Evidence

Front 1

FRE 401. Test for Relevant Evidence

Back 1

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Front 2

FRE 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Back 2

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Front 3

STATE of Maine v. Peter KOTSIMPULOS
(FRE 401-403)

Back 3

In prosecution for theft of pork tenderloins wherein supervisor of victimized plant was neither party nor witness, evidence of his alleged threat to see that defendant was relieved of his duties as federal meat inspector would be relevant only if there was sufficient logical connection to any other fact of consequence.

Front 4

State v. Nichols
(FRE 401-403)

Back 4

Evidence of secretor-type tests, results of which tended to some degree to make it more probable that defendant was guilty of rape and burglary with which he was charged, was properly admitted, despite assertion that test results were irrelevant since they merely tended to include him in class of people who might have committed rape

Front 5

United States v. Johnson
(FRE 401-403)

Back 5

In prosecution for willfully making false statements on individual and controlled corporations' tax returns, trial court did not abuse its discretion in excluding evidence concerning defendant's claim that he overpaid taxes by relying on his accountants and neglecting to make permissible deductions, in view of evidence that defendant withheld relevant information from his accountants and in view of fact that evidence of neglected deductions was only indirectly probative of defendant's reliance upon his accountants.

Front 6

United States v. McRae
(FRE 403)

Back 6

Court did not abuse discretion in admitting color photographs of victim's body in prosecution for murder in that such photographs were important to establishing elements of offense as bearing on defendant's defense of accident.

Front 7

Simon v. Kennebunkport

Back 7

Evidence that in the two years prior to the time plaintiff stumbled and fell on sidewalk of defendant town as many as 100 persons stumbled and fell under similar circumstances at the same location, unchanged in condition, clearly satisfied the substantial similarity foundational requirement and was highly probative on the material issue whether the sidewalk was in a defective condition at the time of the plaintiff's fall.

Front 8

Fusco v. General Motors Corp.

Back 8

Car manufacturer's videotapes showing test tract replication of accident were properly excluded in products liability action against manufacturer pursuant to sound and broad discretion of trial court in policing such videotaped evidence, where tests occurred in controlled conditions, on test tract with driver expecting the occurrence, and with doctored piece of equipment rather than one that actually broke.

Front 9

FRE 404. Character Evidence Not Admissible to Prove Conduct

Back 9

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant's same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.
ng, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

Front 10

United States v. Gilliland

Back 10

Government could not turn defendant's eyewitness into a character witness by asking what kind of a man defendant was and then use those questions to bootstrap into the case evidence of defendant's prior convictions, which evidence it was prohibited from using in its case-in-chief.

Front 11

FRE 405. Methods of Proving Character

Back 11

(a) By Reputation or Opinion. When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross- examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct.

Front 12

United States v. Monteleone

Back 12

Prosecutor must possess good faith belief that the described events are of a type likely to have become matter of general knowledge, currency, or reputation in the community in order to cross-examine defendant's character witness about witness' knowledge of specific instances of defendant's conduct; if suggested occurrences are essentially private in nature and not likely to have been known in the community at large, then prosecutor's cross-examination questions cannot possibly be intended to test accuracy, reliability, or credibility of character witness' testimony and inquiry will serve only to prejudice defendant by introduction of past offenses.

Front 13

FRE 404 (b) Crimes, Wrongs, or Other Acts.

Back 13

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

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial--or during trial if the court, for good cause, excuses lack of pretrial notice.

Front 14

United States v. Frank

Back 14

Evidence concerning the prior drug dealing was "motive evidence," it demonstrates why defendant had a reason to want the victim dead. It also helped to complete the story of the crimes charged and was thus properly admitted into evidence.

Front 15

United States v. Van Metre

Back 15

Extrinsic or prior act evidence is admissible if it is (1) relevant to some issue other than character, (2) necessary to prove element of crime charged, and (3) reliable; once evidence has satisfied those criteria, it may be admitted unless its probative value is substantially outweighed by its prejudicial effect.
In this case all three elements were met when the prior indictment showed (1) intent; (2) no other evidence to prove intent; (3) grand jury indictment is reliable.

Front 16

United States v. Mills
(FRE 404(b))

Back 16

Evidence that defendant had previously concealed from customs inspectors the purchase of jewelry subject to duty was inadmissible character evidence in prosecution for submitting falsified documents to government, based on defendant's alleged falsification of passenger manifests for Medicare provider's corporate jet; evidence raised impermissible inference that intent to lie element was more probable because of defendant's character, and customs incident made defendant's knowledge about passenger manifests neither more or less probable

Front 17

Whitty v. State

Back 17

The standards for relevancy should be stricter when prior crime evidence is used to prove identity of the doing of the act charged than when the evidence is offered ont he issue of knowledge, intent or other state of mind.
In prosecution for indecent behavior with female under age of sixteen, admission for identity purposes of evidence that on evening before alleged crime was committed upon prosecuting witness defendant approached an eight-year-old girl and asked her to help him look for a black and white rabbit and that he took such little girl into a basement in the neighborhood did not create undue prejudice, confuse the issues, mislead the jury or unfairly surprise defendant, so as to render its admission prejudicial error.

Front 18

People v. Howard

Back 18

Trial court abused its discretion by admitting evidence of prior robbery occurring in same general area two days before charged offense as evidence of defendant's modus operandi in robbery prosecution; while both victims were white male college professors who were robbed near campus, similarities did not earmark crimes as work of a single person, as defendant did not know their professions and robberies occurred on busy thoroughfare, and probative value of evidence was outweighed by potential for prejudice.

Front 19

FRE 413. Similar Crimes in Sexual-Assault Cases

Back 19

(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.



(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses' statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.

Front 20

United States v. LeCompte
(FRE 413-415)

Back 20

District court abused its discretion in excluding evidence of defendant's prior uncharged sex offenses, in prosecution for abusive sexual contact with defendant's 11-year-old niece, under rule permitting court to exclude relevant evidence if its probative value is outweighed by other concerns, in light of strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible, as evidenced by separate rule, and substantial similarity of offenses.

Front 21

Virgin Islands v. Carino

Back 21

In prosecution for assault with intent to commit mayhem, evidence of defendant's knowledge of victim's prior manslaughter conviction was admissible to show fear or state of mind, but error in excluding such evidence was not prejudicial in light of overwhelming evidence of the defendant's guilt and in light of fact that defendant did in fact testify to his fear of victim because he knew she had killed her former boyfriend.

Front 22

In the Interest of John Doe

Back 22

Defendant in prosecution for sexual assault of mentally defective person was entitled, under due process and confrontation clauses, to cross-examine state's expert psychologist regarding complaining witness' past sexual behavior and complaining witness about her use of birth control pills to prevent pregnancy; defendant's purpose in examining state's witnesses about complaining witness' past sexual behavior was not to attack complaining witness' character, but to explore whether she had basic understanding of physiological elements and medical consequences of sexual activity, as well as understanding of moral and social implications of pregnancy and sexual intercourse outside of marriage.

Front 23

SEC v. Towers Financial Corporation

Back 23

Exception to general rule against admission of character evidence, allowing admission of evidence of pertinent character trait offered by “accused,” did not apply to character evidence offered by defendant in civil action. The exception only applies to criminal trials.

Front 24

FRE 406. Habit; Routine Practice

Back 24

Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Front 25

LRE 406. Habit; Routine Practice; methods of Proof

Back 25

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. The evidence may consist of testimony in the form of an opinion or evidence of specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.

