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237 Cards in this Set

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Rule 103. Rulings on Evidence
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
Rule 104. Preliminary Questions
(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon 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.

(c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.

(d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.

(e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
Rule 105. Limited Admissibility
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
Rule 201. Judicial Notice of Adjudicative Facts
Rule 201. Judicial Notice of Adjudicative Facts

(a) Scope of rule. This rule governs only judicial notice of adjudicative facts.

(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(c) When discretionary. A court may take judicial notice, whether requested or not.

(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.

(g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
Plaintiff wants to introduce the statement by defendant that he said "I am going to break your arm because I belong to a cult that worships violence," to prove that he committed assault. Will all of this statement be admissible?
While all statements introduced by plaintiff are intened to prejudice the opponent, those statements that will make the factfinder react in a way that is not supposed to be part of the evaluation process is unfair prejudice. Here, a juror might be disgusted by the fact that the defendent is in a weird cult and want to punish him for his cult status regardless of his beliefs about the assault. Under 403, this information would not be relevant.
In a products liability case, plaintiff alleged they were injured in a particular manner. Defendant claims that it is impossible to be injured by its product in that manner. Plaintiff then introduces evidence of another person that was injured in that way. Is evidence of the other person's injury admissible under 403?
Yes, it would be proper since the jury could use that information to evaluate the defense of impossibility.
Plaintiff was injured by defendant's defective product. Defendant admits that injury is possible. Plaintiff seeks to introduce evidence that one other person was injured in the same manner. Is this admissible under 403?
No, proof that one other person had been hurt that way would have only a small bearing on the likelihood that the plaintiff's claim was true, but there is a risk that jurors might believe that because something happened one time it was likely to happen another time. In such a case, the risk of unfair prejudice outweighs the probative value of evidence.
Plaintiff wants to sue for patent infringement of its specially designed ink pen. Plaintiff wants to introduce evidence that defendant recently moved its headquarters from one city to another. Relevant?

Suppose the plaintiff offers testimony that defendent bought one of plaintiff's pens, wrote with it, and said he would like to invent a pen that worked that well. Revelant?
No. The location of one's head quarters has nothing to do with how our legal system treats the right to use a particular patented invention.

Although this testiomony relates to the parties' pens, its probative value is very low, and there is a risk that the jury may not distinguish between a desire to imitate a product and a plan to misuse patented aspects of design. A judge may go either way on this one.
Could a plaintiff's testimony that the defendant hired someone to beat him up for patented information be admissible to show the defendant's pens violate his patent, under 403?
Yes. The fact that the defendant company sought information about how to use the patented design could logically support a conclusion that the product it manufactured was close in specification to the patented product. Although the fact that he hired someone to beat up the plaintiff could cause the jury to be inclined to punish him for the use of force, there is a strong probative value to this evidence. If plaintiff's case had ample other evidence about the infringement, a judge might decide to exclude evidence about the beating, but because it is so closely related to the defendant's manufacturing plans, it is highly likely the testimony would be admitted.
X is on trial for stealing a car that is worth a lot of money to collectors of classic cars. To show motive to steal and knowledge of the car's value, can the prosecution introduce evidence that X has a collection of classic cars?
Yes. Evidence does not have to be conclusive to be relevant. If X knew about classic cars, does that make the proposition more likely that he stole the car or knew of its value? a judge will probably find it does
There are two possible resolutions of the circumstance where evidence has one permissible use and another impermissible use. (For example where the case involves two different issues)
The first is to keep the evidence out so that it would gaurantee that the jury would not make wrongful use of it but it would also guarantee that the proper use of it would not occur.

The second choice, which is typically the choice made by trial judges, is to let the material in and give the jury a cautionary "limiting instruction."
If relevance by itself has no relevance, can it be admitted?
If the relevancy of the evidence depends upon the fulfullment of a condition of fact, the judge will admit evidence of this kind if its proponent has already produced the other material that shows its relevance to the trial or if the proponent promises to introduce the contextual information later.
The use of coerced confessions is prohibited in a criminal trial. If a defendant objects to the admission of a confession on this basis, should the judge treat the question of whether the police used coercion as a conditional relevance issue?
The objection does not involve the concept of relevance since the defendant is not contending that the confession lacks a relationship to guilt or innocence. The judje would decide whether the circumstances of making the confession were legitimate.

Had this been treated as conditional relevance the jury would be asked to decide if the confession was coerced. Notice this would put the jury in a difficult position - they would be told to ignore a confession if they learned about if they determiend it was not voluntary (a determination that is a preliminary factual condition).

In a true conditional relevance situation, a juror is never asked to do anything counterintuitive. When they are supposed to ignore information because the contextual info is not present, the info will not seem to have anything to do with the case.
In a rape case, the alleged vicim wants to testify that the defendant said "come with me, I'm not kidding around. I've already been in prison for rape twice before." Is this statement relevant to any issue in a rape case? Does it raise problems of unfair prejudice?
If there is a dispute about whether the victim consented to intercouse, testimony that the defendant used coercive langauge would be
relevant. Although there is unfair prejudice in the portion of the statement that reveals he has been in jail twice before, the balancing test would probably lead to admission of such evidence because there is not likely to be any other way that the victim was coerced other than what words the rapist used. In such a case, the judge may treat the unfair prejudice with a limiting instruction to allow the statement to be used for whether the victim was coerced and not for whether the defendant actually had been imprisoned in the past.
When is a high degree of similarily between the occurrence in the current lawsuit and past occurrences that are sought to be admitted required?
In negligence cases, the past events are used to prove the defendant had notice of the dangerous condition. In strict liability cases, the past events could only be relevant to show the plaintigg's injury really occurred in that manner and that the product design was hazardous. In strict liability cases, there must be a high degree of similarity between occurrences.
Both plaintiffs and defendants deposed a sailor that was to be an eyewitness in plaintiff's case for a slip and fall on defendant's boat. Defendant then sought to introduce a crew list that did not include this eyewitness on board that day. The Plaintiff then informed the court that he would not be using the eyewitness, but the defendant wanted to use him now to show the plaintiff had such a weak case that he would use purjured testimony. Is this eye witness still relevant?
If the jury believed that the plaintiff knew the eyewitness statement was phony, they could infer the plaintiff's case was weak and use this information to asist them in deciding whatever issues of fact were involved in the case.

The judge may have found the evidence relevant but inadmissible on other grounds such as wasting time or confusing the jury if there was not a strong link between plaintiff personally and the attempted purjury.
Plaintiff sues an amusement park for a broken arm caused by a sudden stop by one of its rides. If there had been other similar injuries in the past, plaintiff may have introduced them. What if the manager knows that in the past 10 years of operation there have been no such injuries? Can he introduce evidence of a record of safety?
The manager would have to establish that the circumstances surrounding plaintiff's injury were highly similar to past circumstances that the manager has knowledge of. If similarity is established, then a record of safety in the past is relevant to whether the defendant had notice that the ride was unsafe. It would also support a claim that the plaintiff was lying or mistaken about where his injury occurred. Finally, it would support the contention that the ride is reasonably safe even it it did cause harm to plaintiff on one occaission.
Plaintiff was in an accident with an armored truck. He did not see the company's name on the truck but remembered it was blue. There are two companies in that area that drive blue armored trucks. One company has 90 and the other has 10. Can plaintiff get to a jury with the company that has 90 blue armored trucks based on the statistical probability that it was them?
Some courts may let it in because a jury could deduce that this company may not necessarily be the one. However, some courts would hold that the inference based on statistics is so slight that the evidence would be treated as not relevant.They might also treat the information as relevant but subject to a significant risk that the jury will give it in appropriately heavy weight that would unfairly prejudice the defendant.
Generally, evidence of one's insurance coverage is inadmissible. However, rule 411 does not exclude all possible uses of evidence about a party's coverage - what is this exception?
If it can support findings about topics other than negligenct or wrongful conduct, evidence of insruance coverage is permitted to be introduced. For example, if a defense witness works for the defendant's insurance company, information about the witness's possible financial bias would be permitted to be introduced, despite the fact that it would inform the jruy about the defednant's insurance coverage.
What are two policy considerations in support of rule 407 prohibiting evidence of SRM?
If plaintiffs were able to let jurors know about changes the defendant made in response to the injuries, they would be deterred from responding to accidents by increasing their precautions. It also seems unfair to penalize a defendant for taking the socially desirable action of decreasing risks.
When can evidence of SRM be admissible?
When it is offered to show something other than the types of findings listed in the rule: negligence, culpable conduct, defect in a product, defect in design, or need for warning or instruction."

For example, information about SRM would be admissible to show that the defendant owned or controlled the thing or the place that was invovled in the accident.
Under rule 408 that prohibits offers to compromise a distinction must be made between:
(1) offers of payment and (2) statements made in connection with negotiating for a payment. 1 will be admissible while 2 will not.
What is a limitation on rule 408 that prohibits any statement made in connection with a settlement offer:?
If the information was obtainable somewhere other than the settlement talks, it is admissible as long as the party does not refer to the settlement talk. thus a party cannot immunize information from trial simply by mentioning it within a settlement offer.
Answer the following question for rules 408 (settlememt offers), 409 (medical payments), 410 (plea bargains and withdrawn guilty pleas):

With whom must the party with potential liability deal?
408 - anyone who can settle disputed claim

409 - anyone who can accept payment

410 - prosecutor (not police)
Answer the following question for rules 408 (settlememt offers), 409 (medical payments), 410 (plea bargains and withdrawn guilty pleas):

Can offered or actual settlement payment or plea be admitted for uses other than to show liability?
408 - yes

409 - yes

410 - no
Answer the following question for rules 408 (settlememt offers), 409 (medical payments), 410 (plea bargains and withdrawn guilty pleas):

Can related statements or conduct be admitted to show liability?
408 - no

409 - yes

410 - no
Answer the following question for rules 408 (settlememt offers), 409 (medical payments), 410 (plea bargains and withdrawn guilty pleas):

Can related statements or conduct be admitted to show something other than liability?
408 - yes

409 - yes

410 - in certain purjury cases or to complete partial disclosures by defendant
A defendant made a safety improvement on a product subsequent to plaintiff's purchase but prior to his injury. Can he admit evidence of this remedial measure under 407?
The language of 407 expresses that the time of the injury is what counts and not the sale or manufacture of the product. Thus, because the injury occurred after the measure, it is admissible.
Defendant owes money on his car. When asked for the money by the plaintiff, the defendant said "the car runs fine, I just can't afford to pay you. Will you accept $450 instead of the full $800?"

In a later suit to recover the full amount, defendant alleges the car is defective. Can plaintiff use his statement that the car was fine?
Yes. Rule 408 covers only statements and conduct in connection with claims that are disputed either as to validity or amount. In this example, there is no dispute as to the total amount that is owed.
In a malpractice case, plaintiff seeks to introduce evidence that the doctor looked at his X-ray and said, "this makes it look like i did the operation wrong." The doctor objects to this evidence because he claims he said the statement with the suspicion that the patient might sue, and wanted to establish a rapport that would help reach a compromise. Should this testimony be kept out under 408?
This evidence should be admitted. The only suggestion that the doctor's words were part of a settlement negotiation comes from his suspicion that a suit might someday be filed. This does not satisfy the requirement in 408 that a dispute be involved. Compromise negotiations must take place. If the doctor's own predictions about litigation were permitted to turn his words into protected statemetns for the purpose of settlement, just about any words anyone ever says to a person who later sues him would be inadmissible at trial.
Andrew and Bertha were crossing an intersection together and they were hit by defendant's truck. Both were hospitalized, and defendant paid Andrew's medical payments. Andrew then testifies at Bertha's trial that they were both talking and were inattentive while crossing. Can Bertha introduce evidence of medical payments by defendant to Andrew under 409?
Yes. The point of introducing the evidence is to show that Andrew might be biased in favor of defendant. It would be admissible, and defendant would be titled to a limiting instruction telling the jury that it could not infer from the fact of payments that defendant is liable.
A 60 year old man is on trial for the sexual assault of a 14 year old girl. Prosecution wants to introduce evidence that he was once married to a younger woman with whom he had consentual sex with, and that there were several other consentual occaisions with other younger women. Relevant?
The only logical relevance the information has to the claim is that it could lead the jury to believe the defendant is typically interested in sexual relations with younger women and that this belief could support the inference that defendant acted on this interest in the present case. This would be an example of the forbidden propensity inference and could not be a basis for admitting the evidence in federal court.
A patient sues a doctor claiming that the doctor carelessly forgot to warn the patient about the side effects of the prescription drug. Can the doctor testify that she is very careful in all of her work?

Can she testify that whenever she hands a prescription to a paitent, she shows the patient the name of the drug and discusses how to take the medicine and what risks are involved?
Testimony that she is "always careful" will be kept out because it describes a character trait.

However, the testimony about her habit of explainging the drug to patients is a routine conduct that is repeated often and does not involve reflection. This evidence will be admissible.
Defendant is on trial for stealing a magazine from a drug store. He claims that the clerk told him after making payment to "help yourself to a magazine on the way out." He wants to admit testimony from witnesses that the store clerk in the past had offered free boxes of candy to 3 or 4 customers in a single day. Admissible?
This testimony would support an inference that the store clerk is generous - a prohibited character use.

Likewise, it could not be admitted as habit because the offering of free candy was not shown to be a nearly automatic response to virtually every occurrence of a particular circumstance. Furthermore, he is not establishing that he was offered free candy, but rather, a magazine.
Defendant is on trial for stealing a magazine from a drug store. He claims that the clerk told him after making payment to "help yourself to a magazine on the way out." He wants to admit testimony from witnesses that the store clerk in the past had offered free magazines to 3 or 4 customers in a single day. Admissible?
This fact situation seems to fall into a category between character evidence and habit. Defendant would have to convince the judge that a "frequent but not habitual magazine giver" is quite different from a "generous type of person."

