Evidence Outline – Federal Rules of Evidence

Federal Rules of Evidence Law School Supplements

Evidence Final Outline



  • CA: remedial rules measure: does not exclude evidence of subsequent measures in products liability cases
  • CA: Prior inconsistent statement of a W is admissible for truth so can offer it for evidence at trial
  • CA does not have a catch all exception to the hearsay rule

CA difference: CEC 1235: Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.


Relevance – (FRE 401) evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

  • Need not be sufficient on its own (Knapp v. State – evidence permitted that X died of natural causes in response to D’s contention he feared V and killed V because he had heard V killed X.)
  • Judge not bound by rules of evidence in determining relevance – FRE 104(a) – in furnishing info to court in making a relevancy determination, parties are not restricted by the rules of evidence other than privilege.


  • Not admissible if:
    • Lacks probative value
    • Proposition is not provable in the case
    • Prejudicial effect substantially outweighs prejudicial value – “D argues P could not have been injured in certain way, and P presents evidence that other people were injured in that way.” Probative value minimal, prejudicial value high. Would be different if D had claimed P’s injury was impossible and he presented evidence of other cases.


  • FRE 403 Balancing Test: (Factors to consider)
    • centrality of the point to be proved
    • the need for the evidence
    • risk of confusion
    • waste of time/delay
    • the availability of alternative sources of proof


  • FRE 105 Limiting instructions– used to separate the prejudicial aspect/use of the evidence from the probative, useful aspect/use.
    • Criticized because limiting instructions only draw attention to the portion of testimony included that is supposed to be ignored. “Don’t look at this, don’t look at this!”
  • The completeness doctrine – Problem when evidence relevant on one point is so connected with other evidence it would be a distortion to consider the one without the other.
    • Proponent chooses to present a small piece of a larger picture and thus distorts meaning.
    • Under 403, the judge has discretion to admit or exclude the whole.
    • Under 106: authorizes the adverse party to require introduction of “any other part” of a writing or recorded statement that “ought in fairness to be considered contemporaneously”


Conditional relevance –the relevancy of an item of evidence depends upon proof a preliminary question of fact.


  • Rule 104(b): When relevance turns on “the fulfillment of a condition of fact,” the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
    • The judge performs only a screening function. When different answers are reasonable, the jury ultimately decides whether the condition is satisfied. THEREFORE: Conditionally relevant evidence is admitted upon introduction of enough other evidence to support the appropriate jury finding.
    • This is different from typical questions of admissibility, decided by judge, under 104(a).
  • If reasonable jurors could not find the conditional fact to be true, the judge can exclude the evidence. (As if he gave a directed verdict on the conditional fact.)
    • When relevancy depends on a predicate fact, he uses the directed verdict standard. Is there enough here that, if this was the only issue of the case, I wouldn’t give a directed verdict?
    • This is only in the situation when the probative value depends on the existence of a certain fact.
    • When no rational juror could find the fact, the evidence is not relevant.


  • Submitting evidence to prove stipulated facts – Under the CEC, evidence CANNOT be submitted (CEC Code 210 only allows evidence to prove “disputed facts”), under FRE evidence CAN be submitted so long as prejudicial effect does not exceed probative value.
    • (Old Chief – specific evidence of past gun-related felony admitted because prosecution “is entitled to prove its case by evidence of its own choice.”
      • The defendant cannot stipulate himself out of the full evidentiary force of the case as the govt. chooses to present it, and sometimes the evidence provides the jury with a coherent narrative and sufficient descriptive richness.
      • Note that stipulation in general makes the probative value of any additional evidence on that point very low. Can be found violative of FRE 403 in many cases. (State v. Chappel – overturned in part because graphic photos of V’s body were shown in a case that did not involve homicide charges, but mistaken identity.)


  • Standard of review for overturning cases on 403 objections – Abuse of discretion standard. This is generally handled solely in front of trial judge. To reverse, must show that (1) so wrong that it was an abuse of discretion, and (2) it was so prejudicial that you might have gotten a different result
    • Note that judge’s power is limited to determining probative value vs. prejudice; he CAN’T determine issues of credibility. (Balou v. Henry Studios)


  • Guilt v. Sentencing Phase – There may be different standard for admitting evidence under the prejudicial/probative test for the sentencing phase of trial compared to the guilt phase.


  • Insurance (FRE 411) – Evidence of insurance is not admissible to prove someone acted negligently/wrongfully. May be admissible to prove ownership, agency, bias, ect.
  • Subsequent Remedial Measures – Forbidden to show negligence or fault. Admissible to prove ownership, control, or feasibility of precautionary measures.
    • Policy – SRM’s are excluded because we don’t want to discourage company’s from changing their ways to something better simply to avoid hurting their case in a suit.


Character Evidence

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

(a) Character evidence generally

Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused – In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of  a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2),  evidence of the same  trait of character of the accused offered  by the prosecution;

(2) Character of alleged victim – In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;

(3) Character of witness – Evidence of the character of a witness, as provided in rules 607, 608, and 609.

(b) Other crimes, wrongs, or acts – it’s the act that’s relevant, not the conviction

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.


Rule 405. Methods of Proving Character

(a) Reputation or opinion.

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct.

In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.


Character evidence, past acts and habit of defendant


  • Character evidence – May be proved by either testimony of reputation or simple opinion of character.Not admissible to prove conduct in conformity with character except when:
    • In criminal trials, evidence of D in support of D’s character and prosecution’s evidence to rebut. AND, evidence by D against V’s character and prosecution’s evidence to rebut.
        • NOTE that in either case here, the D must offer the evidence first. The only exception to this is in homicide cases when D alleges V was the aggressor, the prosecution can submit evidence of V’s peacefulness without waiting for D to attack V’s character first.
        • NOTE that the above-mentioned character evidence is limited to character and reputation GENERALLY, and does not permit past acts.
        • NOTE that the rape shield law prevents D from admitting evidence of V’s character concerning the rape. (UNLESS V puts her reputation in question first. FRE 412(b)(2)
    • Character evidence offered against witness to impeach credibility of truthfulness of witness.
        • NOTE that the party who calls the witness can only present character evidence on behalf of the truthfulness of the witness if their truthfulness is first called into question by D.
        • NOTE that as a strategy, the P can ask questions relating to D in regards to whether W was aware of those acts as a means of testing reliability/truthfulness of how well W knows D. This is a back door way to admit evidence of past acts against D. Doesn’t even require that past act was known for certain to have occurred! Prosecutor simply must have good faith belief.
    • Character evidence (in the form of rep or opinion OR past acts) may be presented when the character trait of the person is an essential element of the suit, i.e. defamation or child custody suits.


Past Acts of defendant


  • Generally, evidence of a past act may not be admitted to show propensity, but may be admitted for any other purposes, some of which include:
    • Complete the story of a crime on trial by placing it in the context of nearby and nearly contemporaneous happenings.
    • To prove the existence of a larger plan, scheme or conspiracy of which the crime on trial is a part.
    • To prove identitynote that if proof of identity is SIMPLY conduct in conformity, this is not sufficient for the identity exception. The past acts must be specific ad unusual. Note that identity MUST BE IN DISPUTE to admit evidence on these grounds
    • To show a passion or propensity for abnormal sexual relations.
    • To show by similar acts or incidents that the act in question was not performed inadvertently, accidentally, involuntarily or without knowledge.
    • To establish motive… (for ex., showing that D has beat up his wife in the past, in a case for spousal abuse. People hit people they don’t like. D has hate for his wife and this is motive for repeated attacks.) There is often a very thin distinction between motive and character, since many people with poor character share the same motives.
    • To establish opportunity, in the sense of access to or presence at the scene of the crime. (V killed with 357, W called to stand to testify that he saw D shoot a 357 the week prior.)
    • To show, without considering motive, that D acted with malice deliberation or specfic intent (D claims he accidentally shot wife. Evidence that D beat up his wife before is admissible to show MALICE toward wife, which makes it less likely the shooting was truly an accident.)
  • NOTE: all the above exceptions are still subject to weighing of prejudicial vs. probative value and still may be excluded on this basis.
  • NOTE: In evaluating past acts, it is for the jury to decide by preponderance of the evidence whether the past act was committed. (FRE 104(b)) The judge only gets to determine whether a reasonable jury could find preponderance of the evidence, but he doesn’t make the judgment on actual admissibility himself.
  • NOTE: Past acts of animals are excepted from the exclusion of “past act” evidence if used to prove the animal’s propensity to attack again.


Exceptions for sexual assault/rape cases

      • FRE 413/415 – the “rape sword” law
          1. Exception for past acts to show propensity in sexual assault cases, criminal *or civil (civil cases require probative value to SUBSTANTIALLY outweigh prejudice.)
          2. The courts are split as to whether the admission of past acts in this context is subject to the 403 balancing test.


      • 412(a) Rape Shield Law: evidence generally inadmissible:
      • (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
      • (2) Evidence offered to prove any alleged victim’s sexual predisposition.