Front 26

Weil v. Seltzer
(FRE 406)

Back 26

Evidence that physician, who had allegedly prescribed steroids for patient who was told that he was being given antihistamines, had prescribed steroids to other allergy patients while representing the drugs to be antihistamines or decongestants was not admissible as evidence of habit. Before the former patient evidence could be properly admitted as habit evidence the witnesses "must have some knowledge of the practice and must demonstrate this knowledge prior to giving testimony concerning the routine practice.

Front 27

What is the definition of a habit?

Back 27

A habit is the person's regular practice of meeting a particular type of situation with a specific type of conduct, such as the habit of going down a stairway two stairs at a time, or of giving hand signals for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semiautomatic.

Front 28

FRE 407. Subsequent Remedial Measures

Back 28

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or--if disputed--proving ownership, control, or the feasibility of precautionary measures.

Front 29

Anderson v. MAllow
(FRE 407)

Back 29

Where motel owners suggested that installation of peep holes and chain locks would provide only false sense of security to guests and thereby controverted feasibility of installation of those devices and owners also made closing argument that evidence showed that owners did everything anyone recommended they do, rape victim and her husband were entitled to show affirmatively that the devices were feasible and were entitled to impeach credibility of owners by showing that owners had installed those devices after victim had been raped while a guest at the motel.

Front 30

FRE 408. Compromise Offers and Negotiations

Back 30

(a) Prohibited Uses. Evidence of the following is not admissible--on behalf of any party--either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:



(1) furnishing, promising, or offering--or accepting, promising to accept, or offering to accept--a valuable consideration in compromising or attempting to compromise the claim; and



(2) conduct or a statement made during compromise negotiations about the claim--except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.



(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Front 31

Rochester Machine Corp. v. Mulach Steel Corp. (FRE 408)

Back 31

In lessor's action against lessee in which it was contended that admission into evidence of lessor's letter and lessee's letter in response thereto was error, the lessor's letter, which presented an itemized list of damages assertedly caused during lessee's occupancy and demanded immediate payment of the estimated costs and repairs, was not an “offer to compromise” and lessee's letter, which accepted “responsibility” for some items of damage while refusing “responsibility” for others, was not a “settlement offer” or a “counter-settlement offer.”

Front 32

United States v. Greene
(FRE 408)

Back 32

Finding that DEA agent was not authorized to negotiate plea agreement, so that statements made to him by defendant were not excludable as statements made during plea negotiations, was supported by evidence that prosecutor knew that DEA agent was going to personally try to determine if defendant would want to cooperate, that defendant was told that it would be the prosecuting attorney who would have to bring to the court's attention any cooperation from defendant, and that officer recommended that defendant's attorney contact prosecuting attorney rather than agent if he wanted additional information

Front 33

FRE 411. Liability Insurance

Back 33

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

Front 34

Charter v. Chleborad
(FRE 411)

Back 34

Fact that defense witness was employed in part by defendant's insurer was clearly admissible to show possible bias of the witness, and the probative value of the evidence far outweighed any danger of unfair prejudice, so that the trial court did not act within its discretion in excluding such evidence of insurance.

Front 35

What is a statement?

Back 35

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.

Front 36

What is a hearsay?

Back 36

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.

Front 37

Commonwealth v. Farris

Back 37

Failure to sustain defense objection to hearsay testimony of detective, who stated that alleged accomplice made statement to him and that as a result of what he was told, he arrested defendant, which testimony was intended to get across to jury that accomplice, who did not testify and was not subject to cross-examination, had identified defendant as involved in robbery, required a new trial.

Front 38

Hanson v. Johnson

Back 38

In action for conversion of corn, which plaintiff claimed as part of his share of crop as lessor of the farm pursuant to a division, testimony that tenant pointed to the crib and told plaintiff that corn therein was his share held not objectionable as hearsay, the language of the tenant being a verbal act. A statement that itself creates or shifts a legal relationship is not hearsay.

Front 39

McClure v. State

Back 39

In prosecution of husband for murder of wife, it was error for trial court to refuse to allow defendant to testify that third person had told him about wife's infidelity on grounds that such testimony was hearsay, since that testimony would have shown that he had knowledge of wife's indiscretions.

Front 40

United States v. Zenni
(FRE 801(a)(2))

Back 40

In prosecution for illegal bookmaking activities, utterances made by unknown persons who telephoned defendant's premises and gave directions for placing bets on sporting events were nonassertive verbal conduct, offered as relevant to support inference that bets could be placed at premises being telephoned, and thus, as implied assertions, utterances were excluded from operation of hearsay rule

Front 41

Bridges v. State

Back 41

In prosecution for taking indecent liberties with a female under 16 years of age, testimony respecting statements by complaining witness to police officers respecting various matters and features which she remembered, and which were descriptive of exterior and surroundings of house wherein offense was alleged to have been committed, was competent as evidence proving knowledge of surroundings and for such purpose was not inadmissible as hearsay.

Front 42

United States v. Castro-Ayon
(FRE 801(d)(1))

Back 42

Term “other proceeding” in evidence rule authorizing admission of a prior statement for substantive value if statement is inconsistent with declarant's trial testimony and was given under oath at a trial, hearing or other proceeding included immigration interrogation held by government agent who advised aliens of their rights and placed them under oath before interrogating them.

Front 43

LCE 801(d)(1)

Back 43

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) In a criminal case, inconsistent with his testimony, provided that the proponent has first fairly directed the witness' attention to the statement and the witness has been given the opportunity to admit the fact and where there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statement;
(b) Consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive;
(c) One of identification of a person made after perceiving the person; or
(d) Consistent with the declarant's testimony and is one of initial complaint of sexually assaultive behavior.

Front 44

When is a witness's prior consistent statement admissibe both for its truth and to prove a fact?

Back 44

1) the witness is attacked for recent fabrication or improper influence or motive;
2) his consistent statement predates the alleged corrupting influence;
3) he is subject to cross-examination concerning the consistent statement.

Front 45

Tome v. Unided States
(FRE 801(d)(1)(B))

Back 45

Evidence of child's prior consistent out-of-court statements regarding her father's alleged sexual abuse was not admissible, in criminal prosecution of father, in order to rebut implicit charge that child's testimony was motivated by her desire to live with her mother following her parents' divorce; child's out-of-court statements postdated her alleged improper motive.

Front 46

United States v. Lewis
(FRE 801(d)(1)(C))

Back 46

Failure of witness who made pretrial photographic identification of defendant to make a corporeal identification of defendant in court did not render testimony of FBI agent, that witness had identified defendant month or two earlier, inadmissible hearsay in trial for armed bank robbery and conspiracy to commit armed bank robbery where identification witness did recall her prior identification and so testified.

Front 47

United States v. Owens
(FRE 801(d)(1)(C))

Back 47

Confrontation rights of defendant charged with assault with intent to commit murder were not violated by introduction of victim's out-of-court identification of defendant as assailant, even though victim was unable to testify as to basis upon which he made identification of defendant due to actual and complete memory loss; victim was available for cross-examination, and defense counsel emphasized victim's memory loss.

Front 48

FRE 801(d)(2). Admission by Opposing Party

Back 48

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(2) An Opposing Party's Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party's coconspirator during and in furtherance of the conspiracy.
The statement must be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Front 49

Jewell v. CSX Transportation, Inc.
(FRE 801(d)(2)(A)

Back 49

Statements made by child who survived collision between train and truck in which child was passenger, regarding alleged argument between child's father, who was driver of truck, and another passenger immediately before collision, were admissible as party admission, in personal injury action brought by driver's survivors against railroad company, regardless of whether child had independent recollection of collision.

Front 50

United States v. Morgan
(FRE 801(d)(2)(B))

Back 50

Where government has indicated in a sworn affidavit to a judicial officer that it believed particular statements are trustworthy, it may not maintain an objection to subsequent introduction of those statements on grounds that they are hearsay.
*This rule also applies to the prosecution in criminal cases.