Here there the fact that the owner has the trait of giving away magazines is straightforward and does not involve ambiquity. The jury could reasonably evaluate this information without reaching any conclusions about the owner's overall character of generosity. Also, there is low risk of unfair prejudice because a jury is not likely to foster feelings one way or another about one that occaisionally gives out magazines. In addition, any prejudice that could be felt would be against the prosecution's witness and not the defendant which would be a lot more serious.
Defendant was charged with the murder of the marshal of Hagerstown and claimed self defense. He testified that people around town had told him that the marshal had killed an old man he had arrested by beating him to death, but did not reveal who told him this. Over D’s objection, the prosecution was allowed to admit the evidence of the actual nature of the old man’s death which was natural causes. D asserts that the issue is not what actually happened to the old man but what he had heard about him at the hands of the victim. Was he right?
The determination of the relevancy of a particular item of evidence rests on whether proof of that evidence would reasonably tend to help resolve the primary issue at trial. But evidence may be relevant even if it does not bear directly on the issue at trial. It is enough that the evidence, once proved, may shed some light on the primary issue without necessarily conclusively resolving it. When D was unable to reveal the source of his information, the prosecution was allowed to show the improbability of the story.
Rule 501. General Rule (privileges)
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.
Rule 401. Definition of "Relevant Evidence"
"Relevant evidence" means 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.
Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
P was killed when he was struck by a vehicle driven by an employee of D. P’s representatives sought to exclude a blood alcohol test that indicated P was intoxicated because it’s prejudicial impact outweighed its probative value. P had a nurse testify that she examined P a few hours before the collision and he was not intoxicated. The district court held that the nurse’s testimony showed the test lacked credibility.
Under 403, when a court endeavors to balance the probative value against its prejudicial effect, it must give the evidence that amount of probative value it would have if the evidence is believed, not the extent to which the court finds it believable. Credibility is a determination left to the jury. The test results are clearly prejudicial but not unfairly so because they would strongly tend to show contributory negligence; this issue goes directly to the allocation of fault which is highly relevant.
Defendant was charged with illegal of a possession of firearm by anyone convicted of a crime punishable by imprisonment of over one year. D had previously been convicted of assault, and moved to exclude the name and nature of the prior crime in exchange for a stipulation that he had been convicted of a crime punishable by imprisonment of over one year. The trial judge refused.
Relevant evidence may be excluded when its risk of unfair prejudice outweighs its probative value, in view of the availability of alternative evidence on the same point. Although the prosecution is entitled to prove the case by evidence of its choice, this rule has no application where the evidence is not essential in providing a continuous story of its case against defendant. The alternative evidence may be admitted if it carries the same or greater probative value, but a lower risk of unfair prejudice than the evidence in question.
Plaintiff fell on a sidewalk and wants to present testimony that other people have fallen on the same sidewalk.
Evidence of other similar accidents or occurrences that is relevant circumstantially to show a defective or dangerous condition, notice thereof, or causation on the occasion in question, is admissible. While some evidence may have some prejudicial impact on a jury, it is clearly probative to show the area in question may be a causative factor in such accidents and in the accident giving rise to litigation.
However, if there is not enough overlap of facts between this accident and the others, it will not be admitted. For example, under the substantial similarity test, accidents that occurred in the winter when this accident occurred in the summer would not fly. However, if there are 3 very similar events, the judge should admit it even though the number of them is not as probative as more would be. A jury can take that into consideration. There is no per se rule saying you must have a certain number of similar circumstances to admit the evidence.
An officer testified that the robbery suspect, plaintiff, made a quick movement with his hand into his coat as if he was going to reach for a weapon, and at that point the officer fired his weapon. The trial judge admitted evidence that the search of the deceased showed he was not armed with a weapon. The jury found for the plaintiffs and the officer appealed.
The reception of evidence or any information beyond that which the officer had and reasonably believed at the time he fired his revolver is improper, irrelevant, and prejudicial to the determination of whether he acted reasonably under the circumstances. The court found it was an error to admit into evidence the fact that plaintiff was unarmed.
Rule 601. General Rule of Competency
Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.
Rule 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
Rule 603. Oath or Affirmation
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.
Rule 604. Interpreters
An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.
Rule 605. Competency of Judge as Witness
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
Rule 606. Competency of Juror as Witness
(a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
P, a four year old child, petted D’s dog when it wandered onto P’s property. The dog bit P. The trial judge allowed P to testify about the dog’s response to P’s “loving” despite his age and despite an Ohio statute providing that children under 10 were incompetent to testify unless they were capable of receiving just impressions of the facts and transactions respecting which they are examined.
The determination of whether a minor child is competent to testify lies in the sound discretion of the trial judge. The essential test of an infant witness is his comprehension of the obligation to tell the truth and his intellectual capacity of observation, recollection, and communication. Here the trial court examined the child at length in chambers before allowing him to testify and P admitted that “God won’t love me” if he didn’t tell the truth. The judge properly exercised his discretion.
In order to bolster the identification of D as the perpetrator of a robbery, the prosecutor called a mathematics instructor from a state college who testified about the mathematical probability that persons who possessed the various characteristics possessed by D (black) and his wife (white), a co-defendant, existed. The witness inferred that there could be but one chance in twelve million that D and his wife were innocent and that another equally distinctive couple could have committed the robbery. D was convicted and appealed on the grounds that the mathematician’s testimony was a fatal error.
Application of mathematical techniques in the proof of facts in a criminal case must be critically examined in view of the substantial unfairness to the defendant which may result. Here, the prosecution’s theory of probability rested on the assumption that the witness had conclusively established that the guilty couple possessed the precise characteristics relied upon by the prosecution. But no mathematical formula could ever establish beyond a reasonable doubt that the prosecution’s witness correctly observed and accurately described the distinctive features which were employed to link D to the crime.
Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Rule 703. Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
A layman called to the stand to give testimony must restrict himself to describing material facts about which he has firsthand knowledge. There are exceptions when it is impossible to express the matter in any other way. For example:
• Matters of taste and smell – “It smelled like gunpowder.”
• Another’s emotions – “he seemed nervous.”
• Vehicular speed – “he was going very very fast”
• Voice identification – “I recognized his voice on the phone”
• A witness’s own intent where relevant – “I was planning to cross the street”
• Genuineness of another’s handwriting – “that is my wife’s signature”
• Another’s irrational conduct – “he was acting like a crazy man”
• Intoxication – “the man was drunk”
definition of expert
Experts do not necessarily have to have postgraduate degrees – it applies to anyone proficient in a particular field. Black’s law dictionary defines an expert as “men and women of science educated in the art, or persons possessing special or peculiar knowledge acquired from practical experience.”
A witness testified that a child was too far away to determine his identity, but it was his “best impression” that it was Robert.

Admissible?
no - opinion by a non-expert
A witness interpreted the meaning of a wink. Admissible?
no - opinion by a non-expert
Plaintiffs allege birth defects were caused by defendant’s drug. Plaintiffs presented testimony of eight experts who possessed impressive credentials who did experimental studies on the drug and concluded that the drug did cause birth defects. These studies were ruled to be inadmissible because they had not been published or subjected to peer review.
Nothing in the text of 702 establishes “general acceptance” as an absolute prerequisite to admissibility. The fact of publication in a peer viewed journal will be relevant though not dispositive consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised. The inquiry envisioned by 702 is a flexible one. The trial judge must ensure the testimony rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.
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. 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.
The accident in which plaintiff was injured was caused by the negligence of D’s switchman when he failed to close the switch after the stock train had passed onto the side track. D contended that the trial court erred in admitting evidence of the intemperate habits of the switchman. The evidence was admitted to show D knew that the employee was a man of intemperate habits with a view of claiming exemplary damages.
Evidence of a person’s intemperate habits is admissible in an action against the person’s employer for the purpose of proving that the employer knew of his intemperate habits and to support a claim for exemplary damages. In Warner v. NYCR, the evidence of the flagman’s past intoxication had no bearing upon the question of negligence at the time of the evidence. Here, however, the evidence of the switchman’s intemperance was introduced to prove not only that he was intoxicated at the time, but also that his employer knew of his intemperance with a view toward claiming exemplary damages. For this purpose, the evidence was competent.
Character in Issue
In actions for defamation, it is always legitimate to attack the character of the plaintiff whether or not he becomes a witness on his own behalf. The question in such cases is one of sound tactics rather than of professional ethics. The plaintiff’s character is directly material on the issue as to how much has been damaged by what the defendant has said or written of him.
Character is an “essential element” only when it is an ultimate issue. When evidence of character is offered as circumstantial evidence to prove some other fact, then character is not an essential element.
Michelson claimed that he had been entrapped by the official he had allegedly bribed. He introduced testimony as to his good reputation, and the prosecution asked his witnesses if they knew that he had been convicted 20 years earlier for buying stolen goods; Michelson objected to these questions.
Where a defendant puts his reputation at issue through the introduction of reputation evidence, the prosecution may ask these witnesses if they have heard of specific acts of bad conduct relating to the defendant. This includes specific acts of misconduct and arrests where there was no conviction or even no indictment. The acts need not be identical to the charges raised against the defendant. It is sufficient that they cast doubt upon his truth, veracity, or reputation in the community. These test the witnesses’ knowledge of the defendant’s reputation. A 27 year old conviction may be excluded at the judge’s discretion since the defendant may have been rehabilitated. Here, however, the court used its discretion to allow a 20 year old conviction. The fact that it was old merely goes to the weight that the jury wishes to place upon these specific acts.
Exceptions to presenting character evidence when character is not an issue:
1. 404(a)(1) Crim: good character of the defendant  bad character of defendant for that relevant trait
2. 404(a)(2) Crim: bad character of the victim  good character of victim and/or bad of defendant
3. 404(a)(3) Witnesses
4. 413-415 – sexual crimes
McCormick’s Handbook on the Law of Evidence
The permissible purposes of other acts to prove something other than character include:
1) To complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings
2) To prove the existence of a larger plan, scheme, or conspiracy of which the crime on trial is a part
3) To prove other crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused
4) To show, by similar acts or incidents that the act in question was not performed inadvertently, accidentally, involuntarily, or without guilty knowledge.
5) To establish motive – It should not apply when the motive is so common that the reasoning that establishes relevance verges on ordinary propensity reasoning.
6) To establish opportunity in the sense of access to or presence at the scene of the crime or in the sense of possessing distinctive or unusual skills or abilities employed in the commission of the crime charged.
7) To show, without considering motive, that defendant acted with malice, deliberation, or the requisite specific intent.
8) To prove identity – rarely a distinct ground for admission and almost always flows from one or more of the other theories.
9) To show a passion or propensity for unusual or abnormal sexual relations.
10) To impeach an accused who takes the witness stand by introducing past convictions.
Childress sums up Rule 404(b) into a 5 letter acronym:
MIMIC: Motive, Intent, Mistake, Identity, and Common plan or scheme/Circumstances
o Defendant is accused of bank robbery and prosecution wishes to put in evidence that he is a drug addict. Admissible?
If he is addicted to very expensive drugs it is possible that this will be admitted to prove motive for stealing money.
o Defendant is accused of armed robbery and the victim picked out defendant in a line-up. To show identity, prosecution offers evidence that defendant committed three previous armed robberies in the past 6 months. Admissible?
Unless the prosecution can show that he used a unique method in each robbery, this is the type of prohibited character use that will not be admissible.
o Man convicted of possession of marijuana, and he claims he thought they were weeds. Prosecution wants to introduce evidence that he has sold marijuana in the past. Admissible?
Although he may only know what chopped up marijuana looks like, the judge is likely to let it in to prove his state of mind and the other side can argue against it. You cannot use the evidence of past marijuana possession to prove character, but to prove an absence of mistake.
a mailman is caught with a silver dollar in his pocket and says it got loose from an envelope and that he was going to return it. Can you introduce evidence of stolen credit cards from the mail in his apartment?
Only to prove intent – not to prove character
you beat up someone earlier that day to ask the address of a murder victim. Later that day the victim is found dead. Is the beating admissible?
yes. You aren’t introducing the beating to show a violent tendency, but rather, to show the circumstances or context.
o A sex offender in a halfway house doesn’t come home before curfew. He is charged with robbing a bank that night. Is his absence admissible?
Common plan/scheme. The fact that it places the defendant in that neighborhood at that time is a permitted non-character use. The fact that he is a sex offender is not necessarily relevant and may not be admitted, but the fact that he was home past curfew would not be excluded.
D was arrested and charged with distribution of cocaine and heroin. The court ruled that if D raised the issue of identity at trial, then the Government could use the extrinsic evidence of prior acts of selling heroin 4 blocks from this incident to prove identity.
Although 404b prohibits evidence of other crimes to prove the character of a person, extrinsic acts may be admissible for other purposes such as identity, if the extrinsic acts bear a high degree of similarity to mark them as the handiwork of the accused. Here, P did not prove that D’s prior offenses were sufficiently unique from the typical drug deal.
D, a registered nurse, was charged with stealing Demerol and withholding the painkiller from patients. Evidence of prior conduct was introduced to show that she was addicted to Demerol and thus had a motive to steal it. Evidence was also introduced that showed her nurse’s license had been suspended and that she had falsified some previous drug tests.
Evidence of prior conduct may be introduced to show the defendant’s motive for committing the crime for which she is charged. The evidence of D’s addiction was thus admissible, unless the judge decided that its prejudicial effect clearly outweighed its probative value. The court decided otherwise, and we cannot say this was an abuse of discretion. The evidence of her earlier suspension was also admissible because evidence of bad acts is admissible to provide a contextual framework.
D awoke to find the body of the victim in D’s dining room. He was not convicted. Four years later, D awoke to find another victim shot to death on his couch. This time, D was indicted. At trial, evidence was admitted of the earlier death because of the striking similarity between the two deaths.
Evidence of a prior crime for which the criminal defendant was never convicted is inadmissible. There is nothing in the record to establish that D killed the first victim. Anonymous crimes have no relevance in deciding whether the defendant committed the crime for which he was charged. The prosecution argues a common scheme or purpose, however, without showing that D was guilty of the first killing, there is no way in which a jury could draw the common scheme inference.
D was indicted on charges of buying and selling stolen goods. At trial, the prosecution sought to introduce evidence of prior similar transactions by D. The court, without making any preliminary findings that the alleged prior acts had occurred, admitted the evidence based on 404b, which permits introduction of evidence of prior acts to show motive.
A court need not make, prior to admitting past acts introduced to show motive or knowledge, a preliminary finding that the acts occurred. The requirement of a preliminary finding runs contrary to the structure of the rules of evidence. Relevant evidence is to be admitted. Evidence of prior conduct, if relevant to show a legitimate item is equally admissible. It is for the jury to decide whether the prior act occurred. The only determination the court need make is that the evidence is relevant, which is to say, that a jury could find the prior acts do in fact show motive or knowledge.
Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition
(a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
(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.

