negligence of the insured
person
Holding: inadmissible. Evidence of the state’s liability insurance was irrelevant to any issues in
this case and the evidence was properly excluded by the DC

US v. Copelin: collateral rule only applies to extrinsic evidence

Facts: Undercover officer purchased drugs from D. After making purchase, she broadcasted a
radio lookout and he was stopped shortly after. Officer identified him and he was found with the
prerecorded money. D contends he had not made the sale and argued he was mistaken for a
man named Bailey. During direct, D denied taking drugs. During cross, D says he hasn’t seen
drugs other than on TV. Prosecution requested a bench conference and got permission from
court to cross examine D as to his positive drugs tests while he was on pretrial release.
Dispute: D argues DC erred in allowing P to cross examine him on positive drug tests
Holding: no love for D. Did not violate collateral evidence rule bc wasn’t extrinsic evidence!
The witness himself said that he had tested positive for coke on the stand.
● 404(b) allows prior bad acts to be admitted to show proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident (but can’t use
prior bad acts to show a defendant’s propensity to commit the crime at issues)
 ● Although its not listed in 404(b) → An attempt to impeach through
contradiction of a defendant acting as a witness is a legitimate reason to
introduce evidence of other crimes or wrongs
● If “bad acts” evidence is offered for this reason, it is admissible unless its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence FRE 403
● A witness may not be impeached by extrinsic evidence (contradiction by another witness
or evidence) on a collateral issue
● However, the rule disallowing the use of extrinsic evidence to impeach a witness as to a
collateral matter is irrelevant to this case because D was impeached by his own
statements on cross-examination, not by the testimony of another witness or by
physical evidence
● Lave says D should’ve objected to the question. But since he didn’t, it’s his fault for
answering and allowing the impeachment via intrinsic evidence

Mode of Impeachment Rule Extrinsic evidence?

Character for Untruthfulness 608, 609 (criminal conviction) No EE unless 609-prior convictions

613(b) Yes EE, but witness must be given

Impeachment by Prior opportunity to explain it. 613(b) doesn’t
Inconsistent Statement apply to an opposing party’s statement under
801(d)(2)

Bias NO Yes EE

Incapacity NO Yes EE

Specific Contradiction NO Only if it does not violate the collateral

evidence rule

Rehabilitation
● Rehabilitation is the opposite of impeachment
○ Impeachment is the introduction of evidence that suggest a witness’ testimony
lacks credibility
○ Rehabilitation is the introduction of evidence that suggests a witness’ testimony
in fact is worthy of belief
● There are special restrictions only on two of the possible modes of rehabilitation:
character for truthfulness and prior consistent statements
● Prohibition on bolstering: Cannot rehabilitate a witness before the witness has been
impeached
○ All rehabilitation must follow impeachment
● Bias is not a collateral issue, its ok to bring in extrinsic evidence for rehabilitation if
they've been impeached for bias
 Five classic modes of Impeachment Five classic modes of Rehabilitation

Dishonesty (FRE) Honesty (FRE)

Inconsistency (FRE) Consistency (FRE)

Bias Disinterest (EE allowed)

Incapacity Capacity

Specific Contradiction Specific Corroboration

US v. Lindemann: rehabbing a bias attack is only subject to 402 relevancy

Facts: Lindemann (D) convicted on 3 counts of wire fraud relating to the arrangement of his
horse's death in order to collect the life insurance policy payment. Burns and Ward were caught
conspiring to kill horses, and Burns gave the FBI info indicating that D had done this before.
During cross, Lindemann attacked the credibility of Burns' testimony by suggesting that he
would not have gotten a plea deal if he hadn’t come up with the name of a “big fish” like
Lindemann.
● Impeachment for bias here- bias bc he wanted a plea deal
○ Allowed to bring in extrinsic evidence? Yes
Disputed testimony: P introduced evidence that the D informed on many people so he didn't
need to lie here to get a plea deal. D argues that Burns' testimony was inadmissible because it
was bolstering
Issue: On rehabilitation, are you allowed to put on extrinsic evidence of specific instances for
lack of bias? Yes
Holding: ALLOWED, NOT BOLSTERING. No love for Lindemann (D). Because D OPENED
THE DOOR and attacked the credibility of Burns’ testimony by asserting that Burns had a bias
in D’s case, the gov was permitted to rebut that assertion by introducing evidence of its own
● D’s suggestion that Burns falsely implicated him to obtain a plea deal was certainly an
attack on the credibility of Burns’ testimony
○ It was an attempt to show that Burns had a bias
○ Thus, D was entitled to suggest his theory that Burns was lying about D in order
to better the parameters of his plea deal
■ However, the direct consequence of the attack was that the
government was allowed to introduce evidence to rehabilitate Burns
on the issue
● The admissibility of evidence regarding a witness’ bias, diminished capacity, and
contradictions in his testimony is not specifically addressed by the Rules and therefore
admissibility is limited only by 402’s relevance standard
● Because bias is not a collateral issue, it was permissible for evidence on this issue to
be extrinsic
● The admission of evidence regarding Burns’ cooperation in other cases was relevant
○ The evidence specifically rebutted the allegation that Burns was biased out of
self-interest in D’s case
 ○ The fact was relevant under 402 because it made less probable the assertion
that Burns was lying in D’s case out of self-interest
● If the theory was impeachment for dishonesty would D have been able to ask the
witness about specific instances? Only if on cross. Would prosecution have been able to
ask Burns about specific instances of him helping the government? No