Front 51

People v. Green
(FRE 801(d)(2)(B))

Back 51

Where only circumstance suggesting that defendant adopted incriminating statement of his wife was his failure to respond and where circumstances suggested that defendant was not free from emotional impediments to immediate response in that he knew, when statement was made, that wife had a gun, that heated domestic dispute over another woman was in progress, and that wife had threatened him with violence minutes before, incriminating statement of wife was not admissible under adoptive admission exemption from hearsay in defendant's trial for conspiracy to commit first-degree murder, attempt to commit first-degree murder, and criminal solicitation.

Front 52

Kirk v. Raymark Industries, Inc.
(FRE 801(d)(2)(C))

Back 52

Expert witness who is not subject to control of party opponent with respect to consultation and testimony he or she is hired to give cannot be deemed “agent” of party opponent as would allow expert's statements to constitute admissions of party opponent for purposes of rule which defines such statements as nonhearsay.
*However, could be admitted under adoptive rule if it was clearly adopted as a true belief.

Front 53

Mahlandt v. Wild Canid Survival & Research Center, Inc.
(FRE 801(d)(2)(D))

Back 53

In civil action for damages arising out of an alleged attack by wolf on child, the admission against interest contained in minutes of a board meeting of the corporate defendant, a wild canid survival and research center, were admissible against that defendant under rule providing that a statement is not hearsay if it is offered against a party and is “a statement by a person authorized by him to make a statement concerning the subject”; however, there was no servant or agency relationship which justified admitting the evidence of the board minutes as against the individual defendant, a corporate employee who was keeping the wolf at his home at the time of the alleged attack.

Front 54

What are the three elements necessary to establish co-conspirators statements as non-hearsay?

Back 54

1) the declarant's statement must be intended to further the objectives of the conspiracy;
2) the declarant's statement must be made while the conspiracy is in operation; and
3) the declarant and the party against whom the statement is offered must in fact be members of the same conspiracy.

Front 55

Bourjaily v. United States
(FRE 801(d)(2)(E))

Back 55

Existence of conspiracy and defendant's participation in it was sufficiently established to permit admission of statements of coconspirator by evidence that coconspirator told undercover agent that he had a “friend” who had agreed with him to buy a kilogram of cocaine and to distribute it, that the friend would be at the hotel parking lot, and that the friend would accept cocaine from the agent's car and by evidence that defendant appeared at the hotel parking lot at the prearranged time and accepted the cocaine.

Front 56

FRE 803. Hearsay Exceptions--Regardless of Whether the Declarant is Available as a Witness. (1) Present Sense Impression.

Back 56

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Front 57

Houston Oxygen Co. v. Davis
(FRE 803(1))

Back 57

In automobile accident case, testimony relating to statement, made four miles before collision when automobile in which injured person was riding passed automobile in which witness was riding, that occupants of passing automobile must have been drunk and that they would be found on the road if speed was kept up, was not “hearsay”, was not too remote in time, and was not merely cumulative, and admissibility thereof was determinable as matter of law and not in trial court's discretion.

Front 58

City of Dallas v. Donovan
(FRE 803(2))

Back 58

Statement made by motorist on first happening upon serious intersection accident, that she had notified city of missing stop sign days prior to collision, was sufficiently “related” to startling event for evidence of statement to be admissible under “excited utterance” exception to hearsay rule.

Front 59

What are the three requirements for admission of an "excited utterance" statement?

Back 59

1) an exciting event;
2) followed by the declarant's statement that relates to it;
3) which was made under stress, before there was time for reflection and fabrication.

Front 60

FRE 803(3). Then-Existing Mental, Emotional, or Physical Condition.

Back 60

A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.

Front 61

Casualty Insurance Co. v. Salinas
(FRE 803(3))

Back 61

Statements by plaintiff of existing bodily pain need not be made to a physician in order to be admissible, although that circumstance may have some bearing upon weight given declaration by a jury, nor is it essential that expression of pain concerning which testimony is offered be of an involuntary nature such as a scream or groan or the like, and any verbal and articulate statement of complaint comes within the exceptions to the hearsay rule.

Front 62

Adkins v. Brett
(FRE 803(3))

Back 62

In an action for alienation of a wife's affections, evidence of statements made by the wife indicative of her then feelings toward her husband and the defendant and competent to prove her feelings is not rendered inadmissible because of the fact that the statements also contain material matters not provable by such evidence.

Front 63

United States v. Pheaster
(FRE 803(3))

Back 63

Under Hillmon doctrine, trial court did not err in admitting in prosecution for conspiracy to kidnap, statement by friends of victim, shortly before he disappeared forever, to effect that victim stated he was going to meet person with a name which was the same as that by which one of the defendants was known and was going to pick up a pound of free marijuana.

Front 64

Norton v. State
(FRE 803(3))

Back 64

Murder victim's statement to his wife that he intended to go to defendant's shop was admissible under state of mind exception to hearsay rule for limited purpose to show that victim intended to go to shop to help defendant and to rebut self-defense claim.

Murder victim's statement to his wife that he was going to defendant's shop because defendant had called and asked him to come stated a fact remembered; thus, statement was specifically excluded from state of mind exception to hearsay rule, and its admission, even with a limiting instruction, was reversible error since evidence destroyed possibility of self-defense theory

Front 65

FRE 803 (4). Statements made for Purposes of Medical Diagnosis of Treatment

Back 65

(4) Statement Made for Medical Diagnosis or Treatment. A statement that:

(A) is made for--and is reasonably pertinent to--medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Front 66

State v. Moen
(FRE 803(4))

Back 66

Statements which murder victim made to doctor before she was allegedly murdered by her son-in-law, explaining her extreme nervousness and depression by son-in-law's presence in her home and her fear of him, met requirements of hearsay exception for statements made for purposes of medical diagnosis or treatment, in that the statements related directly to the severe emotional distress she was suffering at the time of visit to her physician and related to the cause of her situational depression, so that the information was used to diagnose and treat the illness; fact that the continuing cause of her illness was the presence and conduct of a named individual was not a basis for excluding the statements.

Front 67

What are the three requirements for the admissibility of a "statement for purposes of medical diagnosis or treatment?"

Back 67

1) Statements must be made for purposes of medical diagnosis or treatment;

2) Must describe or relate to medical history or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source;

3) Must be reasonably related to diagnosis or treatment.

Front 68

FRE 803(5). Recorded recollection.

Back 68

(5) Recorded Recollection. A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness's memory; and
(C) accurately reflects the witness's knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Front 69

United States v. Patterson
(FRE 803(5))

Back 69

Trial court did not abuse its discretion in admitting under past recorded recollection exception witness' grand jury testimony that defendant had told him forklifts were obtained from man in California and that they had been stolen, based upon findings that matter was fresh in witness' mind when he testified before grand jury and that witness' statements to grand jury accurately reflected his knowledge at that time, although at least ten months elapsed between witness' conversation with defendant and grand jury testimony and witness admitted he was angry with defendant when he appeared before grand jury.

Front 70

FRE 803(6). Records of a Regularly Conducted Activity.

Back 70

A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Front 71

FRE 803(7). Absence of a Record of a Regularly Conducted Activity.

Back 71

Evidence that a matter is not included in a record described in paragraph (6) if:

(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.

Front 72

What are the three key factors of FRE 803(6)?

Back 72

(1) The rule requires that the record be made "in the course" of regularly conducted activity and that the entry was made as a "regular practice."
(2) The rule demands that the entry be made "at or near the time" of the event, act, or observed condition that it records.
(3) A proviso near the end of the rule permits the judge to exclude an entry that appears suspicious or untrustworthy.