        • FRE 412(b) – When past acts of V are permitted
  • Does not permit evidence for past acts of V or the reputation
          1. Permits evidence of past acts in rape cases to show that someone other than D is the source of semen or vaginal injury.
          2. Permits evidence of past acts between D and V to show that V most likely consented (must file motion and give notice though).
        • Permits evidence, the exclusion of which would violate D’s constitutional rights. (For example, relationship V and her bf to prove motive to fabricate rape allegation.)
          1. NOTE: sexual history to prove MOTIVATION is admissible.


  • Exceptions for child molestation cases –
      • FRE 414 – Evidence of past child molestation or accusation of molestation is admissible.
          1. Balancing test must be weight between likelihood that info is correct (and the prejudicial effect it will have if its not) and the probative value. (Elk Lake School District)


      • Recidivism – the likelihood that one will revert back to criminal behavior
          1. The higher the rate of recidivism for a crime, the better the case for admission of propensity evidence.
          2. Admitting past acts for propensity if sexual assault cases has been criticized because the recidivism rate for sex crimes is very low. 7.7% for rapists. Compare this to 33.5% for larcenists.


Habit – aregular practice of meeting a certain kind of situation with a certain type of conduct, or a reflex behavior in a set of circumstances.

Rule 406. Habit; Routine Practice

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


  • Behavioral habit & situational habit.
    • Behavioral – without even thinking, i.e. putting your seatbelt on.
    • Situational – given certain circumstances, a specific calculated response, i.e. de-thawing freeon bottles by putting them in water.
  • The actor need not engage in the activity EVERY time for it to be considered a habit – Halloran v. Virginia Chemicals



Similar Happenings – Should be admissible as long as the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice or confusion of the issue.

  • FRE 402 says that all relevant evidence is admissible unless the probative value of the evidence is outweighed by it’s prejudicial effect
  • Other side free to argue tht circumstances were different in the other similar happenings and that the jury should give them little weight.


Subsequent Precautions – Rule 407 – When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

  • Basically, cannot be used to prove fault, but CAN be used to show control, feasibility, etc.
  • Common feasibility situation – employer fires driver who got into reckless accident after incident. Admissible to show that he could have fired the driver before-hand.


Offers in Compromise – FRE 408


  • Not admissible when used to prove liability or to impeach prior statements.
    • Rule extends to all conversations and correspondence made in course of negotiation. (This doesn’t apply to ALL conversations, only those that directly relate to negotiation – Davidson v. Prince)
  • Admissible when used to prove witness’s bias or prejudice or to negate a contention of undue delay, or proving an effort to obstruct criminal investigation/prosecution.
    • For ex., D2 can admit evidence that P has already settled with D1 because it shows P’s bias to claim D2 is now at fault.
  • Contrast to common law rule – Common law was limited to actual negotiated agreements.
  • Attorneys spoke “hypothetically” about their cases when trying to come to a settlement agreement to avoid making admissions.



Inadmissibility of Pleas, Plea Discussions, and Related Statements – FRE 410

  • NOT admissible:
    • Guilty pleas that are later withdrawn
    • Pleas of no lo contendere
      • Plea of guilty is still admissible even if there is no option to plead no lo contendere. Courts have ruled that pleading guilty because of reasons other than guilt was more properly addressed as an issue of weight, not admissibility – Ando v. Woodberry


  • Any plea conversation with a prosecutor that does not result in plea of guilty
    • Crucial that attorney ACTUALLY BE PRESENT during discussion. Conversation with cops is not sufficient.


Impeachment and cross examination – FRE 607-611

  • Any party may impeach any witness – FRE 607This rule is limited by a good faith requirement that a party calling a witness did not call that witness for the sole purpose of impeaching him.United States v. Hogan
    • Note on Hogan – Note that if Carpenter’s grand jury testimony was incriminating to ONE of the Hogan brothers and exonerating for the other, the prosecution would probably have been allowed to call the witness under the “good faith” test, and then impeach him. This is because, on its face, there is a legitimate reason for calling the witness in the first place – to incriminate the first brother.


  • Methods of impeachment


  • Past acts to prove lack of truthfulnessFRE 608(b)


  • Broad view v. narrow view for what constitutes “truthfulness” – Some courts hold that “lack of truthfulness” is only evident in crimes such as perjury or forgery, other courts hold that ANY conduct indicating bad character is probative of truthfulness.
  • No extrinsic evidence
  • Extrinsic Evidence” – Documentary proof of untruthful acts that requires bringing in another witness or outside physical objects.




  • Sometimes witness swears to something on the stand that opens the door to impeachment that isn’t even that relevant. Once the door is open, otherwise inadmissible counterproof is admitted
  • No extrinsic evidence to prove if collateral issue- Credibility of witnesses can only be impeached with extrinsic evidence for statements they make that are materially relevant to the case, and NOT for collateral issues to make them look like liars in general – State v. Oswalt
    • Note that you can still question the witness about the collateral issue, you just can’t bring in outside evidence to support your position.
  • Collateral Defined – Collateral is anything a REASONABLE PERSON would consider collateral. If you have evidence that might be collateral but you’re not sure, you might as well try to get it admitted because it’s all judged on a case by case basis.
    • Anything that can show potential for BIAS is NOT collateral.
    • If a witness makes an error on some aspect of his testimony that has direct relevance to the disputed issues at trial, contrary evidence may always be introduced. For ex., “I saw the defendant and he had a full beard.” Other side may introduce extrinsic evidence that D did NOT have a beard. –
  • Collateral matters must be brought up by witness – United States v. Drake – (Ruled that prosecution’s questioning re: D’s lack of psychology degree was acceptable because D brought up the degree and the questions themselves did not constitute extrinsic evidence.
  • Unavailable hearsay declarants – extrinsic evidence of a hearsay declarant’s prior bad acts is not admissible even if the declarant is unavailable to testify (and thus, even if there is no way to admit the evidence via direct cross with the “isn’t it true you did X-type questions…) – United States v. Saada
    • Other ways of impeaching the deceased declarant:
    • Evidence of the declarant’s (or the witness’s) character for untruthfulness.
    • The witness may be questioned as to the original declarant’s misconduct if relevant to the witness’ knowledge of the declarant’s character for truthfulness.
    • Evidence of relevant prior convictions may be introduced.
    • Evidence of prior inconsistent statement may be introduced.


  • Character for dishonestyFRE 608(a)
    • Credibility of a witness may be attacked, BUT:
      • The evidence may refer only to character for truthfulness or untruthfulness, and
      • Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinionor reputation evidence or otherwise.
      • Exception for crimes of dishonesty – Evidence of defendant’s truthfulness MAY BE submitted prior to any attack on his truthfulness IF the crime alleged is one that involved dishonesty.


Evidence of past crimesFRE 609 (only admissible to impeach) –At common law, felons couldn’t testify; they had already proven their rep for dishonesty and the court didn’t want to “put them in the position” to lie again. Now we let them testify but inform the jury of their conviction.

  • Crimes of dishonesty – if someone is willing to lie once, they are willing to lie again.
    • Dishonesty” defined – pursuant to the usage in FRE 609(a)(2), only refers to crimes involving deceit, such as perjury, fraud, or embezzlement, and is not to be interpreted more generally to include robbery – United States v. Brackeen
    • No time limit for admissibility
    • Only subject to probative/prejudice balancing test if released from jail more than ten years ago – United States v. Wong
    • 609(a)(2) amendment: rule applies only if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. Several sources that readily could support such a finding include:
      • The statutory elements of the charged crime
      • The face of the trial ct’s judgment
      • The indictment
      • A statement of admitted facts (if any)
      • Jury instructions
  • All other past feloniesstricter limitations
    • Third party witnesses past convictions – evidence is admissible
    • Ten year time limit (but may be admitted afterward if probative value SUBSTANTIALLY outweighs prejudicial effect & facts and circumstances make it probative of dishonesty).
    • Applies to date since RELEASED
    • Timeline is merely a guideline, courts can admit as they see fit. (But attorney must provide notice to the other side that he is moving to admit a felony more than ten years old.
    • Subject to probative/prejudicial balancing testUnited States v. Sanders

** When D is the witness, probative value must outweigh prejudicial effect. When witness is person other than D, PREJUDICE must not “substantially outweigh probative value. (There is little to be lost if the jury becomes prejudiced against a witness who is not the D.