(b) Exceptions.
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
(C) evidence the exclusion of which would violate the constitutional rights of the defendant.
(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.

(c) Procedure to determine admissibility.
(1) A party intending to offer evidence under subdivision (b) must--
(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and
(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.
(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.
Rule 413. Evidence of Similar Crimes in Sexual Assault Cases
(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

(d) For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved--
(1) any conduct proscribed by chapter 109A of title 18, United States Code;
(2) contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person;
(3) contact, without consent, between the genitals or anus of the defendant and any part of another person's body;
(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).
Rule 414. Evidence of Similar Crimes in Child Molestation Cases
(a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

(d) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved--
(1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child;
(2) any conduct proscribed by chapter 110 of title 18, United States Code;
(3) contact between any part of the defendant's body or an object and the genitals or anus of a child;
(4) contact between the genitals or anus of the defendant and any part of the body of a child;
(5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or
(6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).
Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation
(a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

(b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
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.
Two police officers came to Perrin’s home to investigate a car accident. Perrin was furious and kicked officer Anderson in the face and chest. Without warning, Anderson shot and killed Perrin because he believed Perrin would have killed him. Police officers testified that they had violent encounters with Perrin before to prove that Perrin was the first aggressor in the fight, which is the key element in a self-defense claim.
(1) Evidence of specific instances of past conduct may not be used to circumstantially prove character that is not at issue in a case. (404a) Here, the officer’s attempted to show Perrin’s aggressive character to give the inference that he acted in conformity with that character.
(2) Evidence of specific instances of past conduct may be used to show habit. (406) Here, police officers succeeded in showing that Perrin had the peculiar habit of reacting with extreme aggression when dealing with uniformed police officers, and no evidence was presented in rebuttal. Accordingly, this evidence of prior specific instances of extreme aggression may be properly admitted under 406.
character v. habit
Character is a generalized description of one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness. “Habit” in modern usage, both lay and psychological, is more specific. It describes one’s regular response to a repeated specific situation.
P, an automobile mechanic, sued D for injuries he sustained when a can of refrigerant they produced exploded while he was using it to service the air-conditioning system in a car. The trial judge refused to permit D to introduce evidence that P, on previous occasions, ignored the label warnings on the can by using an immersion coil to heat the can so the refrigerant would flow more easily.
At least where the issue involves proof of a deliberate and repetitive practice, a party should be able to introduce evidence of habit or regular usage to allow the inference of its persistence, and hence negligence, on a particular occasion. D must be able to show a sufficient number of instances of the conduct in question to justify introduction of habit or regular usage.
1. The defendant gets in a fight brings a character witness, an inmate he has known for one month, to say he is nonviolent and the prosecution objects.
The objection here is for no foundation – someone that has known the defendant for a month is not sufficient to testify to someone’s character. This could be a 401 problem, because it doesn’t have any tendency to know his peacefulness. On the other hand, one could argue that knowing someone in jail for a month is to know someone more intimately than usual, and that one who doesn’t get into a fight in jail for a month is not violent.
3. Defendant is charged with pick-pocketing. The victim alleges defendant approached him saying that he was celebrating the birth of his new baby, offered a cigar, and put his arm around him. Prosecution offers a witness that testified that defendant did the same thing to him prior to this case.
This could be a unique circumstance if this is a signature move. On the other hand, maybe this is not so unique because someone may testify that this is a common manner of pick-pocketing.
4. Defendant is charged with fighting the victim who was kicked in the stomach. A argues self defense. Prosecution wants to offer two witnesses who were also kicked in the stomach by defendant in the past and wants to use this evidence to show habit.
Under a habit analysis, the court would have to determine how often others use their feet in a fight. Does he say a magic phrase every time he kicks? How unique is it? However, it should be admitted to prove intent and not habit, because he is not denying he is the kicker, he is alleging it is self-defense.
P sued D, the surgeon and hospital where her husband died when a certain drug was not administered because he was supposed to go into surgery, accompanied by an unforeseen delay of several hours. A new protocol at the hospital requires that the drug be continuously administered until the patient is taken into the operating room. D alleges this change in procedure is inadmissible because it controverted the feasibility of using the drug until a patient is taken into the operating room, and also because it impeached D’s testimony that restarting the drug would have been unsafe.
Evidence of a SRM is not admissible to prove culpability. D believed that at the time, restarting the drug was a safety risk that was not worth taking. This does not mean that restarting the drug was not feasible, but simply that it was not advisable. D made a judgment call on his knowledge and collective experience at the time.
Rule 407. Subsequent Remedial Measures
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.
1. A sues X for having worn-out abrasive tape on a stair step because she slipped and fell. X calls B to testify that the tape was not worn. X replaced the tape a week after she fell. A wants to admit this into evidence as impeaching the witness’s statement.

What if B had authorized X to replace the tape?
A cannot impeach B for this testimony because B is not the one who replaced the tape.

2. Had B authorized X to replace the tape, it is a close call. He could have replaced the tape just in case and not because he thought it was worn. Yet a judge may let it in because it would be impeaching his testimony.
Rule 408. Compromise and Offers to Compromise
(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.
Rule 409. Payment of Medical and Similar Expenses
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.
Rule 411. Liability Insurance
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Rule 801. Definitions (hearsay)
The following definitions apply under this article:

(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

(c) Hearsay. "Hearsay" is 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.

(d) Statements which are not hearsay. A statement is not hearsay if--
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).
Rule 802. Hearsay Rule
Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.
NOT HEARSAY IF:
1. Not a statement
2. Not out of court declarant
3. Not used for the truth of the matter asserted
4. Is a prior ID
5. Is a prior inconsistency
6. Is prior consistency
7. Is party admission
There are 4 main things that may be wrong with a witness when testifying to an out of court statement:
lack of sincerity (lying), ambiguity (unable to clearly articulate what they are saying), perception (not wearing glasses, too far away, etc), and erroneous memory.
Sarah and Arthur Murdock each executed separate wills. Sarah left her entire estate to Arthur, should she predecease him. Should she survive him, her estate was to go to her children by a prior marriage. Arthur’s will was identical, leaving Sarah his estate if she survived him, and leaving his children by a prior marriage the estate should he survive her. Subsequently, their private airplane crashed, killing them both. Litigation arose concerning which one died first. Arthur’s children attempted to introduce testimony of a deputy sheriff to the effect that upon arriving at the scene, he clearly saw Sarah was dead, and that Arthur whispered, “I’m still alive.” The trial court excluded the statement as hearsay solely because it was an out of court statement offered for its truth.
The hearsay rule does not preclude all out of court statements offered to show their truth. Rather, it precludes reliance on the credibility of an out of court declarant in order to guarantee the right of meaningful cross-examination. In this case, the statement-merely by the fact that it was made- shows Arthur survived is wife. Dead people do not make statements. As a result, it is improper to apply hearsay analysis to this statement as there is no doubt as to its credibility. The only question of credibility involves whether the statement was indeed made, and on that point the deputy sheriff was available for cross-examination. Therefore, the statement should have been admitted.