Front 73

Keogh v. Commissioner of Internal Revenue
(FRE 803(6),(7).

Back 73

Fact that diary offered to show amount of tips received by card dealers at casino was kept by one of the dealers for his own use did not preclude finding that it was admissible under the business records exception to the hearsay rule as it was a record kept in the course of the dealer's own business and occupation.

Front 74

What are the four foundational elements necessary for qualifying a business record under Rule 803(6)?

Back 74

(1) the record was made and kept in the course of a regularly conducted business activity;
(2) it was the regular practice of the business activity to make the record (i.e., it is a routine record);
(3) the record was not made at or near the time of the event that if records;
(4) the record was make by, or from information transmitted by, a person with knowledge; the person with knowledge must have acted in the regular course of business, or as it is sometimes put, must have had a business duty to report.

Front 75

United States v. Baker
(FRE 803(6))

Back 75

Forms completed by intended payees of United States Treasury Checks sold by defendant did not fall within hearsay exception for records of regularly conducted activity, since intended payees were not acting in regular course of business and their statements did not fall within any other hearsay exception.

Front 76

Scheerer v. Hardee's Food Systems, Inc.
(FRE 803(6))

Back 76

Incident report of restaurant patron's slip and fall in parking lot, that was prepared by nonwitness employee of restaurant, was not admissible as business record in patron's negligence action against restaurant under Missouri law; report did not identify speaker who said that cause of accident was patron's slick shoes, and report was not made in ordinary course of business, but rather was made with knowledge that incident could result in litigation.

Front 77

FRE 803(8). Public Records.

Back 77

A record or statement of a public office if:
(A) it sets out:

(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

Front 78

FRE 803(9). Public Records of Vital Statistics.

Back 78

A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.

Front 79

FRE 803(10). Absence of a Public Record.

Back 79

Testimony--or a certification under Rule 902--that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:

(A) the record or statement does not exist; or
(B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.

Front 80

United States v. Quezada
(FRE 803(8)-(10))

Back 80

Due to lack of any motivation on part of immigration official to do other than mechanically register as an unambiguous factual matter a deported alien's departure from country, warrant of deportation, like other public documents, was inherently reliable, and thus admissible under hearsay exception for public records in subsequent criminal prosecution of deported alien for illegally reentering country, despite exclusion from public records exception of matters observed by police officers and other law enforcement personnel in criminal cases.

Front 81

Beech Aircraft Corp. v. Rainey
(FRE 803(8)-(10))

Back 81

Portions of Judge Advocate report concerning crash of military aircraft which were labeled “opinions” and which contained the author's statement as to probable cause of the crash were not inadmissible simply because they contained conclusions or opinions and, upon determination that the conclusions were trustworthy, they were admissible under public records and reports hearsay exceptions.
*Legal conclusions might be analyzed differently.

Front 82

FRE 803(18). Statements in Learned Treatises, Periodicals, or Pamphlets.

Back 82

A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

Front 83

Zwack v. State
(FRE 803(18))

Back 83

Court did not err in refusing to permit defendant to read portions of textbook of psychiatry to jury after State had rested, in connection with defendant's insanity defense, even though State's experts were familiar with book and recognized it as authoritative in field of psychiatry.

Learned treatises are to be used only in conjunction with testimony by expert witness, either on direct or cross-examination, even though authority of publication is otherwise established

Front 84

FRE 804(b)(1). Hearsay Exceptions When the Declarant is Unavailable as a Witness--Former Testimony

Back 84

The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had--or, in a civil case, whose predecessor in interest had--an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Front 85

State v. Ayers
(FRE 804(b)(1))

Back 85

In murder retrial, trial justice was entitled to discredit defendant's assertion that her newly devised plan to pursue different tactics at second trial precluded her from having a similar motive to cross-examine her husband, who was her codefendant at first trial, at both trials, and thus, inasmuch as defendant's guilt or innocence of the murder in question was the identical issue of both trials, and in view of husband's refusal to testify at second trial, husband's testimony implicating defendant in murder, given at the first trial, was properly admitted at second trial under hearsay exception for unavailability of witness and opportunity and similar motive to examine.

Front 86

Clay v. Johns-Manville Sales Corp.
(FRE 804(b)(1))

Back 86

Deposition of witness, who acquired his knowledge about asbestos disease in employment of largest asbestos manufacturer in field, who died before trial of products liability claims against another manufacturer but whose deposition was particularly relevant to extent of manufacturers' knowledge of hazards of asbestos, was admissible on retrial under “predecessor in interest” hearsay exception where defendants in prior case had similar motive in confronting witness' testimony to that which manufacturer had in current litigation.

Front 87

FRE 804(b)(2). Hearsay Exceptions When the Declarant is Unavailable as a Witness--Statement Under Belief of Impending Death

Back 87

In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.

Front 88

State v. Quintana
(FRE 804(b)(2))

Back 88

Where decedent stated that he knew he was seriously injured, that his back was broken and that he was paralyzed and decedent also stated that there was strong possibility of dying, and attorney who visited decedent stated that decedent was hooked up to several machines and was oozing blood from his nose and mouth, and where decedent died about three hours after giving statement, statement was properly admitted as dying declaration.

Front 89

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

Back 89

A statement that:

(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Front 90

Robinson v. Harkins & Co.
(FRE 804(b)(3))

Back 90

Notice of injury report filed by husband with Industrial Accident Board and inculpating statements made by husband to wife following truck-train accident were declarations against husband's pecuniary, penal, and social interests and were admissible over hearsay objection in wife's personal injury suit against husband's employer.

Front 91

Williamson v. United States
(FRE 804(b)(3))

Back 91

Exception to hearsay rule for statements against penal interest does not allow admission of nonself-inculpatory statements, even if they are made within broader narrative that is generally self-inculpatory; although term “statement” can mean either extended declaration or single remark, principle behind rule, so far as it is discernible from the text, points clearly to narrower reading, so that only those remarks within confession that are individually self-inculpatory are covered.

Front 92

United States v. Paguio
(FRE 804(b)(3))

Back 92

Statement from defendant's father, a fugitive at time of trial, to the effect that defendant had nothing to do with submission of false statements to bank to influence action on loan application should have been admitted in full under absent witness hearsay exception for statements against penal interest, and court should not have limited admission to father's self-inculpatory statements, although love may induced father to make false self-inculpatory statements, given that loan officer, escrow agent, and accountant all corroborated proposition that father, not defendant, managed entire transaction, showing that statement was trustworthy.

Front 93

FRE 804(6): Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability.

Back 93

A statement offered against a party that wrongfully caused--or acquiesced in wrongfully causing--the declarant's unavailability as a witness, and did so intending that result.

Front 94

United States v. Aguiar
(FRE 804(6))

Back 94

Defendant's due process rights were not violated by admission of corroborated hearsay statements of individual who reneged on agreement to cooperate with prosecution, where defendant procured absence of witness at the trial by sending threatening letters.

Front 95

FRE 807: Residual Exception

Back 95

A statement that is not covered by 803 or 804, is not excluded by the hearsay rule if certain conditions are met:

(1) circumstantial guarantees of trustworthiness equivalent to the specific exceptions;
(2) probative forces exceeding that of other evidence on the same point that the proponent could secure through reasonable efforts; and
(3) notice to the adverse party of intent to offer a hearsay statement under this exception.

Front 96

Hicks v. Pfizer
(FRE 807)

Back 96

In products liability action by polio vaccine recipient against a vaccine manufacturer, alleging that vaccine caused a brain tumor, statements in 43-year-old newspaper articles linking manufacturer with batches of vaccine that included doses recipient ingested evinced particularized guarantees of trustworthiness, as required for articles' admission under residual hearsay exception; statements were made before motive to fabricate arose, any other drug company that actually supplied vaccine would have had motive to correct inaccurate public statements, four articles by at least two different authors in two newspapers identified manufacturer as manufacturer of doses distributed to project in which recipient participated, and articles were nearly contemporaneous with events in question.