  • The more similar the past crime that is sought to be admitted is to the present crime in question the more likely it is to be prejudicial, so more likely not to be allowed. (But also, an argument can be made that the more relevant this conviction will be). But, will let in prior convictions that are different that can somewhat show propensity for dishonesty
    • How despicable was prior crime? – More hostility to the accused
  • Ability to appeal – The admissibility of past crimes is usually decided in pre-trial hearings. The party can only appeal the result of the pre-trial hearing if it loses the hearing and presents the witness ANYWAYS – so D has to testify, be impeached, and then appeal ruling (Luce v. United States)
  • Past “bad acts”/No conviction – Extrinsic evidence if past bad acts is not admissible when only relevance is to impeach witness’s credibility. – FRE 609
    • Past bad acts MAY be inquired into on cross examination of the witness (1) concerning the witness’s character for truthfulness, or (2) concerning the character for truthfulness of ANOTHER witness as to which the character witness being cross examined has testified.
    • Can only occur on CROSS examination, not direct.
    • Cross examiner must have a good faith belief that the bad act actually occurred.


  • List of factors to consider when deciding whether to have D testify (D can decide on his own whether he wants to testify, not up to attny):
    • nature of conviction,
    • its recency or remoteness,
    • whether it is similar to the charged offense,
    • whether D’s record is otherwise clean,
    • importance of credibility issues,
    • importance of getting D’s own testimony


  • Contrast to California rule on admissibility of past convictions – In CA, ALL convictions are admissible, no determination as to whether they relate to truthfulness, no time limit, ONLY 403-type balancing test.


  • Proof of BiasGenerally admissible on theory that the witness may have shaded their testimony in line with it.
    • Never considered a collateral issue.
    • Foundation necessary? – The federal rules do not specify whether foundation needs to be laid before extrinsic evidence of bias may be presented. i.e., in a bank robbery case, evidence that the witness identifying P propositioned P for sex after his alleged sighting of P.
    • Must witness be afforded right to explain statement indicating bias? – The federal rules are silent on this matter, but Cali.org says yes.
    • Common sources of bias:
      • Witness has been paid by party
      • Family ties, financial ties, membership to same organization.
      • United States v. Abel – Held that proof of membership of the Aryan brotherhood (in which there was a code to protect all brothers) was admissible to prove bias to slant testimony.
      • Reduced sentencing agreements (only sometimes admissible.)
    • Inquiry into religious beliefs PROHIBITED – FRE 610 – Not admissible if witness’s religious beliefs are the BASIS for belief or disbelief of testimony.
      • Exception – If religious beliefs are introduced to show motive (kinship, or antipathy, ect.) in a way that could affect truthfulness of witness.


  • Capacity/Sensory ImpairmentPerson’s perception is strongly linked to the likelihood that what they’re saying is accurate.
    • Independent evidence on capacity is admissible.
    • Proof tat W was under influence of drug when he made an identification would be relevant to capacity, and is provable by extrinsic evidence.
      • Proof of addiction generally, is less likely to be admissible, but the law is unclear on this point. (Best solution may be to allow expert testimony on the matter and have the expert give his opinion as to whether a general addiction would impair capacity as a witness.
    • Mental Illness – the presence of certain mental illnesses has high probative value in determining the credibility of a witness.
      • U.S. v. Lindstrom – defense had the right to question the witness about her psychological illness because it was relevant to the accuracy of her perception concerning events of the accused crime
    • Competence (Age) – Generally no minimum age. Two primary requirements:
      • Sufficient maturity to be capable of receiving correct impressions through his/her senses.
      • Must understand the necessity of telling the truth in the context of a legal proceeding.
    • Remoteness – If the event the witness seeks to testify about occurred a long time ago, an argument can be made for lack of capacity for remoteness.
      • This argument is strengthened by a showing that the witness was under stress at the time of the observation.


  • Prior Inconsistent Statementsproof of prior inconsistent statement is admissible under 613(a)
    • Collateral matter/extrinsic evidence rule still applies, i.e. in a sexual harassment suit, A can ask P was food was served at company picnic, but must ACCEPT ANSWER/cannot introduce extrinsic evidence to prove wrong, because the issue is collteral. (Unless valid argument can be made that her memory was foggy that day in its entirety, and the accuracy with which she remembers the crimes of the suit is questionable.)
    • Chance to explain – If extrinsic evidence is introduced, witness must be given chance to explain the contradiction – FRE 613(b)
    • Disclosure of extrinsic evidence required – If the prior statement is written, the examiner need not show the contents of the statement to the witness at the time he questions the witness; however, the statement shall be disclosed to opposing counsel on request.
    • Practical application of rule *** If you want to admit a prior inconsistent statement to impeach, first get the witness on the stand and have the repeat upon cross examination the inconsistent statement. Ask if he has ever said anything to the contrary (witness denies and is excused). Attorney can now present witness who will testify to the conflicting statement.
    • Prior consistent statements – admissible only if the motivation to fabricate testimony came AFTER the original statement. –Tome v. United States


  • Probabilistic Evidence – Probabilistic evidence is admissible so long as it is based on adequate foundation of statistical theory and attempts to give actual probability of IDENTITY.
    • People v. Collins – Statistical evidence was excluded because the statistics were based on approximations, the statistics, did not take into account the dependant nature of the variables, and the stats did not concern probability of identity, merely probability of occurrence.
        • Bayes Theorem – a result in probability theory that relates conditional probabilities.
        • Bayesian approaches can best be used as guides to rational thought and not as specific blueprints for forensic decision making.”
        • To make bayes theory work, we need a the probability that the D is guilty before the test. Then we combine the probabilities.



Lay and Expert Opinions


An opinion is one in which reasonable people could give different responses

  • In any specific opinion, there will always be specific data from which the witness forms his opinion

Rule 701. Opinion Testimony by Lay Witnesses: If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

US v Ganier: FRE amendment provides that lay opinions or inferences cannot be based on scientific, technical, or other specialized knowledge that come within Rule 702. Even before the amendment, witnesses who performed after-the-fact investigations were generally not allowed to use specialized knowledge in giving lay testimony


  • Lay Opinion – The reason lay opinion is sometimes admitted is because at times it can actually be helpful, when it is very difficult to describe all the individual factors that contributed to the formation of the opinion.
    • For ex., “He was coming on to me.” This can be a very subtle thing, and might be difficult to convey simply by describing actions.
    • ** Lay opinion evidence is not to be admitted when it can be broken down into rudimental factors.


  • Three requirements for lay opinion evidence:
    • Must be rationally based on the perception of the witness, and
    • Must be helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and
    • Must NOT be based on scientific, technical, or other specialized knowledge within the scope of FRE 702.


  • Some examples of EXCEPTIONS to the rule barring opinion evidence (stronger case for allowing opinion evidence is you know the person well):
    • Matters of taste and smell
    • Another’s emotions, i.e. “he seemed angry”
    • Vehicular speed, “he was going very, very fast” – so long as exact mph’s are not estimated.
      • Stronger case for admitting testimony if witness was also driving (“I was driving at 60 mph and he zipped by me”). BUT, if witness is a child, probably won’t admit testimony
    • Voice identification
    • Opinions on someone’s intoxication or narcotics use: “He seemed drunk.”


Expert Opinions – FRE 702 Expert opinions are needed for matters that the average juror would have no rational basis for assessing on their own. For example, whether a delicate, difficult surgical procedure was performed negligently.

  • Based on a general rule rather than specific facts
  • Experts have a body of general knowledge not of this case, but of cases like it.
  • So, always ask: what is the expert’s general knowledge base and what does he know about this case?


  • Basic Rule Summarized – If specialized, scientific, or technical knowledge will assist the jury to understand the evidence or determine a fact, a QUALIFIED witness may testify so long as:
    • The testimony is based on sufficient facts and data, and
    • The testimony is the product of reliable principals and methods, and
    • The witness has applied the principals and methods reliably to the facts of the case
    • Remember, there is a requirement that the specialized knowledge of the expert must shed light on the issue for the jury, and not simply state a conclusion the jury could have arrived at on its own.
    • Direct assessments of a witness’s credibility by an expert are generally frowned upon.
      • Frowned upon because such assessment encroaches upon the province of the jury.


  • Foundation for Opinion:
    • Common lawexpert may not testify without first specifying the factual basis for the opinion.
    • Factual basis must be established by either showing the expert has personal knowledge, OR asking the expert an elaborate hypothetical question incorporating the facts already admitted into evidence, OR having the expert listen to testimony and see exhibits, and ask specific questions about those things.
    • Hypos were a poor way of framing questions because they were often over elaborate, and sometimes included facts that DID NOT even parallel the case!
  • Federal Rules – Any objection that expert is testifying to something w/o specifying factual basis is addressed to the discretion of the trial judge under FRE 705.


    • Qualification as an Expert – The federal rules are extremely broad in determining how a person may be qualified as an expert.
      • Expert” status may be based on education, experience, or other attributes.”
        • Typically, “Expert” status is based on education and work experience.
      • Ask, is it something the jury will not understand without the expert?
      • There is debate as to how SPECIFICALLY the expert’s experience need to relate to the matter at hand.
        • Court’s often favor the admissibility of expert testimony.
  • But, your body of expertise has to match the knowledge you are called upon to give
  • Also, don’t admit the evidence when the matters of common knowledge, expert’s opinion goes to legal issues in the current case (so like the expert can’t say that the judge is wrong and have the jury rule on that), and when one witness gives evidence of which the other witness says is false: credibility.