The reason this case is tricky is because the words that were spoken seem to be admitted for the truth of their words, but it doesn’t matter what he said as long as he spoke.
Under emergency regulations in effect in Malaya, possession of prohibited firearms or ammunition was a capital offense. D was charged with violation of the regulation when he was found in possession of twenty rounds of ammunition. At the time of his arrest, D claimed that he had been captured and wounded by terrorists who had forced him to carry the ammunition. At his trial, D sought to support his claim of duress by testifying about the threats made against him by terrorists. This testimony was excluded as hearsay since the terrorists could not be called for cross-examiation.
: D’s claim of duress was severely hampered by his inability to testify as to the threats made against him by terrorists. Evidence of the out of court statements of another are hearsay only if the statements are not offered for their truth. Such out of court statements are not hearsay if they are offered merely to establish they were made without regard for their truth. Whether or not the terrorists’ threats were true is not at issue. For the defense of duress, all that needed to be established was whether D believed those threats. Since those statements were not to be offered for their truth, their exclusion as hearsay was improper.
It doesn’t matter if the terrorists planned on killing him – it matters that D believed he was being threatened. The words are being used for his state of mind without offending the hearsay definition.
P, the daughter-in-law of D’s president, fell and was injured in the parking lot of D when she slipped on the pavement of the lot on a rainy night. At trial, evidence was admitted that people had complained to D that the sealed surface of the lot was slippery when wet. D objected to the admission of this evidence as hearsay.
Where, regardless of the truth or falsity of a statement, the fact that it has been made is relevant, the hearsay rule does not apply, and the statement may be admitted into evidence. Here, questions and answers about the slickness of the parking lot when wet were improper as hearsay if offered only to prove the fact that the sealed area was slick. But aside from the fact of slickness, there was the issue of D’s knowledge of the slickness. Evidence of complaints of slickness made to D was relevant to the material issue of D’s knowledge. P, to make her case, was obliged to show that D’s officers knew about the slickness. The trial court properly admitted the evidence.
P sued D contending that the hospital was negligent in hiring Dr. Salinsky and allowing him to perform operations. At trial, evidence was presented showing that had D checked Salinsky’s credentials, it would have found records at other hospitals which would have placed it on notice of Salinsky’s incompetence. D appealed contending that the records were inadmissible as hearsay
In order for evidence to be subject to a hearsay objection, it must be offered to prove the truth of the assertions made. If P had presented the records to show the truth of its assertions, that is, that salinsky was incompetent, then it could be classified as hearsay. Because it was introduced merely to show such information existed, it cannot be considered hearsay and was properly admitted.
What if a witness says that the declarant said “I spoke with Abe Lincoln last night." Hearsay?
You may be able to use this statement to show that the state of mind of the declarant is unstable and not the truth of the statement. If the declarant said “I am crazy,” this statement would be offered for the truth of the statement, and would be hearsay.
“verbal act” or “operative conduct”
not using it for the truth of the words but the fact that it was said. Examples include a gift, an offer or acceptance, defamation, libel, or slander. You are using the statement to prove it was said and it triggers legal consequences.
P was killed when part of a derrick operated by D’s employee fell and hit him. At the coroner’s inquiry, D admitted that his employee had failed to follow proper safety procedures. In an action by P’s intestate against D, the admission was introduced as evidence. D appealed a judgment against him alleging that the inquest testimony should not have been admitted.
Although hearsay, admissions qualify as an exception to the rule. Even though D was not a witness to the accident, an admission does not have to be based on first-hand knowledge in order to be admissible. It is highly improbable that a party will not admit or state anything against himself or against his own interest unless it is true.
D was convicted of armed robbery in a trial where the court allowed a witness to testify as to certain statements by D’s girlfriend. D argues they constituted inadmissible hearsay. The witness testified that he saw D and his girlfriend 3 weeks after the robbery and that D had money and was wearing diamond rings. He further testified that the girlfriend had told him, “That ain’t nothing, you should have seen the money we had in the hotel room,” thereafter speaking of “sacks of money.” D made no denial or other comment to these statements.
There is an exception to the hearsay rule for admission by a party opponent, and it allows introduction into evidence of a statement which would otherwise constitute hearsay where one of the parties to the action had manifested his adoption of or belief in the truth of that statement. Adoption or acquiescence of the statement of another can be manifested in any appropriate manner-including failure to protest an untrue statement made in one’s presence when such a protest would normally be forthcoming under the circumstances were the statement untrue. In such case, the decision calls for an evaluation in terms of probable human behavior.
In this case, there is little likelihood that D’s silence in the face of his girlfriend’s statements was due to “advice of counsel” or assertion of his fifth amendment right to remain silent. Under the total circumstances, probable human behavior would have been for him to deny her statements were they not true. Thus, admission of the statements was proper.
***where defendant is under arrest, his silence in the face of accusatory statements does not in any way constitute an admission of the truth of the statements, nor create any inference of guilt.
After allegedly indulging himself in drugs, D was confronted by police who questioned him regarding needle marks on his arms. In response, D acknowledged, in essence, that he has “a few tracks” and then said that the marks were injuries that he had received from working on a car. Consequently, his wife Lisa, who was present during the exchange and close enough to hear what was being said, broke in by yelling, “you liar, you got them from shooting up in the bedroom with all of your stupid friends.” At this point, D hung his head and shook it back and forth. Subsequently, the trial judge admitted evidence of Lisa’s accusation and D’s reaction to it. D appealed.
The purpose of the hearsay rule is to guard against the risks of misperception, miscollection, misstatement, and insincerity, which are associated with statements of persons made out of court. However, this purpose will not be rightly served by leaving the question of intent to adopt, agree, or approve to the jury since the jury, in passing on the admission by conduct, will have to bear not only evidence about the conduct and the surrounding circumstances, but also the out of court statement, as necessary predicates for understanding what the party allegedly adopted. Even if the statement is deemed inadmissible, the fact that the jury heard it in the first place may taint it.
In this case, since several reasonable inferences may be drawn from D’s ambiguous nonverbal reaction, no one of which predominates over the others, then the court erred in finding by a preponderance of the evidence that D intended to adopt, agree with or approve of his wife’s statement. Accordingly, the evidence of the hearsay statement and his reaction are not admissible.
No one saw what had happened, but somehow P ended up in the wolf cage at D’s center. The child was injured, but it was not clear whether the child was bitten or whether the child crawled under the fence thereby causing injury. D made a statement to the president of the company saying that the child was bitten. The trial judge did not admit this statement because D had no personal knowledge of what happened.
Under Rule 801(d)(2)(D), statements made by agents within the scope of their employment are admissible. The only question is whether the statements are admissible under rule 403…
Courts will not require personal knowledge in a party admission because the policy behind this rule is different from every other rule. If the problem with hearsay is that the out of court declarant might be a liar, the adversarial fairness of letting the jury hear an admission is different. We are not that concerned about the reliability of the statement because the only person that would complain about the reliability would be the person who said it and they can explain themselves in court.
A prison guard was severely beaten. While in the hospital, he identified the defendant as the attacker. He later lost independent recollection of the attack and could not explain the basis for his hospital identification. Over defense objection, the guard was allowed to testify regarding his hospital identification. D was convicted and appealed.
A witness in a criminal trial may testify about an earlier identification even if he can no longer testify as to the basis for that identification. The confrontation clause of the 6th amendment has been read to require only the opportunity for effective cross-examination, not whatever sort of cross-examination the defense might wish. When a witness cannot recall the basis for an earlier identification, the opposing party already has a potent cross-examination tool, as a forgetful witness has inherent credibility problems. It has long been held that an expert may give an opinion even if he has forgotten the basis therefore, and this situation is no different. Here, D had the opportunity to attack the guard on the basis of his forgetfulness, and that was all the Confrontation Clause required.
Explain the rules surrounding defendants introducing character evidence about themselves.
Defendant can only permitted to admit character evidence about himself through witnesses who state an opinion about the defendant’s general character or report on what reputation the defendant has in the community. However, the defendant is prohibited from introducing evidence or asking about specific conduct to support inferences about his or her character. The prosecutor is then allowed to ask these witnesses about specific past conduct by the defendant but are not allowed to introduce independent evidence of this conduct. The prosecutor can then bring his own character witnesses and theses witness can only comment on reputation and not specific conduct.
Explain the rules surrounding defendants introducing character evidnece of the victim.
In criminal cases, defendant may want to bring character evidence about the victim under a self-defense claim, for example, if the victim had an aggressive reputation. He may do so as long as the evidence is an opinion or reputation. This opens the door to the prosecution to introduce character evidence of the defendant to that same trait of character, whether or not he introduced evidence about his own character.
Defendant brings a character witness to testify that he is a peaceful person. Defendant then brings his parole officer to testify that he is violent, and that she has developed this opinion in the course of knowing him as his parole officer. Can the prosecution do this?
Because the defendant has introduced character evidence, the prosecution is allowed to bring in character evidence of thier own. The testimony is fine in that it is limited to opinion or reputation. However, because she identifies herself as his parole officer, the witness unavoidedly reveals that the defendant has previously been convicted of a crime. Some judges might allow the testimony if there is a neutral way to describe their relationship, but others might find the risk of unfair prejudice too great considering the low probative value of character evidence.
P sold medical supplies to a company that stopped making payments. P continued to sell the company supplies on credit based on D’s (Bank) oral agreement to guarantee payment for orders which were approved in advance. P was not paid in full and sued D. Trial court found for P and D appealed contending it was error to admit evidence of statements made by the senior vice president of D because they were hearsay.
Oral statements expressly offered for a non-hearsay purpose, that is, to prove that the statements were made, are admissible in evidence. The oral statements of D were expressly offered for a non-hearsay purpose. The relevance of the statements is not their truth or falsity, but that they were made. The relevance of the statements depends not on the credibility of the out of court witness but on the declarant.
P, a toy manufacturer, claimed that D copied a coin bank it manufactured to produce and sell an almost identical version at a lower price. At issue for hearsay is whether P’s statement, that retail customers complained because they thought P was selling its products to others at a lower price, was admissible.
Statements, otherwise excluded as hearsay, may be received into evidence to show the decarlant’s then existing state of mind. The testimony in question was not offered to prove that P was actually selling at a lower price, but was probative of the declarant’s confusion.
D was arrested after selling a government agent cocaine. P admitted evidence that customs had identified D as a drug smuggler. D says this is hearsay and was not relevant to show the DEA agent’s state of mind.
Evidence relied upon not as proof of a witness’s state of mind at the inception of the investigation, but as evidence of defendant’s guilt, is inadmissible as hearsay under 802. P’s argument that the evidence was used to show the agent’s state of mind lacks merit. The agent’s state of mind was not at issue.
Rule 805. Hearsay Within Hearsay
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.
Rule 806. Attacking and Supporting Credibility of Declarant
When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), 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. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
Facts: While executing a search warrant on defendant’s premises, government agents answered the phone several times. The unknown callers wanted to place bets for various sporting events. Defendant was arrested for illegal book-making activity. P wants to introduce evidence of these conversations to show that the callers believed that the premises were being used in betting operations, and the existence of such belief tends to prove they were so used. D objected contending that they were offered for the truth of the matter asserted and are inadmissible hearsay.
Non-assertive verbal conduct is not considered to be an effort on the part of the actor to communicate any fact inferable from the conduct. Therefore, the hearsay rule does not apply. 801 defines hearsay as an out of court statement offered to prove its truth. A statement is then defined as an assertion intended to be an assertion. In this case, the callers did not by their calls intent to assert that D’s premises were being used for bookmaking. The fact is inferred from the callers unassertive conduct and therefore was not hearsay.
D was accused of aiding and abetting the murder of Joseph White. The prosecution maintained that the actual killing had been accomplished by a man named Crowninshield, who committed suicide prior to trial. The prosecution sought to infer Crowninshield’s guilt from his suicide.
No crime goes undetected or unpunished. Even in the rare instance when the perpetrator successfully conceals his guilt from other men, he must still face the wrath of God. Further, the knowledge of his own guilt preys heavily on the perpetrator’s heart and soul. Such guilt begins to build an irresistible pressure for confession. Suicide is the only refuge from confession, yet suicide itself speaks confession as loudly as the words themselves.
The relevance of such conduct to the issue on trial must be established.
Dr. Hurney left half of his estate to the plaintiff, but because his estate was held jointly with his wife, the property passed to her. P sues Dr. Hurney’s attorney (D), alleging that neither D nor Dr. Hurney told the bookkeeper that Dr. Hurney would need to change the titling of his assets to make his will effective. From silence, P claimed she was entitled to the inference that D never advised Dr. Hurney about this as he claimed, thus creating an issue of material fact for the jury to survive summary judgment for this malpractice action. P wants to introduce an affidavit of the bookkeeper.
Silence that does not arise from circumstances that would compel speech is inadmissible because it has minimal probative value. At common law, silence was considered hearsay, but that is no longer the case. Thus, where there is no showing of intentional silence on a given occasion intended as an assertion when the silence was kept, the silence is not hearsay. Nonetheless, although the evidence here is not hearsay, it has little probative value. Unless silence occurs under circumstances that compel speech, the probative value of silence is so weak and fraught with speculation that it must be excluded due to its prejudicial effect.
D was convicted of cocaine offenses. P offered a “pay/owe” sheet found in is apartment. P presented testimony that this sheet essentially recorded drug transactions. D objected to this sheet because it constituted hearsay.
The rule against hearsay does not bar admission of ledgers as circumstantial evidence that show the character and use of a place where the ledgers were found. The rule against hearsay prohibits the admission of drug ledgers or “pay/owe” sheets to prove the truth of the matter asserted in the documents, unless a proper foundation has been laid. In this case, no foundation had to be laid because the sheet was not offered to prove the truth of the matter asserted but instead to show that the document was evidence of drug related activity. The trial court properly instructed the jury that it was admitted for the limited purpose of showing character and use of the place it was found and not for the truth of what was in the document.
As a part-time income tax preparer, D was convicted of advising the preparation of false income tax returns for others. He contends the trial court improperly admitted testimony of an IRS agent who said that about 90% of returns D prepared contained overstated itemized deductions. Brown argued this is hearsay because the tax returns would not show overstatements on their face but these conclusions were based on out of court statements by taxpayers that the agent had audited.
When a witness attempts to testify to conclusions he has made on the basis of the statements of out of court declarants, such constitutes hearsay, which is generally inadmissible. Here, the information this IRS agent obtained from the out of court statements made by 160 taxpayers whose returns she audited was absolutely vital to her ultimate in court conclusion. There was no chance to test such statements by cross examination and the jury had no way to examine the trustworthiness of this testimony. This is clearly hearsay.
Is testimony about what one observed with an instrument hearsay?
The hearsay rule is inapplicable to what the witness, on the stand and subject to cross-examination observed, either through his own senses or through the use of scientific instruments. Example: using an electric timer to determine the speed of a car
D was convicted in a criminal conspiracy. Testimony of a co-conspirator was admitted under an exception to the hearsay rule. The exception is based on the fact that co-conspirators are considered each others agents and therefore principals. A principal is bound by the agent’s words and deeds, provided they are within the scope of the agency relationship, so that an admission by one is considered an admission by all. D appealed alleging that the statements were made in a conspiracy o conceal an earlier, completed conspiracy and tha statements made in furtherance of the second conspiracy could not be admissible in evidence to demonstrate participation in the acts of the first.
Statements made during and in furtherance of a conspiracy to commit a crime or a civil wrong are not inadmissible by the hearsay rule. Statements designed to prevent a conspiracy from collapsing are not to be equated to statements designed to cover up a finished conspiracy. In the first case, unlike the second, there is only one conspiracy; the statements are made in a effort to shore it up and keep it going; they are therefore inadmissible against the conspiritors.
D was convicted of fraud when out of court statements made by co-conspirators were admitted against him. D appealed, alleging that statements were not admissible against him because they were made before he joined the conspiracy.
A late-joining conspirator takes the conspiracy as he finds it. A conspiracy is like a train; when a party steps aboard, he is part of the crew and assumes conspirator’s responsibility for the existing freight. This is the traditional approach to the co-conspiracy exception to the hearsay rule, presumptively adopted by the FRE.
A late-joining conspirator takes the conspiracy as he finds it. A conspiracy is like a train; when a party steps aboard, he is part of the crew and assumes conspirator’s responsibility for the existing freight. This is the traditional approach to the co-conspiracy exception to the hearsay rule, presumptively adopted by the FRE.
Where a conspirator of a party makes a statement which reasonably concluded furthers the conspiracy, then this statement may be admitted at the party’s trial. This rule merely restates FRE 801 (d)(2)(E) which provides that a statement is not hearsay if it is offered against a party and is a statement by a co-conspirator of a party made during the course and in furtherance of the conspiracy. The in furtherance requirement is satisfied so long as some reasonable basis exists for concluding hat the statement furthered the conspiracy. In this case, Pixley’s statement cannot be characterized as an attempt to induce Meyer to participate in the conspiracy, and D’s statement in no way furthered the ends of the conspiracy.

Would the statement “Do you know where John is?” be said in furtherance of the conspiracy? It could be interpreted that way or it could be a side statement. A court will probably find there is some reasonable basis for concluding it is.
See FRE 801(d)(2)(E). During D’s trial for conspiracy to distribute cocaine, the government introduced a highly incriminating tape-recorded telephone statement of Leonardo, one of D’s alleged co-conspirators, which implicated D in the crime.
(1) To admit statements under FRE 801(d)(2)(E) as an exception to the hearsay rule, the court must determine by independent evidence that a conspiracy existed and that defendant and declarant were members. (2) the burden of proof on this issue is a preponderance of the evidence. (3) the court may examine the circumstances to determine reliability of the statement; (4) admission of such statements does not violate the confrontation clause