Front 97

Confrontation Clause of the 6th Amendment

Back 97

"In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him."

If the statement is testimonial, the 6th amendment requires that the witness be unavailable and have a propr opportunity to cross examine in order for the statement to be admissible.

Front 98

Crawford v. Washington
(6th Amendment)

Back 98

Admission of wife's out-of-court statements to police officers, regarding incident in which defendant, her husband, allegedly stabbed victim, violated the Confrontation Clause, regardless of whether statements were deemed reliable by court, where statements were testimonial and defendant was not given prior opportunity to cross-examine wife

Front 99

What is testimony?

Back 99

A solemn declaration or affirmation made for the purpose of establishing or proving some fact.

Front 100

Davis v. Washington
(6th Amendment)

Back 100

Statements made by domestic abuse victim in response to 911 operator's questions while defendant was allegedly inside victim's home in violation of no-contact order, in which victim identified her assailant, were not “testimonial” and, therefore, were not subject to Confrontation Clause; victim was speaking about events as they were actually happening, rather than describing past events, and primary purpose of 911 operator's interrogation was to enable police assistance to meet ongoing emergency caused by physical threat to victim.

Front 101

When are statements taken by police officers "testimonial" and "nontestimonial"?

Back 101

Statements taken by police officers in the course of interrogation are “testimonial,” and subject to the Confrontation Clause, when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Statements taken by police officers in the course of an interrogation are “nontestimonial,” and not subject to the Confrontation Clause, when they are made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.

Front 102

Bullcoming v. New Mexico
(6th Amendment)

Back 102

Introduction of blood-alcohol analysis report, wherein a forensic analyst certified that defendant's blood-alcohol concentration was well above the threshold for aggravated driving while intoxicated (DWI) under New Mexico law, through the surrogate testimony of a second analyst, who had not certified the report or performed or observed the testing, violated the Confrontation Clause; testifying analyst could neither convey what the certifying analyst knew or observed about the particular test and testing process he employed, nor expose any lapses or lies by the certifying analyst, and testifying analyst had no knowledge of the reason why certifying analyst had been placed on unpaid leave.

Front 103

What does FRE 103(a)(1) require?

Back 103

FRE 103(a)(1) requires a party to make a timely objection. This promotes judicial economy by enhancing the trial court's ability to remedy the asserted error. If a party fails to object in a timely fashion, the objection is waived and the standard of review for the admission of evidence is only for plain error.

Front 104

Virgin Islands v. Archibald
(FRE 103(a)(1))

Back 104

Where question that is unobjectionable elicits objectionable reply, or previously admitted testimony becomes objectionable only in light of subsequent testimony, grounds for objection are not known until after objectionable testimony is given, and “after-objection” may be interposed when grounds become apparent.

Front 105

McEwen v. Texas & Pacific Railway
(FRE 103(a)(1))

Back 105

In action for injuries to passenger as she was alighting from train, objections to evidence that passenger was fond of playing bridge, on ground that such evidence was immaterial and could not have any bearing on extent of passenger's injuries, held properly overruled as general objection and not including objection that evidence was prejudicial.

General objection to evidence, which does not definitely and specifically state grounds on which it is based, is insufficient except where ground of objection is so manifest that trial court could not fail to understand it, is of such nature that it could not have been obviated, or where evidence offered is clearly irrelevant and incompetent.

Front 106

Padilla v. State
(FRE 103(a)(2),(b))

Back 106

Issue of whether trial court erred in sustaining State's objection to defense counsel's attempt to impeach victim by allegedly inconsistent statement given at preliminary hearing without furnishing victim a copy of transcript of the prior hearing was not properly preserved for appeal where defendant failed to make an offer of substance of evidence proposed to be presented and advised the court that transcript reflecting same did not exist in a suitable or admissible form.

In addition to insuring that the record will be sufficiently detailed to permit appraisal by an appellate court of scope and effect of evidentiary ruling, offer of proof serves function of calling nature of the error to the attention to the judge so as to alert him to proper course of action and enable opposing counsel to take proper corrective measures.

Front 107

What is the "doctrine of completeness"?

Back 107

Under the doctrine of completeness, another writing or tape recording is required to be read or heard if it is necessary to:
(1) explain the admitted portion,
(2) place the admitted portion in context,
(3) avoid misleading the trier of fact, or
(4) insure a fair and impartial understanding.

Front 108

United States v. Sweiss
(FRE 106)

Back 108

Refusal to admit first of two tape-recorded conversations between defendant and key prosecution witness, offered to explain defendant's later statements contained in recording admitted at trial, was not abuse of trial court's discretion at time first tape was offered, before prosecution focused on portion of admitted tape as key evidence against defendant, where defense counsel failed to make focused and specific request outlining relevant portions of earlier conversation, or to even hint that tape was admissible under rule of completeness, particularly where defendant testified and thus, had chance to explain his statements.

Front 109

What is the doctrine of "opening the door"?

Back 109

Doctrine of “opening the door,” sometimes referred to as “curative admissibility,” provides that when one party introduces inadmissible evidence, the opposing party thereafter may introduce otherwise inadmissible evidence to rebut or explain prior evidence.

Front 110

Government of the Virgin Islands v. Archibald
(Curative Admissibility)

Back 110

Defendant, by questioning victim's mother on cross-examination as to whether she had ever seen defendant and victim alone and whether she had overheard any conversations between victim and her sister regarding defendant, did not “open the door” to mother's hearsay testimony on redirect examination that victim's sister had told her that defendant and victim were kissing while dancing at a party; mother's testimony on cross-examination was not inadmissible, either as hearsay or for any other reason.

Front 111

United States v. Odom
(FRE 601)

Back 111

In prosecution for mail fraud arising out of fraudulent absentee voting scheme involving nursing home residents in which competency of the residents to exercise what defendants characterized as a “voluntary or informed choice” was a most important factual issue, trial judge did not error. The court will decide not competency but minimum credibility. Feebleness of mind nor insanity render a witness incompetent or disqualified.

Only grounds for disqualifying a party as a witness are that the witness does not have knowledge of the matters about which he is to testify, that he does not have the capacity to recall, or that he does not understand the duty to testify truthfully.

Front 112

Capps v. Commonwealth
(FRE 601)

Back 112

Trial court in sodomy prosecution did not err in permitting prosecutrix, a five and one-half-year-old child, to testify.

Front 113

Farley v. Collins
(Dead Man's Statutes)

Back 113

A collision between a motorist and driver of a motorcycle did not constitute a “transaction,” between surviving driver of the motorcycle and deceased motorist, within the Dead Man's Statute, and testimony of surviving driver as to his observations and as to physical situation and movements of the vehicles prior to and at the time of the accident were admissible.
The auto accident was an involuntary and fortuitous collision, not a knowing exchange of reciprocal acts.

Front 114

Kemp v. Balboa
(FRE 602)

Back 114

Lay witness, offered to rebut inmate's claim that he was dependent on epilepsy medication, could not properly testify that inmate had failed to pick up medication from infirmary on dates on which witness was not on duty; testimony was not based upon witness' personal knowledge, but upon what she had read in medical records which were not themselves introduced in evidence.

Front 115

Wilson v. Vermont Castings, Inc.
(FRE 606)

Back 115

New trial was not warranted based on juror's statements to other jurors that, as owner of woodburning stove made by manufacturer being sued in strict products liability by owner who was injured while operating stove, she, like plaintiff, had to leave stove door open to start fire and intended to continue this practice even if there was warning and despite what she learned at trial, inasmuch as statement was opinion as to effect of her consideration of her own stove manual, which was extraneous information, and such information was relevant only to issue of defect, on which plaintiff prevailed.