  • Standard of review – “Abuse of discretion” is standard of review for expert witness court decision on admissibilityDistrict court judge is the “gatekeeper of expert testimony.”
    • This standard remains even if the plaintiff’s entire causation argument hinges upon the expert testifying, and to exclude testimony will have the effect of granting summary judgment and taking away P’s right to trial by jury.


  • Reliability – tension between protecting the court from “phony science” and allowing litigants and jurors free access to potentially helpful information.
    • Frye Standard – (Old standard) – an expert opinion that is based on a scientific principle will be admitted only if the scientific principle is sufficiently established so that it has gained general acceptance in its particular field.
      • This was a problem because it created a lag between cutting edge science testimony and what was admissible.
      • Also, it was very easy to rebut the reliability of a witness by finding a single “expert” willing to testify that the procedures used by the first expert were not generally accepted.
      • Loophole in Frye standard – Dubious evidence (wigi boards, for ex.) can come into evidence because there are large communities that believe in its accuracy.
      • Note that Frye is STILL GOOD LAW in California.
    • Daubert Standard – (Bendicten/Birth defects case): general acceptance is not a precondition to the admissibility of scientific evidence as long as an expert’s testimony rests on a reliable foundation and is relevant to the issues in the case
    • Court creates a two-prong test for admissibility of expert testimony:
      • Under Daubert, a court may analyze some or all of thefollowing aspects of the expert’s testimony:
        • Can it be tested? If so, has testing taken place?
        • Has it been described in scientific publications subject to peer review?
        • What are its known or potential error rates?
        • Has it achieved some degree of acceptance in the scientific community?
      • The “fit” of the evidence: whether the evidence offered is relevant to the issues in the case. Daubert ct says it’s not here b/c the experts just said it was possible the medication caused birth defects, not that is was more likely than not to have caused these defects
    • The Daubert test, for the most part, makes it easier to admit expert testimony


  • Daubert standard applies to non-scientific testimony – Kumho Tire Co. v. Carmichael – Kumho Tire expanded the judge-made determinations of the Daubert standard to all expert testimony presenting technical or specialized material.
    • It is too difficult for judges to distinguish between “scientific” knowledge and “technical” knowledge.
    • Focus is on reliability & relevance
      • Applying Daubert to non-scientific evidence creates a higher general standard for admissibility of expert testimony. An anti-plaintiff result.


  • Experts testifying re: questionable science – Sociologists, for example, may testify that abused children will often recant their accusations
    • There is wide variance in the admissibility of this type of evidence (depends how it is applied)
    • Typically not admissible to give opinion on truth of charge of the complaint, credibility.
  • Research undertaken for purpose of litigation – When research is undertaken for the purposes of litigation by experts hired by a litigant, we have some reason to ask whether the stuff is really reliable; it’s been produced with an agenda. If this is a result that appears only with research by people with an invested in the outcome, that is not what Daubert meant by valid science. To be admitted, the expert must explain precisely how that expert’s testimony reflects some objective source, such as a scientific journal, to show that the scientific method was followed. Daubert has not made that showing; his experts have presented only their credentials, their conclusions, and their assurances of reliability. That is not enough.


  • Based on “sufficient facts” – FRE 703 experts may rely on a variety of evidence including facts that would not be admissible in court, (so long as those facts are of the type typically and reasonably used by experts in formulating this type of opinion).
    • More specific than 702 – more based on the specifics of the case
    • Disclosure of basis for opinion on requestFRE 705 allows the court to require the expert to disclose the data he relied upon for his opinion. (So we know the expert didn’t wrongfully rely on misinformation.)
      • HOWEVER, the expert can usually state his opinion without stating the evidence on which they based it. This is to avoid attorney’s using e experts for the sole purpose of asking them the basis of their opinions to admit otherwise inadmissible evidence.


  • Application of Daubert:


  • Do polygraph tests pass the Daubert standard?
    • Obviously there are some studies that have shown polygraph tests to be ineffective, but this information on its own is not dispositive. Controversy doesn’t mean it won’t be admissible.
    • The problem with polygraph tests is that most research concerning them has been published by people who are believers in its effectiveness. (The Polygraph Assn. of America.)
    • Polygraph evidence is unique because it speaks directly to the credibility of the witness. Invades the province of the jury. This is undesirable. It is feared that witnesses will give this type of evidence more weight than its credibility deserves.
    • If polygraph evidence is generally accepted evidence, whoever DOESN’T submit a polygraph test, jurors will assume is lying! This will lead to rich defendants spending great deals of money on polygraph experts and gaining an advantage over middle class defendants.
    • You could read Piccononna as favoring admission of polygraph tests because Piccinonna takes the position that evidence the reliability of which is in high contention should not necessarily be admissible. This speaks directly to the polygraph problem.


  • How does Daubert work in cases where expert testimony is completely subjective?
    • For ex., sex discrimination case where violin chair 2 did not get promoted to chair one and claim it was because she was female. Expert will testify that her violin playing is not as good as player X.
    • Daubert CAN NOT apply in instances such as this. There is simply no way to fit it in, so we just have to accept the witnesses testimony as it is.


  • Hearsay as basis for opinion


  • United States v. Brown – Hearsay may be the basis for an expert’s opinion if it is of the type reasonably relied on by other experts in the field.
  • Facts: In a drug smuggling case, an expert witness offered testimony as to the value of the drugs smuggled, and based his assessment on hearsay info gained from the Bermuda Police authorities.
  • Issue: May hearsay evidence be admitted if it is the type of evidence reasonably relied upon by experts in a particular field in forming opinions?
  • Holding: Yes. Rule 703 encompasses hearsay statement such as the above. Even before the establishment of Rule 703, considering hearsay has always been acceptable for expert witnesses in arriving at their conclusions.
  • NOTE: This case gets around the confrontation clause issue with a ROBERTS analysis (firmly rooted exception), but Roberts is no longer good law.


  • People v. Gardeley – California Supreme Court held that a police officer with 23 years of investigating street gangs could testify as an expert on whether D was involved in a criminal gang (satisfying an element for enhanced sentencing) when his testimony was largely based upon statements made to him by other gang members.


  • Crawford implications for testimony based on hearsay – Courts generally do not construe expert evidence based on hearsay to be a violation of the confrontation clause because the statements of the hearsay declarants are never quoted.
  • Dripps thinks this is a weak argument because the jury can obviously deduce what it was that was said to the expert.


  • Opinion based on another’s opinion – Expert may base testimony on the opinions of others but may not simply parrot another’s opinion or base opinion on another’s opinion prepared for litigation. U.S. v. Tran Trong Cuong (Doctor could not bolster opinion by saying that “other doctor came to same conclusion.)


  • Statement on ultimate issueFRE 704 Expert witnesses may state their opinions any way they like, subject to the exception in criminal cases which prevents them from saying explicitly whether a D has a specific mental state that is an element of a charged crime. FRE 704(b)
    • State v. Odom – an expert witness cannot express whether or not they feel a person is guilty, but they can characterize the defendants’ conduct based on the facts in evidence in light of his special knowledge.


  • DNA evidence


  • The basic science: The government tests 13 base pairs of DNA that occur in all individuals. The odds of any two individuals having all 13 base pairs matching is 1 in several billion.
    • DNA evidence is less probability evidence and more so identification evidence.
  • Is DNA evidence probative?– Yes, but it does not require belief in the proposition it is held out for. Potentially unreliable because:
    • Mistake – mislabeling crime scene sample with suspect sample
    • Framing
    • Innocent Explanation – V got in a fight with A and got blood on his shirt. A week later, he was killed by Y while wearing the same shirt.
  • False positives significantly reduce the reliability of the DNA test in general.
  • Distinguish “match probability” from source probability and especially from guilt probability.
    • Guilt probability may not be assessed by DNA lab experts. Actualy probability must include the likelihood of the a
    • Prior probability” – Prior to DNA analysis, liklihood that D committed crime. Tech labs assume 50% prior probability. This is incorrect because evidence usually favors one side or the other prior to genetic test.


  • Subgroup population – probability that any random person would be a match is not best approach if the other potential criminals come from a gene pool that is substantially similar, i.e. 1 of 3 brothers committed the murder.