Character for Truthfulness 608

FRE 608(a) Reputation or Opinion Evidence: A witness’s credibility may be attacked or
supported by testimony about the witness’s reputation for having a character for truthfulness
or untruthfulness, or by testimony in the form of an opinion about that character. But evidence
of truthful character is admissible only after the witness’s character for truthfulness has been
attacked

608(b) Specific Instances of Conduct: Except for a criminal conviction under Rule 609,
extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order
to attack or support the witness’s character for truthfulness. But the court may, on cross-
examination, allow them to be inquired into if they are probative of the character for
truthfulness or untruthfulness of:
○ (1) the witness; or
○ (2) another witness whose character the witness being cross-examined has
testified about.
● Character evidence in support of credibility is admissible under the rule only after the
witness’ character has first been attacked
● Opinion or reputation that the witness is untruthful specifically qualifies as an attack
under the rule, and evidence of misconduct, including conviction of crime, and of
corruption also fall within this category
○ Evidence of bias or interest does not
○ Whether evidence in the form on contradiction is an attack upon the character of
the witness depends on the circumstances
● Lave says the federal rules says vigorous questioning etc. is an attack on truthfulness
Beard v. Mitchell: contradicting a witness by prior inconsistent statement is an attack
Facts: P sued FBI agent for reckless conduct of the investigation which deprived victim of
constitutional rights. P introduced prior inconsistent statement by D as a means of attacking his
credibility. Court allowed testimony from AUSA that FBI agent had reputation for truthfulness. P
contends that this was impermissible use of reputation evidence under 608(a)
Holding: 608(a)(2): “evidence of truthful character is admissible only after the character of the
witness for truthfulness has been attacked by opinion or reputation evidence or otherwise”
○ No longer in the FRE as such
● The use of prior inconsistent statements may constitute an attack on truthfulness
● The use of prior inconsistent statements may be used to impeach the credibility of a
witness. Thus, he may be rehabilitated with evidence about character for truthfulness
● *Know the difference between standards of this case and the next two. This case you’ll
have easier time getting in character evidence
US v. Danehy: The mere fact that a witness is contradicted by other evidence in a case does
not constitute an attack upon his reputation for truth and veracity
Facts: D rammed into Coast Guard boat and resisted arrest when CG came on his boat. D
claims he should have been allowed to introduce evidence of his reputation for truthfulness as
his credibility had been attacked. The “attack” on D’s credibility consisted of a vigorous cross-
examination and the pointing out by the prosecutor of discrepancies between D’s testimony and
that of the other witnesses
Holding: The government pointing out inconsistencies in testimony and arguing that the
accused’s testimony is not credible does not constitute an attack on the accused’s reputation for
truthfulness within the meaning of 608
● This does not call into question the reputation of the D for truthfulness—the mere fact
that a witness is contradicted by other evidence in a case does not constitute an
attack upon his reputation for truth and veracity
● Since D is trying to offer evidence to bolster himself as a witness rather than to show a
trait of character that is pertinent to the crime charged, it is 608 (evidence of truthful
character is admissible only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise) and not 404 (evidence of a
person’s character or character trait is not admissible to prove that on a particular
occasion the person acted in accordance with the character or trait) that governs
● Thus, D may not attempt to bolster his testimony by evidence as to his reputation
for truthfulness
● Exactly the opposite of Beard
US v. Drury: pointing out inconsistencies is not an attack on truthfulness
Facts: D hired undercover agent to kill wife. D claims it was role-playing. D claims that the
government attacked his credibility at trial, entitling him to introduce rehabilitative evidence
under 608(a)(2)
Holding: An “attack” that consists only of government counsel pointing out inconsistencies in
testimony and arguing that the accused’s testimony is not credible does not constitute an attack
on the accused’s reputation for truthfulness under 608
● 608(a)(2) is not in FRE language anymore but is still good law
● “or otherwise” has been eliminated, but its premise is still there—vigorous cross-
examination is an attack on truthfulness
● Lave says that she thinks Drury and Danehy are right: Impeachment is not enough
to constitute an attack on someone’s reputation for truthfulness
● On exam: you have you argue both ways- say its depends on the court
US v. Murray: questioning can be an attack, so it’s ok to rehab after
Facts: D convicted of murder and drugs. Witness against D was police informant. After D cross-
examined Informant, the government called Lieutenant to testify in support of Informant’s
reliability. D objected to Lieutenant’s testimony on the grounds that the character of Informant
for truthfulness had not been attacked by opinion or reputation evidence or otherwise (608(a)),
and that even if it had, Lieutenant’s testimony violated 608(b)’s prohibition on proof of specific
instances of conduct by extrinsic evidence
Holding: Under 608(a)(2), based on the questioning of the informant, the agent’s testimony was
permitted to support the informant’s credibility when his character for truthfulness had been
attacked
● D said that there is no right to call rehab witness for Brown because he didn’t directly
impeach Brown, D just asked questions on cross
○ The opinion or reputation testimony fell within the language of 608a2 permitting
the introduction of such evidence to support a witness’ credibility when his
character had been otherwise attacked
○ Court says rehab witness was ALLOWED
● D also made a 608b argument. The gov. Was entitled to rehab Brown by calling a
witness to give opinion or reputation testimony as to Brown’s character, but the gov .
was NOT entitled to present extrinsic evidence of specific instances of Brown’s conduct
for purposes of supporting his credibility under 608b.
○ One of the questions was asking how many cases Brown had helped the police
on, and the witness replied by saying 65-67 cases. This was extrinsic evidence of
Brown’s character for truthfulness -- it was more specific than could be justified to
explain the witness’ relation to Brown.
○ This contravened 608b. Reversed!
● Could D have asked Lieutenant (the rehab witness) about specific instances of the
snitches untruthfulness?
○ Yes. Rehab evidence is supposed to be general, but then on cross you can bring
in specific instances