This case allows statements to partially “bootstrap” onto the burden of proving a conspiracy preliminarily. However, it cannot be used idependently to show a conspiracy. There must be additional evidence.
801(d)(1) (A & B) Prior Statement by Witness
A statement is not hearsay if (1) the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is (A) inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.
804(a) Definition of Unavailability
Unavailability as a witness includes situations in which the declarant (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement or (2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so or (3) testifies to a lack of memory of the subject matter of the declarant statement or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or imfirmity, or (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.
804(b)(1) Former Testimony
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony – Testimony given as a witness at another hearing of the same or a different proceeding or in a deposition taken in compliance with law in the course of the same or another proceeding if the party against whom the testimony is now offered or in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
Ps sued to recover under the terms of a fire insurance policy. D defended on the ground that P1 deliberately caused the fire with intent to defraud. To prove this, D called 2 witnesses, but they refused to testify claiming the privilege against self-incrimination. D then sought to have a transcript of their testimonies which were given to P2 earlier in the trial for arson.
All that is required for testimony from a criminal case to be introduced in a subsequent civil trial is that (1) it is impossible to obtain the testimony of the witness who testified in the criminal case, (2) that there was an opportunity to cross examine the witness by the party against whom the testimony is sought to be used in the civil case, or by one whose motive and interest in cross examination was the same, and (3) that there is identical issues. Complete identical parties is not required. P1 did not have an opportunity to cross examine in the criminal case, P2 who was present then, had the same motive and interest in cross examining the 2 witnesses. The issue – deliberate causing of the fire – was the same in both cases. Although the witnesses are unavailable, there is sufficient protection afforded to Ps to permit the testimony as an exception to hearsay.
D was charged with attempts to defraud the construction industry along with several other defendants. During the grand jury investigation, witness 1 & 2, owners of a company called Cedar Park, were given immunity to testify and they denied any participation with the group of companies under investigation. During trial P attempted to show that Cedar Park did participate in this group. In order to rebut this evidence, D wanted to introduce testimony of witness 1&2, but they invoked the 5th amendment right against self-incrimination. D attempted to admit transcripts of their testimony from the grand jury investigation.
804b1 permits the admission of former testimony of an unavailable witness if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. However, in order to admit such testimony, the proponent must satisfy each element of the Rule including a showing of “similar motive.” Typically during a grand jury investigation, the prosecution must maintain secrecy and is therefore motivated to not expose contradictory evidence. Furthermore, the prosecution may not be aware of important issues in the case until trial and may not fully develop grand jury testimony.
Rule 804(b)(2) Statement under belief of impending death.
In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
: Julie Jenson died of poison and the prosecution wants to admit into evidence a letter that she wrote and gave to a neighbor that stated that if anything happened to her, her husband was her first suspect.
To satisfy the requirements of a dying declaration, a written declaration that concerns the cause of death is deemed made when communicated, rather than written. The letter clearly satisfies at least two of the three elements of a dying declaration – it was made by the decedent witness, and it relates to the circumstances of decedent witness’s death. The issue, therefore, is whether the wife believed her death was imminent when she made the statement. The statement must also be deemed to be truthful. Until communicated, the writing is an inchoate thought. It must be assumed that the wife would not want to die with a perjurious letter in the hands of someone else.
Bill’s wife, Jane, finds Bill, suffering from a mortal wound, in their drawing room. Jane summons their butler and then suffers a massive coronary. By the time the butler arrives, Bill has expired. Jane gasps to the butler, “I know I’m dying. My weak heart could not stand the shock of Bill’s dying in my arms. Be sure to tell the police that Bill said as he died, ‘I know I’m dying. Don’t let Harvey get away with my murder.’” Is Jane’s statement admissible in the prosecution of Harvey for Bill’s murder?
One problem here is that there is multiple hearsay. One way to think of this is a quote within a quote – two declarants speaking through the witness, the butler. Work from the inner quotes out to determine whether it is hearsay.
Childress prefers to think of it as a chain reaction. Bill JaneButlerJury. Start with hearsay exceptions with Bill’s statement, as if Jane was taking the stand, and so on.
You must satisfy each branch individually and cannot analyze it all in one step.
If Jane took the stand for Bill’s statement, would it fall within the dying declaration exception? Well it satisfies the murder requirement, he believes in his death, and it describes the circumstances of his impending death.
However, is Jane’s statement used for the truth of the matter asserted or the fact that Bill said X? Here, we have nothing to indicate that Jane is unavailable to testify – we don’t know that she is dead. Had she been unavailable, we might be able to apply the dying declaration exception.
Rule 804(b)(3) Statements Against Interest
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
In a paternity action X was to have B testify that C said he had an affair during the time when A’s child was conceived. Statement against interest?
Statement must be made against penal, civil, or financial interest, but not social interest. It is a tough call whether this is against anything other than social interest, but often you can lose money off of something against a social interest. Saying “this is my child” could subject you to child support, etc.
X was in a car accident and calls C to testify that B said to him that he “blew the red light.” Statement against interest?
yes, this is against interest because it is against civil liability interest in that it advances a claim against you and removes a claim you had against another.
Differences between admissions rule and statements against interest
The statement against interest rule is broader than the admission rule because this evidence can be offered by any party. With the admissions rule it tends to be the prosecution that tends to use the rule. However, this rule is narrower in three ways (1) the declarant must be unavailable (2) it must be against interest at the time it was made (3) A statement against interest almost always can’t be also a party admission. You should think of these two rules as mutually exclusive in most cases.
After Dave Locke’s confession to the murder of English’s wife, English was charged with her murder. English offered into evidence the confession, which was excluded by the court.
The voluntary murder confession of a third party, couple with circumstances pointing to its truth, is not competent evidence in behalf of the defendant charged with the murder. This rule is in agreement with the weight of authority which excludes such testimony. Although there is a well argued view which would contrarily permit such testimony on the basis of common sense, if proffered testimony is technically and legalistically hearsay, then the technical interpretation must prevail and such evidence must be excluded.
Plaintiff’s employees misappropriated money from him and signed written confessions. This money was insured and because the employees could no longer be located, he offered the written confessions as evidence of the amount taken.
A declaration against interest by one not a party or in privity with a party to an action is admissible where the declarant: (1) is either dead or unavailable (2) had peculiar means of knowing the facts stated (3) made a declaration that was against his pecuniary or proprietary interest and (4) had no probable motive to falsify the facts stated. The employees here were the only ones who could know the amounts taken, their statements were against their pecuniary interests since it subjected them to liability, and they were unavailable as witnesses. No claim was made that they falsified their statements, therefore, the statements are admissible to prove the fact and amount lost.
: After being convicted of crimes arising from the theft and sale of a collection of postage stamps from a museum, D appealed. He argued that Tilley, who died prior to trial, had made certain statements to one Melvin to the effect that D was not involved in the theft. The rest of the statements indicated Tilley’s knowledge if the circumstances of the theft. D argued that Melvin should have been allowed to testify as to these statements under the exception to the hearsay rule for declarations against interest. He claimed that Tilley’s statements tended against Tilley’s penal interest by advertising his likely complicity in the crime.
An exception to the hearsay rule exists as to out-of-court declarations against interest made by one unavailable at trial, and this covers any statement which at the time it was made was so far contrary to the declarant’s pecuniary or proprietary interest or so far tended to subject him to civil or criminal liability that a reasonable man in his position would not have made the statement unless he believed it to be true. However, a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible under this exception unless corroborating circumstances clearly indicate its trustworthiness. In this case, the offered statements allegedly made by Tilley were statements against interest within the Rule. Thus, the district court should have sought to determine if there was sufficient corroboration so as to warrant their admission.
Harris, an employee of D, was caught with cocaine in his car. He told police that he was delivering the cocaine for his employer, D, but his statement was not recorded and he refused to sign a written statement because he was afraid of D. When Harris was called to testify at D’s trial, he refused to do so. The police officer that interviewed Harris was allowed to relate what Harris told him because Harris’s statements were against his own interests. D was convicted and appeals arguing that the out-of-court statements should not have been admitted.
804(b)(3) does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. The district court may not just assume that a statement is self-inculpatory because it is part of a fuller confession, and this is especially true when the statement implicates someone else. The question under the Rule is always whether the statement was sufficiently against the declarant’s penal interest that a reasonable person would not have made the statement unless believing it to be true. In this case, some of Harris’s confession would have clearly been admissible under the Rule. For instance, when he said he knew there was cocaine in the car, he forfeited his only defense to the charge of cocaine possession – lack of knowledge. But other parts of his confession, especially those in which he implicated D, did little to subject Harris to criminal liability. A reasonable person in Harris’s position might think that implicating someone else would decrease his own exposure to criminal liability at sentencing. Nothing in the record shows that the lower courts inquired whether each of the statements in Harris’s confession was truly self-inculpatory.
803(1) Present sense impression.
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
803(2) Excited utterance
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.
Mr. Michling, the deceased, sustained an accidental, but fatal, injury allegedly in the scope of his employment. The only evidence offered to prove that the deceased had received the injury in the scope of his employment was testimony given by Mrs. Michling that her husband told her that he had hit his head on the bulldozer he was driving and that his head hurt so much that he had to come home. Mrs. Michling sued D to recover death benefits provided by worker’s comp and the trial court ruled in her favor. D appealed contending that the testimony was not a utterance and was inadmissible hearsay.
For declarations to be admissible in evidence as part of the res gestae, there must be evidence of an act itself admissible in the case independently of the declaration that accompanies it. A hearsay statement, as res gestae, is admitted as an exception to the hearsay rule because it is made under circumstances which raise a reasonable presumption that it is the spontaneous utterance of thought created by the occurrence itself, and, thus becomes part of the occurrence. Here, the only evidence of the occurrence is the hearsay statement. There is not any independent proof that the deceased suffered any injury at approximately the time and place alleged. Therefore, Ps statements are inadmissible.
After Dr. Silberman’s extrajudicial statement unfavorable to Albert Einstein Medical Center (D) regarding Ms. Lira’s condition was admitted into evidence in her medical malpractice suit against D, the jury returned a verdict in her favor. In recounting the events leading up to the statement, P testified, in effect, that Dr. Silberman, upon commencing his examination of her, subsequent to her medical treatment by D, asked her “who’s the butcher who did this?” After the verdict, D moved for a new trial which was granted.
: A physician’s extrajudicial medical opinion is inadmissible at trial as hearsay evidence. His statement was clearly an opinion, and since no extenuating circumstances necessitate the admittance of his opinion as opposed to merely cross-examining him regarding the validity of his opinion, then the court was correct in awarding the new trial
During the state’s criminal action against D for sexual assault, the trial court admitted extrajudicial statements regarding the circumstance surrounding the alleged assault into court. These circumstances, in important part, included the alleged sexual assault by D, a state trooper, of a motorist and D’s subsequent fleeing of the scene, with the boyfriend of the motorist in hot pursuit. During this pursuit, another trooper, Byrd, allegedly heard consecutive radio transmissions regarding the spectacle which respectively said “look at smokey bear southbound with no lights on at a high rate of speed,” and “look at that little car trying to catch up with him.” After admitting these statements, the trial court convicted D.
: The present sense impression exception to the hearsay rule requires that an extrajudicial statement evidence contemporaneousness and that the declarant made it from his personal knowledge. This rule presumes that an extrajudicial statement made spontaneously (i.e. before reasonable time elapses between observation and utterance) is truthful. Likewise, it presumes that such a statement made from a declarant’s personal knowledge is also truthful. Moreover, since the aim of the hearsay rule, for present pruposes, is to exclude statements made presumably by incredible declarants, then requiring that an extrajudicial statement meet these two criteria appears to logically support this aim. However, meeting these two conditions does nto necessarily ensure the admissibility of evidence. On the contrary, further corroborating evidence may be needed, depending on the circumstances. In this case, since Byrd’s description of the statements and his recollection of the circumstances surrounding them appear to reasonably support a conclusion that they were made contemporaneously and through the declarant’s personal knowledge, and since the circumstances do not necessitate further corroborating evidence, then the trial corut was at libert to admit evidence of the statements.
803 (3) Then existing mental, emotional, or physical condition
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
P sued D for alienation of P’s wife. At trial, evidence was introduced of a statement in which D admitted to having sexual relations with P’s wife. Evidence was also admitted of her conversations with her husband in which she declared that P was distasteful to her and that D was able to show her a good time. D objected to the admissibility of her statements citing the hearsay rule, but the evidence was accepted on the theory that, being indicative of the declarant’s feelings, it was admissible to show her state of mind.
Statements expressing the declarant’s state of mind at the time of the utterances are admissible as exceptions to the hearsay rule, notwithstanding that some portions of the statements do not describe the state of mind and tend to damage the defendant. D’s objection that the verdict was unsupported by the evidence must fail because, although much of the evidence offered was entirely contradictory, the jury was entitled to believe the eviedene presented by P. Moreover, D’s objection that the evidence of statements made out of his presence was inadmissible is unsupported by any rule of evidence. And, although the evidence of Mrs. P’s statements was clearly hearsay, it was nevertheless admissible as indicative of her feelings and therefore her state of mind at the time of their utterance. Unfortunately, the statements, in addition to establishing Mrs. P’s state of mind, include many observations which are damaing to D’s position. It is, nevertheless, the well-settled rule that evidence admissible for one purpose is not rendered inadmissible by its failure to meet the standards required by another rule of admissibility. When evidence is admissible for one purpose only, however, the court must insure against prejudice to the party opposing the evidence either by a limiting instruction, deletion of highly prejudicial portions, or any other method reasonably calculated to mitigate the potential damaging effect of the evidence. In this case, no adequate instruction was given to protect D from prejudice. Therefore, the evidence of the conversation between P and his wife was improperly admitted, and the judgment reversed.
Hillman was missing. His wife filed suit against insurance companies to recover on life insurance. She contended that a body that was buried at Crooked Creek was her dead husbands and submitted some evidence that tended to show he went to the Creek at the same time the body was discovered. The insurance company contended the body was another man named Walters and tried to introduce a letter written to Walter’s fiancé that he intended to go to Crooked Creek at the time the body was discovered. It was alleged that this was within the business-record exception to the hearsay rule. The letter was not admitted.
: Where a party’s intention is of itself, a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party. Here, there is a controversy over the identity of the decedent. While the letters were not within the business records exception that D argued, they are admissible as falling within the state-of-mind exception. The evidence of Walter’s intention is admissible to create the inference that since he intended to go there at the time the letter was written, he did go there. It is not proof that he actually went, only that it is more likely than not that he did. Since the issue was in controversy, it might have tended to influence the jury. Where the bodily or mental feelings of an actor are material to be proved, the usual expression of them is competent and admissible as an exception to the hearsay rules. After death, there is no other way of establishing such facts. Since the letters were probative as to Walter’s current state of mind, it was error to exclude them.
The question here is whether the letter is considered a statement of a future state of mind, which is prohibited. Here there is a present state of mind because he presently planned to or intended to go to the Creek. Intent is a present state of mind, and you are inferring that he followed up on that intent. This logical leap is not problematic.
There is a big difference between I went to crooked creek and I am going to crooked creek. One is hearsay and one is present state of mind.
Dr. Shepard was charged with poisoning and killing his wife/patient. The nurse testified that prior to her collapse she asked her to fetch her bottle of whiskey. After she took a drink she requested a test, insisting that the smell and taste was strange, and then added “Dr. Shepard has poisoned me.”
Declarations of present memory, looking backwards to a prior occurrence, are inadmissible to prove or tend to prove the existence of the occurrence. Since the testimony had been offered and received as proof of a dying declaration, the prosecution may not now argue on appeal that the declarations were offered to show a persistency of a will to live. Because of the stated purpose of the testimony, D was put off his guard. It would now be unfair for the prosecution to shift its ground. The purpose for which normally hearsay evidence is sought to be admitted must be made clear at the time it is introduced. The prosecution did not use the declarations by Mrs. Shepard to prove her present thoughts and feelings, or even her thoughts and feelings in times past. Rather, they were offered as proof of an act committed by someone else as evidence that she was dying of poison by her husband. The jury is incapable of distinguishing in its mind between these declarations as mere indications of a state of mind and as pointing the finger of guilt at D.
Defendants were charged with kidnapping the missing Larry Adell. Friends of :Larry testified that Larry was with them the night he disappeared and said that he was going to meet one of the defendants in the parking lot for a pound of marijuana. These statements were admitted under the state-of-mind exception to show that an individual intended to perform a particular act.
The Hillmon doctrine permits the introduction of hearsay declarations as evidence that the defendant carried out his intention to perform the act they indicate it was his intention to perform, even if its accomplishment requires action by others. Despite the theoretical problems and valid objections to such application, the authority in favor thereof is impressive and requires this court to uphold the trial court’s position.
Is the statement of Larry really about the defendant’s state of mind? This issue of third party state of mind is unsettled in the federal courts. This court let it in under the reasoning that it is similar to the Hillmon decision.
Zippo sued Rogers for allegedly copying its lighter. Zippo sought to prove that the size, shapre, and appearance had acquired an independent secondary meaning so that the public could identify it as a Zippo lighter. To prove this, P had a survey done of the identity of an unmarked Zippo lighter and an unmarked Rogers lighter. The poll showed that 37% that viewed the Rogers lighter thought it was a Zippo. Rogers objected to the survey on hearsay grounds.
If inadequate statistical and procedural safeguards are taken, a survey is inadmissible evidence under the existing present state of mind belief or opinion exception to the hearsay rule. Most courts allow them as either nonhearsay, admissible hearsay, or for no reported reason. Surveys are technically hearsay since the belief of those polled is being testified to by the pollster. However, where those being polled have no reason to lie and the questions are simple, direct, and not misleading, there is no real reason to doubt the veracity of the replies. They are admissible as exceptions to the hearsay rule under the state of mind exception. With adequate procedural and statistical protections there is no reason why they should not be admitted. Probative evidence on public opinion in secondary meaning cases cannot be obtained in any other reasonable manner short of calling every member of the smoking public to trial. D’s allegation that the percentage of those identifying its lighter as Zippo would be greatly diminished if D’s display card and markings had been used is valid. However, this merely goes to the weight given to the survey. Some of those polled would not have noticed the Rogers name. Therefore, even though its conclusions may be of doubtful value, it does not render the survey inadmissible.
Rule 803(4) Statements for purposes of medical diagnosis or treatment
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
Rule 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
803(5) Recorded recollection
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
Defendant was convicted of robbery and murder in the first degree. In cross examining a police officer, D’s counsel sought to elicit from him the fact that the crime victim confronted D and stated that D was not one of the persons who had attacked and robbed him. The officer stated that he could not remember whom it was the victim confronted and D’s counsel sought to have him look at a police report prepared by another officer to refresh his memory on that point. The judge did not allow it.
Anything can be used to refresh a witness’s recollection of an event, even a memorandum made by another, and it need not meet the standards applicable to a record of past recollection. There is no limit as to what can be used to refresh a witness’s recollection of an event. The stimulus that is thus used to revive a witness’s dormant memory is not itself received in evidence. Thus, it is not to be confused with documents admitted into evidence as embodiments of past recollections recorded and is not subject to the same stringent rules of admission. All that is required is that the stimulus ignite the flash of accurate recall, that it accomplish the revival which is sought. The stimulus used need not even be in writing. Even if it is a writing, it need not have ever been read by the witness before he sees it at trial nor does the witness have to vouch for it or its accuracy. Under these principles, D’s counsel should have been allowed to refresh the officer’s present recollection with a fellow officer’s report.
P, a quadriplegic, claims his injuries were a result of an accident involving the D. In order to show that P’s injuries were a result of another accident which occurred prior to the accident in this action, D attempted to introduce evidence under the “past recollection recorded” exception to the hearsay rule. D had an inspector for life insurance testify that he had made a written record of an interview that he had with P. The inspector testified that he had no present recollection of the interview, even after looking at the record he had made, but he knew that the writing accurately set forth the facts discussed in the interview. He further testified that the report was made shortly after the interview, while it was still fresh in his mind. D attempted to introduce the writing itself into evidence, but P objected on the grounds that the writing was not a document made in the course of business and therefore was not admissible.
When a witness’s own recollection is not refreshed by written memoranda that he made, that writing is not admissible into evidence. The witness is allowed to read the memoranda to the jury, but that is all that comes into evidence.
Rule 803(6)-(10). Hearsay Exceptions; Availability of Declarant Immaterial
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.
(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
P was killed in a traffic accident with D. In order to prove that he was not at fault, D attempted to have an accident report admitted into evidence. The report was made by a police officer on duty and included statements of witnesses to the accident. A statute allowed that records kept in the normal course of business were admissible without the firsthand knowledge of the recorder. The court did not allow the report into evidence.
While such a statute may allow the admission of business records, entries that include hearsay statements of third parties not engaged in the business related to the record may not be admitted. The legislation intent of the statute was not to extend this rule to statements made by persons outside the business for which the report was made such as witnesses to an accident.
Those with a business relationship or duty to disclose information in course of the business – doesn’t necessarily have to be an employer and employee.
D was convicted of money laundering. At trial the court allowed P to introduce Western Union “To Send Money” forms. At the time D allegedly filled out these forms, independent proof of the sender’s identity was not required. D argued that his name, address, and telephone number on the forms were inadmissible hearsay to identify him as the sender.
The business records exception to the hearsay rule does not embrace statements contained within a business record that are made by one who is an outsider to the business where the statements are offered for their truth. The forms literally comply with the business records exception because each form is a business record. The problem, however, is that the business records exception does not apply where the statements contained in the record were made by a stranger to the business. That is because when a stranger fills out the forms, there are no safeguards of business regularity or business checks to assure the truth of the statement to the business. 803(6) provides that a business record is inadmissible if it lacks trustworthiness. Sometimes a statement by an “outsider” can be admitted not for its truth but for some other purpose. The weakness in P’s position is that the statements were admitted for all purposes. The forms could have been admitted in a redacted from that omits the identity of D.
Over a period of several years, D, along with his wife, friends and relatives, staged automobile accidents, injuries, and hospital stays in order to defraud several health insurance companies. At trial, the records of the insurance companies were introduced under the business records exception. D appealed on the ground that the records had been improperly admitted because they contained other unauthenticated medical records and statements of doctors which were hearsay not falling within this exception.
Business records otherwise admissible under an exception to the hearsay rule are not precluded from admission merely because they are based on other business records or the nonhearsay statements of agents on matters within the scope of their agency. Here, the insurance companies compiled their records from the business records of the hospitals. Because the medical records from the insurance companies themselves business records, there was no accumulation of inadmissible hearsay. Further, even if the insurance company records contained some medical information not taken from actual hospital records, that information was admissible as nonhearsay under 801 which excludes statements from agents concerning matters within the scope of their agency.
P was struck by D’s car. P alleges that D failed to slow down while D alleges he was stopped and the car behind him struck him which caused him to hit P. P introduced a portion of his hospital records that demonstrated the extent of his injuries. D then introduced another portion of the hospital records that includes a statement by P telling a doctor that D had stopped and another car hit D. P objects on hearsay grounds.
The only information which is admissible in a hospital report is that which is recorded in the regular course of business and for the purpose of assisting the hospital in carrying on that business. The statement in the report that P related to the doctor was made in the regular course of business, but it was not made in order to better carry on the hospital’s business. How the accident occurred was not relevant to diagnosis or treatment and was not admissible. For information in a hospital record to be admissible, it must relate to diagnosis, prognosis, or treatment of a patient or be helpful in understanding the medical or surgical aspects of the patient’s hospitalization.