  • Calculating Error Rate
    • Blind proficiency tests – Preferable but rarely conducted.
    • Non-blind proficiency tests – Not as accurate because technicians know they are being testing and will be more careful with the samples.
    • False positive error rate is between 1-4%


  • Policy concerns
    • Is the probability evidence “overwhelming” to the jury?
    • 25% of DNA tests run negative, and result in the suspect being LET GO. This casts doubt on our justice system because ¼ of all people arrested were not guilty of the alleged crime.
    • The biggest causes of false conviction:
    • Mistaken eye-witness testimony
    • Bad lawyering
    • Corruption
    • False confessions


Hearsay(801(c)) – “a statement other than one made by the declarant, while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

  • Rationale for exclusion:
    • direct testimony more likely to be accurate
    • direct testimony can be crossed for testimonial infirmities:
      • perception, memory, sincerity, and ambiguity


  • Examples of statements NOT offered for truth, NON-HEARSAY:
    • Legal meaning (defamation suit – must prove words were UTTERED, not that they were necessarily true.)
    • Warning – “look out!”
    • Language of contracts (language of contracts on enforced because it was “true,” but because they have legal significance independent of their truth.)
    • Words introduced to show effect of listener – for ex., complaints of injuries to manufacturer in tort suit.
  • Non-assertive conduct – May be spoken or non-spoken action that is intended to accomplish something, but NOT to convey the information offered as evidence. SHIP CAPTAIN HYPO, “$50 on Speedy, (U.S. v. Zenni), Suicide as evidence of guilt.
    • Policy – The risk of insincere ACTIONS is much lower than the risk of insincere statements.
    • Admissible under the FRE, but NOT admissible under many jurisdictions that have broader def. of hearsay.
    • More likely to be non-hearsay when the equivalence of the statement and the proposed use of the assertion diminishes. At same time, however, as equivalence diminishes, so does the likelihood of relevance.
    • Contrast with common law view from Wright v. Tatham (Case in which letters written by deceased were barred from admission to prove that he was competent, not to prove the contents.)
  • Verbal Markers
    • A suitcase is found with drugs with a name tag “jd”. The name tag should not be admissible in proving that “jd” was in possession of drugs because there may be alternative reasons other than to declare ownership as to why the person who put the tag on the bag actually put the tag on the bag. (To steal the bag, perhaps.)
    • Verbal markers are like a distinctive rip or a piece of tape on a suit case.
    • A car that hits D has a bumper sticker XYZ. Evidence is admitted that D owns a car with bumper sticker XYZ. This evidence is admissible.
      • Self verifying details – a statement that could not have possibly been made if not for a fact that proves the defendant’s guilty.
          1. Gates case – child made statement out of court describing a copper sink in defendant’s home. The only way that the child could have made the statement was if she was in D’s home, and the only reason D would have a little girl in his home with nobody else is, presumably, to molest her.
      • Non-human declarants – Camera in intersection, etc. Never considered hearsay because machines cannot be cross examined.


  • Statements EXEMPTED from definition of hearsay


      • Admissions – anything a party has ever communicated (speech, writing, etc) sought to be introduced against that party at trial.
          1. Two requirements for admissibility of admissions:
            • Statement must once have been made by opposing party
            • Statement is relevant in current trial
          2. Admissible even if the declarant lacked personal knowledge. (Reed v. McCord)


      • Five main types of admissions
    1. Statement of a party – Note according to Bruton v. U.S., an admission by one of two joint defendants in a criminal case is not admissible in a joint trial if it implicates the other D. Trials may be severed if prejudice would result to other D. Theory is that jurors are incapable of following a limiting instruction in such case.
    2. Adoptive admission – Statement made alleging guilt of D and D acts in a way that confirms the truth of the statement. (Carlson case and Hoosier case). CEC 403 & 405
          • CEC 405 is like the federal approach
          • Judge decides whether D actually adopted the admission, since this is a question of relevance.
          • Silence after arrest in the face of criminal accusations CANNOT be considered an implied admission because this would undercut Miranda. (Jenkins v. Anderson)
    3. Authorized admission – principal party explicitly authorizes the declarant to speak. (A lawyer on behalf of client, for ex.)
          • Judge determines whether statement was actually authorized (this is a relevance issue, again.)
          • Most statements by attorneys can be admitted under the legally operative language theory, so admissions theory is not usually necessary.
    4. Agency admission – statement made by employee admitting guilt on behalf of employer. (Sabel v. Mead Johnson)
      • Statement must be made during period of employment
      • Statement must concern matters relevant to the agency of which the agent had personal knowledge.
      • Independent contracted are NOT agents.
      • Under the CEC, agency admissions only cover respondeat superior. (Which is still most cases.)
    5. Co-Conspirator admission – since all conspirators are responsible for the crime, the admissions of one conspirator can be used to prove the guilt of another.
  • Policy – Generally, we let the statements in because we would not get better evidence by having them testify in court (in court, conspirators have very little motivation to tell the truth.)
  • Requirements – There must be a conspiracy proven by preponderance of the evidence, statement must be made while conspiracy existed, and statement must be in furtherance of the conspiracy objective.
  • Idle chatter is not in furtherance of C. (U.S. v. Doerr)
  • Statement to COVER UP conspiracy still “part” of conspiracy. Domenico case.
  • Judge decides if conspiracy exists – does NOT need to rely on evidence outside of the conspiracy statement itself to evaluate whether a conspiracy exists. Bootstrapping, Boujaily case.
  • Theoretically pure approaches to determining admissibility of CA’s: All testimony comes out at pre-trial hearing and judge rules on the admissibility of everything (this gives an edge to the defense because all of the prosecution’s arguments are laid out on the table.)


  • Prior Statements by a Witness – 801(d)(1)
    • Requirements:
        1. If past statement inconsistent, must currently be available, testifying at trial w/ cross-examination. May be admitted for truth if it was made under oath at trial, hearing or proceeding. Not under oath = impeachment only.
        2. If past statement consistent & introduced to prove no changed motive, statement need not be under oath.
        3. Statement may be admitted to prove prior identification.
    • Difference in CEC: prior statements NOT made under oath may be introduced to prove truth of matter asserted, not merely to impeach.
    • Availability requirement minimal – U.S. v. Owens ruled that witness was “available” even though he had no memory of making the prior identification.



EXCEPTIONS to the hearsay rule (admissible hearsay):


      • Exceptions admissible regardless of availability of declarant:


        1. Present Sense Impressions – A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
          • Admitted because the “desire to lie requires time and reflection.”
          • contemporaneous” left to court’s discretion
          • CEC does NOT admit present sense impression.
          • Must DESCRIBE something
          • May only relate to what is actually occurring, i.e. declarant may not say “she just slipped on the lettuce that has been left out all evening.” Latter part of statement is inadmissible and would be redacted.
        2. Excited Utterances – 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.
          • Motivation to lie is overcome by the shock of the startling event.
          • Must RELATE to the event. (Contrast w/ present sense, which must describe.) This means that statement can include references to the past, i.e. “That lady just slipped done the lettuce that’s been out all day.” Whole statement is admissible.
          • Must be made WHILE under stress of the exciting event.
        3. State of mind (current mental, emotional, or physical condition, plan, design, etc.) 803(3)– A statement offered not to prove the truth of a matter, but to show this witness’s state of mind at the time of the conversation and to explain his subsequent actions.


  • Why do we allow these statements? – the answer is twofold: (1) It is impossible to discover people’s thoughts and feelings absent those people’s own declaration. (2) Between contemporaneous statements and trial statements recalling feelings, contemporaneous statements are at the very least NO WORSE that at-trial testimony.
  • PROHIBITED to use as proof that the remembered fact is true.
  • Believe must not correlate to past fact alleged. i.e. “I think D poisoned me.” This would be to couch hearsay in the exception. The only exception to this prohibition is statements of memory or belief to prove the fact remembered or believed that relate to the execution, revocation, identification, or terms of declarant’s will
  • Hillman doctrine – State of mind can be used to inferentially prove other things at issue.
  • Backward looking statements do not meet the exception. They are known as Shepherd statements.