Front 116

What are the 5 methods of impeachment?

Back 116

(1) Evidence that the witness has made a prior inconsistent statement;
(2) Evidence that the witness has a bias or interest, either legitimate or corrupt, relating to one or more of the parties or to the outcome of the case;
(3) Evidence that the witness has a bad character for truthfulness, as shown by previous conviction of a crime, or other misconduct, or by reputation or opinion evidence as to character;
(4) Evidence of a defect of capacity of the witness to observe, to remember, or to relate;
(5) Evidence that any matter in the witness' testimony is false--called contradiction or specific contradiction of the witness.

Front 117

State v. Hines
(FRE 613)

Back 117

A prior omission to state a fact will constitute an inconsistency sufficient to discredit a witness only where it was made under circumstances rendering it incumbent on the witness to, or be likely to, state such a fact.

Failure of alibi witness, during course of earlier interview with prosecutor, to refer to telephone call from defendant earlier in evening in question, to the initial appearance of defendant at his parents' home where witness was at that time, and to her observation of her brothers outside home of defendant's parents constituted proper grounds for impeachment where witness knew that prosecutor wanted her to tell him everything she knew about defendant's activities that day.

Front 118

United States v. Harvey
(Bias or Interest)

Back 118

Trial court, in prosecution for bank robbery and bank larceny, erred reversibly by excluding testimony proffered by defendant as to possible bias on part of Government's chief identification witness where sufficient foundation was laid for such impeachment testimony, where there was no indication in record that testimony posed realistic possibility of confusion or prejudice or would have caused a significant delay in proceedings, and where reviewing court was not convinced that identification witness' testimony was insignificant part of case against defendant.

Front 119

What is the five-part balancing test for determining whether the probative value of a prior conviction outweighs its prejudicial effect under FRE 609?

Back 119

(1) The impeachment value of the prior crime.
(2) The point in time of the conviction and the witness's subsequent history.
(3) The similarity between the past crime and the charged crime.
(4) The importance of the defendant's testimony.
(5) The centrality of the credibility issue.

Front 120

United States v. TSE
(FRE 609)

Back 120

A court may exclude a prior conviction of the accused, offered for the purpose of impeachment, if the prejudicial effect of the conviction merely outweighs its probative value; the court may exclude a conviction of a government witness, offered by the accused for the purpose of impeachment, only if the danger of unfair prejudice from the conviction substantially outweighs its probative value.

Front 121

United States v. Brackeen
(FRE 609(a)(2))

Back 121

Bank robbery is not per se crime of “dishonesty” for purposes of rule allowing impeachment of witness by evidence that he or she has been convicted of crime involving dishonesty or false statement.

Front 122

Gustafson v. State
(FRE 608(b))

Back 122

Permitting questioning in regard to a defendant's previous misconduct of theft, unrelated to convictions in a criminal proceeding is conditioned on questioner having credible knowledge that the misconduct has occurred, on the probative value of the question outweighing its prejudicial effect and on the misconduct relating to truthfulness or untruthfulness and that character trait.

Front 123

Smith v. State
(FRE 608(b))

Back 123

Before evidence of prosecutrix' prior false accusations can be admitted to attack credibility of prosecutrix in sex offense case, trial court must make a threshold determination outside presence of jury that reasonable probability of falsity exists.

Evidence of prior false acusations was admissible to attack the credibility of the victim and as substantive evidence tending to prove that the instant offense did not occur. The evidence does not involve the victim's past sexual conduct but rather the victim's propensity to make false statements regarding sexual misconduct.

Front 124

United States v. Lollar
(FRE 608(a))

Back 124

While it may be more desirable to have counsel first ask impeaching witness about his knowledge of defendant's reputation for truth and veracity, and whether based on that knowledge he would believe defendant under oath, no such requirement is imposed by rule, and thus district court acted within its discretion in allowing government witness to offer his opinion as to whether he would believe defendant under oath after defendant testified at trial

Front 125

United States v. Medical Therapy Sciences, Inc.
(FRE 608(a))

Back 125

Where the Government's direct questioning of its witness merely established that witness had left defendant's employ to establish a competing business, that defendant accused her of taking money from him, which she denied, and that witness had two prior convictions for obtaining amphetamines by fraudulent practices, and where the defense on cross-examination included sharp questioning about the prior convictions which were predicated on activities characterized as fraudulent, and attacked character of witness by “specific act” evidence to effect that she had embezzled money and stolen patients from defendant's company, it was within the discretion of the trial court to permit rehabilitating character evidence.

Front 126

United States v. Lindstrom
(6th Amendment)

Back 126

It was reversible error to deny defendants access to psychiatric materials suggesting that key prosecution witness, who assertedly was carrying out a vendetta against defendants, was suffering from ongoing mental illness which caused her to misperceive and misinterpret words and actions of others and which might seriously affect her ability to know, comprehend and relate the truth, and objections of cumulativeness and remoteness were insubstantial.

Front 127

When is a matter collateral?

Back 127

One test is whether the fact is independently provable. If the fact is independently provable it is not collateral. Generally two types of facts meet this test:
(1) those that are relevant to the substantive issue in the case; or,
(2) those facts that show bias, interest, conviction of a crime, want of capacity, opportunity, or knowledge of the witness.

Front 128

Kellensworth v. State

Back 128

In prosecution for rape and burglary, testimony of defendant's mother that defendant “worshipped” his former wife and child was “collateral” and even if not “collateral,” trial court was wrong in permitting State to disprove general statement by calling defendant's former wife to tell jury of specific acts of misconduct.

Front 129

United States v Webster
(FRE 607)

Back 129

It would be an abuse of Federal Rule of Evidence providing that credibility of a witness may be attacked by any party, including party calling him, for prosecution to call witness that it knew would not give useful evidence, just so it could introduce hearsay evidence against defendant in hope that jury would miss subtle distinction between impeachment and substantive evidence or would ignore it; in such a case, purpose would not be to impeach witness but to put in hearsay as substantive evidence against defendant, which Rule does not contemplate or authorize.

Front 130

United States v. Garcia
(6th Amendment)

Back 130

Child Victims' and Child Witnesses' Rights statute did not violate confrontation clause by allowing child abuse victim to testify via two-way closed circuit television if child was unable to testify out of fear; statute codified judicial requirement that child be unable to testify in open court due to presence of defendant, rather than authorizing closed circuit testimony merely if victim was afraid of courtroom surroundings.

Front 131

Lis v. Robert Packer Hospital
(FRE 611(b))

Back 131

Fact that trial court apparently failed to exercise discretion in permitting cross-examination to exceed scope of direct examination, did not require reversal where appellants failed to demonstrate that they were visited with such prejudice as to entitle them to a new trial, but in the future it may be that a showing of prejudice will not be necessary where trial court has failed to exercise an informed discretion

Front 132

Lawrence v. State
(FRE 611(c))

Back 132

Where objection to question to state's witness, “Did you buy approximately eleven hundred ninety-nine pounds of metal,” was sustained and jury was instructed not to consider leading question for any purpose, overruling of objection to question as to amount of metal purchased was not abuse of discretion and in any event was not reversible error since witness later testified without objection to substantially the same facts.

Front 133

United States v. Riccardi
(FRE 612)

Back 133

With respect to refreshment of recollection of witness, “past recollection recorded” is distinguished from “present recollection revived” in that in former case, witness cannot directly state facts from present memory and must ask court to accept a writing for the truth of the contents because he is willing to swear that its contents are true, while in the latter case the witness, having revived his memory, is able to testify from present knowledge.