However, the rule of this case, Williams v. Alexander, may not apply today because evidence may come in other ways.
P sued to collect on an outstanding hospital bill. The computer printout of D’s bill was introduced into evidence. P says this is not sufficient to meet the business entry exception.
A computerized business record is considered trustworthy unless the opposing party comes forward with some evidence to question its reliability. P clearly established the reliability of the bill. The burden then shifted to D to offer evidence that it was not reliable and he failed to do so.
P was injured in a railroad accident and sued D, a railroad trustee. Shortly after the accident the engineer made a statement to the railroad superintendant and it was the custom of the railroad to record such statements whenever there was an accident. The engineer died before the trial and D attempted to introduce the statement into evidence under business records exception. The court refused.
A record is considered to be in the regular course of business if made systematically or as a matter of routine to reflect events or transactions of the business. The keeping of accident reports, while customary, is not essential to the efficient operation of a railroad. If the mere custom of making a record of non-essential activity could bring that record within the meaning of “regular course” of business, then any company could bring any type of record into court. The primary purpose for the record was not the efficient management of a railroad, but for litigation.

However, most accident reports fit into the business record exception where there are statutes requiring such reports. Practically speaking, this case does not matter as much anymore because it is pretty easy to get around. Railroads are in the business of litigating, and making these reports is a routine part of what they do.
P sues D for injuries that resulted allegedly from a faulty brake of a railroad car. Evidence that the brake functioned properly immediately prior to and after the accident was admitted in the form of an accident report. P objected to the admission stating that the report had not been prepared for the systematic conduct of the business.
A writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, occurrence, or event and pursuant to regular business procedure, is admissible. Here, the report in question was made pursuant to a regular procedure at D’s yard. Following every accident involving injury to an employee, D was required to complete inspection reports, and such reports were regularly kept in the course of business. Also, the ICC required D to prepare and file monthly reports of all accidents involving railroad employees. These reports were undoubtedly of utility to the employer in ascertaining whether equipment involved was defective so that future accidents could be prevented.
P bumped his head while at work on D’s cruise ship and later slipped into a coma. P’s father filed suit because under admiralty law he was entitled to maintenance and cure. P attempted to call the president of the insurance company because one of its insurance agents had investigated P’s behavior and made reports. of P’s behavior following the incident and interviews with coworkers about P’s statements. Rutherford and his coworkers were not available to testify, but P argues business record exception.
A report must be admitted into evidence where it contains several layers of hearsay, each of which satisfies an exception to the hearsay rule, and where exclusion of the report will materially affect the proponent’s case. Here, the exclusion would materially affect the case. Now the court must determine whether each layer is admissible:
1) P’s statements are admissible under 803(3) as statements of physical condition.
2) The co-workers statements were made within the scope of their employment under 801(d)(2)(d).
3) The report was an admissible business record under 803(6).
The defendant’s argument that the report was prepared in anticipation of litigation will not stand because the rationale for excluding the report is not present here, since the insurer had no incentive to gather evidence of P’s illness.
During a military training exercise, an aircraft manufactured by D crashed killing all on board. D sought admission of a governmental report generated pursuant to the accident in which blame laid on pilot error. The court rejected it finding that the public records exception under 803(8) applies to introduction of facts and not opinions or conclusions.
The public records and reports exception to the hearsay rule permits introduction of opinions and conclusions contained in the public records and reports. This implies that portions of the reports other than raw data may be admitted. As a policy matter, it can be difficult to tell when data or facts stop and opinions begin.
There is no language in the business record rule that contemplates this, but a judge may find a piece of evidence has a lack of trustworthiness.
D was convicted of possession of heroin. The chemist who wrote the report that identified the substance as heroin was unavailable at trial. P called another customs service chemist to testify to the regular procedures and practices used by customs in analyzing unknown substances. She claims to ascertain from the document the various steps the other customs agent used to determine it was heroin. D made an argument that the documents were not admissible under 803(8) and the government claimed that they were nonetheless business records under 803(6).
Evaluative and law enforcement reports which fail to qualify under the “pubic records” exception to the hearsay rule cannot be admitted as “business records.” 803(8) specifically states that factual findings resulting from an investigation made pursuant to authority granted by law are not shielded from the hearsay rule by the public records exception. The legislature clearly intended these reports to be absolutely inadmissible.
You can get something in as a business record if it happens to be a record of a public agency, but to the extent that something in the public records rule disallows the document, you cannot let it in under the business records exception.
The thing we are most afraid of is criminal prosecution of people by documents (a lab report) rather than witnesses.
Homeowner's house burns down and sues Company X alleging it was their defective light that caused the fire. A painter that had been in the house gets on the stand and says "I told the homeowner that this was a light made by company X" Hearsay?
Yes, under the Federal Rules, Self-quotation can be hearsay. It is perfectly acceptable for the painter to describe what he saw, but not what he said.
Plaintiff sues defendant for tresspass. Can defendant testify that the day before the alleged trespass, the plaintiff said, "I like you. You are nice. You are never a tresspasser, and you can visit whenever you want." hearsay?
No. This is an example of out of court words that have independent legal significance. They were introduced to prove that they were said, and not to prove the truth of the matter asserted - that he was not a tresspasser. If the words were spoken, they amount to permission to enter the plaintiff's land.

( i dont understand why they would be hearsay regardless if plaintiff is not unavailable)
A victim was injured by a machine and sues X for failure to properly maintain that machine. V wants to introduce evidence that after the government inspected the machine, the inspector said " I would never let X do any work for me" to prove he did a bad job. Hearsay?
The out of court statement doesn't exactly say "X did a bad job," yet if the statement is relevant at all it would be because it implies that X did a bad job. The meaning of the statement is so similar that it should be classified as hearsay.

If the issue was different for example, if V was trying to prove that the inspector had heard of X, then the statement would not be used to prove the truth of the matter asserted.
jin qian cao
drain damp / relieve jaundice
Mr. Poor gives money to Mr. Rich saying " Here is the repayment of the loan you gave me so that I could buy a car." Mr. Rich later sues Mr. Poor alleging that the money was a gift and that he still owes him for the loan. Can Mr. Poor testify as to what he told Mr. Rich or would it be hearsay?
In this instance, Mr. Poor may quote himself because his words constitute a verbal act or verbal part of an act. Without those words, the conduct of turning over money would be ambiguous. The reasoning is similar to statements with independent legal significance - they are introduced to show they were spoken
Is the following admissible to show that an ingredient in defendant's pizza is dangerous:

A note written by the president of the company that says, "this shows we are in serious trouble" with an article attached about how the ingredient is dangerous.
One would have to pursuade the judge that the note meant that the president agreed with the article, in effect admitted that he knew the ingredient was dangerous. On the other hand, one could argue that the president's statement simply anticipated negative publicity and the admissions exception does not apply.
Is the following admissible to show that an ingredient in defendant's pizza is dangerous:

A book, written by the president of the company after he retired, about how the ingredient is dangerous.,
Although this would seem like an admission, the statement was not made during the course of employment which is required by the rule.
Suppose a company admits to having knowledge that an ingredient in its pizza is dangerous, but denies that it had this knowledge at the time it hurt the plaintiff. Can the plaintiff introduce the following:

a book by the president of the company that was written after he retired that talks about how the ingredient is dangerous.
It depends on whether he knew about the danger of the ingredient while he was president or not. If he does not say, the book is irrelevant. If it did say he knew about the danger while working as president, it would be hearsay because it is being used to show the truth of the matter asserted.
Manny and Moe are on trial for bank robbery. The prosecution seeks to have a police officer testify that after Manny had been arrested, he told the officer that Moe was the other person involved. Is this testimony admissible to show that Moe was one of the two robbers?
No. The statement is sought to support the truth of the matter asserted. The admissions rationale for coconspiritors requires that the statement be made in furtherance of the conspiracy while the conspiracy is still in effect.
Plaintiff sues doctor for malpractice. The nurse testifies that the doctor followed standard procedures. The plaintiff introduces evidence that the nurse was offered a promotion after the malpractice. Can the defendant introduce a letter by the nurse written before the promotion stating that he followed standard procedures, to show that the nurse's testimony was not tainted?
The nurse's letter is an out of court statement but it is not merely used to evaluate the truth of the matter asserted, but to show a prior consistent statement. If the nurse is available for cross examination, and if there has been an express or implied charge of imporper influence or motive, the letter will not be hearsay. Here, the promotion is a motive to slant testimony in the doctor's favor, thus the letter is admissible if the judge is persuaded it was written before the promotion.
someone stole the victim's wallet and the victim hailed a police car and chased down the suspect. Upon finding the suspect, the victim pointed and fainted. Can the police officer describe how the Victim pointed to the suspect:?
It is clear the victim meant to convey information, and will be hearsay unless it qualifies as a prior statement made by a witness. It does fit the Federal Rules definition of "identification of a person made after perceiving the person" and the out of court assertive conduct will be admissible as long as the victim is available for cross.
Alan Williams was found strangled to daeth in his apartment and the building janitor, who knew Williams very well, was accused because he has easy access to the apartment. On the day of the murder, Williams was on the phone with a friend and said "I have to hang up now, someone just came in and he looks really upset. I don't know who he is but he has a crazy look on his face." Can the janitor have the friend testify as to what williams said to show a stranger entered his apartment?
The present sense impression exception covers this statement because the declaran was apparently describing something while he was perceiving it. He saw someone come in and described it to his friend. One of the main justifications for this exception is that a false statemenet will be discovered and corrected. In this problem, the friend would not have had a way to determine the accuracy of William's statement. Here, although the underlying policy for the exception is not well-served by admitting the hearsay, the terms of the rule are so clearly met that admissibility would be certain.
Carl was hit by a hit and run driver. While being treated in the hospital, Edward walks in and Carl shouts, "That's the guy who nearly killed me!" Can the nurse testify to this statement in a trial against Edward for the hit and run?
Yes - this would be an excited utterance. The statement relates to the shock produced by the sight of Edward.
A shopping center sues one of its stores for failing to operate for a five year term. In defense, the store alleges the shopping center violated its agreement to provide adequate security measures. Can the store introduce this agreement?