  • Statements of medical diagnosis or treatment – FRE 803(4) Statements of a declarant’s present physical condition, medical history, past or present symptoms, pain, or the general cause of the declarant’s condition are admissible.
      • Reliable because people are unlikely to lie about own medical condition.
      • Statements limited to those REASONABLY PERTINENT to diagnosis or treatment.
      • Tender years exception” – allows non-medical testimony of child made to Dr. in on grounds of not wanting child to relive trauma on witness stand.
      • Statement of parent w/ young child admissible on behalf of child.
      • CEC for med exceptions only applies to statements made by minors in child sex abuse and neglect cases. Best way to get this testimony in under CEC is through state of mind.
    • Past Recollection Recorded – 803(5) – requires that witness:
        1. Lost recollection of event, and;
        2. Had recorded their beliefs, or adopted a record at a time when matter was “fresh in the witness’s memory.”
        3. NOTE: PRP’s can only be READ into evidence; memorandums, etc cannot be submitted as exhibits.
        4. Contrast w/ present recollection refreshed – this is simply not hearsay because the document is merely used to jog witness’s own memory. Note that the “document” can be anything and does not have to comply with the rules of evidence.
        5. Exception for police record in criminal trial used as PRR – Although police reports in criminal trials are generally not admissible against the D, if the police officer if present at trial and doesn’t remember what happened, his statement in the report can come in under this exception. KEY that he is ACTUALLY THERE.
  • Business and public agency records – 803(6) – requirements are:
    • Personal knowledge by agent of business who supplied info, but personal knowledge no necessary by person who recorded info
    • Record made near in time
    • Of a regularly conducted activity
    • Record is part of regularly kept records
    • Declarant need not testify at trial; may be someone else familiar with record system.
    • NOTE: Document must not be prepared in anticipation of litigation. (such document is known now as a Palmer Record”)
    • NOTE: Recorded facts may include conclusions and opinions that flow from factual investigation.
    • NOTE: Findings from “official investigations” are admissible by the criminal D but not the prosecution.
    • Matters observed pursuant to legal duty of law enforcement officers are not admissible for either D nor P in criminal cases; however, if the D seeks to admit the record he may be able to make a due process argument to get it in. (Or an admissions argument, but this would be much weaker.)
    • In regular course of business” does NOT generally include employee’s recounts of accidents. Note that recounts of accidents in general may be admissible under this exception if the business has the practice of documenting all accidents.
  • Ancient documents – Document must be at least 20 years old and authenticity must be established.
  • Commercial publications and learned treatises
  • Public Records: including opinions & conclusions
  • Records of vital statistics (birth certificates, death certificates, etc)
  • Residual exception rule – FRE807 – Basically allows judges some personal discretion to admit evidence if it is particularly reliable and crucial to the case, but does not outright meet the requirements of a hearsay exception
    • Some general requirements: ** Statement must have indicia of trustworthiness. (1) Statement offered as evidence of a material fact (2) Statement is more probative than any other procurable through reasonable efforts (3) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence (4) notice must be given to the other side. Turbyfill v. International Harvester
    • Does not replace all other rules because doing so would give too much power to the judges.
    • Near Misses – “it presently does not matter if a category of hearsay was specifically rejected as an exception when considering its admissibility under the catch all provision.” Being a “near miss” does not preclude the 804(b)(3) exception from being applied. This is the general practice of judges today.
    • California has NOT developed similar evidence code – However, CA does have Sec 1200 which states that “Except as provided by law, hearsay evidence is inadmissible.” Provided by “law” seems to include common law, so even though judges can’t make case by case exceptions, they CAN defer to common law, which gives them the similar sort of leeway that the federal rule 807 provides.


Hearsay Exceptions when D is unavailable


  • Former Testimony:
    • D must be unavailable (refer to 804(a) for definition of unavailable.)
    • Testimony must be given at hearing, depo, etc. under oath. Grand Jury testimony is NOT acceptable.
    • Statement must concern the same factual issue
    • Opponentmust have had opportunity for cross AND similar motive. NOTE that in civil cases, testimony from a prior trial can be used if same motive for cross existed. (Interests adequately represented.)
  • Statements against interest – SAI’s are allowed because, since people generally do not lie to counter their own interests, the truth of the statement is particularly reliable. (GM McKelvey Co. v. General Casualty Co.) – statements made by employees incriminating of employer were admissible since they were made against the employee’s own interest.)
    • SAI’s must be against interest at the TIME THEY ARE MADE. (This is in contrast to admissions, which need only be against interest at time of trial.)
    • Must be sufficiently against interest that a reasonable person would not have made the statement.
    • Unavailability requirement set out in 804(a)
    • Statements against penal interest must be corroborated. This is to avoid the “anonymous letter” problem. (NOTE that common law didn’t even allow penal interest statements.)
    • Embarrassing or self-disgracing statements – FRE does not recognize them as SAI’s, but the CEC DOES.
    • Non-self inculpatory statements made within a larger statement against interest are NOT admissible. (Williamson v. United States) – The fact that a statement is self-inculpatory says nothing at all about the collateral statement’s reliability.
    • Dying Declarations: Must relate to the cause or circumstances of death. Just have to think you are about to die; don’t actually have to die, but must still be unavailable. Only for homicide cases.


  • Forfeiture of Objections – FRE 804(b)(6)
    • Involves the following components:
    • Clear proof of the D’s coercion to prevent the witness from testifying. (Preponderance of evidence)
    • Intent to prevent testimony by declarant. (For ex., D is in jail and his cronies kill witness. D forfeits right to confront because he intended witness to die.
    • Original statements of witness are NOT unreliable
    • It is unclear under Reynolds whether the forfeiture rule would apply if the defendant had killed the witness as part of the original crime without an intention to make the witness unavailable.
    • NOTE: If the framers were comfortable with the reflexive forfeiture concept, why would they have required that V’s must believe they are dying in order to admit their dying declarations
    • Standard of review – Judge must find by preponderance of evidence all the above elements. Judge decision may only be overturned upon showing of abuse of discretion.
    • Policy – Should forfeiture depend solely on a judicial finding that unavailability is a result of D’s conduct? If so, judge has the power to assume D’s guilt. Unfair?


  • Rehabilitating a non-present hearsay declarant – FRE 806: When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.
    • Credibility may be attacked, and if attacked supported, in accord with the principles governing attack and support of testifying witnesses.
    • One exception: may impeach a declarant by evidence of inconsistent statement regardless of whether he gets a chance to “deny or explain”
    • May resort to all five of the recognized methods of impeachment.
    • Must follow the other requirements of Rule 613 for impeaching a witness, besides the opportunity to explain or deny.
    • For purposes of repairing credibility, the governing principles also apply.


(Dripps calls them exceptions to hearsay) Prior Statements by Testifying Witnesses (i.e., witness available)

  • Prior Inconsistent Statements: sometimes admissible as substantive evidence
    • Requirements for a prior inconsistent statement to be substantively admissible: (1) the declarant must testify and be available for cross; (2) the prior statement must have been made under oath at a trial, hearing, other proceeding or deposition.
    • The FRE classify admissible prior statements as nonhearsay, not as hearsay admissible b/c of an exception.
    • Don’t confuse this exception with the “former testimony” exception. Here, the statement must be in conflict with the current testimony. On the other hand, there’s no requirement that the prior statement have been subject to cross examination.
    • Make sure the declarant is presently testifying. If the prior inconsistent statement is offered to contradict a prior out-of-court declaration rather than the declarant’s live testimony, the exception doesn’t apply.
    • Distinguish between use of a prior statement for impeachment purposes and use for substantive purposes. What we’re talking about here is substantive use. (But don’t forget that if you determine that the statement is substantively admissible, then it’s automatically also available for impeachment).
    • If the statement was not given under oath at a formal proceeding, but was made by (and is sought to be used against) a party, consider whether it’s admissible as an admission.
  • Prior Consistent Statements: the FRE approach: the consistent statement is admissible only to rebut an express or implied charge that the witness has been improperly influenced, or has recently fabricated his story. Note that the prior consistent statement must have been made before the influence or fabrication came into existence.
  • Prior Identification: fairly easy to admit. FRE 801(d)(1)(C) – a statement of identification of pa person after perceiving him is nonhearsay if the declarant testifies at trial and is available for cross.
    • Typical scenario involves a trial witness who testifies that at some earlier point in time, she identified D as the perpetrator – Admissible.
    • Common scenario: W is asked at trial to identify the D as the perpetrator of the crime charged. She says she can’t b/c his appearance is now different. The prosecution then asks W to repeat the previous ID that took place after the crime. (Ex: The prosecution can then show that W picked a person out of a lineup conducted after the rape, and that the person picked was in fact the D).

Confrontation Clause – Part of 6th amendment. Only applies in criminal cases!

  • Contrast older Roberts handling of the CC with the modern Crawford approach:
      • Roberts – exempts from confrontation clause requirements if (1) D is unavailable (2) statement falls within “firmly rooted hearsay exception,” OR (3) the statement was accompanied by particular guarantees of trustworthiness
      • Crawford – Any out-of-court statement that is testimonial is not admissible unless witness is unavailable and D had prior opportunity to cross examine.
          1. Admitting testimony simply because it has been deemed “reliable” isn’t good enough because “reliability” is a subjective distinction. Judges shouldn’t be trusted with the decision to admit or not based on their personal assessment of reliability
          2. Too Broad/Too Narrow – The Crawford court says that Roberts is too BROAD in the sense that it imposes strict constitutional scrutiny on hearsay that is not testimony, such as present sense impressions. The Crawford court says Roberts is too NARROW when it comes to admitting testimony, since it admits un-cross-examined testimony simply if it is otherwise found reliable.
          3. Crawford does not apply to statements not offered for truth of matter asserted!
          4. Crawford does not apply to co-conspirator statements because it is impossible to have TESTIMONY be part of a conspiracy.
          5. Business records are NOT testimonial in nature
  • Dying declarations are an exception to confrontation clause.
    • In Crawford, Scalia states that dying declarations have an historical pedigree that exempts them.