Prior Consistent Statements 801(d)(1)

FRE 801(d)(1)(B) Statements That Are Not Hearsay: A statement that meets the following
conditions is not hearsay:
is consistent with the declarant’s testimony and is offered:
● (i) to rebut an express or implied charge that the declarant recently fabricated it or
acted from a recent improper influence or motive in so testifying; or
● (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another
ground; or
● (C) identifies a person as someone the declarant perceived earlier
● Consistent statement must have been made earlier in time than the inconsistent
statement to be admissible to impeach
● Can only be admissible to rebut charge of recent fabrication, improper influence or
motive
● Cannot be admitted to counter all forms of impeachment or to bolster the witness
● 801(d)(1)(B) permits prior consistent statements to be used for substantive purposes
after the statements are admitted to rebut the existence of an improper influence or
motive
○ Prior consistent statements otherwise admissible for rehabilitation are admissible
substantively as well
Tome v. US: 801(d)(1)(B) has a temporal requirement- consistent statement must have been
had before the alleged recent fabrication or improper influence or motive arose
Facts: When the child is testifying, she loses focus and is hesitant to answer some questions.
Gov tries to bring in prior consistent statements to rebut D’s theory of bias that the child just
wanted to live with her mother and that’s why the allegations were brought
Issue: Is a prior consistent statement made after a declarant's motive to fabricate arose
admissible to rebut a charge of recent fabrication or improper influence or motive under 801(d)
(1)(B)? No
Holding: Statement inadmissible. Prior consistent statements are only admissible to rebut
charge of recent fabrication or improper influence under 801(d)(1)(B) if they were made before
the alleged recent fabrication or improper influence or motive arose
● 801 defines prior consistent statement as non-hearsay only if they are offered to rebut a
charge of recent fabrication or improper influence or motive
● In the present context the issue is whether AT’s out of court statements rebutted the
alleged link between her desire to be with her mother and her testimony, not whether
they suggested AT’s in-court testimony was true
○ The Rule speaks of a party rebutting an alleged motive, not bolstering the
veracity of the story told
● 801(d)(1)(B) requires that prior consistent statements be made before the motive
to fabricate arose in order to be admissible
○ A consistent statement that predated motive rebuts the charge that the testimony
was contrived due to motive
○ The consistent statement must have been made before the alleged influence, or
motive to fabricate arose
● While hearsay evidence is often relevant, relevance is not the only criterion for
determining admissibility
● The Court held that the CoA’s balancing approach involved too much judicial discretion,
reduced predictability, and enhanced difficulties of trial preparation
● The Court noted that the Advisory Committee Notes to the FRE confirm their analysis
○ The Notes give no indication that 801(d)(1)(B) abandons the common law pre-
motive requirement
○ Scalia concurred, writing that the Notes should have no authoritative effect and
the case could be resolved without resorting to the Notes
● If you’re a defense attorney, what did this case teach you?
○ You want the motive to lie to be as far back as possible. You want to narrow
the window in which the possible statements can come in. Want to make it so
that the bias happened before the statements
● If you can’t get the statements in under prior consistent statements, how can you get
them in?
○ Excited utterance
○ Medical records exception: Doctor must testify that his questioning was
necessary for her medical diagnosis and treatment
Judges, Jurors, and Lawyers
 FRE 606 Juror’s Competency as a Witness
(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a
juror is called to testify, the court must give a party an opportunity to object outside the jury’s
presence.
(b) During an Inquiry into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict
or indictment, a juror may not testify about any statement made or incident that occurred
during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or