Can the store introduce a survey of customers that stated they felt unsafe at the shopping center?
The agreement does not involve hearsay problems. It is a legal document which will be given meaning by the legal system.

The survey is a method of introducing out of court statements by shoppers about how they felt at the time they were interviewed Thus, it would be hearsay, but the state of mind exception would let them in because the words are descriptions of the declarant's then existing mental condition.
Chris is accused of attacking George. To show Chris had a motive, the prosecution seeks to show that George borrowed money from Chris and refused to repay it. Can the prosecution admit testimony of a friend of George's sister saying that two days before the assault, George's sister said "George owes Chris a lot of money but he just keeps stringing him along about it." Admissible?
Although the statement is relevant if true, there is no hearsay exception that would allow its admission.
Chris is accused of attacking George. To show Chris had a motive, the prosecution seeks to show that George borrowed money from Chris and refused to repay it. Can the prosecution have a friend of Chris testify that before the assault, Chris said "George owes me money but he just keeps stringing me along."
Chris's statement is an admission. It could also be analayzed under the state of mind exception. Whether or no George owed him money, chris's statement that he beleived George owed him noney shows a mental state consistent with a motive to attack Even if the statement was false, the belief is relevant to a motive to harm.
In a med mal suit, plaintiff introduces testimony by a doctor who has never treated him but who has examined him as a part of preparation for trial. The doctor testified that it is her opinion that the defendant failed to conform to standards of treatment based on what plaintiff told her of symptoms before and after that doctor treated him. Admissible?
Although the doctor is not treating the patient, the evaluation of the pation is considered diagnosis. Although there is less incentive to tell the truth to a doctor that will testify on your behalf, the federal rules do not distinguish between treating and testifying physicians.
A child that could not swim was rescued from a pool. The rescuer rode with the child in the ambulance to the hospital and said, "this child jumped in the pool and could not swim!" The parent's are suing the pool operating alleging the child slipped on a slick walkway and fell in the pool. Can the ambulance paramedics testify to what the rescuer said?
The exception for present sense impression or excited utterance may or may not apply depending on how soon after the incident the statement was said and how excited the rescuer was when speaking.

What about the exception for statements made for treatment or diagnosis? The paramedics were closely enough connected to the delivery of health services for such statements to be defined as connected to obtaining medical services. However, the part of the statement that the child "jumped" into the pool is not easily characterized as intended to facilitate treatment or diagnosis.
Louise sues her neighbor for a furnace that emitted large quantities of smoke that drifted onto her property. Louise kept a diary describing her daily observations of the smoke in great details including times and dates. How might Louise's lawyer make use of this diary at trial?
Assumig Louise does not have the ability to remember the details of the smoke, her lawyer could use the hearsay exception for recorded recollection. The diary entries could be read to the jury but the diary iteslf would not be admissible as an exhibit unless the neighbor offered it.

The present sense impression exception might also apply. However the declarant's statements were not subject to a contemporaneous check on accuracy, and some courts may refuse to apply the exception for that reason.

The diary is obviously not a business record because it was not made in the course of a regularly conducted enterprise.
A buick driven by Mrs. Prince crashed into a BMW driven by King. To establish that the traffic signals were working, King wants to introduce a document filed in the city's traffic department written by a foreman that states that the Foreman went with a worker to the intersection on the day of the accident and the worker told him that the lights were working properly. Admissible?
There are two levels of hearsay: (1) a statement written by the foreman, and (2) the statement made by the worker to the foreman.

The public records exception will cover the document. Worker obtained the information as part of the usual operations of the department for which he works. It can also be said that Foreman wrote the report as part of the department's typical work. There was testimony in court that the document was found in a palce where it was supposed to be kept, supporting reliability.
plaintiff is injured when defendant's car hits him. He sues for negligence in tort. Can defendant offer testimony of witnesses who say he is a cautious driver?
No - character evidence of the defendant is not admissible in civil cases unless the central issue is the character of the defendant
Plaintiff is injured in a car accident with defendant's car. Plaintiff offers testimony from a witness who says defendant's car was going 20 mph when it hit the plaintiff. Defendant wants to introduce testimony by a witness that defendant always drives 30mph or less even when the speed limit is higher. Admissible?
Although this testimony is specific enough to be considered habit, it is nonetheless irrelevant to the issues at hand because he was allegedly going 20mph
Defendant takes the stand in a civil case where he allegedly hit plaintiff's car and claims that he used his turn signal while slowly moving into a lane when plaintiff suddenly backed out of a park space and hit him. On cross, can plaintiff's counsel ask him about his prior conviction for vehicular manslaughter, which is punishable by 5 years in prison?
Probably not. 609a allows impeachment of witnesses through prior convictions for imprisonment of one year or more, but only if the probative outweighs the prejudicial effect. One could argue is probative because if one is reckless with a car once, he is likely to be reckless again. On the other hand, its relationship to the defendant's ability to tell the truth is speculative. There is a good chance the jury will use it for an improper purpose.
Defendant is on trial for murder of her parents. Defendant's sister testifies that defendant never had any fights with her parents. Admissible?
Although specific acts of prior conduct is not admissible to show peaceful character, this is not character evidence because it is used to she defendant had a good relationship with her parents.
Rule 611. Mode and Order of Interrogation and Presentation
(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
Rule 607. Who May Impeach
The credibility of a witness may be attacked by any party, including the party calling the witness.
Rule 608(b) Specific instances of conduct
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The pilot of D’s plane was arrested by Mexican officials after a pouch of money was found on the plane, and 6,000 pounds of marijuana was found in a truck parked near the landing strip. The pilot implicated D in a drug conspiracy. The U.S. sued D and after being given immunity, the pilot denied that he or D had any involvement, testifying that his prior confessions were coerced. DEA officials testified that there was no abuse and at no time did pilot complain of mistreatment. Court allowed the testimony.
The prosecution may not call a witness it knows to be hostile for the primary purpose of eliciting otherwise admissible impeachment testimony. Here, the impeachment proof consisted only of out of court statements offered to prove the truth thereof and thus were hearsay. Pilot testified under oath on three previous occasions, adhering to his account of fabrication each time. Thus, the appeals court declared that the primary if not sole purpose in calling him to the stand was focused on getting his prior statements before the jury. The danger in this procedure is that the jury will hear the impeachment evidence, which is not otherwise admissible and is not substantive proof of guilt but is likely to be received as such proof. The admission of this evidence constituted plain, not harmless, error.
To support his defense of alibi, D called Ardiss as a witness. Ardiss testified that D was in Oregon on the day of the crime which occurred in Washington. On cross, Ardiss testified that D had been in Oregon every day for the past few months. P attempted to impeach Ardiss by means of a police officer testimony that he had seen D in Washington on a day one month before the crime.
A witness cannot be impeached upon matters collateral to the principal issues being tried. The purpose of this rule is to avoid undue confusion of the issues and to prevent undue advantage over a witness unprepared to answer concerning matters unrelated or remote to the issues at hand. The test of collateralness is, “could the fact as to which the error is predicated have been shown in evidence for any purpose independent of the contradiction?” Here, D attempted to prove through Ardiss that he was not in Washington on the day of the crime. He was not trying to prove that he had not been in Washington prior to that date. Thus for the purpose of impeaching Ardiss, whether D was in Washington on a given day one month prior was irrelevant and collateral. It was an error to admit the questioned testimony.
D was arrested and tried for unlawful distribution of cocaine after he allegedly sold crack to an undercover police officer. During trial, D testified that another individual had actually sold the cocaine while that individual, D, and others were engaged in a dice game. D further testified that he only saw money exchanged, not the drugs, and that the only time he had seen drugs was on television. The trial court permitted three previous positive drug tests for cocaine as a means of demonstrating that D’s statement was false. However, the trial court failed to issue an immediate cautionary instruction informing the jury as to the permissible use of that evidence. D appeals.
Evidence of other crimes, wrongs, or acts may be admissible to impeach through contradiction a defendant acting as a witness. Here, the district court correctly permitted P to cross examine D as to his positive drug test for impeachment purposes. However, if the jury considered the evidence for other, impermissible purposes, it was likely to be substantially prejudiced against D. It was, therefore, imperative for the trial judge to issue an immediate cautionary instruction informing the jury as to the limited allowable uses of the drug test evidence. His failure to do so constituted reversible plain error.
D was arrested for the murder of his wife. At trial, P introduced evidence to show that D fired a rifle at his wife in anger following a domestic quarrel, and that D intended his wife’s death or grievous bodily harm. D took the witness stand in his own defense. On cross, P attempted to impeach D by eliciting D’s admission to a prior act of intentional falsehood. (perjury)
Under 608b, counsel may impeach a witness by extracting on cross his admission to a prior act of intentional falsehood under oath. Here, the suggested evidence had substantial probative value. First, the issue of the appellant’s prior falsehood was clearly a matter contested by the parties. Second, other evidence to show that D engaged in an act of deceit was not available to P. Finally, the strength of the suggested evidence to show D’s perjury was considerable. There existed substantial circumstances indicating deliberate deceit by D. In view of the probative value of the evidence for a proper purpose, the judge did not abuse his discretion in admitting the evidence.
D was convicted of fraud on the basis of allegations that he sought financing while concealing the existence of a third party’s security interest in the collateral. D alleged that he was unaware of the security interest because of his lack of formal training in business management. D testified that he had majored in psychology in college. On cross, he was impeached on this point by the use of prior inconsistent statements. P then alleged that his college transcript, which was not in evidence, indicated that he had been dismissed from college for violation of the terms of his probation and for falsification of facts in a disciplinary investigation. D alleged that this line of questioning dealt unfairly with prejudicial and irrelevant material, and constituted introduction of extrinsic evidence of specific instances of conduct offered in violation of 608b.
Cross examination questions alone cannot constitute extrinsic evidence. Though the questions asked did not constitute extrinsic evidence, they were arguably improper because they assumed facts not in evidence. However, no substantial right of D was affected, because he had already been impeached by the use of inconsistent statements. The damage had already been done by the time the objection now on appeal was raised.
Rule 609. Impeachment by Evidence of Conviction of Crime
(a) General rule. For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, 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.