  • What is “testimonial”? – OBJECTIVE STANDARD “Would you realize the statement would be used at trial?”
      • 911 calls contemporaneous w/ activity are generally considered non-testimonial.
      • If dealing with statements made to police officer, must ask WHAT WAS PRIMARY PURPOSE OF THE QUESTIONING.
      • word on the street is that D killed V” ruled non-testimonial because there are multiple sources, none of whom would be likely to make the statement to law enforcement.
      • Hammon v. State – testimonial statements are those where a principal motive of either the person making the statement or the person or organization receiving it is to preserve it for future use in legal proceedings.
    • Forfeiture makes testimonial evidence exempt under Crawford
    • Follow up after Crawford: only applies to Ps, Ds can still call witnesses and allow testimonial HS. “When constitutional rights that directly affect whether D is guilty, the HS rules may not be mechanically applied to defeat D’s right to present a defense.”
    • Child abuse cases: primary purpose; intent of child immaterial; doesn’t matter to who child talked: nontestimonial.
      • But to police officers, probably testimonial
  • Nontestimonial: business records, as long as routine, nonadversarial, not expecting to use in court
    • But like certified or signed does of lie blood analysis to peg D might be testimonial, esp. if from police
  • Bruton: Admission of a joint D’s confession not ok even if a limiting instruction given to jury
  • Cruz: confessions of nontestimony co-Ds are inadmissible even if they interlock with a D’s own confession.



Privileges – Privilege is any relationship in which communications between the parties of the relationship are barred from evidence at trial. Privileges are granted to preserve some countervailing good

  • Wigmore Utilitarian Argument for Privilege – This is the primary justification for privilege and the one on which most case law is based.
    • Our adversarial system requires that both parties be able to fight their case to the fullest extent of the law. If there was no attorney client privilege, people would be apprehensive to tell their attorneys their whole case and as a result, their legal representation would suffer.
    • Fewer laws are broken if we have privileges. For ex., without legal advice, many people would make illegal tax moves; however a lawyer can advise the client of a legal way to accomplish the same thing with 75% of the net result.
  • Private Relationship Arguments – Regarded as an outdated theory justifying privilege.
    • Certain relationships should not be penetrable by the law. Legal privileges ensure the privacy that these relationships deserve.
  • FRE privilege law defers to common law – FRE 501 on Privilege – States that privileges are “governed by the principals of common law.” (Obviously a very strange statutory provision.)
    • The advisory committee proposed several privilege rules, but the rules were rejected. Oddly, however, since 501, states that privileges are governed by common law, these rules are still OFTEN referred to determine the law.
  • Privilege continues to exist after death except in will disputes.


  • Attorney Client Privilegecommunications between the attorney and client are privileged provided there is a genuine attorney client relationship, client has a reasonable expectation of privacy,and the client has preserved the confidentiality of the statement after making it.
    • Qualified Privilege v. Absolute privilege – Qualified privilege can be overcome upon showing of demonstrable need. An example of this is attorney work product, and arguable therapist patient privilege when a patient presents an exceptional danger.)
    • AC privilege continues to operate after death of client – Even if a client dies, their communications are still protected. At this point, the rights to release to communication belong to the deceased’s estate


  • Protected communications
    • Lawyer/potential client conversations and actual conversations, but not against disclosure of the underlying facts.
  • Unprotected Communications
    • Non-subject matter of legal issue – Conversations that do not concern the subject matter of the legal problem are NOT protected – United States v. Woodruff – attorney required to disclose whether or not he told client about date of hearing.
    • The facts of the case – Only the DIALOGUE is protected, not the underlying facts. For example, client admits to attorney that he was drunk at scene of accident. Fact that client was drunk is DISCOVERABLE.
    • Client’s demeanor – For ex., client shows up to meeting drunk then gets in accident. Attorney will be required to tell prosecution whether client was drunk.


  • Are corporations “clients”? – certain aspects of the attorney client privilege cannot logically apply to corporate entities because corps have no sense of propriety and cannot possess “personal” information. Nonetheless, courts still extend some form of the privilege to corporationsUpjohn v. United States
    • Translators, transcribers, etc., all count as part of the corporation.


  • Exceptions to the AC privilege


  • No reasonable expectation of privacy – Policy to protect communication is undermined if client shows disregard for privacy.
    • For ex., talking to one’s attorney about one’s case in a crowded restaurant. (Note that this example can be misleading because while it is true that no one may CARE what the client says, or even be listening, the fact that the conversation was made in a public place undermine any expectation of privacy, therefore no privilege.)
      • What about talking on one’s cell phone? Not protected. This is similar to the crowded restaurant example, because even though the client may feel like the conversation is private, a reasonable person can foresee the ease by which a third party could eavesdrop.
      • What about communication by email? – There has been a specific statute passed that explicitly makes email protected communication, similar to letters.
  • Litigation concerning the privileged information – NOT protected. Would defeat possibility of fair dispute resolution if the dispute could not be openly argued in court.
    • For ex., Joint clients of an attorney who sue each other can use all statements made to the attorney that are relevant to each of their cases.
    • For ex., Dispute about payment of attorney’s fees.
  • Waiver.
    • Explicit waiver by contract
    • If a client reveals a private AC communication to others
    • Note that this exception applies to a witness privilege holder who is being questioned on the stand. If they give an answer to a question that reveals privileged information, the privilege has been compromised. It is unclear exactly how far judges will allow the questioning attorney to take this (does it COMPLETELY eradicate privileged relationship? Unclear).
    • Hypo – Attorney discloses privileged information in an effort to help client, w/o client’s knowledge, but disclosure backfires. According to Professor Park, client authorization can be inferred and the disclosure admissible as evidence. Dripps seems to disagree, says the court in this instance (hypo based on real case) was looking for any way to get a waiver.
    • Gross negligence v. Marginal negligence – If material is disclosed due to gross negligence, both the client and the attorney have waived privilege. If disclosure is result of marginal negligence, there is no waiver. When docs are first received, they must not be opened. Proceeding must be conducted with judge to determine level of neg, and thus whether privilege has been waived.
  • Client’s Identity – Where disclosure of the client’s identity would deter the client from seeking legal advice or negotiating settlements, some jurisdictions will protect client identity as a matter of policy. This is a disputed area.
    • For ex., client commits hit and run and negotiates an anonymous tort settlement with victim. DA learns of this, and since hit and run is illegal, subpoenas the attorney and demands he reveal client name.
  • Crime/Fraud – Any conversation between client and attorney concerning illegal action (“forward looking wrongdoing,” prospective, not something the client has already done and needs help limiting liability for.)
    • Clark v. State – The AC privilege applies only to legal advice that is in accordance with the law. If the lawyer gives illegal advice he is no longer acting in the capacity of an attorney then the communication is NOT protected.
    • In Camera ReviewGenerally allowed to make decision on admissibility.
      • United States v. Zolin – Hearing tapes In Camera to determine if they contained matters protected by the AC privilege was not a violation of the AC privilege in itself. The court need not look only toward extrinsic evidence, but may consider the nature of the communication itself.
      • In camera inspection is a smaller intrusion into attorney-client privilege than in court testimony. Therefore, a lesser evidentiary showing is needed to overcome the privilege
    • Standard of review – (Preponderance of evidence) – Must prove that the communication ACTUALLY CONCERNED illegal activity by a preponderance of the evidence, i.e., “the memo was great, we are looking into several of the options you suggested,” SHOULD be protected because it does not explicitly reference any illegal activity.
  • Not acting in capacity as attorney
    • If attorney is acting as a business advisor or other non-legal role, privilege generally does not apply.


  • Physician-Patient Privilege – CEC 990 – 1007


  • FRE does not acknowledge physician-patient privilege – The federal rules still acknowledge confidentiality (i.e., Dr. can’t sell your medical information on ebay), however, the information is not PRIVILEGED, meaning it will not be shielded in the court of law.
  • California offers the privilege in extremely limited circumstances,
    • CA privilege is not available when medical condition is at issue, and since virtually every instance when a party would seek to introduce med. records would be when the condition is at issue, this exception swallows the rule.


  • Psychotherapist-Patient Privileges – FRE 501


  • FRE 501 – gives the power to determine the extent of therapist/patient privilege to the courts
      • Court’s argument for privileged psychotherapist-patient privilege
        • Valuable relationship
        • Confidentiality is a necessary feature
        • The benefit of therapy exceeds the drawback of suppression of truth
    • Plaintiff may not hide behind his privilege – If the plaintiff’s mental state is directly at issue, the plaintiff waives his right to therapist/patient privilege when he brings his suit – Prink v. Rockefeller Center Inc (Deceased husband’s mental state was at issue in determining whether he jumped or fell out of his office window.)
      • Due process implication – Not allowing the D access to P’s psychological records in this instance is a violation of due process (Chambers v. Mississippi)
    • The therapist/patient privilege should extend to social workersJaffe v. Redmond
      • Jaff created a balancing test to determine what types of therapist client relationships should be protected.
    • Egalitarian Argument for social worker/client relationship – Many lower income individuals cannot afford psychologists, but since social workers essentially provide the same service at a lower cost, privilege should extend to communications arising out of these relationships just the same.
    • Are GROUP counseling sessions covered by the rule in Jaffe? Probably, but its very borderline. It seems as though the fact that other people are there is not detracting from the benefit to be gained by the therpist-patient interaction. Are AA meetings protected by therapist/patient privilege? – NO, the line is draw here. AA meetings are simply a group of people talking out their problems together. This is no different than talking to a close friend about a problem, which of course is not privileged.