any juror’s mental processes concerning the verdict or indictment. The court may not receive
a juror’s affidavit or evidence of a juror’s statement on these matters.
(2) Exceptions. A juror may testify about whether:
● (A) extraneous prejudicial information was improperly brought to the jury’s attention;
● (B) an outside influence was improperly brought to bear on any juror; or
● (C) a mistake was made in entering the verdict on the verdict form.
Warger v. Shauers SCOTUS 2014: Can’t impeach the verdict by calling this life experience
“outside influence” under 606B
Facts: Case about a motorcyclist getting hit by a car. During voir dire, jurors all agreed there
was nothing preventing them from being fair and impartial in the case. Then, one of the jurors
spoke during jury deliberations about how her daughter was driving and hit a motorcyclist where
he died. She said if daughter had been sued it would’ve ruined her life. Warger moved for a new
trial based on affidavits from jurors who were there for
Rule: As enacted, 606b prohibited the use of any evidence of juror deliberations, subject only to
the express exceptions for extraneous information and outside influences
Holding: the affidavit Warger sought to introduce was not admissible under 606b2A’s exception
for evidence as to whether extraneous prejudicial information was improperly brought to the
jury’s attention. Motion for new trial is denied.
● Fn. 3 on p. 482: there may be caes of juror bias so extreme that the jury trial right has
been abridged. If and when such a case arises, the Court can consider whether the
usual safeguards are or are not sufficient to protect the integrity of the process.
● Even if jurors lie during voir dire in a way that conceals bias, juror impartiality is
adequately assured by the parties’ ability to bring to the court’s attention any
evidence of bias before the verdict is rendered, and to employ nonjuror evidence
even after the juror is rendered
○ The problem here is that the verdict is already final→ courts want
finality→ they will only impeach the verdict in extreme cases see Pena-
Rodriquez
Pena-Rodriguez v. Colorado SCOTUS 2017: when jurors disclose an instance of serious
raical bias, the no-impeachment rule does not bar it
Facts: Child sexual assault case, jurors being racist to defendant who allegedly sexually
assaulted two young girls. A juror came to the court after convicting the D because another juror
expressed extreme racial bias. That juror said he def did it because he’s a Mexican, I don’t
believe the witness because he’s an illegal, etc. He invited others to join his opinion.
Issue: whether the Constitution requires an exception to the no-impeachment rule when a
juror’s statements indicate that racial animus was a significant motivating factor in his or her
finding of guilt
Holding: Affidavits were allowed and the D got a new trial
● **The Court now holds that where a juror makes a clear statement that indicates he
or she relied on racial stereotypes or animus to convict a criminal D, the 6A
requires that the no-impeachment rule give way in order to permit the trial court to
consider evidence of the juror’s statement and any resulting denial of the jury trial
guarantee.
● Not every offhand comment indicating racial bias or hostility will justify setting aside the
no-impeachment bar to allow further judicial inquiry. For the inquiry to proceed, there
must be a showing that one or more jurors made statements exhibiting overt
racial bias that cast serious doubt on the fairness and impartiality of the jury’s
deliberations and resulting verdict.
● To qualify, the statement must tend to show that racial animus was a significant
motivating factor in the juror’s vote to convict. Whether that threshold showing has
been satisfied is a matter committed to the substantial discretion of the trial court in
light of all the circumstances, including the content and timing of the alleged
statements and the reliability of proffered evidence
● Racial bias of the kind alleged differs in critical ways from McDonald, Tanner, and
Warger. The kind here, if left unaddressed, would risk systemic injury to the
administration of justice.
● A constitutional rule that racial bias in the justice system must be addressed to prevent a
systemic loss of confidence in jury verdicts, a premise that is the 6A trial right
○ They do not actually gives us a process or a standard that be meet for infections