(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

(e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
Rule 608(a) Opinion and reputation evidence of character
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
Rule 613. Prior Statements of Witnesses
(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).
While Sanders (D) and Alston were incarcerated, they were indicted for assault of a fellow prisoner with intent to commit murder and for possession of a knife. Before trial, D moved to exclude evidence of his prior convictions. After D testified that he had acted in self-defense, P crossed D about his prior assault and contraband possession convictions.
Evidence of prior felony convictions may be used to attack the credibility of a witness only if the probative value of the evidence outweighs its prejudicial effect. This balancing is required by 609a. Here, the evidence is inadmissible because of the high likelihood of prejudice that accompanies it. Neither is the evidence admissible under 404b to show intent since it is a prime example of evidence that proves only criminal disposition. Thus, the district court erred in admitting it.
D was charged with mail fraud. At trial, he moved to preclude use of his prior fraud convictions for impeachment. The court denied his motions holding that since prior convictions were crimes involving dishonesty, under 609a2 no balancing of prejudice against probative value was appropriate, and that it was therefore compelled to admit them. He appealed contending that rule 609 is qualified by the general prejudice-against-probity balancing test in rule 403, and therefore the trial court erred in failing to consider the prejudicial impact of the convictions.
D was charged with mail fraud. At trial, he moved to preclude use of his prior fraud convictions for impeachment. The court denied his motions holding that since prior convictions were crimes involving dishonesty, under 609a2 no balancing of prejudice against probative value was appropriate, and that it was therefore compelled to admit them. He appealed contending that rule 609 is qualified by the general prejudice-against-probity balancing test in rule 403, and therefore the trial court erred in failing to consider the prejudicial impact of the convictions.
D robbed 3 different banks. The first robbery was committed with an accomplice, Moore, who used a pistol. In the other 2 robberies, D was unarmed and apparently acted alone. D pleaded guilty to both unarmed bank robberies, then went to trial for aiding and abetting Moore in the armed bank robbery. Before testifying as the sole defense witness, D objected to the use, for impeachment purposes, of his guilty pleas to the two unarmed bank robberies. The court allowed impeachment with the guilty pleas on cross. D was convicted and appealed contending that bank robbery does not involve dishonesty or a false statement.
Bank robbery is not “per se” a crime of “dishonesty” as that term is used in 609a2. Under that rule, evidence that any witness has been convicted of a crime shall be committed to attack the credibility if it involved dishonesty or false statement, regardless of the punishment. However, dishonesty has both a broad and a narrow meaning. In its broader meaning, dishonesty is defined as a breach of trust, which would include bank robbery, while in its narrower meaning, it is defined as deceitful behavior. The legislative history of the rule makes it clear that Congress used the term in the narrower sense to mean only those crimes that involve deceit. Bank robbery is a crime of violent, not deceitful, taking.
D was indicted on charges of conspiracy and possession of cocaine with intent to distribute. D moved for a ruling to preclude P from using a 1974 state conviction to impeach him if he testified. D made no commitment to testify if the motion was granted and did not make a proffer to the court as to what his testimony would be. The court ruled that it fell within permissible evidence under 609, D did not testify, and jury found D guilty. The court of appeals said that when the defendant does not testify, the court will not review the district court’s motion in limine ruling.
To raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify at trial. A court must know the precise natures of the defendant’s testimony, which is unknowable when a defendant does not testify. Were in limine rulings under 609a reviewable on appeal, almost any error would result in the windfall of automatic reversal. Requiring D to testify in order to preserve 609 claims will enable the reviewing court to determine the impact of any erroneous impeachment may have had in light of the record as a whole.
Linstrom (D) and Slater (D), part owners of Bay Therapy, Inc., which provided physical therapy to injured people, were accused of inflating medical costs and defrauding insurance companies. They were indicted for mail fraud and conspiracy to commit mail fraud. P’s key witness, an employee of Bay Therapy, testified that she and Lindstrom had altered records, that Ds ordered her to duplicate billing cards, and that patients signed up for treatment they did not receive. Ds contended that the witness was carrying out a vendetta against them. They sought to impeach her credibility with evidence of her psychiatric disorders, showing a history of manipulative and destructive conduct.
Psychiatric evidence regarding a recent history of mental instability may be used to impeach a chief witness. A criminal defendant has the right to be confronted with the witnesses against him. The right of confrontation includes the right to cross-examination, one goal of which is to impeach the credibility of opposing witnesses. Certain forms of mental disorder have a high probative value on the issue of credibility. Here, the medical records of P’s witness suggested a history of psychiatric disorders manifested by violent threats and manipulative and destructive conduct relevant to the witness’s motivation in this case. She initiated and pursued the investigation against Bay Therapy, was an insider to the fraud scheme, and testified in detail about the operation and activities of Ds. The district court committed error in depriving Ds of their right to confrontation and cross examination.
D was accused of sleeping with a married woman. Thompson, one of D’s principal witnesses, testified that D’s conduct toward P’s wife was proper and harmless. On cross, Thompson was asked whether he recalled talking to P about a picnic. He replied in the negative. P then testified that Thompson had told him that at a certain picnic, the conduct of D and P’s wife was disgraceful. D objected to the question that elicited this response, but P’s counsel stated that the answer was sought for the sole purpose of impeaching Thompson.
Before a witness can be impeached by evidence of a prior inconsistent statement, the statements must be related to him, with the circumstances of times, places, and persons present, and he must be asked whether he has made the statements, and if so, allowed to explain them. Here, the only foundation laid for impeaching testimony was the question of whether Thompson remembered talking to P about a picnic. The alleged statement was never related to Thompson, nor were the accompanying circumstances. It was error to allow the impeachment.
D was charged with sexually abusing his daughter while she was in his custody. The child’s mother was unsuccessful in obtaining primary custody of the child and D contended that the allegations were fabricated so that she could obtain custody. P produced 6 witnesses who recounted statements made by the child which implicated D in the sexual abuse. The statements were admitted to rebut D’s charge that the child’s testimony was motivated by her desire to live with her mother.
A witness’s out of court statements consistent with court testimony are admissible to rebut a charge of recent fabrication or improper influence or motive only if made before the charged recent fabrication or improper influence or motive.
D and two cohorts were indicted for robbery. The cohorts decided to plead guilty, but D went to trial. One of the cohorts, Ehle, agreed to testify against D and identify him as a participant in the robbery. D sought to counteract Ehle’s testimony with testimony from Mills, who had been friendly with both D and Ehle when they were all in prison. Mills planned to testify that Ehle had admitted to him that he would falsely implicate D in exchange for leniency. The prosecutor, in turn, intended to discredit Mills by having Ehle testify that he and D and Mills all belonged to a prison gang that required its members to commit, among other things, perjury on behalf of each member. D objected to Ehle’s testimony but the district court held that the probative value of Ehle’s testimony outweighed its prejudicial effect, and that D might be entitled to a limiting instruction if his counsel would submit one to the court. His counsel did not. D was convicted and appealed contending that the court improperly admitted Ehle’s testimony, impeaching Mills, and that this was reversible error.
A district court is accorded a wide discretion in determining the admissibility of evidence under the Federal Rules. Assessing the probative value of common membership in any particular group and weighing any factors counseling against admissibility is a matter first for the district court’s sound judgment under Rules 401 and 403, and ultimately, if the evidence is admitted, for the trier of fact. Here, before admitting Ehle’s testimony, the district court gave heed to the extensive arguments of counsel both in chambers and at the bench. The court also offered a limiting instruction concerning the testimony. These precautions may not have prevented all prejudice to D but they did ensure that the admission of this highly probative evidence did not unduly prejudice D. There was no abuse of discretion under 403.
Rule 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
Rule 1002. Requirement of Original
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.
Rule 1001. Definitions
For purposes of this article the following definitions are applicable:
(1) Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
(2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.
(3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".
(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.
Rule 1004. Admissibility of Other Evidence of Contents
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The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if--
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or
(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or
(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue
Rule 1005. Public Records
The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
Rule 1006. Summaries
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.
Rule 1007. Testimony or Written Admission of Party
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party's written admission, without accounting for the nonproduction of the original.
Rule 1008. Functions of Court and Jury
When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.
Rule 901. Requirement of Authentication or Identification
(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
(10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.
Rule 902. Self-authentication
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
(2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.
(3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.
(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority.
(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.
(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.
(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.
(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.
(10) Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic.
(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record--
(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
(12) Certified foreign records of regularly conducted activity. In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record--
(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
P sought damages for personal injury. She was x-rayed by Dr. Wolfson who sent the x-ray plates and his report to the treating physician. The physician was not called to testify. Dr. Wolfson was called to testify by P’s attorney. The x-ray plates were not introduced and Dr. Wolfson refreshed his memory from a copy of his report. D objected invoking the best evidence rule.
Under the best evidence rule, a party who seeks to prove the content of a document must offer in evidence the original copy of the document, but if secondary evidence is offered, the proponent must explain his failure to offer the original in order to proceed. When Dr. Wolfson was asked to describe what he saw on the x-ray plates, the secondary evidence of their contents was asked for. The x-ray plates were the “original document” P’s counsel failed to explain the absence of the x-ray plates.
On the issue of damages in wrongful death suit, P offered testimony on the amount of earnings her deceased husband derived from a partnership. The trial court ruled the testimony inadmissible since the books of the partnership were not presented nor any explanation given for not doing so.
The best evidence rule does not apply to testimony describing nonwritten transactions. There is no attempt here to prove the contents of a writing. The only issue is the deceased husband’s earnings. While the earnings were recorded, this was only for convenience after the transactions had already occurred. The books only prove the testimony, and not the other way around. P does not have to produce the books.
Lamarre was indicted for perjuring his testimony before a US Senate committee, and for suborning the perjuries of Meyers. The words and expressions charged to Lamarre in the indictment did not appear in the transcript, but were, the government argued, to be inferred from his answers to the many questions put to him. Rogers, chief counsel to the committee, had heard all of Lamarre’s testimony before the Senate body. Rogers was permitted to testify early in the trial as to what Lamarre had sworn to the committee. Toward the close of the trial, the government introduced into evidence a stenographic transcript of Lamarre’s testimony at the hearing. D objected to this staggered introduction of the oral testimony as a “bizarre procedure.”
In the federal courts, the best evidence rule is limited to cases where the contents of a writing are to be proved. The prosecution, by having Rogers testify, did not attempt to prove the contents of a writing: the issue was what Lamarre had said, not what the transcript contained. Hence, the best evidence rule is inapplicable here. Roger’s testimony was equally competent and was admissible, whether it was giv en before or after the transcript was received into evidence. Statements alleged to be perjured may be proved by any person who heard them, as well as by a reporter who recorded them in shorthand. Since both methods of proving the perjury were permissible, the prosecution could present its proof in any order it chose. Lamarre’s and Meyer’s counsel had full opportunity to study the transcript and to cross examine rogers in light of that study. There is no indication that Meyers’s position before the jury would have been more favorable had the transcript been offered on an earlier day of the trial.
D was charged with exhibiting obscene motion pictures. At D’s trial, the prosecution failed without offering any explanation, to produce the allegedly obscene films.
The best evidence rule applies to motion pictures. A photographic transparency – or “slide” – has been held to be a writing. A motion picture film is a series of such slides. The moving image is totally dependent on the recorded frames of the filmstrip. It is better for the trier of fact to see a filmstrip than to have it described. Therefore, the prosecution must produce the films themselves for viewing by the court.
At D’s trial for illegal possession of firearm by a felon, P introduced evidence, purportedly from the Denver Police Department, to show that D had been convicted of a felony using the name Carl Smith. Several individuals testified that Smith’s fingerprints matched D and that the signature on the fingerprint card matched D’s handwriting. The court admitted the evidence over D’s objection of authentication.
As condition precedent to admissibility, documents that are not self-authenticating require authentication or identification by evidence sufficient to show they are what their proponent claims. The parties agree that the documents at issue here are not self-authenticating. The testimony at trial as to the documents had nothing to do with their source. There was no circumstantial evidence to show the documents came from the Denver Police Department. However, in this case, admission of the documents was a harmless error since other evidence proved beyond a reasonable doubt that D was a felon.
D was accused of robbing several banks. An element of the crime with which he was charged was that the banks had to be federally insured at the time of the robberies. To prove this element, P supplied photocopies of documents purporting to be certificates of insurance issued by the FDIC.
Under 902(1), photocopies of sealed documents are not self-authenticating as sealed documents. Here, no seal was stamped on the photocopies. The purpose of 902(1) is to authenticate documents that are difficult to forge, such as sealed documents. P has failed to show that a copy of a seal is as difficult to forge as a seal itself or that the authenticity of a seal can be inferred from its copy.
Photocopies of documents are admissible where there is sufficient evidence to support a finding that they are copies of what the proponent claims they are. Rule 1005 provides that copies of public records are admissible if either a witness testifies that upon personal inspection the copy seems to be an accurate copy of the original. 902(4) provides that a copy of a public record may be admitted where the custodian of the original, or someone else authorized to do so, certifies the accuracy of the copy. Here, some of the bank employees testified that the copies were accurate copies of the originals in their banks. However, there was no proof that those purported originals were not themselves copies. There was also no evidence of the FDIC’s practice in how it issues insurance certificates to banks. Nonetheless, taking these two rules together, the photocopies are admissible. This is so because no genuine question as to the authenticity of the original certificates has been raised, and because under the circumstances it would not be unfair to admit the photocopies.
Defendant insurance company alleges that plaintiff intentionally caused a fire in his house. They introduce evidence that the house was unoccupied for weeks, but a neighbor saw a light in the home 3 hours before the fire. Further, P had the only key to the house, owned a pickup truck, and the neighbor saw a pickup truck drive away after the fire started. Also, when police called Mills at his other residence right after the fire was reported, someone answered the phone and stated he was not there. P moved to exclude evidence of the dispatcher’s call as hearsay and unauthenticated, but the court admitted it.
Under 901(b)(6), when a person places a telephone call to a listed number and the answering party identifies himself as the expected party, the call is properly authenticated. 901 provides that all evidence must be authenticated before being admitted, and that this requirement is satisfied by evidence reliable enough to show that it is what its propoenent claims to be. 901(b)(6), by way of illustration but not by exclusion, provides that authentication can occur for a telephone call when a person places a call to a listed number and the answering party identifies himself as the expected party. The calling of the number assigned by the telephone company reasonably supports the assumption that the listing is correct and that the number is the one reached. The telephone system is assumed accurate, and there Is no motive to falsify transmission of the call. Here, however, P demands that authentification requires that Mills himself have answered the telephone in order for the police dispatcher call to be admissible. This ignores the true reason for requiring self-identification, which is that the phone company usually is accurate. Therefore, all that needs to be established by the answerer is a prima facie case on the issue of identity, which may be resolved by the jury.
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.
Rule 704. Opinion on Ultimate Issue
(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Rule 703. Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
Rule 705. Disclosure of Facts or Data Underlying Expert Opinion
The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
D stabbed a man who allegedly tried to rape his wife, Sylvia. At his trial, the prosecution played for the jury Sylvia’s tape-recorded statement to the police describing the stabbing, even though D had no opportunity for cross. The jury found D guilty. The Washington Supreme Court upheld the conviction after determining that Sylvia’s statement was reliable. D appealed to the U.S. supreme court contending the tape violated the 6th amendment’s guarantee that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him.
Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. Here, the state’s admission of the statement without opportunity for cross alone is sufficient to make out a violation of the 6th amendment. Whatever else the term “testimonial” covers, it applies at minimum to prior testimony at preliminary hearing, before a grand jury, or at a former trial, and to police interrogations.
D was accused of murdering his ex-girlfriend. The court allowed prosecutors to introduce statements that she made to police responding to a domestic violence call 3 weeks before her death, indicating that D threatened to kill her. D testified he acted in self-defense but was convicted. The court held that D forfeited his confrontation right because his intentional crime of killing his girlfriend had rendered her unavailable as a witness.
A criminal defendant does not forfeit his 6th amendment right to confront a witness against him when a judge determines that the defendant’s wrongful act has made the witness unavailable to testify. The theory of forfeiture by wrongdoing accepted by the state court was not a founding-era exception to the confrontation right because the manner in which the common law forfeiture rule was applied made plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. There was no basis for the State's argument that a defendant who committed some act of wrongdoing that rendered a witness unavailable forfeited his right to object to the witness's testimony on confrontation grounds, but not on hearsay grounds. Moreover, the State's proposed exception was not supported by case law subsequent to founding as the wrongful procurement rule did not depend on confrontation.