  • Note – Privilege preserved if transferred between privileged parties.
    • For ex., privileged information a therapist shares with a doctor will be kept privileged.


  • Martial Privilege


  • Protect marriage by fostering communication vs. protection by fostering “zone of privacy”?
    • Zone of privacy would protect things that were not intentionally communicated if they were learned of within the privacy of the marriage. For ex., H finding stolen property wife hid in home would be protected only under the zone of privacy interpretation of the law.
    • Trend toward limiting to “communication.”
  • Privilege persists after death or divorce.


  • Who owns the privilege? Witness spouse, or defendant spouse? – Depends if testimony is re: confidential conversations between H & W during marriage, or just testimony in general:
    • Testimonial Privilege – Under both the CEC and the rules of the federal court, the witness spouse has the right not to testify, but they can waive it, even if the defendant spouse objects to this – Trammel v. United States
      • Applies ONLY in criminal cases!
    • Confidential Communication Privilege – The defendant owns the right.
      • Applies in both criminal and civil.


  • Exceptions to marital privilege:
    • Acts conducted in front of the other spouse are generally not protected from being testified to at trial by the observing spouse, UNLESS INTENDED TO BE A COMMUNICATION.
    • Voluntary disclosure to third parties
    • Inter-spousal litigation
    • Criminal proceedings involving the family
      • If one spouse is charged with a crime against the other spouse or a family member, the privilege is waived.
      • If the spousal statements are made in furtherance of a criminal conspiracy between the spouses, the privilege is waived.
      • Does not matter whether both or only one spouse is charged, as long as the uncharged spouse has “substantial criminal involvement”.
      • Does not matter whether the conspiracy is charged as an offense.



  • Privilege against self-incrimination – 5th Amendment – “no person … shall be compelled in any criminal case to be a witness against himself.”
    • Fifth Amendment Privilege:
      • The client’s Fifth Amendment privilege does not protect the client’s documents against compelled production when they are in the lawyer’s hands
        • BUT: if the client’s Fifth Amendment privilege would have protected the documents against disclosure when they were in the client’s hand, AND, the client has transferred the documents to the lawyer in confidence and to get legal advice, THEN, the lawyer-client privilege protects the documents against compelled production when they are in the lawyer’s hands.
      • The client’s Fifth Amendment privilege protects against only compelled testimonial self-incrimination
        • Testimonial Self Incrimination: private incriminating statements of an accused may be overheard and used in evidence, if they are not compelled at the time they were uttered.
        • Compelled testimony, but no self-incrimination: disclosure of private info may be compelled if immunity removes the risk of incrimination. The prosecutor, by guaranteeing that the witness’s testimony will not be used against him can compel testimony that otherwise would incriminate the witness
        • Compelled self-incrimination, but no testimonial evidence: The protection of the privilege does not apply to the giving of blood samples, handwriting exemplars, voice exemplars, or the donning of a blouse worn by the perpetrator (all nontestimonial evidence)


  • Product of framer’s fear of potential abuse of an inquisitorial system. (Torture, etc.)
  • Two categories of privilege: Witness is civil or criminal case, and defendant in criminal case.
    • As a witness – Can refuse to answer questions at any time in a proceeding (including grand jury, depo, etc.) that may lead to a self incriminating response.
      • Privilege only applies if answer would expose witness to CRIMINAL LIABILITY.
        • Civil liability is not protected
        • Crime for which the statute of limitation has expired are not protected. (Can’t be prosecuted anyway.)
      • Must appear at proceeding and be sworn in before privilege can be invoked.
      • Judicial determination to grant privilege – Judge must consider the implications of the question in the setting in which it is asked, in determining whether the answer may incriminate the witness (Hoffman v. United States)
      • Immunity: Two Types
        • Transactional Immunity – Immunity from being prosecuted regarding the SUBJECT MATTER of the immunized statement.
        • Testimonial Immunity – Immunity against use of the STATEMENT itself. Statement cannot be held against declarant, but future prosecution based on difference evidence may still be okay. (Prosecutors have right to grant only testimonial immunity and force witneses to testify or be held in contempt of court.)
    • Criminal Defendant Privilege – Same rights as witness privilege and more.
      • Right to refuse to testify at trial
        • May testify at preliminary hearing without waiving right to refuse to testify at trial.
        • If a D refuses to testify, the prosecution MAY NOT call attention to this fact at trial. Doing so, in itslf, has a coercive effect. Griffen
        • (Although Dripps presents that argument that simply presenting evidence against a D also encourages them to testify to exonerate themselves, so if presenting evidence is allowed, why isn’t this?)
      • Right to remain silent on arrest.
        • Miranda rights must be read.
    • Privilege against self incrimination only applies to FORCED TESTIMONY
      • Testimonial” is defined here differently than in Crawford. Testimonial here means any evidence from the mind of the defendant. This definition would not include a suspect’s thumbprint, or the suspect standing in a line-up.


  • Authentication – FLC 901(a) – Requires that the proponent of evidence provide a reasonable basis for the fact finder to believe that the evidence is what the proponent claims it is. (No preponderance of evidence standard, just simply “the jury might believe” this to be true.)


  • General rule: Authentication is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims. (Must have adequate evidence to support a jury finding that the matter in question is what its proponent claims.
    • Essentially a refinement on requirement of relevancy.
    • Foundation testimony” is essentially authentication. Same thing.


  • Tracing – To prove that a bag of cocaine taken at the scene of a crime is the same one presented on the witness stand, you need people to testify as to the chain of possession.
    • You do NOT NEED EVERYONE’S testimony in the chain of possession because there is an assumption of regularity.
    • If each officer has their own evidence locker, you simply need to prove that the storage system is secure.
  • Parties entitled to use wide variety of methods to authenticate (901 lists many examples.)
    • Handwriting – Lay persons familiar with someone’s handwriting may testify that the handwriting on a document is X’s handwriting. (Must have reasonable basis of familiarity with X’s handwriting, though. For ex., widow can identify H’s signature on a contract, but unless she has familiarity with and can identify D’s signature, she cannot authenticate the document by means of handwriting identification.)
    • Public Records – Evidence can be simply proof that the document came from the office where items of that type are kept. (Chain of custody.)


  • Incoming calls vs. outgoing calls
  • Outgoing calls can be authenticated by the witness s imply testifying that they dials X’s number and someone who identified themselves as X picked up.
  • Incoming calls require actual voice recognition because there is non way to know from what number the call was actually made, and the situation is more uncertain.


  • Self Authentication – governed by FLC 902 for some forms of documents, authentication is satisfied simply by providing the document itself.
    • For example, domestic public documents bearing seal of government agency


  • Original Writing Rule (Best Evidence rule) – FRE 1002, 1003


  • General rule: If proving the CONTENT of a writing, recording, or photograph, the original is required except as otherwise provided. (This rule has common law origins, and now there are several exceptions.)
    • EXCEPTION: – 1003 “otherwise provides” that a duplicate is admissibleunless a genuine issue is raised as to authenticity of original, or it would be unfair to admit the duplicate in lieu of the original.
    • EXCEPTION – 1004 “otherwise provides” that original not necessary if it has been lost or destroyed (so long as not the intentional result of proponent’s actions), or the original is unobtainable, or in possession of opponent, or concerns only a collateral “unimportant” matter.


  • Policy basis – having document physically present at trial will increase the chances of someone discovering any forgery or tampering.


  • Definition of “original” – the document itself or any “counterpart” meant to be the original by the parties. For ex., two copies of a signed contract, one for each party, both are “originals.” “Original” is any photograph made from the original negative.
  • Secondary evidence of contents 1006 – If a party does not have the original or a duplicate, a party familiar with the document may testify as to its contents.
  • If there is dispute as to which is “original” –1008 – Both documents are admissible and it comes down to a credibility question for the jury to determine which one true is authentic.
  • Hypo – In a treason trial, government would like to introduce witness who will testify as to what D said, rather than admit the court transcript. ADMISSIBLE. The witnesses are testifying to the VERBAL ACT, not the written transcription of it, and therefore their testimony is at least as good as any court transcription.
  • Photographs are not hearsay, and can be authenticated and brought into evidence by someone with personal knowledge.
    • The only exception – the rare circumstance when a photograph is presented for the PURPOSE of making an assertion. (a picture of p pointed out the victim in a line-up.)
    • Problem with X-rays – By definition, the insides of a person as documented by an x-ray are not known with personal knowledge by anyone – that’s why we TAKE x-rays, to avoid exploratory surgery. The x-ray can be authenticated by an expert witness who will testify that “the processing system produces an accurate result.”













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