Front 134

S&A Painting Co. v. O.W.B. Corp.
(FRE 612)

Back 134

Deposition witness, by referring to his notes during deposition, waived attorney-client privilege and work-product protection, but only as to those portions of the notes to which reference was made; unexamined portions of the documents, otherwise privileged, did not have to be disclosed.

Front 135

United States v. Richardson

Back 135

Juror questions should be permitted to clarify factual issues when necessary, especially in complex cases; however, questioning procedure should not be used to test legal theories, to fill in perceived gaps in case, or occur so repeatedly that they usurp function of lawyer or judge, or go beyond jury's role as fact finder.

Front 136

When is a lay witness's opinion allowed under FRE 701?

Back 136

A lay witness's opinion is allowed only if it is:
(1) rationally related on the perception of the witness,
(2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and
(3) not based on scientific, technical, or other specialized knowledge within the scope of FRE 702.

Front 137

Virgin Islands v. Knight
(FRE 701)

Back 137

Eyewitness' lay opinion that defendant fired gun accidentally should not have been excluded since opinion was based on eyewitness' firsthand knowledge and was helpful to jury; although eyewitness described circumstances that led to his opinion, it was difficult to articulate all of the factors that led him to conclude that defendant did not intend to fire gun and therefore, eyewitness' opinion that gunshot was accidental would have permitted him to relate facts with greater clarity and hence, would have aided jury.

Front 138

United States v. Montas
(FRE 702)

Back 138

Expert testimony that airline drug smugglers often check their bags and buy their tickets under false names to avoid detection was not required to allow average juror to intelligently assess whether inference of guilt could be drawn from defendant's traveling under assumed name.

Admission of expert testimony that airline drug smugglers check their bags and buy their tickets under false names to avoid detection, although possibly improper, did not amount to plain error.

Front 139

United States v. Paul
(FRE 702)

Back 139

District court did not abuse its discretion in excluding law professor's testimony critical of field of handwriting analysis from extortion trial under expert testimony rule, notwithstanding defendant's argument that professor's testimony was critical for jury to understand limitations of testimony of handwriting expert; although professor had authored article critical of handwriting analysis, he had no skill, experience, training, or education in that field.

Front 140

What are the Daubert considerations the judge must use to determine scientific validity in performing his gatekeeping function?

Back 140

(1) Whether the technique has been subjected to peer review or publication.
(2) The techniques known or potential rate of error.
(3) The techniques testability.
(4) Whether the technique has widespread acceptance and not mere "minimal support" in the field.

Front 141

What is the Daubert Test?

Back 141

First, we must detemine nothing less than whether the experts' testimony reflects "scientific knowledge," whether their findings are derived by the scientific method, and whether their work product amounts to good science.

Second, we must ensure that the proposed expert testimony is "relevant to the task at hand," i.e., that it logically advances a material aspect of the proposing party's case. The Supreme Court referred to this prong as the "fit" requirement in the analysis.

Front 142

Kumho Tire Company, Ltd. v. Carmichael
(FRE 702)

Back 142

Daubert's “gatekeeping” obligation, requiring an inquiry into both relevance and reliability, applies not only to “scientific” testimony, but to all expert testimony.

Front 143

Arkansas State Highway Commission v. Schell
(FRE 703)

Back 143

An expert may base his opinion on facts learned from others despite their being hearsay.
When an expert's testimony is based on hearsay, lack of personal knowledge on part of the expert does not mandate exclusion of the opinion but, rather, presents a jury question as to weight which should be assigned the opinion

Front 144

Torres v. County of Oakland
(FRE 704)

Back 144

Testimony of witness who had taken part in selection of person to fill new supervisory position as to whether she believed that county employee had been discriminated against because of her national origin in the interview process contained a legal conclusion and was inadmissible in employment discrimination action; however, error in admitting testimony was harmless where error involved only brief question out of lengthy trial and employee admitted, upon being impeached by her deposition testimony, that she had previously stated she did not feel that she had been discriminated against during interview process.

Front 145

United States v. Thigpen
(FRE 704)

Back 145

Expert testimony as to whether schizophrenia implied that victim of it would be unable to appreciate nature and quality of his acts concerned general effect of schizophrenic disorder, explained disease and its typical effect, and, therefore, was admissible.

Expert testimony concerning nature of defendant's mental disease or defect, including typical effect on person's mental state, is admissible.

Front 146

United States v. Johnson
(FRE 901(a))

Back 146

In prosecution for assault, in view of testimony that witness was “pretty sure” that ax offered in court was weapon which defendant had used against him, that he saw such ax in defendant's hand and that he was personally familiar with particular ax because he had used it in past, jurors could find that ax was used in assault, and ax was admissible, and witness' ability or inability to specify particular identifying features of ax as well as evidence of allegedly changed condition of ax should have gone to question of weight, as trial court ruled.

Front 147

United States v. Mangan
(FRE 901)

Back 147

Although no one testified that body of defendant's federal income returns and forms in his personnel file were prepared by defendant, such forms were sufficiently authenticated to be used as exemplars of defendant's handwriting where defendant advanced no explanation as to who else could have written material in his personnel files and handwriting expert testified that block lettering on such files was penned by the same person as penned the block lettering in the income tax returns, which block lettering also appeared in the fictitious returns at issue.

Front 148

United States v. Vitale
(FRE 901(b)(6))

Back 148

Where witness testified that he had spoken with defendant personally on two occasions and could identify her voice, there was sufficient foundation for witness' testimony that he had spoken to defendant on the phone.

Front 149

Fisher v. State
(FRE 901)

Back 149

Videotapes depicting defendant removing allegedly unpaid for groceries from back door of store were admissible, in theft prosecution, as substantive evidence under the “silent witness” theory in view of manager's testimony regarding contents of tapes, working order of camera, lack of gaps on tape, lack of ability to turn off camera without being photographed and his continuous custody of tapes.

Front 150

Smith v. Ohio Oil Co.
(Illustrative Evidence & FRE 901)

Back 150

“Demonstrative evidence,” such as model map, or X-ray, is distinguished from “real evidence” in that it has no probative value in itself, but serves merely as visual aid to jury in comprehending verbal testimony of witness.

Use of demonstrative evidence is usually left to the discretion of trial court, and expressions of disapproval are generally based on irrelevance, or that the model or picture is misleading or not explanatory.

Front 151

FRE 1002: Requirement of Original (Best Evidence Rule)

Back 151

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

Front 152

United States v. Duffy
(FRE 1002)

Back 152

Testimony of local police officer and an FBI agent that trunk of stolen automobile contained two suitcases and that a white shirt imprinted with a laundry mark containing first three letters of defendant's last name was found inside one of suitcases was admissible, in prosecution for knowingly transporting a stolen motor vehicle in interstate commerce, over objection that shirt itself should have been produced as best evidence, where shirt was not, under ordinary understanding, a writing and was not, therefore, governed by best evidence rule, and where “writing” on shirt was simple, with little danger that witnesses would inaccurately remember terms of “writing,” and was by no means central or critical to case against defendant.

Front 153

United States v. Gonzales-Benitez
(FRE 1002)

Back 153

The “best evidence” rule does not set up an order of preferred admissibility which must be followed in order to prove any fact but is rather applicable only when one seeks to prove the contents of documents or recordings.

Where content of tape recordings was not in itself a factual issue relevant to narcotics prosecution and relevant inquiry concerned content of conversations which were recorded, testimony of participants was admissible and sufficient to establish what was said, despite contention that since conversations were tape recorded, tapes should have been introduced.

Front 154

United States v. Rangel
(FRE 1001(3) & 1003)

Back 154

Where photocopies of charge card customer receipts, and not receipts themselves, had been submitted to United States EPA by employee requesting reimbursement for lodging costs incurred in conjunction with three business trips, and thus Government, in prosecution for knowingly and fraudulently demanding that a debt due from United States be paid by virtue of a false instrument, had to prove contents of photocopies rather than of altered receipts themselves, photocopies were admitted as originals, and were not inadmissible on theory that they were not “original” altered receipts and therefore did not constitute “best evidence.”

Front 155

Neville Construction Co. v. Cook Paint & Varnish Co.
(FRE 1004)

Back 155

In breach of warranty action brought by buyer of insulation against manufacturer to recover property loss suffered as a result of fire on buyer's premises, trial court did not err in permitting buyer to testify regarding contents of manufacturer's brochure describing fire retardant characteristics of the insulation, since the brochure itself had been destroyed in the fire, and defendant had successfully objected to admission of a similar brochure because it had not been included on pretrial exhibit list, and defendant could not complain that the excluded document provided the only proper evidence of contents of brochure destroyed in fire.

Front 156

United States v. Marcantoni
(FRE 1004)

Back 156

In bank robbery prosecution in which officer had observed in defendants' home two bills with serial numbers the same as bills used by bank as bait money but in which bills were not found when officers returned with warrant to conduct search and seizure, district court would have been authorized to find that testimony of officer concerning the serial numbers was admissible as secondary evidence on several grounds; the Government was not required to go through the motion of having subpoena issued, served and returned unexecuted in order to establish that the bills were unobtainable.

Front 157

Farr v. Zoning Board of Appeals of Town of Manchester
(FRE 1002 & 1004)

Back 157

The best evidence rule applies when issue of title or ownership is directly involved, but when it is collaterally involved, a prima facie right of ownership may be established by parol evidence from one qualified to speak.

Front 158

Englund v. State
(FRE 1005)

Back 158

Facsimile transmission (fax) of certified copy of judgment in another case was admissible in lieu of certified copy that was source document for facsimile transmission; accuracy of reproduction process allayed fears about mechanical or human error, potential for fraud was minimized because source of transmission was same as source of certified copy, and investigation would have enabled counsel to discover whether there was judgment in public record against defendant.

Front 159

United States v. Bakker
(FRE 1006)

Back 159

Composite videotape showing defendant's attempts to solicit funds during his television evangelism programs was admissible, even if more than 200 hours of original tapes had not been introduced into evidence; defense counsel had access to original broadcast tapes at least six months before trial, and requiring formal introduction of voluminous tapes would have served no useful purpose.

Possibility that composite tape showing defendant's solicitations for money during his television evangelism programming was unrepresentative of broadcasts went to weight, not admissibility of composite tape.

Front 160

Seiler v. Lucasfilm, Ltd.
(FRE 1008)

Back 160

Whether artist's reconstructions of copyrighted designs accurately reflected originals was question for jury, but only after trial court first determined, for purposes of copyright infringement action, that originals had been lost or destroyed through no fault of artist, and that reconstructions were admissible under best evidence rule.

Front 161

Trammel v. United States
(Spousal Privilege)

Back 161

Apart from confidential communications, witness spouse alone has privilege to refuse to testify adversely and may be neither compelled to testify nor foreclosed from testifying.

Front 162

Stafford v. State
(Spousal Privilege)

Back 162

Testimony of witness who accidentally overheard conversation between defendant and wife was properly admitted, despite fact that conversation was intended to be confidential.

Irrespective of whether communications between husband and wife are intended to be confidential, third persons may testify as to conversations overheard, whether accidentally or by design.

Front 163

Constancio v. State
(Spousal Privilege)

Back 163

Testimony of defendant's former wife concerning defendant's sexual behavior during marriage was admissible in prosecution for rape despite claim of spousal privilege since privilege was limited to expressions intended by one spouse to convey meaning or message to other.

Front 164

State v. Maxon
(Parent-Child & Testimonial Privilege)

Back 164

There is no privilege for parent-child communications.

There are four conditions which must be satisfied before privilege will be established at common law: the communications must originate in confidence that they will not be disclosed; this element of confidentiality must be essential to the full and satisfactory maintenance of relation between the parties; relation must be one which, in the opinion of the community, ought to be sedulously fostered; and the injury to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

Front 165

What is the core objective of the attorney-client privilege?

Back 165

To promote full and candid confidential communications between client and attorney so as to facilitate the rendition of legal services.

Front 166

In re Grand Jury Subpoenas (Anderson)
(Attorney-Client Privilege)

Back 166

Identity of an attorney's client and source of payment for legal fees are not normally protected by attorney-client privilege.

Front 167

United States v. Kendrick
(Attorney-Client Privilege)

Back 167

Communications made in confidence by client to his attorney are protected by attorney-client privilege, but it is substance of communications which is protected, and not fact of communication.

Front 168

Clutchette v. Rushen
(Attorney-Client Privilege)

Back 168

Right to counsel does not embrace right to sequester critical evidence in possession of one's attorney.

Front 169

Upjohn Co. v. United States
(Attorney-Client Privilege & Work-Product)

Back 169

Where communications at issue were made by corporate employees to counsel for corporation acting as such, at direction of corporate superiors in order to secure legal advice from counsel, and employees were aware that they were being questioned so that corporation could obtain legal advice, such communications, consistently with underlying purposes of attorney-client privilege, were protected against compelled disclosure.

Attorney-client privilege only protects disclosure of communications, and it does not protect disclosure of underlying facts by those who communicated with attorney.

Front 170

United States v. Schwimmer
(Joint Defense Privilege)

Back 170

Protection afforded by attorney-client privilege extends to communications made in confidence to accountant assisting lawyers who are conducting joint defense on behalf of communicating clients.

"Common interest rule” serves to protect confidentiality of communications passing from one party to attorney for another party where joint defense effort or strategy has been decided upon and undertaken by parties and their respective counsels; only those communications made in course of ongoing common enterprise and intended to further enterprise are protected.

Front 171

Clark v. State
(Eavesdroppers)

Back 171

The rule pertaining to privileged communications between attorney and client does not extend to testimony as to telephone conversation between attorney and client which has been overheard by a third-party witness.

Front 172

Caldwell v. District Court of Denver
(Crime-Fraud Exception)

Back 172

Exception to attorney-client privilege for communications between a client and his attorney which are made for the purpose of aiding the commission of a future crime or a present continuing crime extends to civil fraud.

Front 173

In Re Von Bulow
(Waiver)

Back 173

Client who acquiesced in attorney's publication of book regarding prior representation, and who subsequently joined with attorney in actively promoting sales of book, was deemed to have waived attorney-client privilege as to any confidential communications disclosed in book.

Front 174

Jaffee v. Redmond
(Psychotherapist-Patient Privilege)

Back 174

Under federal psychotherapist privilege, statements that defendant police officer made to licensed social worker in course of psychotherapy, and notes taken during their counseling sessions, were protected from compelled disclosure in federal civil action brought by family of suspect whom officer shot and killed.

deral law recognizes privilege protecting confidential communications between psychotherapist and her patient; psychotherapist privilege serves public interest by facilitating provision of appropriate treatment for individuals suffering effects of mental or emotional problem, and if privilege were rejected, confidential conversations between psychotherapists and their patients would surely be chilled.

Front 175

What is the difference between a presumption and an inference?

Back 175

A genuine presumption is raised by a basic fact or facts that, when accepted as true by the trier of fact, give rise to a mandatory inference, properly called a presumed fact. That is, once the basic fact or facts are estabished, the resulting presumed fact must be accepted by the trier unless it is rebutted by contravening evidence.

An inference never has such a compulsory effect. The trier is always at liberty to either accept or reject an inferred fact.